CAPÍTULO IV La prisión preventiva
129ELDER JAIME MIRANDA ABURTO
VII. La cesación de la prisión preventiva
In proposing the list of RUDs to be attached, the Bush Administration’s intention was to accede to the ICCPR whilst ensuring it would have little effect in the US. In fact, ‘Bush assured the Senate that ratification would require no change in [US] practice’.54 What President Bush
proposed were five reservations, and a further eight understandings and declarations to be
47 ICCPR (n 16).
48 The United States Constitution, Article II, § 2, Clause 2.
49 See Senate Executive Report No 102-23 (1992) [hereinafter referred to as ‘Senate Committee Report’]; John Quigley, ‘The
International Covenant on Civil and Political Rights and the Supremacy Clause’ (1993) 42 DePaul L Rev 1287,1287.
50 Senate Committee Report (n 50) 2. 51 Ibid.
52 United States Senate Committee on Foreign Relations, ‘Committee History and Rules’
<www.foreign.senate.gov/about/history/> accessed 24 August 2018. For political context, in both 1991, when the negotiations on
the ICCPR began in the Senate, and in 1992, when the ICCPR was ratified, the Democratic Party held the Senate.
53 Senate Committee Report (n 50) 2.
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lodged against the ICCPR.55 The SFRC considered the RUDs proposed by the Bush
Administration and held a public hearing on 21 November 1991.56 Subsequently, the requisite
two-thirds majority of the Senate recommended these RUDs be attached to the ICCPR. Thereafter, the process was finalised by President Bush signing the instrument of ratification on 1 June 1992 and placing it in the requisite depository of the UN Secretary-General on 8 June 1992. This concluded the final steps required domestically, and the ICCPR with the
fourteen RUDs attached came into force in the US on 8 September 1992.57
According to the VCLT, a ‘reservation’ is defined as ‘a unilateral statement…made by a state…whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that [s]tate’, and it can be lodged at any time between signature and ratification.58 States have the sovereign right to place reservations against a treaty,
although there is an exception to this in Article 19(c) VCLT, which provides that the reservation must not be ‘incompatible with the object and purpose of the treaty’.59 The US has been
criticised by UN member states and scholars alike for its reservations lodged against Articles 6 and 7, on the basis that these provisions are non-derogable and are therefore incompatible with the object and purpose of the ICCPR.60 In fact, these reservations are described by
William A. Schabas as ‘far and away the most extensive reservations to the capital punishment provisions of any international human rights treaty’.61
Attaching reservations to human rights treaties, such as the ICCPR, is an example of American exceptionalism to international law, as the US will sign treaties but then ‘exempt
itself from their provisions’ through such reservations.62 American exceptionalism is examined
further in section 2.5.
The Reservation Against Article 6 ICCPR
Article 6 ICCPR provides that ‘every human being has the inherent right to life’,63 whilst also
stating that there is an exception to this right to life for capital punishment.64 Article 6 then sets
55 Senate Committee Report (n 50) 6. Whilst this is what was proposed, what was eventually passed was five reservations, five
understandings and four declarations, see Senate Resolution of Advice and Consent to Ratification of the International Covenant on Civil and Political Rights, 138 Cong Rec S4783-84 (Daily edn 2 April 1992).
56 Senate Committee Report (n 50) 2.
57 Senate Resolution of Advice and Consent to Ratification of the International Covenant on Civil and Political Rights (n 56). 58 VCLT (n 47) Article 2(d).
59 Ibid Article 19(c); See also, Restatement (n 2) §313 (1)(c).
60 UN Human Rights Committee, ‘Comments of the Human Rights Committee – United States of America’ (n 44) para 14; William
A Schabas, The Abolition of the Death Penalty in International Law (3rd edn, CUP 2002) 79; Chrissy Fox, ‘Implications of the United States’ Reservations and Non-Self-Executing Declaration to the ICCPR for Capital Offenders and Foreign Relations’ (2003) 11 Tul J Int'l & Comp L 303, 307.
61 Schabas, The Abolition of the Death Penalty in International Law (n 61) 79.
62 Michael Ignatieff, ‘Introduction: American Exceptionalism and Human Rights’ in Michael Igantieff (ed), American Exceptionalism
and Human Rights (PUP 2005) 3.
