The Principle of Equal Right to Live In the Debate About Capital, Research Paper Example

Abstract/Introduction

Human rights has been an integral part of a cohesive and safe society. The International community has ensured that fundamental and basic human rights are upheld irrespective of the national laws and form of governance in that country. The universal declaration of human rights which was formed with aim of protecting human rights such as the right to life. However, there are instances when these right can be limited. The principle of universality has been one of the key tenets in implementing human rights based on the rules of a country.  An example is the USA made a reservation in regards to the death penalty this is despite there being the UDHR and the International Covenant on Civil and Political Rights. In order for a country to enjoy the liberty of exempting some rights, they will be party to the treaty of reservations. This treaty creates the option of a country to reserve violation of a certain right and liberty.

Thesis statement

The United Nations Commission on Human Rights under article 1(3),(55) has outlined against any form of discrimination. The charter has outlawed any form of discrimination, the right to life is deemed important. The death penalty is one of the punishment under the American law which is ordered on capital offences. Despite the American government making the death sentence legal, it is in contravention of international law and treaties which the United States has ratified. Some of the key principles under international law which outlaw the death sentence in the USA include;1) the principle of universality which asserts the application of the law in another jurisdiction where a crime was committed. In most cases these principle is applied in cases involving war crimes, slavery and international crimes. Secondly, the scope of non-discrimination, a number of international conventions and treaties have authority due to the need to protect fundamental rights and privileges that could be limited by another country. The Universal Declaration of Human Rights is the most conclusive convention The ICCPR was adopted in order to ensure civil and political rights are protected and enforced around the globe. A number of states have differed on how and the legal analysis on why they reserve parts of an international convention. The reservations vary based on the national laws and the penalties by the laws in that country. More to that, there has been in-depth academic literature on human rights, international law and capital punishment.

The Principle of universality

A discussion on the principle of universality demonstrates on the need to protect all persons irrespective of their race, gender or any other factor that can be used as a form of discrimination. Universal aspect of human rights is that they should apply to all people and should protect all persons. The UDHR did set up the system on human rights and their application by member states of the UN. Article 1 outlines that all human beings are born free and equal in dignity and rights, more to that article 2 states everyone is entitled to rights and freedoms.  In order to bring about uniformity and fairness in this world, there is the need to ensure all people enjoy the benefits and values of the UDHR.

The ICCPR has been lauded as protecting human rights and also the freedom of those who are in danger of losing their political rights. Article 2 of the ICCPR states that all member states should endeavor to ensure they respect and uphold the rights recognized in the covenant. State parties should endeavor to ensure all member states undertake to ensure equal treatment and enjoyment of men and women of all civil and political rights as set out in the covenant. The drafting of the ICCPR endeavors to ensure the principle of universality is upheld by all members.

The USA constitution is lauded as one of the most coherent and progressive in upholding human rights and freedoms of the people under the Bill of rights.  The constitution is the supreme law of the land which should be upheld by all people and state officials.  However, there are instances when a national and constitutional law is in contravention of international conventions and agreements. The ICCPR has set out to protect the right to life and equal treatment before the law. The right to life has been limited by the death sentence which is meted out on capital punishments. The American culture has been deemed to be a major contributor in the capital sentencing, the history slaves and bounty hunting did restrict the right to life and freedom of those being sought by the government. In most cases culture is deemed to be a barrier in the realization of human rights. In the drafting and assenting of laws by a country, the legislature does factor in the culture and ways of life of the citizens.

A case in example is when the American Supreme Court did make a pronouncement on the death penalty. In the case of Furman v Georgia (1972), the Supreme Court found that the imposition of a death sentence by the jury was unconstitutional and a blatant violation of the eighth and fourteenth amendments of the American Constitution. The controversy and conflict by different states regarding death sentencing were witnessed in Kansas v Marsh (2006), whereby New York and Kansas had their capital sentencing schemes struck down by their highest courts. However, the US Supreme Court did rule that the decision to get rid of the death penalty was not unconstitutional. The responsibility of making laws and regulations falls on the legislature. The Kansas lower house did block all attempts to have the death sentence brought back.

