Jus Cogens Norms?
Capital punishment is the ‘government sanctioned practice’ that leads to the ‘legal authorisation’ of the killing of an individual [1]. Through the use of international treaties governing the concept, there is an argument that the law surrounding the death penalty has progressed from imposing punishment to determining the inherent value of a human life.
However, there are underlying questions arising from these international agreements, such as the Convention Against Torture (CAT). There is the notion that such agreements are merely pretences, rather than an active engagement with the universal endeavour to abolish the practice as the CAT and some of its protocols can be opted out of by states who are in disagreement. This undermines the priorities of states to comply with ‘evolving standards of decency’ [2].
The Efficiency of Current Law Governing Capital Punishment
State convergence towards furthering aims set out in the CAT introduces the assumption that a jus cogens perspective is present. This is encompassed by the international norms which state that ‘no state may derogate by way of treaty’ which has developed the notion that current capital punishment law cannot, or will not be contended with [3].
To counteract this idyllic image of rights governing capital punishment law though, the issues of the death penalty itself is comprised of (1) a lack of overt compliance in doctrine and (2) the enforceability of this within practice.
Beyond Eurocentric Law on the Death Penalty
Outside of what can be argued as ‘eurocentrism’ [4] though, the idea that the death penalty is a ‘peremptory norm’ is one that lacks potency; there is evidence against a ‘widely accepted…principle of customary law’ in the broader ‘international community’ [5].
For example, in nations such as Iran, there are still beliefs present that if an individual takes life, they have essentially sacrificed their own rights, thus consenting to capital punishment. According to Amnesty International, this is determined without the use of ‘fair trials’ [6] which undermines both the right to life and freedom from torture, as well as the right to a fair trial [7].
An easy assumption to make is that norms regarding capital punishment are a question of ‘western parochialism’ and dominance versus non-compliance with Eastern nations. Incongruous to this is the position of the United States; despite the Constitution prohibiting ‘cruel and unusual punishment’ the death penalty remains a lawful means of punishment in some of its states. The US therefore flagrantly breaches its own policy on civil liberties and human rights, which calls into question the accountability of western nations for this.
This is pivotal when taking into account the fact that the US has ratified the CAT, which states ‘on paper’ that the US accepts the international compliance for the eradication of the death penalty. The double-standard of the law is therefore clearly evident, as is the idea that western and eastern nations can possess similar sociopolitical attitudes. This is especially present through integrating the argument of Republican, right-wing ideology in ‘pro-death penalty... endorsement states’ like Alabama and Mississippi [9].
Rather than estranging states from each other by conveying the death penalty as a ‘western’ investment or an ‘eastern’ problem, there could be dialogue brought forward by either more protocols, or general comments. This would allow direct applicability to the protection of any populace’s personal freedoms and liberties. Separating the west and east, therefore, seems anachronistic for 2020.
Conclusion
European law on capital punishment favours abolition. However, at a level of universality, non-compliance lacks the ramifications required to enforce adherence to the CAT. As this issue affects both the West and the East, considerations for further accountability of all states should be pushed further.
Giulio Carlo Venturi, The Death Penalty (Project Gutenberg Self-Publishing Press 2016) 3
Joan Fitzpatrick, ‘The Relevance of Customary International Norms’ (1996) 25(195) Ga J Int'l & Comp L 169
Rafael Nieto-Navia, International Peremptory Norms (Kluwer Law International 2001) 1
Arnulf Becker Lorca, ‘Eurocentrism in the History of International Law’ in Bardo Fassbender and Anne Peters (eds), The Oxford Handbook of the History of International Law (OUP 2012
<https://www.law.cornell.edu/wex/jus_cogens> accessed 21 October 2020
Yudan Tan, ‘The Identification of Customary Rules in International Criminal Law’ (2018) 34(2) Utrecht J Int Eur Law 92; Amnesty International, ‘Iran’s ‘staggering’ execution spree: nearly 700 put to death in just over six months’ (2015) <https://www.amnesty.org.uk/press-releases/iran-staggering-execution-spree-nearly-700-people-executed-just-over-six-months-new#:~:text=Donate-,Iran%3A%20'staggering'%20execution%20spree%20with%20nearly%20700%20people%20executed,over%20six%20months%20%2D%20new%20figures&text=The%20Iranian%20authorities%20are%20believed,in%20executions%20in%20the%20country> accessed 21 October 2020
European Convention on Human Rights 1953, Art 6
Keelah E. G Williams, ‘Capital and Punishment’ (2019) 40(1) Evolution and Human Behaviour 65, 73
