Non-universal Human Rights? How Article 6 (2) of the International Covenant on Civil and Political Rights Undermines Human Rights

In: International Human Rights Law Review
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  • 1 MA in International Relations, Leiden University, Leiden, the Netherlands; BSc in Politics and Philosophy, University of Bristol, United Kingdom

Article 6 of the International Covenant on Civil and Political Rights facilitates inequality regarding the imposition of the death penalty and thus, it cannot ensure universality for the protection of the right to life. Paragraph two of this article states: ‘sentence of death may be imposed only for the most serious crimes.’ This article argues that the vagueness of the phrase ‘the most serious crimes’ allows states to undermine human rights principles and human dignity by affording states significant discretion regarding the human rights principles of equality and anti-discrimination. The article posits that this discretion allows states to undermine human dignity and the concept of universal human rights by challenging their universality; by facilitating legal inequality between men and women. Accordingly, it asserts that the implications of not expounding this vague phrase may be far-reaching, particularly in the long-term. The final section of this article offers a potential solution to this problem.

Abstract

Article 6 of the International Covenant on Civil and Political Rights facilitates inequality regarding the imposition of the death penalty and thus, it cannot ensure universality for the protection of the right to life. Paragraph two of this article states: ‘sentence of death may be imposed only for the most serious crimes.’ This article argues that the vagueness of the phrase ‘the most serious crimes’ allows states to undermine human rights principles and human dignity by affording states significant discretion regarding the human rights principles of equality and anti-discrimination. The article posits that this discretion allows states to undermine human dignity and the concept of universal human rights by challenging their universality; by facilitating legal inequality between men and women. Accordingly, it asserts that the implications of not expounding this vague phrase may be far-reaching, particularly in the long-term. The final section of this article offers a potential solution to this problem.

1 Introduction

The inclusion of the vague phrase ‘the most serious crimes’ in article 6 of the International Covenant’ on Civil and Political Rights (iccpr) allows states to undermine human rights principles and human dignity, that is, a normative basis for universal human rights. The potential implications of this are far-reaching. Article 6(2) of the iccpr states: ‘In [states] which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes.’1 It does not expound what is meant by the vague phrase ‘the most serious crimes’ despite numerous concerns being expressed (by numerous parties) throughout the drafting process,2 and after the iccpr came into force.3 This vagueness allows much room for interpretation which, in turn, affords states significant discretion regarding the human rights principles of equality and anti-discrimination; states can, and do, undermine these principles by enforcing laws that only pertain to certain groups of citizens. This negatively impacts human dignity.4 Affording states much discretion over what constitutes ‘the most serious crimes’ also enables unjust discrimination against certain societal groups. Any such discrimination would further undermine human dignity.5 It would also directly undermine the concept of universal human rights by challenging their universality. Accordingly, this article concerns itself with the following research questions: 1) Why has the phrase ‘the most serious crimes’ not been expounded? 2) What are the implications of not expounding the phrase ‘the most serious crimes’? Answering these questions provides valuable insights for current and future state parties to the Covenant, human rights scholars and practitioners, particularly those whose work concerns human rights and/or the protection of human rights. This is due to its elucidation of how vagueness can allow states to undermine human rights principles and human dignity and thus, universal human rights.

Figure 1
Figure 1

Number of States that have abolished the Death Penalty since ratifying the iccpr. This data was ascertained by correlating the dates when the states in question ratified the iccpr (United Nations (n 11)) with the dates when they abolished the death penalty (via legislative change).

Citation: International Human Rights Law Review 9, 1 (2020) ; 10.1163/22131035-00901004

Following this introduction, the article briefly outlines the history of the iccpr. Within this, it focuses on Article 6; it highlights key points of discussion in its drafting process. Then, it provides an answer to why ‘the most serious crimes’ have not been expounded. It does so via consideration of various explanations for this. The following two sections critically analyse one of these explanations. Next, it considers the implications of not expounding the phrase ‘the most serious crimes’ regarding human rights and human dignity; a normative basis for universal human rights. It does so via consideration of how the vagueness of this phrase facilitates legal inequality between men and women, that is, it allows men and women to be treated unequally before the law and/or not entitled without any discrimination to equal protection of the law.6 Within this, it focuses solely on states which have different laws for men and women (in principia cases), as opposed to those which provide (formal) legal equality but have discrepancies in the enforcement of these laws (de re cases). It does so because the potential implications of this type of case appear to be further reaching, due to the impact of laws on citizens’ psyches and behaviour and the socio-psychological effects of the death penalty on both society and those sentenced to death.7 The final section offers a potential solution to this problem. This article concludes that 1) the phrase ‘the most serious crimes’ has not been expounded due to concerns over state sovereignty and the belief that its mere inclusion was/is sufficient to bring about norm change and 2) the implications of not expounding this phrase may be far-reaching, particularly in the long-term.

2 iccpr Historical Context

The iccpr was formally negotiated by the UN General Assembly from 13 June 19478 to 13 December 1966.9 It was adopted and opened for signature, ratification, accession and succession on 16 December 1966 and entered into force on 23 March 1976.10 By February 2020, it had been ratified by sixty seven states, acceded by ninety eight and succeeded by eight.11 Here, ‘ratification’, ‘accession’ and ‘succession’ all entail the establishment of a state’s consent to be bound by the covenant internationally.12 , 13 The focus of this article is limited to analysis of Article 6(2) of the iccpr, which concerns itself with the death penalty.14 It does so because of its direct connection with the ‘supreme right:’ the right to life.15

