Second Optional Protocol: Frequently Asked Questions
Article by Pierre Desert published on June 27th, 2008
What is it? How is it implemented? You will find the answers to the most frequently asked questions about the Second Optional Protocol below.
What is the Second Optional Protocol?
The Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty (Protocol) is the only international treaty of worldwide scope to prohibit executions and to provide for total abolition of the death penalty. This text, annexed to the United Nations’ International Covenant on Civil and Political Rights (ICCPR) in 1989, requires the States that ratify it to renounce the use of the death penalty definitively.
Who can ratify the Protocol?
The Protocol is open for signature and ratification by any State party to the International Covenant on Civil and Political Rights (ICCPR)
When was it adopted and when did it enter into force?
It was adopted by the UN General Assembly with resolution 44/128 of 15 December 1989 and it entered into force on 11 July 1991 after its tenth ratification.
What does it say?
The Preamble of the Protocol underscores the significance of abolition of the death penalty as a measure enhancing human rights and assumes the commitment of States parties to this end. Article 1 provides for a ban on executions and for the abolition of the death penalty within the jurisdiction of States parties. Article 2 allows States to reserve the right to apply the death penalty during wartime for serious military crimes committed during wartime. Article 6 further specifies the non-derogable nature of the ban on executions, even in times of public emergency. Articles 3, 4 and 5 concern the reporting obligations of States parties and the complaints procedure and, finally, Articles 7 to 11 cover the procedural issues.
Are reservations allowed under the Protocol?
Article 2 allows States to reserve the right to apply the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime. This reservation can only be made at the time of ratification. Since no other reservation may be made at any time, States parties to the Protocol are committed to abolition even in the event of future changes in national legislation.
Have States made any reservations?
The current reservations read as follows:
Azerbaijan: "It is provided for the application of the death penalty in time of war pursuant to a conviction of a person for a most serious crime of a military nature committed during wartime."
Brazil: "... with an express reservation to article 2."
Chile: "The State of Chile formulates the reservation authorised under article 2, paragraph 1, of the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, and may in consequence apply the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime."
Greece: “Subject to article 2 for the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime.”
Salvador: "...with an express reservation permitted to States under article 2 of the Protocol, which consists on the application of the death penalty in accordance with article 27 of the Constitution of the Republic of El Salvador, which reads as follows: ‘The death penalty may be imposed only in the cases provided by the military laws during an international state of war’."
Cyprus, Spain and Malta have withdrawn their reservations.
Azerbaijan initially made the following reservation "The Republic of Azerbaijan, adopting the [said Protocol], in exceptional cases, adopting the special law, allows the application of death penalty for the grave crimes, committed during the war or in condition of the threat of war." Following objections from France, Finland, Germany, Sweden, and Netherlands that the reservation was in contradiction with Article 2 of the Protocol, on 28 September 2000, the Government of Azerbaijan communicated to the Secretary-General a modification to its reservation made upon accession.
What is the ICCPR?
The International Covenant on Civil and Political Rights is one the core United Nations human rights Treaties. Adopted by the UN General Assembly in 1966, it entered into force in 1976. Together with the Universal Declaration on Human Rights and the International Covenant on Economic Social and Cultural Rights, it makes up what is known as the International Bill of Human Rights.
It covers a wide range of civil and political rights including the rights to life (article 6) and the prohibition of torture or to cruel, inhuman or degrading treatment or punishment (article 7).
How are ICCPR and its Protocols monitored?
Once a State ratifies a treaty the ICCPR and/or OP2 it undertakes the duty to report regularly to the Human Rights Committee on how the rights in the treaty are being implemented. States must report initially one year after acceding to the Covenant and then whenever the Committee requests (usually every four years).
In addition to the reporting procedure, article 41 of the Covenant provides for the Committee to consider inter-State complaints (for the countries that have accepted to do so). Furthermore, the First Optional Protocol to the Covenant gives the Committee competence to examine individual complaints with regard to alleged violations of the Covenant by States parties to this Protocol.
The full competence of the Committee extends to the Second Optional Protocol to the Covenant on the abolition of the death penalty with regard to States who have accepted the Protocol. It thereby makes recommendations for States to comply with their duties under the Protocol.
The States Parties to the Second Optional Protocol have the duty to include in the reports they submit to the Human Rights Committee, in accordance with article 40 of the Covenant, information on the measures that they have adopted to give effect to the Protocol.
What is the Human Rights Committee?
It is the body of independent experts and monitors implementation of the International Covenant on Civil and Political Rights by its State parties. The Human Rights Committee is one of the UN treaty bodies, responsible for monitoring the implementation of the core human rights treaties. Currently there are seven human rights treaty bodies (for a full list of the UN treaty bodies see OHCHR website).
The Human Rights Committee is composed of 18 independent experts elected for four-year renewable terms. It meets three times a year for three-week sessions, normally in Geneva and New York.
The Human Rights Committee publishes its interpretation of the content of human rights provisions contained in International Covenant on Civil and Political Rights, known as general comments on thematic issues or methods of work.
What are the obligations of a State party to the Covenant and a State who is signatory?
International human rights law lays down obligations which States are bound to respect. By becoming parties to international treaties, States assume obligations and duties under international law to respect, to protect and to fulfil human rights.
