by Bill Sundhu
Guatemala has made a reservation, pursuant to the International Covenant on Civil and Political Rights (“ICCPR”), on the application of the death penalty on offenders under eighteen years of age. The Human Rights Committee (“HRC”) is established under part IV of the ICCPR. Guatemala is a party to the Optional Protocol to the ICCPR, but not the Second Optional Protocol (Aiming at the Abolition of the Death Penalty).
The Vienna Convention in Article 2 (1)(d) defines a reservation as ” a unilateral statement…whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.” Article 19 makes provision for a reservation, unless it is “prohibited by the treaty” and ” incompatible with the object and purpose of the treaty.” Article 31 stipulates “good faith” in interpreting “object and purpose.” The ICCPR is silent on the question of reservations. The preamble to the ICCPR refers to the “inherent dignity of the human person” and “universal respect for, and observance of, human rights and freedoms.” Its foundation is based on the Charter of the United Nations and the Universal Declaration of Human Rights.
Article 6(5) of the ICCPR states, “Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age…” Article 6(1) refers to “the inherent right to life” and Article 7 prohibits “cruel, inhuman or degrading treatment or punishment.” Article 10(b), even, states that juveniles be held separate from adults. This suggests inherent recognition of the special needs of children.
The ICCPR and the Convention on the Rights of the Child (“CRC”) recognize children have special guarantees of their rights and freedoms. The treaties implicitly recognize young persons due to their level of development and immaturity, “may not fully comprehend the consequences of their actions and should therefore benefit from less severe sanctions than adults.”1
Although Guatemala is not a signatory, the Second Optional Protocol in Article 1(1) prohibits execution of any form “within the jurisdiction of a State party.” Article 2, does not permit a reservation at time of ratification, except in “time of war” and Article 6 provides the “right guaranteed in Article 1(1), shall not be subject to any derogation under Article 4 of the Covenant.” This is a powerful statement on the rights of children and the application of the death penalty. These provisions are consistent with the object and purposes of the ICCPR and furtherance of rights.
The International Court of Justice in 1951, examined the “traditional concept…that no reservation was valid unless it was accepted by all the contracting parties without exception.” In referring to the Genocide Convention, it pointed to a “more flexible application of this principle” and that it was “manifestly adopted for a purely humanitarian and civilizing purpose” and of a prevailing interest in the “accomplishment of those high purposes.”2 This reasoning became more commonplace in the context of the unique and special circumstances of human rights. No doubt, Guatemala will point to the reservations filed by the USA, including Article 6 of the ICCPR, as precedent for its reservation.
The Restatement (Third), Foreign Relations Law of the United States, §702. Customary International Law of Human Rights3, reads:
A state violates international law if, as a matter of state policy, it practices,
encourages, or condones
(d) torture or other cruel, inhuman, or degrading treatment or punishment,
“All the rights proclaimed in the Universal Declaration and protected by the principal International Covenants are internationally recognized human rights, but some rights are fundamental and intrinsic to human dignity.”
“Not all human rights norms are peremptory norms (jus cogens), but those in clauses (a) to (f) of this section are, and an international agreement that violates them is void.”
As of 2003, 149 states were parties to the ICCPR. The HRC observes, ” the Restatements of Law represent an important reference for many legal issues, although they have no official, legal status.”4 There is a widespread acceptance among states on the prohibition on executions of children (defined as under 18 by the United Nations). Four aspects of state practice are pointed to in building a customary rule of international law5:
(1) “concordant practice” by a number of states relating to a particular situation;
(2) continuation of that practice “over a considerable practice of time”;
(3) a conception of the practice is required by or consistent with international law;
(4) general acquiescence in that practice by other states.
Article 38 of the International Court of Justice requires the Court to apply “international custom, as evidence of a general practice accepted as law.”6 Executions of child offenders are extremely rare. Amnesty International has recorded only twenty such executions since 1994. Thirteen of the twenty were in the United States.7 The evidence is overwhelming that an international norm of practice has emerged and it supports a finding of a rule of customary international law. It has become an elevated norm and value. Nor, can Guatemala exempt itself by invoking “persistence objection” to the rule, since it has failed to do so.
General Comment No. 24, recognized the necessity of determining “the acceptability and effects” of reservations and declarations to clarify the obligations of states. The HRC determined, reservations are governed by international law, the Vienna Convention as “relevant guidance”, and the “object and purpose test… governs the matter of interpretation and acceptability of reservations.”8 In addition to items 9, 10 and 11, the HRC notes:
8. Reservations that offend peremptory norms would not be compatible with the object and purpose of the Covenant;
18. It necessarily falls to the Committee to determine whether a specific reservation is compatible…objectively… a reservation will generally be severable, in the sense that the Covenant will be operative for the reserving party without benefit of the reservation.
