International Law and Abolition of theDeath Penalty

I. Introduction The Universal Declaration of Human Rights (Universal Declaration), adopted December 10, 1948, proclaimed that "[e]veryone has the right to life" and "[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."' The same approach was taken in the American Declaration of the Rights and Duties of Man, adopted May 4, 1948.2 At the time, the vast majority of United Nations Member States still employed capital punishment. Moreover, the death penalty was also recognized as an appropriate penalty for major war criminals and was imposed by the postwar tribunals at Nuremberg and Tokyo.3 When the Universal Declaration's provisions were transformed into treaty law in universal and regional instruments, the death penalty was specifically mentioned as a form of exception to the right to life.4 Fifty years later, as we commemorate the anniversary of the adoption of the Universal Declaration of Human Rights, the compatibility of the death penalty with international human rights norms seems less and less certain. The second generation of international criminal tribunals - the ad hoc tribunals for the former Yugoslavia and Rwanda and the nascent international criminal court - rule out the possibility of the death penalty, even for the most heinous crimes.5 The basic international human rights treaties have been completed with additional protocols that prohibit capital punishment.6 Fiftyone states are now bound by these international legal norms abolishing the death penalty,7 and the number should continue to grow rapidly.8 The importance of international standard-setting was evidenced by parallel developments in domestic legal systems. The list has grown steadily from a handful of abolitionist states in 1945 to considerably more than halfthe countries in the world having abolished the death penalty de facto or de jure. According to the United Nations Secretary General in his January 16, 1998 report to the Commission on Human Rights, 102 states have abolished the death penalty and 90 retain it.9 Those that retain it find themselves increasingly subject to international pressure in favor of abolition. Sometimes, this pressure is quite direct, as evidenced by the refusal of certain countries to grant extradition when a fugitive will be exposed to a capital sentence. Abolition of the death penalty is generally considered to be an important element in democratic development for states breaking with a past characterized by terror, injustice, and repression. In some countries, abolition is effected by explicit reference in constitutional instruments to the international treaties prohibiting the death penalty. In others, it has been the contribution of the judiciary that has brought about abolition of the death penalty. Judges have applied constitutions that make no specific mention of the death penalty but enshrine the right to life and prohibit cruel, inhuman, and degrading treatment or punishment.'o Thus, the question of abolition of the death penalty stands as one of the sharpest examples of both the evolution of human rights norms and the ongoing relevance of the broadly-worded texts in the Universal Declaration. In 1948, Rene Cassin and Eleanor Roosevelt rejected suggestions that the Universal Declaration contain a reference to capital punishment as an exception to the right to life. They did so not because international law had reached the stage of abolition, but because they saw such a trend emerging and wanted the Universal Declaration to retain its relevance for decades and perhaps centuries to come." Half a century later, we must acknowledge their clairvoyance. While it is still premature to declare the death penalty prohibited by customary international law, it is clear that we are somewhere in the midst of such a process, indeed considerably close to the goal. The many signs of this development are the subject of this paper.'2 II. International Legal Norms Concerning the Death Penalty The issue ofthe death penalty is associated with two fundamental human rights norms: the right to life and the protection against cruel, inhuman, and degrading punishments. …