PENALTY

THE RIGHT TO LIFE AND THE
PROGRESSIVE ABOLITION
OF THE DEATH PENALTY
Christof Heyns and Thomas Probert 1
By a number of measures, support for the death penalty is diminishing
worldwide. There has been a slow but steady decline in the
number of states that legally recognise it. 2 The number of states that
actually practise the death penalty also continues to drop. 3 Moreover,
while the death penalty used to be a global practice, of all executions
known to have been conducted in 2014 outside of China, nearly
three-quarters took place in just three countries: Iran, Iraq and Saudi
Arabia. 4 If unconfirmed reports of a drastic reduction in executions
in China over the last decade are accurate, 5 then the absolute number
of people being executed per year is also going down. If represented
as executions per capita, the trend is even more striking.
It would appear, therefore, that the death penalty is in gradual—
quite possibly terminal—decline worldwide. This chapter places this
observation in the context of the treatment of the right to life in
international law, which is evolving towards the idea that life may as
a general rule not be taken intentionally except if there is no other
1 Christof Heyns is the United Nations Special Rapporteur on extrajudicial, summary or
arbitrary executions and professor of human rights law at the University of Pretoria, where he
co-directs the Institute for International and Comparative Law in Africa. Thomas Probert is the
senior researcher of the Unlawful Killings Unit of the Centre for Human Rights at the University
of Pretoria and a research associate at the Centre of Governance and Human Rights at the
University of Cambridge.
2 According to the classification of abolition used by Amnesty International, Fiji became the 99th
abolitionist state in early 2015.
3 According to Amnesty International, at least 22 countries were known to have carried out
executions in 2014. Though this number is the same as in 2013, and a slight increase from 21
in 2012, the trend over the last two decades has been one of decline from a high of 41 in 1995.
See Amnesty International, Death Sentences and Executions in 2014 (London, Amnesty International,
2015), p. 5.
4 Amnesty International do not attempt to estimate the number of people executed in China,
where the extent of the practice remains a state secret, but is thought to extend to thousands
of executions each year. Of the remaining States, Iran executed at least 289 people, Iraq at least
61, and Saudi Arabia at least 90, out of at least 607 executions worldwide. Next in number of
executions was the United States (35), followed by Sudan (at least 23) and Yemen (at least 22).
See Amnesty International, Death Sentences and Executions in 2014, p. 5.
5 Dui Ha, “China executed 2,400 people in 2013, Dui Hua”, 20 October 2014, available from
http://duihua.org/wp/?page_id=9270.
way to preserve another person’s life. This evolution is taking place
in the context of an international legal framework that imposes an
obligation on states at least progressively to work towards abolishing
the death penalty. In the context of that framework, there is a trend
among a range of international actors explicitly to turn away from
capital punishment.
In the gradual transition away from the death penalty, many have
worked in a way that was in practice abolitionist, while taking care
to note that international law was not inherently abolitionist. 6 An
understanding of the international law surrounding the right to life
(such as the International Covenant on Civil and Political Rights,
Article 6) as being at least “progressively abolitionist” could allow
an approach that is more in line with current state practice. It thus
seems fair to say that international law is abolitionist in the sense that
it requires the abolition of the death penalty, either immediately, or
through the taking of steps in that direction. States that expand the
scope of the death penalty are not acting in conformity with their
international obligations, but so are states that maintain the status quo
and do not take measures to reduce the scope and application of this
form of punishment. This normative position has been reinforced by
important initiatives taken by regional mechanisms, which can play
a significant role in the promotion and protection of the right to life
around the world.
THE “PROTECT LIFE” PRINCIPLE
If one proceeds from the starting point that each life is of immeasurable
value and each unwarranted loss of life is a tragedy, then it is
clear that there is no room for complacency as long as there is deadly
violence anywhere. Yet encouragement can be taken from the general
trend worldwide towards the realisation of what might be termed
the “protect life” principle, which underlies the understanding of
the right to life in international law. This principle requires that, as a
6 The mandate of the United Nations Special Rapporteur on extrajudicial, summary or arbitrary
executions (most recently stated in July 2014 by Human Rights Council Resolution 26/12)
includes a responsibility “to monitor the implementation of existing international standards on
safeguards and restrictions relating to the imposition of capital punishment.” For an example of
an interpretation of the mandate as at least formally non-abolitionist, see Philip Alston, Report
of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions on Mission to the United
States (28 May 2009) [A/HRC/11/2/Add.5], paragraph 3.
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