PENALTY

or inhuman dignity or treatment, or the right to dignity, demand an
end to this form of punishment.
This approach that article 6 (2) envisages the withering away of the
death penalty was affirmed in 1971 by the United Nations General
Assembly, which affirmed in Resolution 2857 (XXVI) that “in order
fully to guarantee the right to life . . . the main objective to be pursued
is that of progressively restricting the number of offenses for which
capital punishment may be imposed, with a view to the desirability
of abolishing this punishment in all countries.”
While the debate continues about whether the death penalty conflicts
with the right to life, it has meanwhile become widely seen as
a violation of the right to be free from torture and cruel, inhuman
or degrading treatment or punishment, the right to equality and the
right to dignity. The debate has thus taken a practical turn, leaving the
question of whether the death penalty per se is a violation of the right
to life, and turning to the practical question of whether it can ever be
implemented without violating other human rights. Likewise, as discussed
above, the mandate of the special rapporteur on extrajudicial,
summary or arbitrary executions has in the past been interpreted as
not necessarily abolitionist, instead focusing on ensuring that relevant
international safeguards are observed.
However, given the shift that has taken place in state practice, it seems
accurate to say that the mandate of the special rapporteur is at least
progressively abolitionist. For the same reason, it is no longer necessary
to state in an unqualified manner that the death penalty per
se is not contrary to the requirements of international law. Over the
past several years, the perspective has emerged that international law
requires the progressive abolition of the death penalty. This is not to
say that it requires immediate compliance, as is usually the case with
civil and political rights. Instead, the drafting history suggests that
international law requires at least the gradual, progressive abolition
of the death penalty, as is often the case with socio-economic rights.
The progressive-abolition perspective is further bolstered by the
language of the Second Optional Protocol to the International Covenant
on Civil and Political Rights of 1989, which observed that the
language of Article 6 “refers to abolition of the death penalty in terms
that strongly suggest that abolition is desirable” and underlined that
“all measures of abolition of the death penalty should be considered
as progress in the enjoyment of the right to life.”
This would bring the mandate into line with most global human
rights organisations, the Secretary-General of the United Nations,
and the Office of the High Commissioner for Human Rights, all of
which are unambiguous in their calls for the end of at least the practice
of the death penalty. In July 2014, stating that the death penalty “has
no place in the 21st century,” the United Nations Secretary-General
called on states to support the biennial General Assembly resolution
calling for a global moratorium on its application. 12 The language of
these resolutions has been designed to be broad and inclusive, calling
not for the abolition of the death penalty but for a moratorium on
executions with a view to future abolition. The goal of these General
Assembly resolutions thus fits the pattern described above—progressive
abolition.
A moratorium does not completely solve the problem of the death
penalty. The Special Rapporteur on torture and other forms of cruel,
inhuman and degrading treatment or punishment has expressed the
view that lengthy detention on death row, even if a moratorium is in
place, may constitute cruel and inhuman treatment. However, from
the perspective of the right to life, a moratorium is a very helpful
step forward; it allows the sometimes lengthy processes of legal and
constitutional reform to take place without further loss of life.
Each iteration of the General Assembly resolution has been passed
by a wider margin, reflecting the progressive global movement away
from the death penalty. In 2014, 117 states voted in favour of the
resolution, an increase from 111 in 2012, 109 in 2010, 106 in 2008
and 104 in 2007. 13
The ways in which states vote on United Nations moratorium resolutions
has been taken into account in several instances. For example,
12 UN News Service, “Death penalty has no place in 21st century, declares UN chief”, 2 July
2014, available from www.un.org/apps/news/story.asp?NewsID=48192#.U_WzhsWSySp.
13 The most recent of these resolutions, General Assembly Resolution 69/186, was adopted in
December 2014.
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