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THE UNITED NATIONS DEATH PENALTY MORATORIUM: A GROWING CUSTOMARY NORM?

Sarakshi Kapila

Capital Punishment, as defined by the Bureau of Justice Statistics, refers to the process entailing the sentencing of a convict or an offender to death for the most heinous crimes and their subsequent execution. First established in the eighteenth century B.C. by King Hammurabi of Babylon, it is still being used by 52 countries around the world. This is further corroborated by the annual report on Death Penalty which reported 1153 executions in 2023, explaining that these recorded figures only represent a minuscule fraction of the actual number.


Notwithstanding the initial support it garnered in the early 1960s, this extremist measure has come under mass scrutiny by various sources including the International Covenant on Civil and Political Rights (ICCPR) and consistent actions undertaken by Amnesty International over the past five decades. As a result, a steady decline in its usage can be seen with more than 70% of the countries abolishing the same in law or practice.


The general suspension worldwide was facilitated by the European Union in partnership with eight co-author members by introducing a moratorium in front of the General Assembly of the United Nations. This moratorium, adopted through UNGA resolution 62/149 in 2007, urged nations to recognize death penalty as violation of human dignity.


In a landmark vote, more than two-thirds of the UN member states supported this moratorium, during the UNGA Plenary Meeting on 18th December 2024. Statistics show that 130 states have adopted the resolution, the highest number of positive votes since the first submission in 2007. This, therefore, marks a pivotal shift with the world taking a step closer to rejecting the death penalty as a lawful punishment under the ambit of international law.


In the course of this blog, the author seeks to analyse the growth of the moratorium and the possibility of it being established as a Customary International norm owing to mass public support. Furthermore, it becomes imperative to address the debate between Universal principles on Human Rights and State sovereignty to better understand this possibility. 


An evolving customary norm? 

Even though the Moratorium does not carry a legal obligatory force, it imposes moral and political repercussions. With the 63 member states who did not support the resolution making up the minority, a developing international consensus is reflected. This shift away from executions can also be inferred from the increase in states abolishing capital punishments from 90 in 2007 to 113 in 2024. This growing majority coupled with the increasing magnitude of countries abolishing the punishment suggests the development of a customary international norm, treating the same as an unacceptable practice.


Retentionist countries, including India, China, and the United States, may resist this change, but their position keeps on growing weaker and isolated. With this shift in state practice, the sense of Opinio Juris can be reasonably inferred with the growing belief of not only a moral but also a legal obligation. This obligation is also established through instruments proctored by the ICCPR and its Second Optional Protocol. Various countries having ratified such treaties are thereby legally refrained from using executions, moving away from this decision being merely a political preference.


This scheme was also observed in 19th and early 20th century, with the abolishment of Slavery. Straying away from mere moral obligations, enslaving was banned by being generally accepted as Jus Cogens. This was facilitated by agreements, similar to the ICCPR in the present case, which laid the groundwork for this customary norm. A similar path and trajectory could unfold for the worldwide abolishment of the death penalty, owing to the growing international consensus regarding the same as a crime against humanity at large. 


Regardless, the retentionist countries will possibly face growing diplomatic pressure to align with a shift in the interpretation of international law and standards. This was seen with the abolishment of the death penalty in South Africa, as being the focal point of the country’s commitment to human rights as it established itself as a democracy in the 1990s. Retentionist states may find themselves subject to scrutiny through mediums including the Universal Periodic Review, the ICPPR, etc. 


Humanity v. Sovereignty: The Key Barrier

The existence of a universally recognized and regulate state practice on Capital Punishments is empirically impossible without adequate attention to the biggest barrier to its establishment: the debate between Universal Human Rights and State’s autonomy.


Advocating for the case of humanity, the death penalty has been regarded as cruel, inhuman, and the most degrading punishment by Amnesty International while opposing the same, regardless of the nature of the crime or the guilt of the accused. Standing at the heart of the movement towards the abolishment of the death penalty is the universal recognition of every human’s right to life, enshrined in Article 3 of the Universal Declaration on Human Rights. With at least 2428 death sentences being recorded in 52 countries and 1153 executions in 16 countries in the last year, the weight of the same has been recorded to be highly disproportionate for people belonging to less-advantaged socio-political backgrounds. 


Various schemes used to execute directly violated International Law and Standards. This can be inferred with Saudi Arabia using beheadings while around 7 countries used hanging as their method of execution in the year 2023, violating the right to dignity. Additionally, public executions in countries like Afghanistan were condemned as ‘clear human rights violation’. To make matters worse, people were executed people who committed crimes when they were below 18 years of age, and confessions were extracted through torture. The case for abolishing the death penalty becomes stronger with people being convicted in grossly unfair trials (for instance the Mass Trials in Egypt), its non-deterrence effect, and with it being used as a political tool (as seen in Saddam Hussein’s use of the death penalty in Iraq). 


Action toward the suspension of the death penalty is a human testament to compassion and progress. The execution of an innocent person is the biggest irreversible tragedy that can not be justified. It is essential to align the world with the ideals of justice and equity thereby preserving the sanctity of human existence. 

Contrastingly, the case advocated by the retentionist states is often revolves around the international norms realized under state sovereignty and non-interference, which emphasizes upon the domestic nature of a state’s autonomy. This can also be inferred from Article 6 of the International Covenant on Civil and Political Rights, the main proposing document, which permits the use of the death penalty under limited circumstances.


Practiced by almost 22% of the countries around the world, capital punishment is seen by many as the only adequate response which can provide a sense of closure to the victim’s family in face of heinous crimes. This punishment also aligns and is supported by cultural and religious traditions, as can be interpreted for example through the Sharia Law in many Islamic Countries. Experts have argued that this ultimate punishment intends to send a clear message that reinforces the sanctity of life, thereby safeguarding the right to life and dignity. 


Bridging the Gap

As is manifestly evident, this moratorium has offered for a promising regulation of state practices in the realm of Death Penalty. For this idea to be actualized, consistent global advocacy is necessary. However, the journey is far from straightforward as the contentious debate remains unsolved. Addressing this tension between humanity and sovereignty is a formidable challenge to be overcome in the push for the establishment of a global movement toward the abolition of the death penalty and to foster a more cooperative global society. Adequate acknowledgment of opposing interests is essential to allow the world to find an amicable ground which respects human rights while protecting state autonomy.


For this norm to become universally recognized, it is essential to address the competing interests through a platform inculcating diverse dialogues. Subsequently, to promote this idea, the transition in retentionists states can be facilitated by the initiation of Phased Abolition system. This allows for a steady change where the international community can encourage a gradual shift that still respects state sovereignty. Inspiration can be taken from Mexico’s system of phased abolition, which resulted in steady transition towards permanent abolition of Capital Punishments. The meantime, regular inspection of judicial and prison systems can be conducted by the introduction of a world-consented scheme.


However, until the dichotomy is resolved, the evolution of Customary Law regarding death penalty remains unrestrained which in turn offers the time and space required for experts to reflect on the pathways to bridge this ideological divide.


Author:

Sarakshi Kapila is a law student at Rajiv Gandhi National University of Law, India.

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