During Article 6’s drafting process, representatives from the Union of Soviet Socialist Republics, Uruguay and Colombia, proposed that this article should require states to explicitly commit to the immediate abolition of the death penalty.16 However, it was subsequently agreed that the iccpr would not require ratifying states to do so, due to the apparent ‘difficulties’ that this would entail for retentionist states.17 The same line of reasoning was then used to reject an amendment that would require states to explicitly commit to its progressive abolition.18 Many states’ representatives also questioned the validity of this requirement, on the grounds that it infringed on state sovereignty.19 In spite of this, various states’ representatives posited that it should be made clear that the Covenant does not sanction the death penalty and that it was created with the intention of facilitating its abolition.20 Thus, the UN General Assembly eventually agreed to add paragraph 6 to Article 6, which prohibits states from invoking anything in the article to delay or prevent the abolition of the death penalty.21

3 Why Were ‘the most serious crimes’ Not Expounded?

The phrase ‘the most serious crimes’ was not given a precise meaning during the iccpr’s drafting process. Upon reviewing the iccpr’s Travaux Préparatoires, it seems that this may have been partly due to concerns over state sovereignty. During negotiations, numerous states’ representatives argued that the proposed provision of a list of special exceptions would impinge on state sovereignty to an unacceptable degree.22 Although contested23 these concerns seemed to play a significant role in the drafting of Article 6(2), as evidenced by their being frequently expressed throughout the process and the article’s not expounding ‘the most serious crimes.’ Concerns over state sovereignty also retain a role in the contemporary debate, as evidenced by The Note Verbale issued by forty seven states in April 2013, which stated: ‘the types of crimes for which the death penalty is applied should be determined by each State.’24

Alternatively, Hood and Hoyle argue that the phrase ‘was a product of its time’ and a ‘marker’ for the policy of moving towards abolition of the death penalty, via restriction of its use.25 They posit that reaching judgments regarding the acceptable use of the death penalty requires the meaning of the phrase ‘the most serious crimes’ to be dynamically interpreted in an ever more restrictive way.26 Accordingly, they seem to assume that negotiators believed that the phrase’s inclusion was/is sufficient for norm change (it did not need to be more specific). However, their notion that the phrase was intentionally left vague to allow for dynamic, increasingly restrictive interpretations appears undermined by the apparent lack of any such considerations in discussions of Article 6 throughout the drafting process. This notion appears further undermined by what was said during the discussions, as numerous states’ representatives expressed scepticism over the phrase’s vagueness and called for it to be expounded and/or replaced with a ‘more definite’ alternative.27

Although various concerns were raised over: the feasibility of expounding this phrase in a way that would not discourage ratification, accession, or succession of the covenant (by numerous states); the difficulties that expounding the phrase would entail and; the message that expounding the phrase would convey regarding the right to life, the notion of intentionally leaving it vague to allow for dynamic, increasingly restrictive interpretations was never raised as an alternative solution28 Ergo, this notion appears more akin to an after-the-fact (ex post facto) justification of the outcome of the negotiations than the state representatives’ actual approaches to the negotiations. That said, Hood and Hoyle’s first notion, that is, negotiators did not expound the phrase ‘the most serious crimes’ because they believed that the phrase’s inclusion was/is sufficient for norm change, appears worthy of further consideration.

Numerous scholars have studied the relationship between ratification, accession and succession of the iccpr and norm change. Some scholars posit that ratification, accession, or succession of the iccpr entails norm change in favour of abolition and/or restriction of the death penalty.29 This appears somewhat justified upon consideration of the fact that the death penalty has been abolished for civil offences, if not civil and military offences, in fifty four of the states that retained the death penalty before ratification, accession, or succession of the iccpr.30 However, establishing a causal role for ratification, accession, or succession of the iccpr in these outcomes appears exceedingly difficult due to the large number of variables involved.31 It also appears supported by the UN Human Rights Committee (hrc)’s positing: ‘there has been a broadening international consensus in favour of abolition of the death penalty.’32 Hence, there appears to be (at least) some truth underlying the belief that the mere inclusion of the phrase ‘the most serious crimes’ is sufficient to bring about norm change (henceforth referred to as the norm change hypothesis). This belief, alongside concerns over state sovereignty, provides an answer to why ‘the most serious crimes’ have not been expounded. In sum, states’ delegates seemingly did not expound this vague phrase because they either held this belief, these concerns, or a combination of the two. The following section critically analyses the norm change hypothesis. To do so, it examines international acceptance of the ‘Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty’ (sop).

4 Norm Change and the sop

The sop was adopted and proclaimed via a UN General Assembly resolution in 1989. Acceptance of this protocol by retentionist states, as shown by its ratification, accession, or succession seems to evidence norm change. By 29 February 2020, this protocol had been ratified by thirty eight states, acceded by forty nine and succeeded by one.33 Out of these 88 states, only Brazil, Chile, El Salvador, Liberia and the State of Palestine still retained the death penalty in some form upon ratification, accession, or succession.34 Although retentionist states’ ratification, accession, or succession to the sop seemingly strengthens the case for norm change, thirty eight of the forty three retentionist states that have ratified the iccpr have yet to do likewise.35 This seemingly undermines the norm change hypothesis, at least regarding states that have yet to ratify the second optional protocol.

Furthermore, such norm change has not occurred in a uniform way. This seems evidenced by the disparity in the time taken to abolish the death penalty after ratifying the iccpr, as shown here:

The above graph represents states which have abolished the death penalty for civil offences. It omits the issue of abolition of the death penalty for military offences to make the strongest possible case for the norm change hypothesis; many states abolished the death penalty for military offences (much) later on, or have yet to do so, as is the case for Peru, El Salvador and Guatemala.36

This graph only represents the dates in which states abolished the death penalty (for civil offences) in all their territories (not just in their ‘mainland’). This impacts the categorisation of the UK, New Zealand and the Netherlands. These states ratified the iccpr in 1976, 1978 and 1978, respectively.37 They abolished the death penalty for civilians in their ‘mainland’ in 1998, 1989 and 1870, respectively.38 However, regarding the UK, the death penalty remained in effect in Jersey until 2006.39 The New Zealand government did not abolish the death penalty in the Cook Islands until 2007 and the Dutch Government only abolished the death penalty in Sint Maarten in 2015.40 Thus, instead of fitting into the categories ‘20<x≤25’, ‘10<x≤15’ and ‘N/A’ (the Netherlands would not feature on the graph), they are in the categories ’25<x≤30’, ’15<x≤20’ and ’35<x≤40,’ respectively.

