Opinio Juris

In 1986, while the U.S.-Canada Convention was in force, Congress amended the AMT imposed on noncorporate taxpayers by section 55 and added section 59 to the Code.... [Thereafter] the U.S.-Canada Convention was amended.... The revised Protocol Amending the Convention... made changes to Article XXIV affecting credits for Social Security tax, corporate tax exemptions, and the tax treatment of dividends, interest, and royalties,... but did not alter the general rule found in article XXIV, paragraph 1. Neither the Third nor the Fourth Protocol references section 59 [the earlier conflicting statutory provision].

It is well established that, where a statute and a treaty pertain to the same subject matter, they must be read so as to give effect to both if at all possible.... If, however, the statute and the treaty conflict, the last-in-time rule requires that “the last expression of the sovereign will ... [controls].”...

Applying the last-in-time rule, we hold that section 59(a)(2) is the last expression of the sovereign will and that it takes precedence over the U.S.-Canada Convention to the extent there is a conflict between them. [The statute] makes it very clear that Congress intended the limitation of section 59(a)(2) to supersede existing treaty provisions prohibiting double taxation. The U.S.-Canada Convention was one of those treaties. Neither the Third nor the Fourth Protocol contains any provision clearly indicating that Congress's intention to ensure that taxpayers with sufficient means should contribute a minimum amount of tax to the United States had been superseded.

[O]ne question that interests me but is a little divorced from the terms of the arguments so far. I know it is not popular to refer to refer to international commentary on issues like this, but the English law lords have filed an amicus brief discussing the international principle that nations that retain the death penalty may not extend the death penalty to crimes to which it does not presently apply. They suggest that as a matter of international law, there's sort of a correspondence to our evolving standards of decency that have generally governed our Eighth Amendment jurisprudence. It's kind of a one-way rachet, we look at trends in one direction but we don't look to see if you suddenly have changed gears and go in the other direction. Could you just comment on that argument?... I just use[] that as an analogy to our evolving standards of decency cases which has been part of our Eighth Amendment jurisprudence, that sort of is a — one way direction in which these cases go. Do you think it's appropriate — are you aware of any case saying we can turn around and go in another direction?

International authorities have long agreed that nations that retain the death penalty must refrain from expanding the death penalty to crimes to which it currenlty does not apply--a principle that has been codified in a regional convention and reaffirmed by the jurisprudence of human rights bodies. There is an equally strong global consensus that nations should gradually narrow the categories of offenses for which the death penalty may be imposed.