The judicial use of international and foreign law in death penalty cases: A poisoned chalice?

• Pages: 161-194
• DOI: https://doi.org/10.1016/S1059-4337(07)00406-1
• Published date: 18 January 2008
• Date: 18 January 2008
• Author: Bharat Malkani

THE JUDICIAL USE OF

INTERNATIONAL AND FOREIGN

LAW IN DEATH PENALTY CASES:

A POISONED CHALICE?

Bharat Malkani

ABSTRACT

This chapter addresses the possible consequences of the United States

Supreme Court’s increasing attention to international and foreign human

rights law in its death penalty jurisprudence, particularly with respect to

the Eighth Amendment. I question the belief of those commentators who

argue that such attention might assist with efforts to abolish the death

penalty in the United States, and argue instead that the perceived threat

to state sovereignty that the invocation of international and foreign

human rights law poses might result in attempts to retain the death

penalty as a means of reasserting state autonomy.

INTRODUCTION

The United States Supreme Court’s invocation of (a) international human

rights law and (b) the laws and practices of foreign countries in its death

Special Issue: Is the Death Penalty Dying?

Studies in Law, Politics, and Society, Volume 42, 161–194

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ISSN: 1059-4337/doi:10.1016/S1059-4337(07)00406-1

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penalty jurisprudence has been both celebrated (Koh, 2002;Steiker, 2006)

and criticised (Alford, 2004;Rothenberg, 2004). Rather than add to this

normative debate, this chapter examines the possible consequences of this

judicial enterprise, which I term: the judicial domestication of external death

penalty norms. Ultimately, I argue that the Court’s current method of

judicial domestication may actually result in a strengthening of the retention

of the death penalty in America, contrary to the arguments put forward by

those who hope that international and foreign norms will assist with efforts

to abolish the death penalty (Koh, 2002, p. 1130).

My argument rests on the following line of reasoning. First, I show that

the hopes of such abolitionists are misplaced, because there is not yet

a suff‌icient international consensus that can lead to the identif‌ication of

an abolition norm in international and foreign law. Rather, I argue, the

regulation norm in international and foreign law is stronger. By regulation

norm, I mean the norm that accepts the legality of the death penalty,

but demands that its imposition is regulated and is subject to certain

limitations. Second, I apply this understanding of the worldwide status

of the death penalty to an analysis of how the Supreme Court actually uses

external norms in its Eighth Amendment jurisprudence.

1

I show that the

Court only uses external norms that are considerably strong, and only

cites them after considering (a) American standards of decency, as evidenced

by the laws and practices of individual states and (b) the Court’s

independent proportionality analysis. External norms are only used in

aweak manner, in order to conf‌irm the reasonableness of an American

consensus and the Court’s own determination. With this in mind, the

third part of this chapter illustrates the potential consequences of this

state of affairs. Those who criticise the Court for embarking on the

enterprise of judicial domestication have argued that the invocation of

external norms into the domestic legal order, by an unelected and

unaccountable judiciary, poses a threat to sovereignty and democracy,

and represents an affront to states’ rights under federalism. While

abolitionists struggle to convince a reluctant Court to consider a weak

abolition norm, those who fear and criticise judicial domestication are

in a stronger position to consolidate the death penalty as a means of

reasserting state autonomy. And, given the primacy attached to the laws

and practices of individual states in its Eighth Amendment analysis, it is

submitted that the Court will therefore not f‌ind the death penalty to

violate ‘‘evolving standards of decency’’ (Trop v. Dulles, 1958, at 101),

as determined by reference to the laws and practices of the individual

states in America.

BHARAT MALKANI162

THE STATUS OF THE DEATH

PENALTY WORLDWIDE

The issue of the death penalty is addressed in the international legal system

and in the various domestic legal orders across the world. Some instruments

of international law, and some domestic laws, invoke the abolition of the

death penalty, while other instruments of international law and domestic

laws allow for its retention, but seek to regulate its imposition. In other

words, it can be said that a particular legal order gives predominant strength

either to a norm that espouses abolition or to a norm that espouses

regulation. The following examines the relative strength of each norm in

non-U.S. legal orders. As such, I will consider the status of the death penalty

in (a) the international legal system and (b) domestic legal orders.

The Death Penalty in Public International Law

It is well established that, under Article 38 of the Statute of the International

Court of Justice, there are two primary sources of public international law –

treaty law and custom (Dixon, 2000). Therefore, it needs to be determined

what treaty law and custom say about abolition and retention of the death

penalty.

It is true that some multilateral treaties of international law – specif‌ically

international human rights law – prohibit the death penalty outright. Indeed,

prohibition of the death penalty is the sole concern of treaties such as the

Second Optional Protocol tothe International Covenanton Civil and Political

Rights (1989), Protocol 13 to the European Convention on Human Rights

(2003), and the Protocol to the American Convention on Human Rights

(1990). Such treaties point towards an abolition norm in international law.

However, there are instruments of international human rights law that

explicitly permit such a punishment. The Universal Declaration of Human

Rights [UDHR] (1948), though not a binding treaty, is arguably the bedrock

instrument of contemporary international human rights law and, although

Article 3 protects the ‘‘Right to Life,’’ Mary Ann Glendon (2001) has

argued that the drafting history shows an express intention to not include

a prohibition of capital punishment in the Declaration. Indeed, Glendon

def‌ines the exclusion of such a prohibition as a ‘‘defeat for the

representatives of ythe Soviet-bloc delegates, who had argued for a ban

on capital punishment’’ (Glendon, 2001, p. 92). Clearly, a vocal majority of

the Drafting Commission sought to allow the retention of the death penalty.

Use of International and Foreign Law in Death Penalty Cases 163