The Death Penalty and Evolving Norms of Customary International Law
In his August 9, 2012 report, the Special Rapporteur on Torture, Juan Mendez, makes the claim that there is an emerging norm that the death penalty constitutes cruel and unusual punishment. Mendez acknowledges that international law does not prohibit the death penalty, but notes it does encourage its elimination. Specifically, his report states: “there is an evolving standard whereby states and judiciaries consider the death penalty to be a violation per se of the prohibition of torture or cruel and degrading treatment.”
Not surprisingly, this claim caused quite a stir at yesterday’s (October 23) Third Committee meetings. Many countries (Singapore, United States, Egypt, amongst others) used their time to push back on this claim.
Nonetheless, Mendez argued that those countries that did not participate in the emergence of the norms were free to reject them. In other words, persistent objectors to a customary international law norm are not bound by it.
In parallel, the ILC is reconsidering the formation and evidence of Customary International Law. The Death Penalty might be a relevant test case. What do Opinio Juris readers think?