William Schabas - Canada

Professor, Department of Juridical Sciences at the University of Québec

ABSTRACT: The United States has ratified the International Convention on Civil and Political Rights. Nonetheless, Washington has expressed reservations on articles 6 and 7 of the above Convention respectively on the right to life and the protection against torture. On the question of the death penalty the United States accepts restrictions only by not executing pregnant women.

("HANDS OFF CAIN", 1 February 1994)

Since September 1992, the United States of America is bound to the most important universal treaty for the safeguard of human rights: the International Convention on civil and political rights. Nonetheless, on ratifying such convention, Washington expressed reservations on articles 6 (right to life) and 7 (safeguard against torture).

According to the technique of the reservations, the U.S. government declares to be bound to the respect of the Convention except for that which concerns the death penalty. The importance of these reservations has often been underestimated, generally owing to the arguments adopted by the American representatives, which in fact cover the objective of maintaining the death penalty for infractions committed by persons younger than eighteen.

Today the American reservations are far greater. As a whole they concern the use of the death penalty, including judicial guarantees, its limitation for serious crimes as for the method of execution and the death row syndrome. The only exception is the prohibition of executing pregnant women, a rule Washington says it is ready to recognize.

The faculty of advancing reservations is limited by the international law to the reservations that are not contrary to the object and the aim of the treaty in question. Articles 6 and 7 of the Convention fall into a particularly important category, since they are rights for which any derogation, also in times of war, is forbidden. In the history of the Convention only two countries advanced reservations to article 6, but far less important and which had a temporary application. The Unites States is the first State that dares advance a reservation on article 7 of the Convention.

Obviously a reservation relative to these two fundamental articles contravenes the object and the aims of the Convention. This is the sense of the objections to the American reservations expressed by Sweden and Finland in 1993.

The objection is the technique used in the international law by a State that participates in a Convention that does not recognize the legality of a reservation advanced by another State. Unfortunately, no other State has yet shown this courage by publicly declaring that the American reservations are unacceptable. What is the consequence of the illegality of the American reservations? According to the jurisprudence of the International Courts - including the European Court of human rights and the international Justice Court - the reservation is ineffective and consequently the Convention can be applied as a whole. In other words, the United States is bound to the respect of articles 6 and 7 of the Convention. Therefore it has already violated these articles when it executed Curtis Paul Harris on 1 June 1993 for a crime committed when he was a minor.

Unfortunately, on ratifying the Convention, the United States did not accept a mechanism of individual appeal before the Commission for human rights. This commission is a sort of court placed under the aegis of the United Nations and charged with applying the Convention. The United States has nonetheless recognized the commission's competence in receiving intra-State denunciations. The other States of the Convention will need to be encouraged to transmit such denunciations. Moreover, on the occasion of the upcoming session of the Human Rights Commission, the U.S. government will need to present - as an effect of the Convention - its first periodic report, and on that occasion will be questioned on the matter of the reservations. This will be the opportunity to underline the patent violation of the international law on the part of the United States.

I would like to mention two recent developments of the international law on the subject of the death penalty. In November 1993, the human rights commission of the United Nations exposed its considerations on the Kindler vs. Canada case. The controversial question was Canada's rights to exatradite Kindler to the United States, country where the defendant could be subjected to the death penalty. The commission considered that in the case there were no violations of the international convention, but also recognized the Convention's competence in relation to extradition towards a country where the death penalty is still in effect. The commission will need to tackle the issue again, thanks to the notification of Canada which raise the question of the racist aspects and of the methods of application of the death penalty.

Far more interesting is the opinion of the British Privy Council, for which imprisonment for five years of a person sentenced to death corresponds to an inhuman treatment and penalty. In the Pratt and Morgan vs. Jamaica case, the highest court of Commonwealth condemned the death row syndrome saving the lives of more than one hundred people kept in the Jamaican prisons and of an equal number of prisoners in the other countries of Commonwealth.