The notion of norm change appears further problematised by the legitimacy of the death penalty’s remaining in dispute after abolition in certain states. For instance, there have been recent calls for its reimposition in Turkey and the Philippines.41 In Turkey, President Recep Tayyip Erdoğan, the leader of the Adalet ve Kalkınma Partisi (akp) and Devlet Bahçeli, the leader of the Milliyetçi Hareket Partisi (mhp) – the akp’s main coalition partner – have agreed to propose a constitutional amendment that would allow Turkey to reimpose it.42 In the Philippines, the Pilipino House of Representatives approved a bill (on 17 March 2017) to reimpose the death penalty. This bill is currently pending Senate approval.43 If this bill is approved by the Senate (and the death penalty is reimposed) the Pilipino government will contravene the iccpr – which it ratified in 1986 – again; they previously contravened it when they reimposed the death penalty in 1999.44 It’s reimposing the death penalty now would also contravene the sop, which it ratified in 2007.45 Critically, the reimposition of the death penalty (anywhere) appears hugely problematic for the notion of norm change, at least insofar as it undermines the notion of (linear) progress. Ergo, the norm change hypothesis appears undermined by the non-uniform, non-linear nature of such change thus far.

Additionally, the reimposition of the death penalty seems to challenge the legitimacy of the hrc, which has stated that the reimposition of the death penalty would violate Article 6 of the Covenant.46 The hrc has stressed that the contents of Article 6(2) have to be narrowly construed to limit the imposition of the death penalty.47 As the hrc is one of the most vocal transnational defenders of human rights, the (negative) implications of this for human rights norms could be far-reaching.

5 Norm Change and Lists of Capital Crimes

An extensive list of capital crimes in any state appears to similarly challenge the authority of the hrc and the UN, due to the extensive restrictions that they have attempted to place on what should be considered ‘the most serious crimes.’48 Within this, the hrc has ruled that Article 6(2) ‘must be read restrictively to mean that the death penalty should be a quite exceptional measure.49 However, just like the phrase ‘the most serious crimes’ the phrase ‘quite exceptional measure’ appears susceptible to misinterpretation and/or abuse, due to its vagueness. The UN Economic and Social Council (ecosoc) has also attempted to restrict possible interpretations by adopting the Safeguards Guaranteeing Protection of the Rights of those Facing the Death Penalty in 1984. These ‘safeguards’ specified that ‘capital punishment may be imposed only for the most serious crimes, it being understood that their scope should not go beyond intentional crimes with lethal or other extremely grave consequences’ and they were adopted by UN member states without opposition.50 Their emphasis on intent, lethality and extremely grave consequences, were apparently meant to imply that the offences should lead to loss of life or be life-threatening.51

Yet, these safeguards also appear highly susceptible to misinterpretation and/or abuse, due to the vagueness of the phrase ‘extremely grave consequences.’52 Furthermore, they are not legally binding and thus, states need not adhere to them.53 The hrc has since proclaimed that the following cannot be considered to constitute ‘the most serious crimes:’ political offences, treason, evasion of military service, ‘vague offences related to internal and external security,’ theft/robbery by force, ‘abduction not resulting in death,’ ‘crimes that do not result in the loss of life,’ traffic in toxic or dangerous wastes, abetting suicide, drug-related offences, drug trafficking, economic crimes, non-violent financial crimes, piracy, robbery, embezzlement by officials, corruption, property offences, stealing cattle, adultery, homosexual acts, sexual relations between consenting adults, illicit sex, apostasy, non-violent religious practices and expressions of conscience.54 However, as with the UN’s safeguards, these ‘views’ are not strictly legally binding.55 The ineffectiveness of ecosoc’s safeguards and the hrc’s ‘views’ appears evidenced by the fact that at least thirty three states retain the death penalty for drug-related offences, fourteen states retain it for economic crimes, twenty states retain it for non-fatal sexual offences, for example adultery and/or homosexual acts and seven retain it for religious dissent, for example blasphemy, apostasy, sorcery and/or witchcraft.56 Within this, many retentionist states retain the death penalty for more than one of these types of offence. For instance, China retains the death penalty for drug-related offences, economic crimes and non-fatal sexual offences while Vietnam retains it for drug-related offences and economic crimes.57

The hrc has also recommended that states review their lists of capital crimes to better accord to a restrictive reading of ‘the [phrase] “most serious crimes.”’58 This suggestion seemingly alludes to one way in which norms may be changed: such reviews may cause states to attempt to qualify what they consider to be ‘the most serious crimes’ and thus, entail domestic and international scrutiny and/or debate on the legitimacy of the death penalty in specific cases and in principle. Either of these outcomes could seemingly lead to norm change.59

5.1 Extending Lists

Any extension of a state’s list of capital crimes would critically undermine the norm change hypothesis.60 Egypt, India, Japan, Liberia, Morocco, Sudan and Thailand all evidence this phenomenon.61 Within this section, I focus on the case of Sudan, due to the extent to which they have extended their list of capital crimes. Sudan acceded to the iccpr on 18 March 1986. At that time, it retained the death penalty solely for murder. Since then, it has vastly expanded the scope of the application of the death penalty; it has added twenty nine crimes to its list of capital crimes.62 It has done so via its 1991 Criminal Code and various legal amendments.63 Sudan’s 1998 Constitution also seemingly validated this extension of its list of capital crimes.64 This constitution incorporated principles of Shari’a law to an unprecedented degree in Sudan; the application of these principles saw apostasy and adultery added to Sudan’s list of capital crimes.65 By legitimising the criminalisation of various opinions and personal behaviours, it also facilitated the use of the death penalty against political opponents.66

In Sudan, the death penalty can now be imposed for a wide range of crimes, including drug-related offences,67 non-fatal sexual crimes68 and religious dissent (apostasy). Here, a critic may posit that Sudan’s being engaged in the Second Sudanese Civil War from 1983 to 2005 explains and/or justifies these changes.69 However, only three of the sixteen capital crimes that were added to Sudan’s list during this period are explicitly concerned with conflict70 and the wordings of two of these seemingly facilitates political persecution.71 The phrasing of six of the thirteen other capital crimes that were added to Sudan’s list since 2005 appear similarly susceptible to such abuse.72 Such changes appear particularly troubling upon consideration of the hrc’s having previously denounced Sudan for imposing the death penalty for ‘offences that cannot be described as the most serious crimes.’73 Ergo, the norm change hypothesis, that is, the belief that the mere inclusion of the vague phrase ‘the most serious crimes’ in Article 6 was/is sufficient to bring about norm change, appears critically undermined by the above states’ extension of their lists of capital crimes.

The following section answers this essay’s second research question, that is, what are the implications of not expounding the phrase ‘the most serious crimes’?

Within this, it focuses on its facilitating legal inequality between men and women and how this impacts human rights principles, the universality of human rights, human dignity and thus, universal human rights.

6 Legal Inequality

In accordance with the Universal Declaration of Human Rights (udhr), the principle is that ‘all are equal before the law and are entitled without any discrimination to equal protection of the law.’74 The vagueness within the iccpr allows much room for interpretation, which affords states significant discretion regarding this principle, that is, they can violate it without contravening the covenant. For instance, although Article 3 posits that: ‘The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant,’ the fulfilment of Article 6, paragraph 2 merely requires that ‘sentence of death’ be imposed only for ‘the most serious crimes.’75 As previously mentioned, the vague nature of the phrase ‘the most serious crimes’ allows much room for interpretation. The UN’s not expounding ‘the most serious crimes’ may allow states to abuse Article 3 without violating the covenant, for example by drawing up different lists of capital crimes for men and women.

This appears to be the case in Iran, where any man guilty of premeditated murder is exempt from the death penalty if: he is the father or paternal grandfather of the victim, or; the victim is his adulterous wife.76 , 77 This apparent legal inequality undermines the universality of human rights and thus, threatens the very concept of universal human rights. Additionally, Iran’s affording men greater legal protection from prosecution than women and its provision of lesser protection for women (from murder) also bears on human dignity, a normative basis for universal human rights.78 Ergo, such laws may erode the legitimacy of human rights in the short- and long-term.

Legal inequality also cuts the other way, as evidenced by the laws of Thailand, Egypt, India, Pakistan and Bangladesh. In Thailand, rape of a girl resulting in death is a capital crime, in accordance with articles 277–280 of the Criminal Code.79 In India, rape, or participation in the gang rape, of a woman under twelve is punishable by death.80 Moreover, rape of a female is a capital crime in Egypt and Pakistan.81 In these four states, only the rape of women and/or girls is a capital crime. This seemingly entails legal inequality for male victims of rape and/or gang rape. If the death penalty deters crime (as many scholars argue) then this would also deter the rape/gang rape of males to a lesser extent than their female counterparts, which seems to negatively impact human dignity. Legal inequality here seems to suggest that the same legal protections need not extend to men and boys. This seemingly quantifies the suffering of men and boys, at the hands of rapists/gang rapists, as less than that of women, which also seems to negatively impact human dignity.

Lastly, the government of Bangladesh has ruled that rape, or participation in the gang rape, of a woman or child, is punishable by death, as is causing death, or grievous harm, to a woman or child by means of explosive, poisonous or corrosive substances.82 Although the latter offence may hold men and women equally accountable, the former offence seemingly pertains solely to male offenders, which appears problematic regarding female rapists. More critically, both offences appear problematic for human dignity, at least insofar as they do not extend such protections to men. Ergo, the iccpr’s not expounding ‘the most serious crimes’ seemingly enables misinterpretation and abuse of the covenant. As shown, different lists of ‘the most serious crimes’ for different societal groups, men and women, for example, can undermine the universality of human rights and thus, the concept of universal human rights. They can also undermine human dignity and thus, universal human rights themselves. I chose to focus on legal inequality regarding sex due to sexual equality’s being clearly established in international human rights instruments, that is, in the udhr, the iccpr and the Convention on the Elimination of All Forms of Discrimination against Women (cedaw) 1979.83 The following section addresses the issues raised by not expounding the phrase ‘the most serious crimes’ via the provision of a possible solution to the issue.

7 Defining ‘the most serious crimes’

The [phrase] ‘the most serious crimes’ must be more clearly defined. Governments must not be left to define it themselves, because some States … might be ready to regard as serious crimes which were not considered as such by [states] which had a proper conception of the dignity of man in his relations with the State.84

The phrase ‘the most serious crimes’ must be expounded to safeguard human rights and human dignity. This may be done in (at least) two ways. As suggested during the drafting of the iccpr, this could be achieved via the provision of a list of crimes which cannot be considered ‘the most serious.’85 This appears to be the approach taken by the hrc, as evidenced by its non-binding ‘views.’86 However, this approach appears misguided as states could adhere to these views and still misinterpret and/or abuse Article 6 without violating the covenant. For instance, states may make certain (increasingly specific) crimes that are not explicitly on such a list punishable by death.

Alternatively, the phrase ‘the most serious crimes’ could be expounded via reference to the udhr. Within the drafting process, it was posited that the omission of any mention of the udhr would ‘open the door to the most arbitrary interpretation of that phrase.’87 Following this, numerous states’ parties suggested that a proviso should be included in the article to ensure that ‘the laws prescribing that penalty should not be contrary to the Universal Declaration of Human Rights.’88 The inclusion of this proviso could seemingly have helped prevent abuse of Article 6, paragraph 2 and/or (at least) better facilitate the punishment of such abuse. Yet, this proviso was omitted from the article. Concerns over abuse of the article were seemingly born in mind in subsequent discussions, as evidenced by their referring to ‘the principles of the Universal Declaration of Human Rights’ in various suggested formulations of Article 6.89 However, all references to the udhr were eventually omitted from the iccpr.

To better safeguard the universality of human rights and human dignity, this article recommends that the UN draft an optional protocol which incorporates an attenuated form of the above-mentioned proviso. This could be formulated thusly: ‘The death penalty cannot be inflicted for offences that violate the human rights principles including equality and non-discrimination.’ Ideally, these principles would be expounded in the following sentence: ‘These principles are (minimally) understood as the universality of human rights, (sexual and other forms of) equality and non-discrimination.’ This conceptualisation of the principles of human rights appears justified via a brief discourse analysis of four important pieces of human rights instruments, namely the udhr, the iccpr, the International Convention on the Elimination of All Forms of Racial Discrimination (cerd) and the cedaw. Within these documents, the terms ‘universal,’ ‘equal,’ ‘equality’ and ‘discrimination’ appear thirteen, forty-seven, twenty-eight and seventy-two times, respectively.90

Upon completion, this protocol should be adopted and opened for ratification, accession and succession by all UN states. This article argues that ratification, accession, or succession of this may better facilitate norm change and safeguard the universality of human rights and thus, the concept of universal human rights itself. It may also better safeguard human dignity and thus, universal human rights.

8 Conclusion

The phrase ‘the most serious crimes’ has not been expounded due to concerns over state sovereignty and the belief that its mere inclusion was/is sufficient to bring about norm change. This article has shown this belief to be highly problematic. It has also shown that the vagueness within Article 6(2) has enabled legal inequality, which threatens human dignity and thus, universal human rights. It has shown that the implications of not expounding the vague phrase ‘the most serious crimes’ may be far-reaching, particularly in the long-term, as this vagueness allows states to undermine the very concept of universal human rights by challenging their universality. Human rights must be universal. In its current form, Article 6 of the iccpr allows for inequality regarding the death penalty and thus, it cannot ensure universality for even the ‘supreme right:’ the right to life. This article has argued that a new optional protocol that evokes human rights principles could better safeguard this right and universal human rights in general.

*

I would like to take this opportunity to express my gratitude to anonymous reviewers, Dr. Santino Regilme and Boudewijn van Eerd for comments. All errors are mine.

1

International Covenant on Civil and Political Rights (iccpr), (1966), 999 unts 171, entered into force 23 March 1976.

2

These concerns were raised by delegates from the United Kingdom (UK), Lebanon (United Nations Economic and Social Council, Summary Record of the 140th meeting, (New York, United Nations, 1950a), §4, §39; United Nations Economic and Social Council, Summary Record of the 149th meeting, (New York, United Nations 1950b), §35, §61; United Nations Economic and Social Council, Summary Record of the 153rd meeting, (New York, United Nations, 1950c), §14) and Egypt (United Nations Economic and Social Council, Summary Record of the 152nd meeting, (New York, United Nations 1950d), §37).

3

Jiang Na, China and International Human Rights (Heidelberg, Springer 2014), 106.

4

Jürgen Habermas, ‘The Concept of Human Dignity And the Realistic Utopia of Human Rights’ (2010) 41(4) Metaphilosophy 464; Emilie Hafner-Burton, Making Human Rights A Reality (Princeton University Press 2013), 41, 60.

5

United Nations Economic and Social Council, Summary Record of the 139th meeting, (New York, United Nations, 1950), §4.

6

Universal Declaration of Human Rights GA res. 217A (iii), UN Doc A/810 at 71 (1948), art 7.

7

Roger Hood and Carolyn Hoyle, The Death Penalty: A Worldwide Perspective (Oxford University Press 2015), 205.

8

United Nations Economic and Social Council, Summary record of the 3rd meeting, held at Lake Success, New York, on Wednesday, 11 June 1947: Commission on Human Rights, Drafting Committee, 1st session. (New York, United Nations, 1947).

9

United Nations General Assembly, Report of the Third Committee, (New York, United Nations 1966).

10

International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3, iccpr (n 1), 999 UNTS 302 and Optional Protocol to the International Covenant on Civil and Political Rights’ 999 UNTS 171.

11

United Nations, ‘untc’ (Treaties.un.org, 2020) <https://treaties.un.org/Pages/ViewDetails.aspx? chapter=4&clang=_en&mtdsg_no=IV-4&src=IND> accessed 27 March 2020.

12

The Vienna Convention on The Law of Treaties concluded at Vienna on 23 May 1969, ­entered into force on 27 January 1980, 1155 UNTS 331.

13

I focus solely on states that have ratified, acceded, or succeeded (to) the covenant because it is not legally binding in state’s that have only signed the convention. Such states are considered to be ‘non-party’ states (Linda Camp Keith, ‘The United Nations International Covenant on Civil And Political Rights: Does It Make a Difference in Human Rights ­Behavior?’ (1999) 36 Journal of Peace Research, 101).

14

iccpr (n 1).

15

United Nations Economic and Social Council, Summary Record of the 98th meeting (New York, United Nations 1949), 10; Human Rights Committee, General comment No. 36: Article 6: Right to Life, ccpr/C/gc/36 (3 September 2019).

16

United Nations Economic and Social Council, Summary Record of the 93rd meeting (New York, United Nations 1949), 31; United Nations Economic and Social Council (n 5) §27–28; United Nations General Assembly, Draft International Covenants on Human Rights: report of the 3rd Committee, (New York, United Nations 1957), §85.

17

United Nations General Assembly, 810th meeting, (New York, United Nations 1957a), §31; United Nations General Assembly, 811th meeting, (New York, United Nations 1957b), §26, §40; United Nations General Assembly, 812th meeting, (New York, United Nations 1957c), §5, §22, §30, §34; United Nations General Assembly, 813th meeting, (New York, United Nations 1957d), §6, §21, §39; United Nations General Assembly, 814th meeting, (New York, United Nations 1957e), §17, §26, §25; United Nations General Assembly, 818th meeting, (New York, United Nations 1957g), §1, §2, §13; United Nations General Assembly, 819th meeting, (New York, United Nations 1957h), §4, §13, §39.

18

United Nations General Assembly (n 17, 1957c) §24; United Nations General Assembly (n 17, 1957e) §22; United Nations General Assembly, 815th meeting, (New York, United Nations 1957), §13–14.

19

United Nations General Assembly (n 17, 1957a), §26; United Nations General Assembly (n 17, 1957b), §20, §35; United Nations General Assembly (n 17, 1957c), §9, §24).

20

United Nations General Assembly (n 17, 1957d) §41; United Nations General Assembly (n 17, 1957e) §11.

21

United Nations General Assembly (n 1) 175.

22

United Nations Economic and Social Council, Summary Record of the 91st meeting. (New York, United Nations 1949), 3; United Nations General Assembly (n 17, 1957a) 244; United Nations General Assembly (n 17, 1957c), 250–251.

23

United Nations General Assembly (n 17, 1957e) 216.

24

United Nations General Assembly, ‘Note verbale dated 16 April 2013 from the Permanent Mission of Egypt to the United Nations addressed to the Secretary-General’ (Undocs.org, 2013) <http://undocs.org/A/67/841> accessed 27 March 2020, 4.

25

Hood and Hoyle (n 7) 151.

26

Ibid.

27

United Nations Economic and Social Council (n 22), 8; United Nations Economic and Social Council (n 16), 4–5; United Nations Economic and Social Council (n 15); United Nations Economic and Social Council, Report of the Fifth Session of the Commission on Human Rights to the Economic and Social Council, held at Lake Success, New York, 9 May – 20 June 1949, (New York, United Nations 1949), 53; United Nations Economic and Social Council, Compilation of the Comments of Governments on the Draft International Covenant on Human Rights and on the Proposed Articles, New York, 9 May – 20 June 1949, (New York, United Nations 1950a), 23; United Nations Economic and Social Council (n 2, 1950b); United Nations Economic and Social Council (n 2, 1950d); United Nations Economic and Social Council (n 2, 1950c); United Nations Economic and Social Council, Draft International Covenants on Human Rights, (New York, United Nations 1955), 82, 84; Hurst Hannum and Marc J. Bossuyt, ‘Guide to the “Travaux Preparatoires” of the International Covenant on Civil and Political Rights’ (1988) 82 The American Journal of International Law, 129.

28

United Nations Economic and Social Council (n 16) 6–7; United Nations Economic and Social Council (n 2, 1950b); United Nations Economic and Social Council (n 27) 83.

29

Sarah Joseph and Melissa Castan, The International Covenant on Civil And Political Rights (3rd edn, Oxford University Press 2013), 198; Na (n 3) 59 106.

30

Romania Secret Deputaţilor, ‘Decret Lege Nr.6 Din 7 Ianuarie 1990 Pentru Abolirea Pedepsei Cu Moartea, Pentru Modificarea Şi Abrogarea Unor Prevederi Din Codul Penal Şi Alte Acte Normative’ (Cdep.ro, 1990) <http://www.cdep.ro/pls/legis/legis_pck.htp_act_text?idt=11033> accessed 27 March 2020; Roger Hood and Robert Badinter, The Death Penalty: Beyond Abolition, Part 285 (Council of Europe 2004); Jersey Government, ‘Government of Jersey’ (gov.je, 2006) <https://www.gov.je/Government/PlanningPerformance/Pages/MinisterialDecisions.aspx?docid=EBCACC0C-D0BE-4290-AFAC-02388998AEEB> accessed 27 March 2020; Organisation for Security and Co-operation in Europe, ‘Death Penalty statement on behalf of Amnesty International, International Helsinki Federation for Human Rights, Penal Reform International and the World Coalition Against the Death Penalty’ (Osce.org, 2007) <https://www.osce.org/odihr/27354?download=true> accessed 27 March 2020; Dutch Caribbean Legal Portal, ‘New Penal Code For Sint Maarten Per 1 June’ (Dutchcaribbeanlegalportal.com, 2015) <http://www.dutchcaribbeanlegalportal.com/news/crime/5325-new-%09penal-code-for-sint-maarten-per-1-june> accessed 27 March 2020; Amnesty International, ‘Abolitionist and Retentionist Countries as of March 2018’ (Amnesty.org, 2018) <https://www.amnesty.org/download/Documents/ACT5066652017ENGLISH.pdf> accessed 27 March 2020, 2–4; Hands Off Cain, ‘Burkina Faso Abolishes Death Penalty In New Penal Code’ (Handsoffcain.info, 2018) <http://www.handsoffcain.info/notizia/burkina-faso-abolishes-death-penalty-in-new-penal-code-40305295> accessed 27 March 2020.

31

Na (n 3) 106, particularly in relation to East Timor, Cambodia and numerous Eastern European states that likely wished to distance themselves from their ‘tyrannical’ former regimes, that is, via abolition of the death penalty, see Hood and Hoyle (n 7) 50–53, 100.

32

United Nations Human Rights Committee, Roger Judge v Canada, Views: Communication No. 829/1998, ccpr/C/78/D/829/1998, 13 August 2003.

34

Ibid. These states have yet to abolish the death penalty for both civil and military offences. Out of these states, Liberia appears particularly problematic due to its authorizing new death penalty legislation in 2008, despite ratifying this protocol in 2005 (United Nations News, ‘Liberia Death Penalty Violates International Law, Says UN Human Rights Body’ (UN News, 2008) <https://news.un.org/en/story/2008/08/270642-liberia-death-penalty-violates-international-law-says-un-human-rights-body> accessed 27 March 2020).