63 ICCPR (n 16) Article 6(1). 64 Ibid Article 6(2).
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out minimum standards for those states still administering the death penalty – including that
the death penalty must only be administered for the ‘most serious crimes’65 and that those
who committed a crime whilst under the age of eighteen and pregnant mothers should not be
executed.66
The reservation lodged by the US against Article 6 is as follows:
The United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such
punishment for crimes committed by persons below eighteen years of age.67
John Quigley has argued that this reservation ‘clearly signifie[d] an effort on the part of the [US] to protect and perpetuate current practice rather than to conform to the [ICCPR]’.68
Although it was promulgated that the reservation was lodged purely due to the differing opinions on executing juveniles, Schabas argues that ‘the reservation extends far beyond the question of juvenile executions and seeks to exclude the [US] from virtually all international
norms concerning the death penalty’.69 The SFRC’s Report on the ICCPR confirmed this, as
it noted that the reservation was lodged due to ‘the sharply differing view taken by many of our future treaty parties on the issue of the death penalty (including what constitutes “most
serious crimes” under Article 6(2))’.70 A US State Department representative further
substantiated this in 2006, when they were questioned by the Committee following the 2005 decision in Roper v. Simmons, wherein SCOTUS ruled that juvenile executions are
unconstitutional.71 The Committee asked the State Department representative whether the
reservation against Article 6 could now be removed, given the decision in Roper. However, the representative confirmed that the reservation would not be withdrawn, in part due to the
fact that its reservation to Article 6 involved more than the juvenile death penalty.72
In fact, if the reservation against Article 6 was removed, the US would be in breach of Article
6(2) which states that a ‘sentence of death may be imposed only for the most serious crimes’.73
The ICCPR does not provide a definition of ‘most serious crimes’, but in its General Comment 36, the Committee asserted that ‘[t]he term “the most serious crimes” must be read restrictively
65 Ibid.
66 Ibid Article 6(5).
67 Senate Committee Report (n 50) 11.
68 John Quigley, ‘Criminal Law and Human Rights: Implications of the United States Ratification of the International Covenant on
Civil and Political Rights’ (1993) 6 Harv Hum Rts J 59, 74.
69 Schabas, The Abolition of the Death Penalty in International Law (n 61) 80. 70 Senate Committee Report (n 50) 11.
71 Roper (n 22).
72 Robert Harris, Assistant Legal Advisor, ‘US Delegation Response to Oral Questions from the Members of the Committee’ (18
July 2006).
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and appertain only to crimes of extreme gravity, involving intentional killing’.74 However, the
US continues to execute those who have not actually committed murder. A recent example being Kelly Gissendaner, who was executed in Georgia in September 2015 for malice murder of her husband, despite her not carrying out the murder herself and not being present when
the murder took place.75 The Committee further noted in its General Comment 36 that ‘a limited
degree of involvement or of complicity in the commission of even the most serious crimes, such as providing the physical means for the commission of murder, cannot justify the
imposition of the death penalty’.76 Therefore, the US would be in breach of Article 6(2) if it
removed the reservation.
The Reservation Against Article 7 ICCPR
The US also lodged the first and only reservation against Article 7 of the ICCPR.77 Article 7
provides that ‘[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment
or punishment’,78 which is similar to the protection afforded by the Eighth Amendment of the
US Constitution which prohibits ‘cruel and unusual punishment’.79 Article 7 also codified the
jus cogens norm prohibiting torture or cruel, inhuman and degrading treatment.80 As shown in
Part II of this thesis, Article 7 covers a number of issues relating to capital punishment that the Eighth Amendment does not, such as the harsh conditions on US death rows, the ‘death row
phenomenon’, and certain methods of execution.81
The reservation lodged by the US against Article 7 is as follows:
The United States considers itself bound by Article 7 to the extent that ‘cruel, inhuman or degrading treatment or punishment’ means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth and/or Fourteenth Amendments to the
Constitution of the United States.82
The SFRC stated that this reservation was lodged due to the fact ‘the Bill of Rights already contains substantively equivalent protections’.83 However, the SFRC also admitted that it
attached this reservation ‘because the Human Rights Committee like the European Court of
74 UN Human Rights Committee, ‘Draft General Comment 36’ on ‘Article 6 Right to Life’ (2017) para 39 [hereinafter referred to
as ‘General Comment 36 2017’]. The Committee provides periodic ‘General Comments’ on the interpretation of Article 6 ICCPR.
75 Gissendaner v Georgia 532 S E 2d 677, 681-84 (2000).
76 UN Human Rights Committee, ‘Draft General Comment 36’ on ‘Article 6 Right to Life’ (2017) (n 75) para 39.
77 See, William A Schabas, ‘Invalid Reservations to the International Covenant on Civil and Political Rights: Is the United States
still a Party?’ (1995) 21 Brook J Int'l L 277, 289.
78 ICCPR (n 16) Article 7.
79 The United States Constitution, Amendment VIII.
80 See, UNGA, ‘Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’
(10 April 2014) UN Doc A/HRC/25/60 para 40; Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) 2009 ICJ Rep 139, 99.
