THE STATUS OF THE DEATH PENALTY IN INTERNATIONAL LAW

– July 22, 2006

The death penalty is an issue which figures prominently in philosophical, religious and political discussion, and has absorbed the attentions of law-makers and the public worldwide. Right wing politicians usually express strong support for capital punishment, while more moderate, liberal and leftist politicians openly oppose it and seek to eliminate the death penalty from national law. The issue has become a global concern and some attempts have been made to regulate the issue under international law.

The Universal Declaration of Human Rights, adopted on December 10, 1948, by General Assembly Resolution 217 A (III), states that “Everyone has the right to life, liberty and security of person” (Art. 3). The Declaration used the term “everyone”, which implies the interpretation that no one should be deprived of this basic right, including persons who have been convicted of a crime. The resolution proclaimed “life” as the supreme value that deserved full, unconditional legal protection, regardless of circumstances. But the Universal Declaration is not a binding regulation, and does not possess legal force. Thus it has not been possible to interpret its provisions as constituting a formal obligation for members of the international community to abolish the death penalty.

The earliest international treaty universally regulating the right to life, and the death penalty, was the International Covenant on Civil and Political Rights, adopted by General Assembly Resolution 2200A (XXI) on December 16, 1966. The Covenant became binding international law and to date has been signed or ratified by 156 states. Underlining fundamental human rights, Article 6 of the Covenant reiterates the Universal Declaration’s provision that every human being has an inherent right to life, which should be fully protected by law. The Document envisioned the use of the death penalty and the right of every state to adopt such a penalty in its criminal justice system. But Article 6 § 2 states that in countries which have not abolished the death penalty, death sentences may be imposed only for the most serious crimes. Moreover anyone sentenced to death should have the right to seek pardon or commutation of the sentence. The Covenant forbids the death penalty for crimes committed by persons below eighteen years of age, or pregnant women. Finally, the Covenant incorporated the provision that nothing in its text should be invoked to delay or to prevent the abolition of this capital punishment. Thus a general intention to gradually eliminate the death penalty from national legal systems is implied. But the Covenant did not explicitly declare that the death penalty violated the right to life.

The first attempt by the United Nations to abolish the death penalty was made twenty years later, on December 15, 1989, by General Assembly Resolution 44/128, the Second Optional Protocol to the International Covenant on Civil and Political Rights. The Protocol openly states that all “measures of abolition of the death penalty should be considered as progress in the enjoyment of the right to life”. International law makers declared that the death penalty violates the right to life. Art. 1 of the Protocol states that no one within the jurisdiction of a country which has ratified the document, should be executed. Each ratifying country should take all necessary measures to abolish the death penalty in its jurisdictions. The Protocol allowed only one exception: the death penalty can be applied in time of war for the most serious crimes of the military nature. To date, the Second Optional Protocol has been signed or ratified by 57 parties, including the majority of the European Union’s members, Canada, New Zealand and Australia. Unfortunately, the United States has not signed or ratified this Protocol.

Independently of the United Nations’ endeavors, the question of the death penalty has been confronted within the regional European human rights system. Originally, the European Convention of Human Rights and Fundamental Freedoms of November 4, 1950, allowed the application of capital punishment and stated that no one should be deprived of his life intentionally “save in the execution of a sentence of a court following his conviction of a crime for which this penalty was provided by law”. However, Protocol No. 6 to the above Convention, adopted on April 28, 1983, fully rejects the death penalty, and states that member nations of the Council of Europe, by signing Protocol No. 6, have abolished the death penalty. As of late 2006, the document has been ratified by 45 European countries.

The legal aspects of capital punishment have changed considerably in the last few decades. The first attempts to regulate the death penalty under international law sought to gradually eliminate capital punishment from criminal justice systems. The experience of the Council of Europe shows that the death penalty can be abolished faster at the regional level and within one particular civilization rather than through the politically and culturally diverse United Nations. The abolition of death penalty in most European countries may create strong incentives for other states and influence them to follow suit. The elimination of the death penalty in the United States would be a significant breakthrough in this issue; however such an event seems unlikely in the near future.

Sebastian Aulich