Does US Law Forbid The Death Penalty?

[bueller007]

Doing a bit of research on the Canadian Charter of Rights and Freedoms...Came across some interesting information about the UN.

So I'll phrase the argument in a pretty straightforward fashion.
1) The sixth amendment of the US constitution says that international treaties become the supreme law of the land:

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

2) In 1945, the United States signed and ratified the Charter of the United Nations.
3) In 1948, the United Nations unanimously adopted the UN Universal Declaration of Human Rights.
4) Article 3 of the UN Universal Declaration of Human Rights forbids use of the death penalty:

"Everyone has the right to life, liberty and security of person."

5) The International Covenant on Economic, Social, and Cultural Rights, which translates the Declaration into a treaty has not been yet signed and ratified by the US, however, according to Articles 55 and 56 of the UN Charter (again, which has been ratified by the States):

"...the United Nations shall promote:
<removed first two items>
(c) universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion."
and
"All members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55."

Now, since the UN has determined that the death penalty is a violation of human rights, and because the United States is legally bound to uphold the UN's definition of human rights through the ratification of the UN Charter, is the death penalty not a violation of international law, and, through Article VI of the US constitution, federal law?

I am not a lawyer, and I compiled this argument myself, so I welcome any corrections.

[Deleted]

The answer is that nothing in the UN charter prohibits the U.S. from using capital punishment, any more than it prohibits Japan, or India, or Pakistan, or China, or Indonesia. Neither are any member countries bound by unratified treaties - witness the U.S. refusal (along with other nations) to be bound by the provisions founding the International Criminal Court (ICC).

I don't pretend to be an expert in the UN documentations, but your quote from article 3 of the Universal Declaration of Human Rights:"Everyone has the right to life, liberty and security of person.", could be taken out of the U.S. constitution, which incidentally ends with the caveat "without due process of law".

Since the U.N. obviously endorses deprivation of liberty for convicted criminals, nothing in that quotation would distinguish capital punishment from allowable sanctions. In fact, since this was adopted in 1948 most of the world had just finished hanging Nazi's, fascists, Japanese war criminals and their collaberators so it seems highly unlikely that was ever intended as an anti-dp provision.

European squimishness with capital punishment is a relatively new phenomenon inflicted by the EU on smaller nations, under pain of economic reprisals.

This is an unwarranted display of moral self-righteousness considering Europe has been the source of two world wars, inventing such terms as "pogroms" and "ethnic cleansing" along the way. I would have hoped that recollections of Vichy collaberation with SS extermination camps might have moderated recent French and German judgementalism on the US, which was the primary force to correct both abominations, but then I'm an incurable optimist.

[bueller007]

TRex said:

The answer is that nothing in the UN charter prohibits the U.S. from using capital punishment, any more than it prohibits Japan, or India, or Pakistan, or China, or Indonesia. Neither are any member countries bound by unratified treaties - witness the U.S. refusal (along with other nations) to be bound by the provisions founding the International Criminal Court (ICC).

I don't pretend to be an expert in the UN documentations, but your quote from article 3 of the Universal Declaration of Human Rights:"Everyone has the right to life, liberty and security of person.", could be taken out of the U.S. constitution, which incidentally ends with the caveat "without due process of law".

Indeed, part 2 of Article 29 states:
"In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society."
That was the one loophole that I had considered, however, the government of Canada does not read the document that way.
www.csc-scc.gc.ca/text/pblct/rights/50yrs/50yrs-08_e.shtml
Perhaps the UN leaves each country with the responsibilty to determine "the just requirements of morality, public order and the general welfare in a democratic society", and the US has merely interpreted this differently than Canada.

Since the U.N. obviously endorses deprivation of liberty for convicted criminals, nothing in that quotation would distinguish capital punishment from allowable sanctions. In fact, since this was adopted in 1948 most of the world had just finished hanging Nazi's, fascists, Japanese war criminals and their collaberators so it seems highly unlikely that was ever intended as an anti-dp provision.

Here, you take the simplistic definition of the word liberty. It could also mean freedom from slavery. It could be construed as one of many different things. The "right to life", however, should be clear.
I also disagree with your implication that it was not inserted as an anti-dp provision. (I believe) that the last of the Nuremberg executions took place in 1946, so it could be that this was seen as the beginning of a new era and was signed as an anti-dp provision in hopes of a "kinder, gentler world". But I wasn't there, so I don't know.

European squimishness with capital punishment is a relatively new phenomenon inflicted by the EU on smaller nations, under pain of economic reprisals.

This is an unwarranted display of moral self-righteousness considering Europe has been the source of two world wars, inventing such terms as "pogroms" and "ethnic cleansing" along the way. I would have hoped that recollections of Vichy collaberation with SS extermination camps might have moderated recent French and German judgementalism on the US, which was the primary force to correct both abominations, but then I'm an incurable optimist.

It is silly to dismiss the morals of a society at the current time due to their views at some point in the past.

[RFisher]

You wrote:
"It is silly to dismiss the morals of a society at the current time due to their views at some point in the past."

While I basically agree with you, we Americans still wonder how the German/Teutonic Peoples allowed their leaders to do what was done in both WWI and WWII.

We also wonder how the French allowed their government to do what was done in WWII.

We also wonder how the peoples of the old Soviet Bloc countries allowed their leaders to do what they did.

We also wonder how the Chinese and N. Korean peoples allow their leaders to do what they have done and are currently doing.

I won't even begin in Africa.

I personally believe most of the peoples in those countries didn't want their governments to do those things, so how did they allow it?

[bueller007]

RFisher said:

You wrote:
"It is silly to dismiss the morals of a society at the current time due to their views at some point in the past."

While I basically agree with you, we Americans still wonder how the German/Teutonic Peoples allowed their leaders to do what was done in both WWI and WWII.