81 See, chapter six.
82 Senate Committee Report (n 50) 12.
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Human Rights had adopted the view that prolonged judicial proceedings in cases involving capital punishment could in certain circumstances constitute such treatment’ that is contrary
to Article 7.84 In fact, the reservation was a direct response to the case of Soering v. United
Kingdom, wherein the ECtHR found that if Soering was deported to Virginia, the length of time
spent on death row in harsh conditions would lead to the death row phenomenon, constituting
a violation of Article 3 ECHR’s protection against inhuman and degrading treatment.85
Furthermore, comparisons were drawn between Article 7 ICCPR and Article 3 ECHR
regarding the ‘death row phenomenon’,86 which is examined further in chapter 6.3.1.
The SFRC concluded that, under Article 7, the US could be in contravention of international law by continuing to administer the death penalty as currently practiced, and as such lodged the reservation against it.87 The SFRC thereafter attempted to justify this reservation by
assuring the international community that the US would adhere to its own version of cruel and unusual punishment. However, not only are the protections afforded by the Eighth Amendment not as broad as those under Article 7, Article 27 VCLT provides that domestic law cannot be used to justify non-performance of a treaty, yet this is exactly what the US has done through
its reservation to Article 7.88 This is another example of American exceptionalism, with the US
clearly relying on its current laws and practices to isolate itself from international human rights,
prima facie blocking the abolition of the death penalty.89
Are the Reservations to Articles 6 and 7 Against the ‘Object and Purpose’ of the ICCPR?
Articles 6 and 7 protect non-derogable rights, and Article 7 protects a jus cogens norm. It can therefore be questioned whether the reservations the US lodged against them are valid, on the grounds that they undermine the object and purpose of the ICCPR. The Restatement agrees that a reservation must not be ‘incompatible with the object and purpose of the agreement’,90 but says that this brings with it ‘uncertainty and possible disagreement’ and
therefore ‘the standard is intended to be an objective one’.91
M. Cherif Bassiouni stated that the lodging of the reservations constitutes a de facto rewriting of the treaty.92 If this reasoning is followed, it can be concluded that the US is currently
adhering to an alternate version of the ICCPR. This is consistent with Schabas’ view that these
84 Senate Committee Report (n 50) 12.
85 Soering v United Kingdom (1989) 11 EHRR 439, 99. 86 Ibid 88.
87 Senate Committee Report (n 50) 12. 88 VCLT (n 47) Article 27.
89 Ignatieff (n 63) 8.
90 Restatement (n 2) §313 Comment (1)(c). 91 Ibid §313 Comment (c).
92 M Cherif Bassiouni, ‘Reflections on the Ratification of the International Covenant on Civil and Political Rights by the United
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reservations call into question whether the US is in practice a party to the ICCPR at all.93
Schabas argued that either, the invalid reservations lodged by the US ‘can be severed or separated from the [US] accession to the treaty’ meaning that the US is actually bound by the entirety of the ICCPR, or ‘if the invalid reservations cannot be separated from [US] accession,
then the [US] is not a party to [the ICCPR]’.94 As Schabas further argued, ‘[i]t is not plausible
to conclude that the [US] should remain bound by the [ICCPR], with the exception of the death penalty provisions’,95 nor is it plausible for the US to be adhering to a different version of the
ICCPR than the other state parties.
Although the IACHR and the Committee have both found that reservations lodged against
non-derogable treaty provisions will not automatically be invalid,96 the Committee concluded
that the US’ reservations against Article 6(5) and Article 7 are invalid due to them being
incompatible with the object and purpose of the ICCPR.97 Furthermore, the reservation against
the prohibition of executing minors prompted eleven objections from other state parties to the
ICCPR on the basis that such a reservation went against the object and purpose of the treaty.98
Schabas has asserted that the US should have known that the reservations would be invalid
as they were lodged against non-derogable provisions of the ICCPR,99 in that they are ‘rights
so fundamental and so essential that they brook no exception, even in emergency
situations’.100 As such, Schabas has concluded the reservations can be severed from the US’
accession to the ICCPR, meaning that the US is a party to the treaty, including Articles 6 and 7.101 This was also the position of the Committee in its General Comment 24/52 in 1994,
wherein the Committee stated that ‘[t]he normal consequence of an unacceptable reservation is not that the Covenant will not be in effect at all for a reserving party. Rather, such a reservation will generally be severable, in the sense that the Covenant will be operative for
the reserving party without benefit of the reservation’.102 In support of this viewpoint, Schabas
cited the ECtHR rulings in Belilos v. Switzerland and Loizidou v. Turkey wherein the court found the reservations lodged by Switzerland and Turkey against the ECHR were invalid and,
93 Schabas, ‘Invalid Reservations to the International Covenant on Civil and Political Rights’ (n 78) 316-17. 94 Ibid 278.
95 Ibid 317.
96 Schabas, The Abolition of the Death Penalty in International Law (n 61) 82-83, citing Restrictions to the Death Penalty (Arts.
