because the punishment has been authorised in a procedurally legitimate
manner, i.e. through the sanction of legislation, administrative rules, or judicial
order. “To accept this view would be to accept that any physical punishment, no
matter how torturous and cruel, can be considered lawful, as long as the punishment had been duly promulgated under the domestic law of a State.
Punishment is, after all, one of the prohibited purposes of torture.” 64
Minimum standard
§ 2. This paragraph makes it clear that the definition of torture in no way affects
the protection which can be derived from other international instruments or
from national legislation of wider application. In other words, insofar as other
international instruments or national laws give the individual better protection,
he or she is entitled to benefit from it; however, other international instruments
or national law can never restrict the protection which the individual enjoys
under the Convention.
II. INDIVIDUAL ANALYSIS OF ARTICLES 1–16 OF THE CONVENTION
2. ANALYSIS OF SUBSTANTIVE PROVISIONS
Article 2
30
1. Each State Party shall take effective legislative, administrative, judicial or
other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a
threat of war, internal political instability or any other public emergency,
may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked
as a justification of torture.
Features: Prevention, non-derogability, no justification on the basis of
superior orders
Interpretation
§ 1. This paragraph imposes a general, but basic obligation on States Parties to
take effective measures to prevent torture. The character of these measures
is left to the discretion of the States concerned, but it includes making whatever
changes are necessary in order to harmonise their internal order with international standards on prevention.
The Article raises the question of whether States are required to adopt these
measures before or upon ratification, or whether they are allowed a certain
period of time during which they may invoke their national law against the
Convention. The question was not discussed in the preparatory work, and therefore must be answered by reference to State practice and general principles of
international law.65
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