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

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.

Citation

Malkani, B. (2008), "The judicial use of international and foreign law in death penalty cases: A poisoned chalice?", Sarat, A. (Ed.) Special Issue: Is the Death Penalty Dying? (Studies in Law, Politics, and Society, Vol. 42), Emerald Group Publishing Limited, Leeds, pp. 161-194. https://doi.org/10.1016/S1059-4337(07)00406-1