From Norm Violations to Norm Development: Deviance, International Institutions, and the Torture Prohibition

Abstract

AbstractHow do violations affect international norms? This article demonstrates that violations develop norms by analyzing how international institutions determine the meaning of deviant behavior and the breached norm. Decisions by courts, ad hoc tribunals, commissions of inquiry, and expert committees influence formal and informal lawmaking and drive the contested and often ambiguous development of international norms. To illustrate the impact of these norm applications and lawmaking efforts, the article compares two institutions with different mandates to oversee the international torture prohibition. In the 1960s and 1970s, the European human rights institutions defined torture for human rights law and found that Greece and the United Kingdom had violated the torture prohibition, but created ambiguity regarding the threshold of torture. In 1984, the UN Convention against Torture (CAT) adopted this definition, which was informed by earlier norm violations. In the 1990s and early 2000s, the UN Committee against Torture (CmAT) applied the torture prohibition to interrogation techniques used by Israel and the United States in counterterrorism operations. CmAT’s decisions that both countries had deviated from the norm led to General Comment No. 2 on CAT, which reaffirmed and specified the absolute and non-derogable nature of the torture prohibition.