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The Prohibition on the Death Penalty in International Law

Published online by Cambridge University Press:  21 May 2009

Gino J. Naldi
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Netherlands International Law Review , Volume 38 , Issue 3 , December 1991 , pp. 373 - 384
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Copyright © T.M.C. Asser Press 1991

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References

1. GA Res. 44/128, 29 ILM (1990) p. 1464Google Scholar.

2. OAS GA Res. 1042, 29 ILM (1990) p. 1447Google Scholar.

3. 22 ILM (1983) p. 538Google Scholar.

4. 6 ILM (1967) p. 368Google Scholar. Note also UN GA Res. 32/61 declaring that its objective is that of ‘progressively restricting the number of offences for which the death penalty may be imposed’ until its eventual abolition.

5. Cases Nos. 45/1979 (Camargo v. Colombia), Human Rights Committee, Selected Decisions under the Optional Protocol (Second to sixteenth sessions) (UN Publications, 1985) p. 112 at p. 117Google Scholar; 146/1983 and 148–154/1983 (Baboeram et al. v. Suriname) Human Rights Committee, Selected Decisions under the Optional Protocol (Seventeenth to thirty-second sessions) (UN Publications, 1990), Vol. II, p. 172 at p. 175Google Scholar.

6. Cases Nos. 210/1986 (Earl Pratt v. Jamaica) and 225/1987 (Ivan Morgan v. Jamaica) CCPR/C/35/D/210/1986 and 225/1987, para. 15. I am grateful to Jennifer McDermott, Lovell White Durrant, Solicitors, London for providing me with a copy of the Committee's decision on mis case. Note, for example, mat in Maharaj v. Attorney-GeneralofTrinidad and Tobago (No. 2) [1979] A.C. 385, 404, Lord Hailsham stated that: ‘Granted due process of law, the right to life is not infringed by judicial execution’.

7. Cases Nos. 232/1987 (Daniel Pinto v. Trinidad and Tobago) and 250/1987 (Carlton Reid v. Jamaica) GAOR: A/45/40, Vol. II, IX. H and J. In the latter case, the Committee stated further that: ‘in capital punishment cases, the duty of State parties to observe rigorously all the guarantees for a fair trial set out in Article 14 of the Covenant is even more imperative’ (p. 92).

8. Carlton Reid v. Jamaica, ibid.

9. Lillich, R. B., ‘Civil Rights’, in Meron, T., ed, Human Rights in International Law (1984) p. 115 at p. 122Google Scholar. In Soering v. United Kingdom, Series A, No. 161 (1989), para. 103, the European Court of Human Rights acknowledged that the right to life guarantee enshrined in Art 2(1) of die European Convention on Human Rights did not preclude the imposition of the death penalty. See also, Fawcett, J. E. S., The Application of the European Convention on Human Rights, 2nd edn. (1987) p. 38Google Scholar.

10. As of 31 March 1991, 93 States had ratified or acceded to the International Covenant.

11. As of 1 July 1991 9 States: Australia, Finland, Iceland, the Netherlands, New Zealand, Portugal, Romania, Spain and Sweden had ratified or acceded to the Protocol. Note that the tenth ratification had been that of the German Democratic Republic. It has been signed by a further 12 States: Austria, Belgium, Costa Rica, Denmark, Germany, Honduras, Italy, Luxembourg, Nicaragua, Norway, Uruguay and Venezuela.

12. 9 ILM (1970) p. 673Google Scholar. At the time of writing, 22 American States have ratified the Convention.

13. 23 ILM (1984) p. 320 at pp. 338–339Google Scholar.

14. Ibid., p. 339.

15. See n. 2 supra.

16. At the time of writing there have been no ratifications of the OAS Protocol although it has been signed by 5 States: Ecuador, Nicaragua, Panama, Uruguay and Venezuela.

17. See n. 3 supra. At the time of writing the Sixth Protocol has been ratified by 16 States and signed by a further 3.

18. Series A, No. 161 (1989), para. 103. See also the judgment of the Supreme Court of the Netherlands in The Netherlands v. Short, 29 ILM (1990) p. 1375, at pp. 1382–1383Google Scholar.

19. North Sea Continental Shelf cases, ICJ Rep. (1969) p. 3 at pp. 32–41; Henkin, L. et al. , International Law, Cases and Materials (1987) pp. 70, 73–88Google Scholar; Brownlie, I., Principles of Public International Law, 4th edn. (1990) pp. 12–13Google Scholar.

20. According to the brief submitted to the US Supreme Court by Amnesty International as amicus curiae in Thompson v. Oklahoma (1988) 487 US 815, over 120 States throughout the world retain the death penalty although a significant number of these are parties to conventions restricting the death penalty and have effectively abandoned the practice. At least 18 of these States retain the death penalty for exceptional crimes only, such as treason or war crimes. Over 30 States have abolished capital punishment altogether. It is interesting to note that capital punishment is prohibited by Art. 6 of the Constitution of recently independent Namibia. The trend towards the abolition of the death penalty can also be noted by the Caribbean Territories (Abolition of Death Penalty for Murder) Order 1991 (No. 988) which abolishes the death penalty for murder in the British Caribbean territories of Anguilla, British Virgin Islands, Cayman Islands, Monserrat and the Turks and Caicos Islands.

