constituting cruel, inhuman or degrading treatment. Of
course, any and every form of capital punishment can be
seen as entailing a denial of human dignity; any and every
form of execution can be perceived as cruel and
degrading. But, since capital punishment is not prohibited
by the Covenant, article 7 must be interpreted in the light
of article 6, and cannot be invoked against it. The only
conceivable exception would be if the method of
execution were deliberately cruel. There is, however, no
indication that execution by lethal injection inflicts more
pain or suffering than other accepted methods of
execution. Thus, the author has not made a prima facie
case that execution by lethal injection may raise an issue
under article 7.
moreover, article 4 of the Covenant makes it clear that no
derogations from this rule are permitted, not even in time
of a public emergency threatening the life of the nation.
No society, however, has postulated an absolute right to
life. All human rights, including the right to life, are
subject to the rule of necessity. If, but only if, absolute
necessity so requires, it may be justifiable to deprive an
individual of his life to prevent him from killing others or
so as to avert man-made disasters. For the same reason, it
is justifiable to send citizens into war and thereby expose
them to a real risk of their being killed. In one form or
another, the rule of necessity is inherent in all legal
systems; the legal system of the Covenant is no exception.
Article 6, paragraph 2, makes an exception for
States parties that have not abolished the death penalty.
The Covenant permits them to continue applying the death
penalty. This "dispensation" for States parties should not
be construed as a justification for the deprivation of the
life of individuals, albeit lawfully sentenced to death, and
does not make the execution of a death sentence strictly
speaking legal. It merely provides a possibility for States
parties to be released from their obligations under
articles 2 and 6 of the Covenant, namely to respect and to
ensure to all individuals within their territory and under
their jurisdiction the inherent right to life without any
distinction, and enables them to make a distinction with
regard to persons having committed the "most serious
crime(s)".
10.
We conclude that the author has failed to
substantiate a claim under article 2 of the Optional
Protocol, that the communication raises only remote issues
under the Covenant and therefore that it should be
declared inadmissible under article 3 of the Optional
Protocol as an abuse of the right of submission."
K. Herndl
W. Sadi
B. INDIVIDUAL OPINION SUBMITTED
BY MR. BERTIL WENNERGREN (DISSENTING)
I cannot share the Committee's Views on a nonviolation of article 6 of the Covenant. In my opinion,
Canada violated article 6, paragraph 1, of the Covenant by
extraditing the author to the United States, without having
sought assurances for the protection of his life, i.e. nonexecution of a death sentence imposed upon him. I justify
this conclusion as follows:
The standard way to ensure the protection of the
right to life is to criminalize the killing of human beings.
The act of taking human life is normally subsumed under
terms such as "manslaughter", "homicide" or "murder".
Moreover, there may be omissions which can be
subsumed under crimes involving the intentional taking of
life, inaction or omission that causes the loss of a person's
life, such as a doctor's failure to save the life of a patient
by intentionally failing to activate life-support equipment,
or failure to come to the rescue of a person in a lifethreatening situation of distress. Criminal responsibility
for the deprivation of life lies with private persons and
representatives of the State alike. The methodology of
criminal legislation provides some guidance when
assessing the limits for a State party's obligations under
article 2, paragraph 1, of the Covenant, to protect the right
to life within its jurisdiction.
Firstly, I would like to clarify my interpretation of
article 6 of the Covenant. The Vienna Convention on the
Law of Treaties stipulates that a treaty must be interpreted
in good faith and in accordance with the ordinary meaning
to be given to the terms of the treaty in their context and in
the light of its object and purpose. The object of the
provisions of article 6 is human life and the purpose of its
provisions is the protection of such life. Thus, paragraph 1
emphasizes this point by guaranteeing to every human
being the inherent right to life. The other provisions of
article 6 concern a secondary and subordinate object,
namely to allow States parties that have not abolished
capital punishment to resort to it until such time they feel
ready to abolish it. In the travaux préparatoires to the
Covenant, the death penalty was seen by many delegates
and bodies participating in the drafting process an
"anomaly" or a "necessary evil". Against this background,
it would appear to be logical to interpret the fundamental
rule in article 6, paragraph 1, in a wide sense, whereas
paragraph 2, which addresses the death penalty, should be
interpreted narrowly. The principal difference between my
and the Committee's Views on this case lies in the
importance I attach to the fundamental rule in paragraph 1
of article 6, and my belief that what is said in paragraph 2
about the death penalty has a limited objective that cannot
by any reckoning override the cardinal principle in
paragraph 1.
What article 6, paragraph 2, does not, in my view,
is to permit States parties that have abolished the death
penalty to reintroduce it at a later stage. In this way, the
"dispensation" character of paragraph 2 has the positive
effect of preventing a proliferation of the deprivation of
peoples' lives through the execution of death sentences
among States parties to the Covenant. The Second
Optional Protocol to the Covenant was drafted and
adopted so as to encourage States parties that have not
abolished the death penalty to do so.
The United States has not abolished the death
penalty and therefore may, by operation of article 6,
paragraph 2, deprive individuals of their lives by the
execution of death sentences lawfully imposed. The
applicability of article 6, paragraph 2, in the United States
should not however be construed as extending to other
States when they must consider issues arising under
article 6 of the Covenant in conformity with their
The rule in article 6, paragraph 1, of the Covenant
stands out from among the others laid down in article 6;
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