Second Optional Protocol: the only global treaty aiming at the abolition of the death penalty


By Pierre Désert, on 24 June 2008

It is the only international treaty that tackles this issue globally and is on the frontline in the UN’s struggle against the death penalty.

The Protocol’s impact

The Protocol is an extremely important tool at national as well as international level. Nationally, when a State ratifies the protocol, it accepts that nobody can be executed in its jurisdiction, with the possible and extremely restricted exception of those responsible for serious military crimes committed during wartime. The Protocol goes further than enabling States to establish an abolitionist stance through the use of international law: as it does not include a retraction procedure, it guarantees the permanent non-reintroduction of the death penalty nationally.

Internationally, the Protocol will ensure that, in the long term, executions become definitively illegal and asserts explicitly the principal that the death penalty is a violation of human rights and, in particular, of the right to life. To achieve that, however, the number of States Parties must reach a “critical mass”.

What does the Second Optional Protocol say?

The Protocol’s preamble highlights the importance of the abolition of the death penalty for the protection and development of human rights and assumes States’ adherence to this goal.
Article 1 covers the banning of executions and the abolition of the death penalty in the jurisdiction of States Parties. Article 2 allows States to maintain the right to use the death penalty for the most serious crimes of a military nature committed during wartime.
Article 6 states that States shall not be subject to any derogation to the ban on executions, even in the event of exceptional public danger threatening the existence of the nation. Articles 3, 4 and 5 concern the obligations of States Parties regarding communications and explain how complaints can be lodged under the Protocol. Finally, Articles 7 to 11 cover procedural issues.

What does it mean in practical terms?

International human rights law sets obligations that States must respect: by becoming party to an international treaty, a State accepts the obligations and duties imposed by international law, i.e. to respect, protect, and safeguard human rights.
Under the Second Protocol, a State’s principal responsibility is to ban executions in its jurisdiction and, immediately on ratifying the Protocol, to take the necessary measures to abolish the death penalty if it is not already the case.
Given that the Protocol specifically bans executions, a signatory State must commute the sentences of persons already condemned to death. The Protocol obliges States Parties not to expose anyone to the actual risk of execution, whatever the circumstances.

The Protocol is monitored by the Human Rights Committee, one of the organs made up of independent experts set up by the United Nations to supervise the application of its treaties. States Parties are obliged to submit regular reports to the committee on the actual respect on their territory of the rights contained in the treaty. In some cases, the committee can also examine interstate complaints.
The ratification of a treaty has consequences for a State. If it breaks its obligations, it can be held accountable. This is the case with the Second Protocol.
According to Marc Bossuyt, the former special rapporteur of the UN Human Rights Commission who drafted the text in 1989, States Parties to the Second Optional Protocol face two major obligations: ensuring their citizens’ subjective right not to be executed, and taking all necessary measures, including legislation, to abolish the death penalty.

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