21. Twenty-six States voted against the adoption ofthe Second Optional Protocol, including the USA, China, Japan, Nigeria and Pakistan. Included among the 59 States that voted in favour are: Australia, Canada, New Zealand, all the European States, including the United Kingdom and USSR, except for Romania and Turkey which abstained, and all the Latin American States except Chile which abstained. A total of 48 States abstained. On the effect of substantial opposition to the adoption of treaties negating the emergence of customary law, see the North Sea Continental Shelf cases, ICJ Rep. (1969) pp. 41–45.

22. Series A, No. 161 (1989), Concurring Opinion of Judge De Meyer.

23. For example, the advice and consent of the US Senate to ratification of the International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1990 was made subject to the reservation that the USA understands that international law does not prohibit the death penalty, see 85 AJIL (1991) pp. 335–37Google Scholar.

24. As has been observed, the UN Human Rights Committee has considered a number of complaints from Jamaican citizens regarding circumstances concerning the imposition of the death penalty, see nn. 6 and 7 supra.

25. Lillich, , loc. cit. n. 9, at p. 123Google Scholar suggests that there is but a trend towards the abolition of the death penalty, a trend now obviously reinforced by the recent adoption of the two Protocols.

26. Soering v. United Kingdom, Series A, No. 161 (1989) para. 104. According to the US Supreme Court, methods of execution that result in ‘torture or a lingering death’ are unacceptable as are such punishments which ‘involve the unnecessary and wanton infliction of pain’ or which cause gratuitous ‘terror, pain or disgrace’. Thus drawing and quartering, disembowelling and breaking at the wheel are prohibited, see In re Kemmler (1890) 136 US 436; Gregg v. Georgia (1976) 428 US 153; Wilkerson v. Utah (1879) 99 US 130.

27. Anglo-Norwegian Fisheries case, ICJ Rep. (1951) p. 116 at p. 131; North Sea Continental Shelf case, ICJ Rep. (1969) pp. 26–27; Henkin, et al. op. cit. n. 19, pp. 61–69Google Scholar; Brownlie, , op. cit. n. 19, p. 10Google Scholar.

28. Arts. 6(5) and 4(5) respectively.

29. lillich, , loc. cit. n. 9, pp. 116–20Google Scholar who argues that Art. 6 of the International Covenant has acquired the status of jus cogens. See also, Brownlie, I., Basic Documents in International Law, 2nd edn. (1983) p. 257Google Scholar.

30. Henkin, et al. op. cit. n. 19, p. 999Google Scholar.

31. ICJ Rep. (1970) p. 3 at p. 32.

32. Res. 44/25 (1989), 28 ILM (1989) p. 1465Google Scholar.

33. Reproduced in 3 AJICL (1991) p. 173Google Scholar.

34. Military and Paramilitary Activities in and against Nicaragua case, ICJ Rep. (1986) p. 14, at pp. 113–114; Buergenthal, T., International Human Rights (1988) p. 191Google Scholar; Meron, T., ‘The Geneva Conventions as Customary Law’, 81 AJIL (1987) p. 348CrossRefGoogle Scholar; Meron, T., Human Rights and Humanitarian Norms as Customary Law (1989) Ch. 1Google Scholar.

35. 26 ILM (1987) pp. 562, 564Google Scholar; Meron, , op. cit. n. 34, pp. 64–67Google Scholar.

36. Meron, , op. cit. n. 34, pp. 65–66Google Scholar.

37. Nicaragua case, ICJ Rep. (1986) pp.99–104, 106–108; Texaco v. Libya, 17 ILM (1978) p. 1Google Scholar.

38. See also, ECOSOC Res. 1984/1950 on Safeguards guaranteeing protection of the rights of those facing die death penalty, and ECOSOC Res. 1989/1964 on the Implementation of the safeguards guaranteeing protection of the rights of those facing the death penalty.

39. Res. 3/87, Case No. 9647, summarized in 8 Human Rights LJ (1987) p. 345.

40. Supra para. 56.

41. Supra paras. 58–60.

42. Series A, No. 161 (1989).

43. Ibid. para. 108.

44. According to Art. 38, para. 1(b) of the Statute of the International Court of Justice custom is described as ‘evidence of a general practice accepted as law’. The importance of the constitutive elements of custom, general practice of States and opinio juris, has been repeatedly emphasized by the ICJ, see Asylum case, ICJ Rep. (1950) p. 266, at p. 276; North Sea Continental Shelf casts, ICJ Rep. (1969) p. 44; Nicaragua case, ICJ Rep. (1986) p. 98.

45. See n. 20 supra. According to an Amnesty International Report in 1989 over 80 States have abolished the death penalty in law or practice, see Amnesty International, When the State Kills: The Death Penalty v Human Rights (1989)Google Scholar.

46. Ibid.

47. Ibid.

48. Annual Survey of South African Law (1981) p. 436.

49. (1988) 487 U.S. 815.

50. (1989) 492 U.S. 361. See further, Naldi, G. J., “The US Supreme Court, the Execution of Juveniles and Human Rights’, 19 Anglo-American LR (1990) p. 345CrossRefGoogle Scholar. Amnesty International has once again condemned the USA for sentencing juveniles to death, see The Guardian (9 October 1991) p. 12.