4(2) and 4(4) of the American Convention on Human Rights) Advisory Opinion OC-3/83 (8 September 1983) Inter-Am Ct HR (Ser
A) No 3 (1983) para 61; UN Human Rights Committee, General Comment 24 (52), General comment on Issues Relating to Reservations Made Upon Ratification or Accession to the Covenant or the Optional Protocols Thereto, or in Relation to Declarations under Article 41 of the Covenant (1994) UN Doc CCPR/C/21/Rev1/Add6 para 12.
97 UNCHR, ‘Comments of the Human Rights Committee – United States of America’ (n 44) para 14.
98 ICCPR. Belgium, Denmark, Finland, France, Germany, Italy, Netherlands, Norway, Portugal, Spain and Sweden raised issues
with the reservation. VCLT (n 47) Article 19(c) states that a reservation may not be lodged against a treaty if it is ‘incompatible with the object and purpose of the treaty’.
99 Schabas, ‘Invalid Reservations to the International Covenant on Civil and Political Rights’ (n 78) 323-25. 100 Schabas, The Abolition of the Death Penalty in International Law (n 61) 82.
101 Schabas, ‘Invalid Reservations to the International Covenant on Civil and Political Rights’ (n 78) 323-25. 102 UN Human Rights Committee General Comment 24, General Comment 24 (52) (n 97) para 18.
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importantly, that the invalid reservations were severable, meaning that the states were bound
by the whole of the ECHR.103 Schabas further noted that the US has shown its intention to be
bound by the ICCPR in its entirety through its engagement with the drafting of the ACHR. Although the US is a signatory only to the ACHR, it includes very similar provisions to the ICCPR and, aside from questions about the juvenile death penalty, the US delegate engaged in the ACHR negotiations and did not raise any objections regarding the death penalty provisions.104
However, Curtis Bradley and Jack Goldsmith disagree that the US reservations contradict the ‘object and purpose’ of the ICCPR, relying on the fact that ‘approximately one-third of the
parties to the ICCPR made reservations to over a dozen substantive provisions’.105 Bradley
and Goldsmith further argue that ‘there is no basis in international law’ for the conclusion that the US’ reservations are severable from the ICCPR due to their invalidity, relying upon the principle that ‘in treaty relations a state cannot be bound without its consent’.106 They conclude
by saying that either the reservations are valid or the US is not a party to the ICCPR, but that
they cannot be bound by the Articles they have placed reservations against.107 Although it is
correct that states have the sovereign right to choose whether to ratify and be bound by a treaty and to lodge RUDs, Bradley and Goldsmith’s argument fails to consider the non- derogable nature of the provisions. Furthermore, the US is the only party with reservations lodged against Articles 6 and 7, which refutes their argument that one-third of states have lodged reservations against the ICCPR. The issue is not that the US has lodged reservations generally, but that these two particular reservations are lodged against non-derogable provisions, which go against the object and purpose of the ICCPR.
Therefore, this thesis agrees with Schabas’ argument that the reservations are invalid and severable, and the US is bound by the ICCPR in its entirety. This conclusion, that the US is a party to the treaty in its entirety, also means that the US is in breach of the ICCPR Articles 6 and 7, as demonstrated in Part II of this thesis.
The Helms Proviso
Alongside the RUDs, a further proviso was recommended by the SFRC. Nicknamed the ‘Helms Proviso’, after its creator Senator Jesse Helms, it states that:
103 Schabas, ‘Invalid Reservations to the International Covenant on Civil and Political Rights’ (n 78) 319-23, citing Belios v
Switzerland (10328/83) (1988) ECHR 4; Loizidou v Turkey (15318/89) (1995) ECHR 10.
104 Schabas, ‘Invalid Reservations to the International Covenant on Civil and Political Rights’ (n 78) 322-23.
105 Curtis A. Bradley and Jack L. Goldsmith, ‘Treaties, Human Rights, and Conditional Consent’ (2000) 149 U Pa L Rev 399, 433. 106 Ibid 437, citing, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide 1951 ICJ 15, 21
(28 May 1951).
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Nothing in this Covenant requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.108
The SFRC also ‘suggested that [POTUS] not communicate the proviso to the [UN] Secretary General when he deposited the instrument of ratification’ on the basis that this was a matter regarding the US Constitution, which is a domestic issue and therefore not of international
importance.109 President Bush adhered to this recommendation from the Senate and did not
inform the UN of the added proviso.110
The Helms proviso ‘appears to exempt the [US] from the obligation to protect a right more
broadly than it is protected by the [US] Constitution’.111 This conflicts with the Committee’s
recommendation that despite the US attaching a declaration stating that the ICCPR would be a non-self-executing treaty, the US should ‘ensure that effective remedies are available for