Opinio Juris

I was initially shocked that the British Law Lords would submit an amicus brief at all. That was not so much because of any claim of interference with the judicial system of the U.S. (clearly, amicus briefs are nothing of the sort), but because of the audacity of a domestic court in expressing views on foreign law, and in a way submitting to the judgment of a foreign court.

Of course, the answer to any such concerns is that the description of the brief by Justice Stevens isn't quite correct: some of the more prominent amici are former Lords of Appeal. I don't think sitting Lords of Appeal would do any such thing. I further suspect that even most former Law Lords would rather not step outside their field of specialisation and authority in this way.

AS to the substance of the argument, I am a little surprised that no mention is made of Judge v. Canada. In that case, the Human Rights Committee suggested, in interpretation of Article 6 of the ICCPR (by which the U.S. is, of course, bound!), that states that had abolished the death penalty could not go back on that advance, not even by sending someone to face a capital trial in a retentionist foreign state (see paras. 10.4 to 10.6). Retention of the death penalty by some states was specifically described as an 'anomaly' and a 'necessary evil'.

Now, admittedly, that isn't quite the same as saying that retentionist states cannot extend the application of the death penalty to crimes not previously covered by it. The Committee only said that once the death penalty had been abolished, it could not be brought back (and no-one could be made, by any route, to face such punishment). But the interpretation seems easily tenable, doesn't it? The rationale of Article 6(2) through (6) of the ICCPR (by which I mean the Committee's 'anomaly' and 'necessary evil' point) is apt to exclude the extension of the death penalty as much as its re-introduction. The wording of the article also does not seem to be opposed to this interpretation: the Committee in Judge appeared to attach importance to the use of the simple perfect in Article 6(2) of the Covenant ('In countries which have not abolished the death penalty') as showing that abolition would be a one-way street. I guess that could also be read as applying at the level of the various capital offenses as well, and not only at the level of general abolition or retention.
The only slight problem is in another bit of Article 6(2): 'sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime.' That could conceivably be read as leaving it to the law in force at the time of the crime to provide for the possibility of a sentence of death. However, I don't think that would be accurate: the condition of 'in accordance with the law...' refers generally to the legality of the proceedings resulting in a sentence of death, and not only to the availability of that sentence. The reference to the law 'in force at the time of the commission of the crime' is therefore a restatement of Article 15 of the Covenant (nullum crimen, nulla poena sine lege) in toto. Besides, any such strict reading of Article 6(2) would obviously run counter to the intention of its drafters, as explained in Judge.

So much for international law. The British amici clearly have not made this particular point.

If they had, then its relevance would obviously not have been methodological, nor in any other way comparative. It would have paved the way for a straightforward Charming Betsy argument.

But, might I ask: for the believers in comparative jurisprudence in the Court, is that approach now more acceptable than Charming Betsy? I wouldn't really see why, but the former method of argument seems to have received a good deal more attention (even of the positive variety) than the first. Of course, I might be wrong on this. I hope I am.