1) Universal Declaration of the Rights of Man

Article 3 of the Universal Declaration of the Rights of Man, of 1948, states that "each individual has the right to life, to freedom and to the safety of his person".

During the preliminary proceedings of the Declaration, the thesis that wanted to state tout court that the death penalty is a violation of the right to life remained largely a minority, and it was decided not to mention it at all in the Declaration.

Moreover, the intention was expressed to postpone the provisions on the subject to the scheduled binding agreements.

2) European Declaration of the Rights of Man

The European Declaration of the Rights of Man, of 1950, while envisaging the right to life in article 2, explicitly excludes the question of the death penalty from the latter's operative sphere, and does not provide for any limits in the possibility of inflicting such penalty;

3) International Treaty on Civil and Political Rights

The International Treaty on Civil and Political Rights, of 1966, which was designed to translate part of the principles laid down by the Universal Declaration into juridical obligations, states in article 6 that "the right to life is intrinsic in the human being. This right should be guarantied by the law. No one can be arbitrarily deprived of his life".

- Even if article 6 of the Treaty "strongly suggests that its abolition is desirable" and states that it "represents a progress in the enjoyment of the right to life", the death penalty is still not the object of an international juridical obligation.

4) Limitations in the use of capital punishment

A series of limitations to the use of capital punishment are envisaged by the International Treaty on Civil and Political Rights and by the U.S. Convention on the Rights of Man, and concern the characteristics of the offence for which the death penalty is provided, the procedure followed to reach a death sentence, the person of the condemned person.

5) Sixth Additional Protocol to the European Convention on the Rights of Man

The Sixth Additional Protocol to the European Convention on the Rights of Man, of 1983, is the first international treaty (juridically binding albeit in a limited geographic sphere) to provide for the abolition of the death penalty in peacetime;

- the Sixth Protocol took effect in 1985, and in February '91 it was ratified by 16 Member States of the Council of Europe and was ratified by 3 more states (see enclosed general situation on non-ratifications at December 1990).

6) Second Optional Protocol to the International Treaty on Civil and Political Rights

On 15 December 1989, the General Assembly of the United Nations, with Resolution 44/128, passed the Second Optional Protocol to the International Treaty on Civil and Political Rights aiming at the abolition of the Death Penalty, which states that

"1. No person who is subjected to the jurisdiction of a Member of the present protocol shall be put to death.

2. Every Member State will adopt the necessary measures for the abolition of the death penalty in the sphere of its own jurisdiction".

- It is the first universal international treaty to take into consideration the legal abolition of the death penalty, placing the problem in the sphere of human rights;

- at February '91, the Second Optional Protocol had been signed by 15 States and ratified by 4. It will take effect with the tenth ratification (see enclosed situation on signatures and ratifications at 16-10-1990).

7) European Extradition Convention

Lastly, article 11 of the European Extradition Convention, of 1957, states that "If we offence for which the extradition is requested can be punished with capital punishment according to the legal system of the requesting country, and if the jurisdiction of the other country does not provide for, or does not normally apply the death penalty, the extradition may be refused, unless the requesting country provides guarantees, which the other country considers sufficient, that the death penalty shall not be applied".

- It is an important Convention - in several States it has had an internal legislative application - because it asserts the right-duty of the abolitionist States to interfere with the domestic affairs of States which practice the death penalty (see enclosed situation on signatures and ratification at December 1990).

Juridical initiatives for a national abolition.

1) Capital punishment: a phenomenon which is conditioned by the single States. From a juridical, binding standpoint, the death penalty today is a phenomenon which is administered, regulated and conditioned by the single States.

The signature and the ratification on the part of the single State of an agreement against the death penalty which binds it internationally normally occurs following a decision - or the planning of a decision - to abolish capital punishment in that State.

In any case, such agreements are binding only for those who have endorsed them.

There is no cogent international regulation, no consequent jurisdiction, no police or enforcement system, no sanctions against those who maintain the death penalty.

At the current state of affairs and of international law, as far as any possible actions against the parliaments and the national governments, it is possible to devise at least two types of intervention: on the single countries that maintain the death penalty and on the countries that have abolished it de jure or de facto.

