A/HRC/10/44
page 15
by the South African Constitutional Court in the landmark judgement of State v. Makwanyane
and Mchunu in June 1995.31 The Constitutional Court provided a comprehensive review of the
case law of international human rights monitoring bodies at that time and then arrived at the firm
conclusion that capital punishment in any case must be regarded as cruel, inhuman and
degrading punishment.
E. Conclusions and recommendations
46. What conclusions can be drawn from the analysis of developments pertaining to the
death penalty in the light of the prohibition of cruel, inhuman and degrading treatment? In
principle, the answer to the legal question posed by the French delegate in the
General Assembly depends on the interpretation of the words “cruel, inhuman or
degrading treatment or punishment” in article 7 of the International Covenant on Civil
and Political Rights and similar provisions in other international and regional human
rights treaties. Traditionally, States and human rights monitoring bodies followed a
systematic and historic interpretation of the right to personal integrity and human dignity
in conjunction with the right to life, which explicitly contains an exception for capital
punishment. This interpretation is in line with article 31 of the Vienna Convention on the
Law of Treaties, which stipulates that provisions of international treaties should be
interpreted in their context. At the time of the adoption of the respective treaties, this was a
fully legitimate method of interpretation.
47. International human rights monitoring bodies and domestic courts, however,
developed and effectively apply a dynamic interpretation of the provisions of human rights
treaty law. They consider human rights treaties “living instruments” that need to be
interpreted in the light of present-day conditions. The application of this method of
interpretation to the right to personal integrity and human dignity by regional human
rights courts and universal treaty monitoring bodies has the effect that corporal
punishment, which was not regarded as cruel, inhuman or degrading punishment at the
time of the adoption of the respective treaties, is today considered such. Consequently,
States that still practise corporal punishment as a judicial or disciplinary measure or that
do not take effective legislative and other measures to prohibit and prevent corporal
punishment in the private sphere are found to violate the absolute prohibition of cruel,
inhuman or degrading punishment. Although the systematic interpretation of international
human rights treaties has to date prevented regional and universal treaty monitoring
bodies from applying the same dynamic interpretation of the right to personal integrity
and human dignity to the death penalty, this legal reasoning is increasingly being
challenged by obvious inconsistencies deriving from the distinction between corporal and
capital punishment and by the universal trend towards the abolition of capital punishment.
48. The Human Rights Council may wish to follow the call of the General Assembly in
paragraph 4 of its resolution 62/149 to continue the work of the Commission on Human
31
Judgement of 6 June 1995, case No. CCT/3/94.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents