Retention vs Abolition: An absolute right to life? Whilst the death penalty is currently a permissible exception to the ‘right to life,’ not only is it extremely limited in scope, but there is a growing trend moving in the direction of complete abolition. Until this occurs, having the death penalty as a permissible exception to the ‘right to life’ places positive and negative obligations upon states. KIZZY BAGGA examines the competing ideas surrounding the ‘right to life’ and the death penalty through a philosophical and theoretical lens.
Described as the most ‘basic human right of all’, the ‘right to life’ and its preservation, has quickly become one of the most controversial and pressing human rights issues in our current global context.1 As of late, media attention has been drawn to the fact that the construction of the ‘right to life’ is inherently both counter-intuitive and contradictory in its application to the death penalty.2 Even though the move towards abolition is both apparent, and desirable, Article 6(2) of the International Covenant on Civil and Political Rights (ICCPR),3 continues to permit the imposition of the death penalty as an exception to the ‘right to life,’ subject to strict limitations,4 despite some academics claiming the ‘right to life’ has jus cogens or peremptory norm status. States which continue to utilise the death penalty, have in the past, justified this exception by putting forward both retributive and deterrent arguments in support.5 However, these are weak arguments at best, with the favoured approach being to take measures to eradicate the death penalty altogether through the ratification of Supplementary Protocols,6 which better contribute to the enhancement of human dignity.7 Both approaches attract obligations and necessitate compliance, albeit to differing degrees. The former ‘retentionist states’ not only carry negative obligations to not arbitrarily deprive life8 but also positive obligations to not carry out the death penalty unless it is for ‘the most serious of crimes’.9 Abolitionist states on the other hand carry less of a burden with negligible negative obligations, and arguably only a positive obligation to protect their citizens from the death penalty overseas.
‘The Right to Life’ and its status under International Law i. Current state practice and international standards The ‘right to life’ is not a new concept, but has been enshrined in history for centuries.10 The right was found upon the moral principle that each human being has the right to live, and not be unjustly killed. ii. The right to life as a law of the Jus Cogens The international community clearly does not only recognise the ‘right to life’ as next to the right to physical integrity, the most elementary human right,11 but some academics have gone one step further to suggest that the ‘right to life’ has developed into a law of the jus cogens.12 Although the opinions of these academics have merit,13 the reality is that the ‘right to life’ could not be accurately seen as having jus cogens status all the time, largely due to the consistent violation by states who continue to utilise the death penalty.14 Whilst this may be seen as contradictory, it is reflective of the international law and its permission of the death penalty as an exception to the ‘right to life.’ ‘The Right to Life’ and its imposing obligations All states signatory to the ICCPR attract obligations imposed by the ‘right to life.’ An obligation has been defined as ‘an act or course of action to which a person is morally or legally bound’15 Whilst it has been suggested that an obligation requires a course of action to be taken, it can also require one to refrain from doing something. The ‘right to life’ has been seen to impose obligations that are both positive and negative in nature,16 although it has been said that states so have a ‘margin of appreciation.’17 In its negative manifestation, all states to the ICCPR are prevented from arbitrarily depriving a person of their ‘right to life,’ unless like America, they have made a reservation. However, the drafting history of Article 6(1) of the ICCPR highlights the emphasis placed upon the states to positively protect life.18 The extent of the positive measures put into place, is largely dependent on whether a state is an abolitionist state or a retentionist state. i. Obligations on Retentionist states ratifying Second Protocol For those states that are signatory to the Second Protocol, obligations are also significant but perhaps less onerous. States have a negative obligation to refrain from utilising the death penalty unless they are at war. Positive obligations are also imposed under such circumstances as these states have a requirement to notify the Secretary General of the United Nations if they go to war, 19 what domestic texts they have authorising the death penalty, as well as the measures their government is implementing to ensure the eventual abolition of the death penalty. 20 If such a state does go to war and under those circumstances enacts the death penalty, then the safeguards outlined above with regard to purely retentionist states would be assumed to apply. ii. Obligations on Abolitionist states It is evident that states that have not yet abolished the death penalty are subject to both positive and negative obligations with regard to the ‘right to life.’ However, the degree of obligation can be seen to significantly less
1 Sandra Babcock, ‘The Global Debate on the Death Penalty’ (2007) 34 Human Rights17; 18. 2 Amrita Mukherjee, ‘The ICCPR as a ‘Living Instrument’: The Death Penalty as Cruel, Inhuman and Degrading Treatment’ (2004) 68 Journal of Criminal Law 507, 518 3 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171. 4 McCannn and others v. the United Kingdom, GC Judgment of 5 September 1995, 147, with reference to Soering v. the United Kingdom, judgment of 7 July 1989, para 88 5 Elizabeth Wicks, The Right to Life and Conflicting Interests, (Oxford Scholarship 2010); 119. 6 Second Optional Protocol to the International Covenant on Civil and Political Rights adopted 15 December 1989, 1642 UNTS 414 (entered into force 11 July 1991); European Convention on Human Rights, opened for signature 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953).7 Rhona K.M. Smith, Textbook on International Human Rights, (Oxford University Press, 6th ed 2014); 222. 8 Ibid. 9 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171; Article 6.10 Hugo Adam Bedau, ‘Capital Punishment and the Right to Life’ (2011) Michigan State Law Review 505, 509 11 Hansje Plagman ‘The status of the right to life and the prohibition of torture under international law: its implications for the United States’ (2003) 3 Journal of the institute of
28
(In)securities, International Protection and the Law