2) Intervention on countries that maintain the death penalty: signature and ratification of the internationally binding agreements.

- An intervention is necessary on those countries that still maintain the death penalty, to urge them to pass internal norms in the direction of the abolition or to sign and/or ratify the existing international treaties, especially the Second Optional Protocol of the International Treaty on Civil and Political Rights and the Sixth Additional Protocol to the European Convention of the Rights of Man - which would bind them to abolish the death penalty.

3) Intervention on abolitionist countries: signature and ratification of treaties on extradition.

An intervention is necessary on the abolitionist countries, urging them to sign or ratify and enforce, also by means of internal regulations, the treaties on extradition and especially the European Convention on Extradition of 1957, in fulfilment of the principle "No extradition from countries that have abolished the death penalty!"

4) An initiative in the context of the European Parliament

Adelaide Aglietta is the proposer at the European Parliament of a draft Resolution on the death penalty. Following are parts of her resolution:

[The European Parliament]

- believes that no State, and especially no democratic State, can, under any circumstances, deprive its citizens of their life;

- believes that the commitment to operate for the abolition of the death penalty wherever it is still enforced and practiced is to be considered a legitimate right of interference;

- asks all Member States to operate for the abolition of the death penalty for ordinary offence (Greece and Belgium);

- asks the Member States that still envisage it to abolish the death penalty for extraordinary offences (Greece, Belgium, Italy, Spain and United Kingdom);

- asks all E.C. Member States which have still not done so to sign and/or ratify both the Sixth Additional Protocol to the European Convention of the Rights of Man (Belgium, Greece, Ireland, United Kingdom) and the Second Optional Protocol to the International Treaty on Civil and Political Rights;

- moreover asks all Member States to operate so as not to grant the extradition of defendants liable to be sentenced to death in the requesting country, unless the latter provides sufficient guaranties that this will not occur;

- hopes that the commitment for the abolition of capital punishment will be assumed by the Member States of the Council of Europe which have not yet done so (Ciprus, Malta and Switzerland for extraordinary offences, Turkey for ordinary and extraordinary offences) and similarly by the CSCE Member States which still envisage the death penalty in their juridical system (Bulgaria, Poland, United States of America, Soviet Union, Yugoslavia);

- binds the Commission and the Council, and asks the Member States to operate with all means and in all fora for the abolition of the death penalty in all the States which still enforce it;

- binds the Council and the Commission, and asks the Member States, for that which is of their competence:

a) to operate to obtain a United Nations binding deliberation for a generalized suspension of the death penalty;

b) not to accept requests of adhesion to the European Community from those States which have not yet abolished capital punishment;

c) to plan their foreign policy and their policy regarding economic agreements and cooperation considering the death penalty as a condition to be taken into account;

d) to promote a vast and far-reaching information campaign.

Juridical initiative for the abolition in the sphere of the United Nations.

1) An amendment to the Universal Declaration of the Rights of Man.

As an integration, addition or reference to art.3 of the Universal Declaration of the Rights of man, the hypothesis is that of an amendment which explicitly promotes "the individual's right not to be killed on the basis of the law or of a decision taken by any public authority, for any reason";

this amendment should foreshadow a regulation of the principle according to which "the death penalty violates the individual's right to life", which should extremely strict and progressive - and not negative - which should take into account the different historical, cultural and legislative situations which would be the basis for the implementation of the new subjective law;

- because the abolitionist countries are still a minority in the international community, and the adoption of this principle - in a "prohibitionist" sense - on the part of the United Nations would imply the outlawing tout court of more than half of the States that are part of it today;

- moreover, this amendment should be translated into a jurisdiction which should preventively, repressively or punitively guarantee its effective cogent force.

2) Problems relative to the presentation of the amendment.

- What are the procedures envisaged in the current international juridical context for its presentation: who could present it and in which fora?;

- Who could express, at the current state of the United Nations, the necessary jurisdictional, preventive, coercive, punitive power to guarantee the new subjective law: the Security Council? with the current veto powers?

- which "reform of the United Nations" would be necessary for this purpose?

(by Sergio D'Elia, 24 October '91)