Over the last several years, the United Nations General Assembly has adopted three different resolutions calling on all member States to establish moratoria on executions “with a view to abolishing the death penalty.” In 2007, the death penalty moratorium resolution garnered a majority vote in the General Assembly for the first time, with 104 votes in favor, 54 votes against, and 29 abstentions. The resolution’s text emphasized “that the use of the death penalty undermines human dignity” and that a moratorium would contribute “to the enhancement and progressive development of human rights.”
In 2008, the General Assembly adopted a resolution that reaffirmed the previous moratorium resolution and welcomed decisions by an increasing number of States to apply moratoria on executions. This second resolution passed with 106 votes in favor, 47 votes against, and 33 abstentions.
The General Assembly in 2010 again passed a resolution reaffirming the two previous moratorium resolutions, noting ongoing national debates on the death penalty and welcoming steps taken by some countries to reduce the number of offenses for which the death penalty may be imposed. The final vote tally included 108 votes in favor, 41 votes against, and 36 abstentions. Thus, over time, there has been a gradual but noticeable increase in the number of votes in favor and decrease in the number of votes against.
While 58 countries signed the note verbale to the 2007 resolution expressing their objection “to any attempt to impose a moratorium on the use of the death penalty or its abolition in contravention to existing stipulations under international law,” that number dropped to 53 for the 2008 and 2010 resolutions. All three notes verbales restated the principal arguments made by opponents of the resolutions during the UN General Assembly debates. Among other things, opponents argued that the death penalty was a domestic criminal justice issue and not a human rights issue, that there was no consensus on the issue of the death penalty and no side of the debate was more “right” than the other, and that Article 6 of the ICCPR allowed countries that had not already abolished the death penalty to impose the sentence for “the most serious crimes” and in accordance with law in existence at the time of the crime.
Moratoria on executions, both official and unofficial, are playing an increasingly important role in eliminating the death penalty throughout the world. Half (49 out of 93) of the countries and territories that still maintain the death penalty in law are “de facto abolitionist,” meaning that they have not executed anyone in at least the past ten years. Only five of these 49 can arguably be said to have official moratoria on executions, in other words, moratoria resulting from a government’s public declaration that it will not authorize executions (Algeria, Papua New Guinea, Russia, Swaziland, and Zambia). However, it is often difficult to assess how firmly the moratorium will be implemented, and whether it is official or unofficial. In addition, Tajikistan, a retentionist country (meaning that at least one execution has taken place in the last ten years), has instituted a de jure moratorium, in other words, a moratorium instituted by legislation. Although the United States is retentionist, several individual states, such as Oregon and California, have adopted unofficial moratoria as a result of court decisions, gubernatorial opposition to the death penalty, or lack of vigorous prosecution of capital appeals.
Moratoria can lead to eventual abolition of the death penalty by showing proponents that society is able to function without capital punishment and allowing governments to conduct studies on alternatives to the death penalty. Moratoria are, however, vulnerable to expiration. Although the Russian Federation has had a judicially-imposed moratorium on executions since 1999, most moratoria exist because a president either pronounces that he or she will commute all death sentences to life sentences (as in Mali) or vows not to sign death warrants (as in Zambia). These moratoria appear tenuous at best because future presidents may not consider themselves bound by the executive policies of their predecessors. Countries such as Chad, Taiwan, and Guinea resumed executions after years of observing unofficial moratoria.
Some abolitionists believe that moratoria may also pose risks to the global strategy to officially abolish the death penalty. On a philosophical level, the decision to establish a moratorium rather than endorse outright abolition may indicate that the administration of the death penalty, and not the punishment itself, is defective. If proponents of a moratorium believe that the death penalty can be “fixed,” the moratorium may allow policymakers to evade more difficult questions regarding the utility and morality of the death penalty itself.
United Nations General Assembly Resolutions
U.N.G.A., Resolution adopted by the General Assembly on 18 December 2007, Moratorium on the use of the death penalty, U.N. Doc. A/RES/62/149, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N07/472/71/PDF/N0747271.pdf?OpenElement, Feb. 26, 2008.
U.N.G.A., Resolution adopted by the General Assembly on 18 December 2008, Moratorium on the use of the death penalty, U.N. Doc. A/RES/63/168, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N08/480/87/PDF/N0848087.pdf?OpenElement, Feb. 13, 2009.
U.N.G.A., Resolution adopted by the General Assembly on 21 December 2010, Moratorium on the use of the death penalty, U.N. Doc. A/RES/65/206, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N10/524/90/PDF/N1052490.pdf?OpenElement, Mar. 28, 2011.
U.N.G.A., Resolution adopted by the General Assembly on 20 December 2012, Moratorium on the use of the death penalty, U.N. Doc. A/RES/67/176, "http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N12/489/16/PDF/N1248916.pdf?OpenElement, Mar. 20, 2013.
U.N.G.A., Resolution adopted by the General Assembly on 18 December 2014, Moratorium on the use of the death penalty, U.N. Doc. A/RES/69/186, "http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N14/708/68/PDF/N1470868.pdf?OpenElement, Feb. 4, 2015.
Constitutional Court of the Russian Federation, Decision No. 3-P/1999, Feb. 2, 1999.
Constitutional Court of the Russian Federation, Decision No. 1344-O-R/2009, Nov. 19, 2009.
Sangmin Bae, South Korea’s De Facto Abolition of the Death Penalty, 82 Pac. Affairs 407 (2009).
Piers Bannister, The Death Penalty: UN Victory Puts Total Abolition Within Our Grasp, 22 Int’l Rev. of Law Computers & Technology 165 (2008).
Fort Fu-Te Liao, The Abolition of the Death Penalty in Taiwan: Why a De Facto Moratorium was Established and Lost, 11 Asian-Pacific Journal on Human Rights and the Law (1) 1 (2010).
Christy A. Short, The Abolition of the Death Penalty: Does “Abolition” Really Mean What You Think It Means?, 6 Ind. J. Global Legal Stud. 721, (1999).
Dernière mise à jour le 15 décembre 2011