We also wonder how the French allowed their government to do what was done in WWII.

We also wonder how the peoples of the old Soviet Bloc countries allowed their leaders to do what they did.

We also wonder how the Chinese and N. Korean peoples allow their leaders to do what they have done and are currently doing.

I won't even begin in Africa.

I personally believe most of the peoples in those countries didn't want their governments to do those things, so how did they allow it?

As a Canadian, I don't really know, as I have never been confronted with an issue of this severity for a long period of time.
Recently, I emailed the Prime Minister to stress how important it was for Canada to remedy a human rights violation that is occurring to the Lubicon peoples of Northern Alberta. Within 12 hours, I had a response, not only from the Prime Minister's office, but also from Robert Nault, the head of Indian and Northern Affairs. They pledged to uphold the ruling of the United Nations, and meet my demands (which I drew from Amnesty International) given the support of the Alberta government.
If I'm willing to fight for the rights of a group of people that I don't even belong to, I can't really understand why people won't fight for their own rights. It could be related to the psychological phenomenon known as "learned helplessness", wherein one learns that his/her efforts have no effect, so they stop trying, to save energy.

[Donnie]

René said:

If I'm willing to fight for the rights of a group of people that I don't even belong to, I can't really understand why people won't fight for their own rights. It could be related to the psychological phenomenon known as "learned helplessness", wherein one learns that his/her efforts have no effect, so they stop trying, to save energy.

The execution of murderers is a method of fighting for the rights of a group of people who can no longer fight for their rights, murder victims. Being dead or being realistically threatened with death are two reasons people don't fight for their rights. Your "fight" consisted of writing an e-mail with no possible consequences, hardly a strenuous "fight". If you want to read about a real fight, you may want to read the story of Hans Jagerstatter. You may also learn something from reading "Obediance to Authority" by Stanley Milgram.

[marcuskrc]

RFisher said:

You wrote:
"It is silly to dismiss the morals of a society at the current time due to their views at some point in the past."

While I basically agree with you, we Americans still wonder how the German/Teutonic Peoples allowed their leaders to do what was done in both WWI and WWII.

We also wonder how the French allowed their government to do what was done in WWII.

We also wonder how the peoples of the old Soviet Bloc countries allowed their leaders to do what they did.

We also wonder how the Chinese and N. Korean peoples allow their leaders to do what they have done and are currently doing.

I won't even begin in Africa.

I personally believe most of the peoples in those countries didn't want their governments to do those things, so how did they allow it?

Now let's finish this list...

Slavery during the 19th century.
Killing, exploiting and effectively robbing native americans.
Communist hunt during the fifties.
Apartheid in the south as recently as the sixties.
Supporting a whole bunch of foreign dictators, that were seen as a bastion against communism, as recently as the eighties (can you spell Saddam?).

You ask these questions about Europe, but the broom stands idle on your own front porch... Let's use a biblical phrase for a change - ye who be without guilt may throw the first stone.

[Felix]

Took the words right out of my mouth Marcus, well said!!!!!!!!

[Deleted]

René said:

.
1) The sixth amendment of the US constitution says that international treaties become the supreme law of the land:

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

Correct me if I'm wrong...it HAs been a long time since I took a history class. But isn't the sixth amendment the one that guarantees a speedy and public trial, and outlines the basic rights of the accused? I may be wrong on this, but I'm about 95% sure that I'm not.

[Donnie]

Innocent said:

But isn't the sixth amendment the one that guarantees a speedy and public trial, and outlines the basic rights of the accused?

The part of the Constitution that addresses treaties is Article VI which states: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

[Deleted]

Donnie said:

The part of the Constitution that addresses treaties is Article VI which states: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Oh, okay, I guess I must have forgotten that part. Thanks for clearing that up for me.

[janto]

Hi Rene,

unfortunately international law does not prohibit the DP. Only in specific regions regional international law prohibits the death penalty - the 6th Protocol of the European Convention of Human Rights bans the death penalty for the Contracting parties of the Convention.

There are however problems in internarional law concerning the application of the DP by the US: The US have sometimes difficulties to ensure the right of other states to give their nationals consular assistance when they are arrested, which is layed down in the Vienna Convention on Consular Relations. The Problem is here that the US authorities arrest foreigners without giving notice to the respective consulate, so that this can ensure proper legal assistance to avoid the death penalty.
In the LaGrand-Case the US authorities failed to inform Germany as they were obliged to by the Vienna Convention. The LaGrand brothers had poor legal assistance and got a death sentence, which could have been different if the German authorities were informed. Although an injunction was issued by the ICJ Arizona executed both of them. Later on the ICJ decided that with that behavior the US were in Violation of the Vienna Convention. I am not an expert in US Constitutional law, but I ask myself if the execution was not only a violation of international law but also of US law.
Comments?

[Angel of Death]

Many cases have been brought to the Supreme Court, saying that the death penalty is a violation of the right against "cruel and unusual punishment." So far, the Court has ruled the DP Constitutional, and so as of today, it is legal in the US. However, if a state makes a law making the DP illegal in that state, there is nothing wrong with that.

I don't know anything about international law, but I do know much about the US Constitution.

[Da Wizard]

TEXT
Tis interesting how society can legislate laws....and then again, the same society legislates (or attempts to) legislate morality.
The death penalty is a deterant, one to use to keep unruly folk in line....it is a good thing in our society.

[Geczka]

The UN document says "everyone has the right to life, liberty, and security of person"

Taking the literal approach to this document, you find it provides no exceptions. Thus, since any sentence of imprisonment deprives a person of liberty, prisons would run afoul of this document. If thats the case, pretty much every country that has signed it is in breach.

Except maybe Canada, or some European countries that dont have real prisons anymore.

[Donnie]

No