35

Amnesty International (n 30); United Nations (n 32).

36

Military tribunals also appear qualitatively different (different in kind) to civilian trials, as they directly concern state power and authority. The debates around military tribunals also seem philosophically distinct from civilian trials and highly contingent on local, historical and cultural factors.

37

United Nations (n 11).

38

Amnesty International (n 30).

39

Jersey Government (n 30).

40

Amnesty International (n 30); Dutch Caribbean Legal Portal (n 30).

41

Poland’s Law and Justice Party have also sought to reimpose the death penalty. Yet, in October 2004, the lower house of the Polish Parliament rejected the proposal by a vote of 198–195, with fourteen abstentions. Although there remains much political and public pressure for its reimposition, this has yet to produce concrete changes in the law (Hood and Hoyle (n 7) 61). Thus, I shall omit further discussion of this specific case.

42

Cumhuriyet, ‘akp Ve mhp Anlaştı, 3 Suça Idam Gelecek’ (Cumhuriyet.com.tr, 2018) <http://www.cumhuriyet.com.tr/haber/siyaset/1066402/_AKP_ve_MHP_anlasti__3_suca_idam_gelecek_.html> accessed 29 March 2020.

43

Llanesca Panti, ‘House Approves Death Penalty Bill – The Manila Times’ (The Manila Times, 2017) <https://www.manilatimes.net/2017/03/08/news/top-stories/house-approves-death-penalty-bill/316049/316049/> accessed 27 March 2020.

44

They (first) abolished it in 1987.

45

United Nations Human Rights Committee, Pagdayawon Rolando v. The Philippines, ccpr/C/82/D/1110/2002, 8 December 2004; Joseph and Castan (n 29), 12; United Nations, ‘untc’ (Treaties.un.org, 2020) <https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-12&chapter=4&lang=enhttps://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-12&chapter=4&lang=en> accessed 27 March 2020.

46

Human Rights Committee (n 46); Joseph and Castan (n 29), 192, 214.

47

Human Rights Committee, General comment No. 36 (n 15) paras 32–51.

48

Human Rights Committee, Consideration of Reports Submitted by States Parties: Iran (Islamic Republic of) ccpr/C/79/Add.25, 3 August 1993’ 2; Joseph and Castan (n 29) 192; Hood and Hoyle (n 7) 152–153.

49

Human Rights Committee (n 15) 2.

50

Hood and Hoyle (n 7) 152.

51

Ibid.

52

Ibid.

53

Amnesty International, ‘International Standards on the Death Penalty’ (1997) <https://www.amnesty.org/download/Documents/156000/act500061997en.pdf> accessed 27 March 2020, 43.

54

United Nations Human Rights Committee (n 48), 2; Joseph and Castan (n 29); Na (n 3) 106; Hood and Hoyle (n 7) 152–153.

55

Amnesty International (n 53), 43; Thomas Buergenthal, ‘The U.N. Human Rights Committee’ in JA Frowein, R Wolfrum and CE Philipp (eds), (2002) 5 Max Planck Yearbook of United Nations Law, 376–377, at 397.

56

Hood and Hoyle (n 7) 160–168.

57

Ibid 161–167.

58

Human Rights Committee (n 15) 2; United Nations Human Rights Committee, Concluding observations of the Human Rights Committee: Lebanon, ccpr/C/79/Add.78, 5 May 1997, 5.

59

It is worth noting that the translation of norm change into legislative change largely depends upon the willingness and/or capacity of state actors to do so.

60

Contrarily, any decrease in a state’s list of capital crimes would seem to support the hypothesis, as has been the case in Vietnam and North Korea (Hood and Hoyle (n 7) 94, 129). It would also undermine the hrc, which ruled that any extension of a State Party’s list of capital crimes appears to breach Article 6 (Joseph and Castan (n 29), 194; hrc (n 58), 5).

61

Hood and Hoyle (n 7) 69, 92, 130; The International Federation for Human Rights, ‘The Death Penalty in Japan: The Law of Silence’ (Fidh.org, 2008) <https://www.fidh.org/IMG/pdf/japon505a2008.pdf> accessed 27 March 2020, 25; Amnesty International, ‘Death Sentences and Executions 2017’ (Amnesty.org, 2018) <https://www.amnesty.org/download/Documents/ACT5079552018ENGLISH.PDF> accessed 27 March 2020, 10.

62

Government of Sudan, ‘Sudan: The Criminal Act 1991’ (1994) 9 Arab Law Quarterly, 32–79, <https://www.refworld.org/docid/5a8433274.html>; Government of Sudan, ‘Armed Forces Act 2007’ (Pclrs.com, 2007) <http://www.pclrs.com/downloads/bills/Institutional%20Law/Armed%20Forces%20Act%202007.pdf> accessed 29 February 2020; Government of Sudan, ‘National Security Act 2010’ (Pclrs.com, 2010) <http://www.pclrs.com/downloads/bills/Institutional%20Law/National%20Security%20Act%202010%20UNMIS%20unofficial%20English%20%20Transaltion%20final%20version%202010-02-03%20single%20space.pdf> accessed 27 March 2020.

63

African Centre for Justice and Peace Studies, ‘Widening the Scope: The Expanding Use of Capital Punishment in Law and Practice in Sudan’ (Acjps.org, 2010) <http://www.acjps.org/wp-content/uploads/2012/04/WideningtheScope_ExpandingUseofCapitalPunishment.pdf> accessed 27 March 2020, 3. Sudan’s steadfast defence of capital punishment also seems problematic for the norm change hypothesis.

64

Ibid 7.

65

Ibid 8.

66

Ibid.