Despite observations submitted by three Permanent Members of the Security Council, including it would “risk discouraging States from ratifying human rights conventions”9, the Chairpersons of the International Law Commission endorsed General Comment No. 24 and the HRC, applied its severability approach in a death row case.10
The HRC emphasizes that human rights treaties have a unique or special character. The Vienna Convention was set up prior to the development of most human rights treaties. The values underlying human rights are increasingly deeply embedded in the consciousness and jurisprudence of the world. They protect individuals and not just states, sovereign parties to the Vienna Convention system. The values and law of human rights continue to evolve in importance and primacy. Their realization and determination necessarily is evolving toward an “objective” standard.
The HRC is well placed to clarify and develop practice surrounding reservations and to “take measures against those reservations which may undermine the effective implementation of the Covenant and tend to weaken respect for the obligations of the State Parties.”11 This “functional necessity”12 is integral to the duties, monitoring and evolving role of the Committee. The HRC is mindful of the question of express power and legal binding authority. The interpretation of these questions over time will bring clarity and consistency of practice to bear upon the object and purposes of the treaty. We deem ourselves competent to determine the question of compatibility.
The evidence suggests the execution of children is contrary to international law and an affront to human dignity. It is cruel and inhuman punishment. The strikingly few reservations and infrequency of such executions is cogent evidence of universal acceptance and practice, which may be described as a norm. If ever there was a basis to find a peremptory norm or jus cogens, it is on this issue. It is indeed rare for such universal and virtually unanimous conformity. It meets the test of customary law and widespread acceptance by the large number of state parties to the ICCPR and CRC. Guatemala is also a signatory to the treaty of the Organization of American States. The nature of its legal and human rights instruments is in conformity and supportive in the matter of execution of children.
Virtually every country has laws that deal with children who commit crimes. There is a clear recognition of their special needs and vulnerabilities, suitability for rehabilitation and their limited moral development. The law generally provides that children are not to be treated in the same ways as adult offenders.
Guatemala claims to have been especially afflicted with serious violent crime by children. Its unresolved legacy of political violence, civil war, corruption, disparities in wealth and power, inadequacies of its political and legal system, and history of human rights abuses by agents of the state and insurgents is well known. Poverty and all its afflictions is the most predominant factor. Children are particularly vulnerable in their dealings with police and courts. There is an overriding imbalance of power in their ability to communicate and their defence is all the more difficult. While not intending to criticize, we point out the legal system in Guatemala lacks impartiality and independence. We do not attribute blame. These problems have been inherited.
The HRC is prepared to acknowledge a particularly high rate and incidence of youth violence. Revoking the domestic law on the death penalty for children, permits the State to nonetheless impose onerous sentences of incarceration to serve the objectives of criminal law. The Committee understands the domestic political pressures and sensibilities involved for Guatemala. For too long, there has been external interference and pressure on its internal affairs. Our intention is a respectful one.
We raise the distinct possibility of domestic courts declaring the law unconstitutional. There is real potential of internal conflict and discord. This would risk the intention of developing and strengthening the independence of the judiciary and constitutionalism.
Internationally, there is an assured consequence of condemnation and isolation. This has significant political and economic ramifications. There is risk of boycotts and complaints before international tribunals and media by state and non-state actors. Guatemala cannot afford such reaction amongst the international community of nations. It does not have the power of the United States to withstand international condemnation and stand on similar footing.
We urge withdrawal of the reservation. In good faith, we endeavor to recommend assistance and resources from state and non-state organizations to address the underlying causes of child and youth crime in Guatemala and in delivery of suitable programs of rehabilitation. As a last resort, we urge delay. We caution preference for the former because of benefits derived from international goodwill and perception.
Without prejudice, we offer a non-binding opinion – the preponderance of evidence, practice and law leans heavily toward “incompatibility.” The HRC has, previously, stated that the Covenant is deemed to be operative for the reserving state in the event of an unacceptable reservation. In the unlikely event of a fallback to the “flexible” reservations regime, the reservation is on tenuous ground given the positions of State parties and international practice on execution of children. In the event, the provision is found to be essentially non-derogable, as fundamental to achieving the objectives and purposes of the treaty, it would be unnecessary to consider permissibility and opposability.
The ICCPR and CRC arise from the largest assemblage of heads of state and governments. Amidst abuses and brutalities and lie intelligent practices and rights which speak to hope and optimism for children. World leaders were determined to make those hopes and practices into rights. Today, virtually every country in the world has ratified those treaties. The exceptions stand out, glaringly. Evolution of thought and practice in much that touches children’s lives, including the death penalty, is occurring because of the power of the Covenant and the Convention. This is the spirit and legal obligation accepted by most civilized states. It is better to be a member of this family of nations, than a pariah. It is an extraordinary accomplishment in international human rights law of the twentieth century.
Children suffer the most from human and societal failings. They suffer the most in war, famine and poverty. Their brutalization, abandonment and impoverishment contributes to alienation, despair and criminal behavior. Adult violence begets child violence. The lunacy of child soldiers, gangs and criminals – revives us toward some kind of sanity that we must act. Every achievement, no matter how small, matters.
We urge you to withdraw the reservation.