Is there an obligation not to cooperate with abolitionist States?

Based on the Japan–EU Agreement on Mutual Legal Assistance, Japan may request assistance from EU member states even in cases which involve the death penalty. This could be problematic for EU member states. In response to this concern, the Japan–EU Agreement has a unique provision, Article 11, which refers specifically to the death penalty as a potential ground for refusing cooperation. Considering the uniqueness of the Japan–EU Agreement, this paper examines whether EU member states have the option or the obligation to refuse cooperation in death penalty cases in Japan based on the text of the agreement but also on other international law provisions. It concludes that neither a literal reading of the Japan–EU Agreement, nor of human rights conventions binding both Japan and the EU member states, nor of general international law on state responsibility, nor an application by analogy of the Soering doctrine or obligation to protect doctrine in human rights law would impose an obligation not to cooperate. Only a teleological reading of the Japan–EU Agreement that considers the intention of the drafters of Article 11 would indicate an ‘obligation not to cooperate’.