67

For instance, ‘trafficking or producing drugs by a recidivist, an official entrusted with combating drug trafficking, by use of a person unable to give legal consent, or as part of an international criminal organization, carries the mandatory death penalty’ (Cornell Law School, ‘The Death Penalty In Sudan (Dpw.pointjupiter.co, 2020) <https://dpw.pointjupiter.co/country-search-post.cfm?country=Sudan> accessed 27 March 2020.

68

For example, ‘incest committed by a married offender,’ ‘heterosexual sodomy,’ rape, ‘running a place for prostitution’ and ‘sodomy’ (ibid).

69

British Broadcasting Corporation, ‘South Sudan Profile’ (bbc News, 2018) <https://www.bbc.com/news/world-africa-14019202> accessed 27 March 2020.

70

Articles 51, 53 and 65 of The Criminal Act 1991.

71

Government of Sudan (n 62, 1994), Articles 53 and 65.

72

Government of Sudan (n 62, 2007); Government of Sudan (n 62, 2010). Articles 164, 165 and 167 of the Military Forces Act 2007 and articles 55–57 of the National Security Act 2010.

73

Human Rights Committee, Consideration of Reports submitted by States Parties under Article 40 of the Covenant: The Sudan, ccpr/C/sdn/CO/3, 29 August 2007, 6.

74

United Nations General Assembly (n 6) art 7.

75

United Nations General Assembly (n 1) 174.

76

Cornell Law School, ‘The Death Penalty In Iran (Dpw.pointjupiter.co, 2020) <https://dpw.pointjupiter.co/country-search-post.cfm?country=Iran> accessed 27 March 2020.

77

It is also worth noting that in Iran, some laws also treat men and women differently depending on their religious affiliation. For instance, sexual intercourse between a non-Muslim man and Muslim woman (outside of marriage) is punishable by death while sexual intercourse between a Muslim man and a non-Muslim woman (outside of marriage) is not. (Iran Human Rights Documentation Center, ‘English Translation of Books i & ii of The New Islamic Penal Code – Iran Human Rights Documentation Center’ (Iran Human Rights Documentation Center, 2014) <https://iranhrdc.org/english-translation-of-books-i-ii-of-the-new-islamic-penal-code/> accessed 27 March 2020, art 224). Although this avenue appears worthy of further study, I shall omit further discussion of this point to reduce the risk of hampering this article’s coherence.

78

Habermas (n 4); Hafner-Burton (n 4).

79

Siam Legal, ‘Criminal Code: Rape (Sections 276–281) | Thailand Law Library’ (Library.siam-legal.com, 2019) <http://library.siam-legal.com/thai-law/criminal-code-rape-sections-276-281/> accessed 27 March 2020.

80

Government of India, ‘The Criminal Law (Amendment) Act, 2018’ (Mha.gov.in, 2018) <https://mha.gov.in/sites/default/files/CSdivTheCriminalLawAct_14082018_0.pdf> accessed 27 March 2020, 2.

81

Government of Pakistan, ‘Pakistan – Pakistan Penal Code (xlv Of 1860).’ (Ilo.org, 2017) <https://www.ilo.org/dyn/natlex/natlex4.detail?p_lang=&p_isn=64050&p_classification=01.04> accessed 27 March 2020, art 375; Cornell Law School, ‘The Death Penalty in Egypt’ (Dpw.pointjupiter.co, 2020) <https://dpw.pointjupiter.co/country-search-post.cfm?country=Egypt> accessed 27 March 2020.

82

Bangladesh Gazette Extraordinary, ‘Oppression of Women and Children (Special Enactment) Act, 1995’ (Commonlii.org, 1995) <http://www.commonlii.org/bd/legis/num_act/oowacea1995466/> accessed 27 March 2020, art 6, art 4–5.

83

United Nations General Assembly (n 6); United Nations General Assembly (n 1); Convention on the Elimination of All Forms of Discrimination Against Women General Assembly resolution 34/180 of 18 December 1979, UN Doc. A/34/46, entered into force 3 September 1981.

84

United Nations Economic and Social Council (n 2) 4.

85

United Nations Economic and Social Council, Summary Record of the 35th meeting. (New York, United Nations, 1947), 13–14; United Nations Economic and Social Council, Commission on Human Rights Report to the Economic and Social Council on the Second Session of the Commission. (New York, United Nations, 1948), 31; United Nations Economic and Social Council, United Kingdom: Proposals on Certain Articles. (New York, United Nations, 1949), 1; United Nations Economic and Social Council (n 15); United Nations Economic and Social Council (n 27, 1949), 53; United Nations Economic and Social Council (n 27, 1950a) 23–24.

86

United Nations Human Rights Committee (n 48), 2; Joseph and Castan (n 29); Na (n 3) 106; Hood and Hoyle (n 7) 152–153.

87

United Nations Economic and Social Council (n 2, 1950b) 8.

88

United Nations Economic and Social Council, Commission on Human Rights: Report of the 8th Session, 14 April – 14 June 1952 (New York, United Nations, 1952) 26.

89

United Nations Economic and Social Council, Commission on Human Rights: Report of the 9th Session, 7 April – 30 May 1953 (New York, United Nations, 1953) 42; United Nations Economic and Social Council, Commission on Human Rights: Report of the 10th Session, 23 February – 16 April 1954, (New York, United Nations, 1954), 66; United Nations Economic and Social Council (n 27, 1955) 82–84; United Nations General Assembly (n 16) 27.

90

It is worth noting that these four terms are not equally stated in the udhr, iccpr, cerd and cedaw documents. For instance, the term ‘universal’ appears four, three, five and one time(s), respectively. ‘Equal’ appears eleven, seven, twelve and seventeen times. ‘Equality’ appears one, three, two and twenty-two time(s). ‘Discrimination’ appears four, six, thirty-four and twenty-eight times.

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    Number of States that have abolished the Death Penalty since ratifying the iccpr. This data was ascertained by correlating the dates when the states in question ratified the iccpr (United Nations (n 11)) with the dates when they abolished the death penalty (via legislative change).

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