States, treaty bodies and courts on death sentence

A discussion on how  states, treaty bodies and courts  have been on the frontline in fighting against the death sentence, which has been deemed a contravention of the values and beliefs held by the American government and the people. New Jersey repealed the death penalty in 2007 through legislative voting; the Gregg v Georgia case inspired this.  The state of Washington in 2018 became the 20^th state to abolish capital punishment as it was found to be unconstitutional on the grounds of racial biasness’s.

In that regard, states are found to be very vocal and playing a key role in the use of a death sentence based on their traditions. This is despite the USA having ratified international conventions such as the ICCPR and the UDHR.

The principle of reservation is based on the national laws of a country and the extent to which they differ with the international conventions and treaties. The Vienna Convention on the Law of Treaties article 2(1) (d) defines reservation to a unilateral statement made by a state in regards to the acceding to a treaty whereby they exclude some provisions of the treaty in regards to the state.  Through forming the reservation, the state is limited to reservations that are not included in the treaty. An example, India made a reservation of article 1 of the ICCPR in regards to self-determination. They were all to be bound by the authority and powers of the state. Mexico on the other hand, made a reservation of article 25(b) in regards to the mode of election and the free expression of the electors.

In regards to the USA, they made a reservation on capital punishment on minors, the right to life in regards to capital punishment was thus set aside in this case. The ICCPR and the UDHR have set the right to life and civil liberty as some of the key tenets of the convention. A number of states in the USA have been carrying out executions on capital offenders, this includes Arkansas, California and Florida among others. The principle of reservation has been applied by these countries as they seek to vitiate international conventions and apply state law in sentencing to death capital offenders.

The European Convention on Human Rights was formed with the goal of protecting the rights and liberties of Europeans within the European continent. Article 14 of the ECHR has limited the extent to which one can enjoy their rights and freedoms. The article states there should not be any form of discrimination in enjoying substantive rights and freedoms.[1] The human rights and privileges of an individual must be protected at all costs. In regards to the US, there are states which do not uphold and respect the right to live in the extent of capital punishment. Capital punishment is a criminal offense that is punishable by death. However, in the interests of justice, it is necessary to factor in other forms of a punishment without taking the life of an accused.

In the case of Doli?ska-Ficek and Ozimek v. Poland, the court made a decision on violation of the right to fair hearing after analysis of the evidence and facts. The issue of the case was based on the reorganization of the Polish judicial system which had been initiated in 2017. Whereby two of the judges had made a ruling that the chamber of the Extraordinary Review and Public Affairs of the Supreme Court had lacked impartiality and independence. The court ruled that there was interference from the legislature and executive and thus incompatible with the ECHR. Through capital sentencing and death, it boils down to unfair hearing and judgement which is in contravention of the ECHR.

In the case of Mamtkulov and Askarov v Turkey[GC], the facts of the case are that the Uzbekistan nationals were arrested on suspicion of terrorist acts in their country of origin. The Uzbekistan authorities filed for their extradition which the applicants filed against terming they will be ill-treated. The Turkish government did hand them over to Uzbekistan despite there being rule 39 of the Rules of Court, article 34 of the Convention of Contracting states which the applicants had filed for as they risked unfair trial, capital punishment and torture[2]. In conclusion the court ruled that Turkey had violated article 41 to comply with obligations of the European Human Rights Convention.

Based on Article 14 of the ECHR, the Social Charter states that no one should be discriminated against. The ICCPR, which is the main international instrument on human rights and liberties, states that under article 26, there should be equality before the law in regards to law enforcement by the authorities.[3] Equal protection by the law has to be guaranteed to all persons. The drafting and implementation of the law should not be biased and in contravention of the fundamental bill of rights and principles. Also, there should be a guarantee that the treaty will protect everyone against structural discrimination, which can be based on treatment or having discriminating and biased structures.