Under the Second Optional Protocol the main duties of State parties are to ban executions within their jurisdiction and to take all necessary measures to abolish the death penalty within their jurisdiction.
States that are signatories to the Covenant but have not yet ratified it are not bound by the obligations contained in the Covenant. However, under the law of Treaties established by the Vienna Convention on the Law of Treaties (1969), a State which is signatory to a Convention is obliged to refrain from acts which would defeat the object and purpose of a treaty.
In the case of the Second Optional Protocol it can be argued that by becoming signatories to the Protocol States are prohibited from carrying out executions within their territory as this would be seen as violating the object and purpose of the treaty.
Is the Second Optional Protocol the only international instrument on the death penalty?
Currently there are four international treaties which provide for the abolition of the death penalty. The Second Optional Protocol is the only one of worldwide scope.
The other three which have regional scope and are:
Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms [European Convention on Human Rights] concerning the abolition of the death penalty, adopted by the Council of Europe in 1982, provides for the abolition of the death penalty in peacetime; States parties may retain the death penalty for crimes "in time of war or of imminent threat of war".
Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms [European Convention on Human Rights] concerning the abolition of the death penalty in all circumstances, adopted by the Council of Europe in 2002, provides for the abolition of the death penalty in all circumstances, including time of war or of imminent threat of war.
The Protocol to the American Convention on Human Rights to Abolish the Death Penalty, adopted by the General Assembly of the Organization of American States in 1990, provides for the total abolition of the death penalty but allows countries parties to retain the death penalty in wartime if they make a declaration to that effect at the time of ratifying or acceding to the Protocol.
Who has already signed/ratified the Second Optional Protocol?
As of 15th January 2017 84 countries are State parties to the Second Optional Protocol and 2 States had only signed the Protocol. See: Status of Ratifications
Is it applicable immediately after the ratification?
The Protocol provides for no delay in its implementation after ratification. Any delay in the implementation of its provisions would amount to a violation of the Protocol. In other words, from the moment a State ratifies it has the obligation not to execute anyone within its jurisdiction and to abolish the death penalty immediately.
What happens with the persons already condemned to death?
Given the clear prohibition of executions contained in the Protocol, the State would be obliged to commute the sentences. The Second Optional Protocol obliges a country in all circumstances to ensure it exposes no one to the real risk of execution.
Would the death penalty be abolished definitely in a State party? Is it the Second Optional Protocol irrevocable?
The Second Optional Protocol is significant at a national level since it virtually precludes reinstatement of the death penalty. Indeed, any State party wishing to reintroduce the death penalty would first have to withdraw from the Protocol. Unusually there is not a withdrawal mechanism in the Protocol. The absence in the Protocol of a procedural clause for withdrawal means that once a State has ratified the Second Optional Protocol the death penalty can never be reintroduced without violating international law.
How does the Second Optional Protocol have an impact on universal abolition?
According to Marc Bossuyt, the Special Rapporteur entrusted with drafting the text, the Second Optional Protocol serves two main purposes: first, to constitute an international engagement by States parties to abolish the death penalty, and, secondly, to act as a “pole of attraction” to encourage by example States that have not yet made such a commitment to do so. There have been some examples of accession to the Protocol taking place prior to domestic abolition.
Moreover, at the national level, when a State ratifies the Second Optional Protocol, it accepts that no one within the jurisdiction of a State party to the Protocol may be executed, with the possible exception of serious military crimes committed during wartime. Not only is this a way for the State to establish its abolitionist stance through international law, but the Protocol implicitly prohibits reintroduction of the death penalty and, since it does not include a mechanism for withdrawal, it provides a very strong guarantee against reinstatement of the death penalty at the national level.
However, the significance of the Second Optional Protocol goes far beyond the national dimension. At an international level, the Protocol will ultimately outlaw executions and establish unequivocally the principle that the death penalty is a violation of human rights, in particular of the right to life. However, in order to do so, support for the Protocol, in terms of the number of States parties, must reach a ‘critical mass’. In other words, the higher the number of countries ratifying the Second Optional Protocol the closer will the Protocol come to establishing the principle that the death penalty is a violation of human rights and elevating it to a customary norm of international law.
If a State is already not executing what difference does it make?
Ratification of the Second Optional Protocol will prevent future governments from reinstating the death penalty. This is a significant step as changes in government may lead to the reintroduction of the death penalty. As Denys Robiliard, lawyer and former president of the French branch of Amnesty International explains, “What one law does, another can undo and we know that at a time of crisis the death penalty can be re-established. This is why we must convince parliamentarians in abolitionist countries of the necessity of making international commitments in this regard. Even if abolition exists in national law, only international commitments are irreversible”. However long it may take, this is the treaty that will ultimately establish the principle that the death penalty is unquestionably unacceptable.
Why is the World Coalition campaigning on this?
The Second Optional Protocol is the only international treaty of worldwide scope to prohibit executions and provides a key tool for securing abolition of the death penalty worldwide: once a State ratifies the Protocol, there is no going back, the death penalty is irrevocably abolished in that country regardless of changes in government and political situation. Once the majority on countries worldwide will have ratified, the Protocol will serve as the instrument that outlaws the death penalty in international law.
There is currently no systematic and comprehensive monitoring and campaigning programme aimed specifically at achieving the ratification of the Second Optional Protocol. The World Coalition aims to fill this gap.