Through several UN General Assembly resolutions since 2007, the organization has encouraged the global trend towards the elimination of the death penalty. However, thirty-four U.S. states, the U.S. federal government and the U.S. military, as well as many other countries, continue to allow capital punishment.
In December, the European Union (EU) decided to restrict sales to the U.S. of sodium thiopental and other drugs required in lethal injections, the most widely used method of capital punishment in the U.S., to prevent their use for death penalty. Although international conventions calling for the elimination of the death penalty such as the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) do not obligate the EU to promote the elimination of capital punishment, the EU is exercising its right to encourage abolition. Due to the U.S.’s shortage of lethal injection drugs and a Supreme Court that has shown some willingness to adopt the guidance of ratified international treaties, abolitionists are hopeful that the EU’s measures will succeed in decreasing the use of the death penalty in the U.S. with a view to abolition.
Various intergovernmental organizations and international forums have shown a desire to eliminate the death penalty from justice systems worldwide. All internationalized courts, including the International Criminal Court, do not allow the death penalty as a form of punishment.
Furthermore, the Second Optional Protocol to the ICCPR, which aims to abolish the death penalty worldwide and calls on countries to report violations of the Protocol by member states, was adopted by the General Assembly in 1989. Several regional organizations have also adopted legal instruments calling for the abolition of the death penalty within their member states, in particular the EU and the Organization of American States. Although these international documents do not generally impose an obligation on abolitionist countries to promote the abolition of the death penalty in other countries, violations of international conventions are generally condemned and punished through various mechanisms adopted by other member states whether unilaterally, regionally, or internationally imposed.
Similarly, although the EU does not have an obligation to sanction countries that retain the death penalty, it is fully within its right to do so. The EU’s move offers an interpretation of Article 5 of the Universal Declaration of Human Rights (UDHR), which prohibits the use of “torture or other cruel, inhuman or degrading treatment or punishment” to include the death penalty. Under this interpretation, the EU is actively attempting to promote the abolition of the capital punishment, which it defines as illegal under the UDHR.
Protocol No. 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which entered into force in 1985, abolished the death penalty for all signatories. Although some European companies continued to export the drugs to the U.S., several countries began to impose limits prior to the EU’s decision to restrict sales of those drugs. The United Kingdom had previously placed restrictions on the export of certain drugs used in lethal injections to the U.S. Similarly, Germany denied requests by the American administration for anesthetics used in lethal injections earlier this year. The new restrictions have added to the already difficult challenge states face in obtaining the drugs necessary for lethal injections. The EU hoped its decision would mark a step towards the abolition of the death penalty leading towards the U.S. becoming a “paradigm for retentionist countries.”
In recent years, death sentences have dropped dramatically in the U.S. Some organizations partially attribute the sharp decline in executions to the supply shortage of lethal injection drugs, although some states have used other means of execution. Several manufacturers have either suspended the manufacture of the drugs or blocked sales to the U.S. Hospira, the only American manufacturer of sodium thiopental, suspended its production of the drug due to poor publicity from its use in lethal injections. In addition, the recent execution of Troy Davis in Georgia reinvigorated calls for the abolition of the death penalty because unreliable forensic evidence contributed to extreme doubt surrounding his guilt.
With an American administration purporting to extend its hand to the international community and to work increasingly within a multilateral framework, questions remain as to whether international pressure will affect the abolition of the death penalty in the country, as the EU hopes. Recent U.S. Supreme Court decisions, Roper v. Simmons and Graham v. Florida, took notice of the fact that the U.S. and Somalia stood alone as countries that had not ratified the UN Convention on the Rights of the Child. However, in these decisions along with Medellin v. Texas, the Court made it clear that without ratification of international treaties by the U.S. Congress, their provisions are not binding on the U.S., and decisions on criminal sentencing would be decided exclusively in accordance with U.S. laws. In Medellin v. Texas, the Court permitted U.S. courts to directly contradict the advisory opinion of the International Court of Justice. As such, UN resolutions and other international protocols calling for the abolition of the death penalty are not binding on the United States. Thus, without an affirmative decision by Congress to outlaw the death penalty or ratify international treaties which do so, the U.S. will continue to retain such a practice. Meanwhile, the EU’s move to block sales of lethal injection drugs, which it promises to continue and expand as necessary, may have a practical effect leading to the decreased implementation of executions in the U.S.