A law may be drafted and implemented to be biased and discriminatory; the ICCPR has defended against perceived discrimination and biases. In the case of the Supreme Court, Giggs v Duke Power Co. 1971, the Court ruled against the employer’s actions, which amounted to employment discrimination.

The American Supreme Court did make a pronouncement on the death penalty. In the case of Furman v Georgia (1972), the Supreme Court found that the imposition of a death sentence by the jury was unconstitutional and a blatant violation of the eighth and fourteenth amendments of the American Constitution. The controversy and conflict by different states regarding death sentencing were witnessed in Kansas v Marsh (2006), whereby New York and Kansas had their capital sentencing schemes struck down by their highest courts. However, the US Supreme Court did rule that the decision to get rid of the death penalty was not unconstitutional. The responsibility of making laws and regulations falls on the legislature. The Kansas lower house did block all attempts to have the death sentence brought back.

Several states have been on the frontline in fighting against the death sentence, which has been deemed a contravention of the values and beliefs held by the American government and the people. New Jersey repealed the death penalty in 2007 through legislative voting; the Gregg v Georgia case inspired this.  The state of Washington in 2018 became the 20^th state to abolish capital punishment as it was found to be unconstitutional on the grounds of racial biasness’s.

In that regard, states that still enforce death sentences have violated international conventions and laws on human rights and liberties.

The convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment is a treaty adopted in 1984 to deal with torture and other forms of human rights abuses. The convention has developed schemes on how the law will be implemented against human rights abuse. The act of using any form of capital punishment to end somebody’s life is deemed to be inhumane and bordering on torture and abuse.[4] One needs to understand the role of a state in treaties and its role in making laws. Countries do have an obligation to implement treaties.

Conclusion

International human rights aim to protect the rights and liberties of all persons irrespective of their race, gender and religion, or any other form that can be used for discrimination. Capital punishment is taking away someone’s life through execution, violating international human rights freedoms and the right to life. Despite the seriousness of the offense, one should not be denied the liberty to live, and an alternative form of punishment should be adopted as a form of correction on the convict.

Bibliography

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Gaddis J, ‘Toward The Post-Cold War World’ (1991) 70 Foreign Affairs

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Philippe X, ‘The Principles Of Universal Jurisdiction And Complementarity: How to Do The Two Principles Intermesh?’ (2006) 88 International Review of the Red Cross

PLC A, ‘African Commission on Human and Peoples’ Rights Legal instruments’ (Achpr.org, 2021) <https://www.achpr.org/legalinstruments/detail?id=49> accessed November 9, 2021

Shelton D, Advanced Introduction To International Human Rights Law (Edward Elgar Publishing 2020 45-64)

United Nations, ‘Article 3: The Equal Right Of Men And Women To The Enjoyment Of All Economic, Social, And Cultural Rights’ (Economic and Social Council 2021)

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‘Universal Jurisdiction (Ijrcenter.org, 2021) <https://ijrcenter.org/cases-before-national-courts/domestic-exercise-of-universal-jurisdiction/> accessed November 9, 2021

‘Vienna Convention On The Law Of Treaties’ (1969) <https://legal.un.org/ilc/texts/instruments/english/conventions/> accessed November 9, 2021

[1] ‘European Court Of Human Rights – ECHR, CEDH, News, Information, Press Releases’ (ECHR.coe.int, 2021) <https://echr.coe.int/Pages/home.aspx?p=home> accessed November 9, 2021.

[2] Mamatkulov and Askarov v. Turkey [GC]

[3] Ibid.

[4] ‘OHCHR | Convention against Torture’ (Ohchr.org, 2021) <https://www.ohchr.org/en/professionalinterest/pages/cat.aspx> accessed November 9 2021.