PENALTY

VOX POPULI, VOX DEI?
A CLOSER LOOK AT THE
“PUBLIC OPINION” ARGUMENT
FOR RETENTION
Mai Sato 1
For countries and organisations that oppose the death penalty, any
state execution is a violation of human rights or risks a miscarriage
of justice that is both severe and uncorrectable. Abolitionist states
and organisations have urged retentionists—through international
treaties, soft-power diplomacy and other campaigns—to change their
point of view. An eminent legal scholar predicted nearly 20 years ago
that abolition may become a customary norm and reach the status of
“jus cogens [a fundamental principle of international law from which
no derogation is permitted]. . . in the not too distant future.” 2 Today,
while abolitionist states have become the clear majority, it is also true
that retentionist states have continued to carry out the death penalty.
Japan was the first country in the world known to have abolished the
death penalty; no executions were carried out from 810 to 1156. 3
Today, however, Japan retains the death penalty. 4 While its use is far
from aggressive, with about five executions per year during the last
20 years, prisoners on death row have been hanged every year (except
for 2011). The United Nations Human Rights Committee (hereafter
the Committee) has repeatedly raised concerns over Japan’s failure to
fulfil its obligations under the International Covenant on Civil and
1 Mai Sato is Research Officer at the Centre for Criminology, University of Oxford. This chapter
summarises the main arguments in her book The Death Penalty in Japan: Will the Public Tolerate
Abolition? (Berlin, Springer, 2014).
2 W. A. Schabas, The Abolition of the Death Penalty in International Law (Cambridge, Cambridge
University Press, 1997), p. 20.
3 D. T. Johnson and F. Zimring, The Next Frontier: National Development, Political Change, and
the Death Penalty in Asia (Oxford and New York, Oxford University Press, 2009); K. Kikuta,
Q&A: Shikei Mondai no Kiso Chishiki / Q&A: Basic Knowledge of the Issues Surrounding
the Death Penalty (Tokyo, Akashi Shoten, 2004).
4 In Japan, 18 crimes are eligible for the death penalty. In practice, however, its use is restricted to
a limited subset of these crimes, with almost all prisoners sentenced to death for one of three
crimes: murder, robbery resulting in death, or rape on occasion of robbery resulting in death. In
relation to murder (as with all other offences on the list), the death penalty is discretionary rather
than mandatory and is normally imposed only when a defendant is convicted of multiple killings.
Political Rights, 5 and the Council of Europe has made numerous
resolutions critical of Japan, even threatening to take away its observer
status. 6 However, Japan has retained its observer status and, despite
condemnation by the Committee, has openly and without much (if
any) political damage continued to carry out executions.
This illustrates an important limitation of international human rights
law: The implementation of human rights norms is possible only if states
choose to be bound by them. Human rights is a socially constructed
concept that needs to be embraced and accepted to be effective, rather
than a set of self-evident principles that exists independently—not a
“truth” that people will one day naturally “come round to” but a concept
that requires negotiation and persuasion to become operational.
This perspective is often neglected or forgotten when abolitionist
scholars and international organisations engage with retentionist states.
Public opinion and government legitimacy
The clearest example of this in the Japanese context relates to public
opinion, which the Japanese government has raised as the main obstacle
to abolition for over 30 years. However, the Committee has not
fully engaged with this argument, either to respond to it or to refute
it. 7 For example, in responding to Japan’s state party report, which
consistently makes the public opinion argument, the Committee
5 UN Human Rights Committee, “Concluding observations of the Human Rights Committee:
Japan”, 19 November 1998 (CCPR/C/79Add.102); UN Human Rights Committee,
“Concluding observations of the Human Rights Committee: Japan”, 18 December 2008
(CCPR/C/JPN/CO/5); UN Human Rights Committee, “Concluding observations of the
Human Rights Committee: Japan”, 20 August 2014 (CCPR/C/JPN/CO/6) Documents
available from: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx-
?Lang=en&TreatyID=8&DocTypeID=5. Japan ratified the Covenant in 1979 but has not yet
signed or ratified the Second Optional Protocol to the Covenant.
6 Council of Europe, “Resolution 1253 (2001): Abolition of the death penalty in Council of Europe
in observer status” (Strasburg, Council of Europe, 2001); Council of Europe, “Resolution
1349 (2003): Abolition of the death penalty in Council of Europe in observer status” (Strasburg,
Council of Europe, 2003); Council of Europe, “Doc. 10911: Position of the Parliamentary
Assembly as regards the Council of Europe member and observer states which have not abolished
the death penalty (Report of the Committee on Legal Affairs and Human Rights of the
Parliamentary Assembly of the Council of Europe)” (Strasburg, Council of Europe, 2006). Japan
was granted Council of Europe observer status in 1996. Under Statutory Resolution (93) 26,
Japan must accept the principles of democracy, the rule of law and the enjoyment of all persons
within its jurisdiction of human rights and fundamental freedoms.
7 For a more detailed discussion of the dialogue between the Japanese government and international
organisations, see M. Sato, “Challenging the Japanese government’s approach to the death
penalty”, in Confronting Capital Punishment in Asia: Human Rights, Politics, Public Opinion and
Practices, Roger Hood and Surya Deva, eds. (Oxford, Oxford University Press, 2013) pp. 205-217.
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