Thursday, 15 May 2014

Insights into the European External Action Service and the EU Strategy for the Global Abolition of the Death Penalty: Observations from a research visit

by Dr Jon Yorke, BCU School of Law

SINCE THE FIRST QUESTIONING of the death penalty in the European Parliament in 1979, the EU has solidified an absolute abolitionist position. The punishment is now removed from the EU and the last execution by a member state was in Latvia in 1996. The Charter of Fundamental Rights of the European Union, Article 2(2), prohibits the “death penalty” and “executions,” and in 2001 abolition became a prerequisite for membership to the EU. Consequently, the focus has predominantly turned to the wider world. In her speech to the European Parliament on 16 June 2010, Catherine Ashton, HRVP, stated that promoting the EU’s work for the global abolition of the death penalty was a “personal priority” of hers.

So the focus now shifts to the work of the EEAS within the EU’s Common Foreign and Security Policy (CFSP), and specifically through the EU Guidelines on the death penalty and the "minimum standards" of a Third countries' capital judicial process. At the structural level of the EEAS the death penalty is a “thematic issue.” To develop effective strategies to help promote abolition and react appropriately when a capital judicial process is initiated through death sentences to executions, the “geographic” department may be consulted to provide expert advice on cultural, political and legal issues of the region (for example, the United States, North Africa, the Commonwealth Caribbean, and Asia, have specific regional - cultural/political/theological - issues which need to be considered). The EEAS also consults the Council Working Group on Human Rights when specific cases are being monitored to determine the appropriate action to be taken.

Pre-Lisbon Treaty, the rotating Presidency of the EU would identify appropriate communications, or “demarche,” when a death sentence and/or execution was imminent in a Third country. Post-Lisbon, the authorship of demarche is now centralised within the EEAS. Under the pre-Lisbon rotating presidency, the right of initiative resided within the presiding member states and would be communicated to the relevant embassies. There were four types of statements given by the EU in death penalty cases: 1) a Declaration of the EU (this occurred when the member states were aligned on an issue – as in the abolition of the death penalty), 2) a Statement of the Presidency of the EU, 3) a Statement of the Spokesperson of the EU, and 4) Statement of the Local Embassy in the country imposing the death penalty. Following Lisbon and strengthened by the Council Decision No. 2010/427/EU establishing the EEAS, this has been streamlined and either Catherine Ashton or her representative makes the statement on behalf of the EU.  

Every 10 October, on the World and European Day Against the Death Penalty the EU, jointly with the Council of Europe, makes a statement against the death penalty and calls for worldwide abolition. The EEAS distributes training packs to each of its delegations for this day to raise awareness of the ineffectiveness and inhumanity of the punishment. This helps promote the abolitionist discourse globally, as the EU delegations share this information with the embassies in retentionist countries around the world. A mission inter-linking is embedded through the training on the death penalty for all EEAS staff including delegations and third party contractors.

Of the 139 EU delegations, the most sophisticated dissemination of information on the death penalty is found in the Delegation of the European Union to the United States. The US delegation effectively monitors the application of the death penalty across the United States, organises dialogues with state politicians, provides training on the punishment and facilitates legal services in capital cases. The delegation website gives comprehensive resources on the death penalty, including examples of demarche in state and federal cases, and links to the EU amicus curiae briefs filed in death penalty cases. The EU briefs fall under the competency of the European Commission, and are affirmed through the advice of the delegations. The briefs in the United States Supreme Court cases Atkins v. Virginia 536 U.S. 304 (2002) and Roper v. Simmons 543 U.S. 551 (2005) were seen to positively contribute to the majority court opinions in striking down the death penalty for people suffering from mild mental retardation (now termed, Intellectual and Developmental Disabilities) and for juveniles convicted of murder.        

There have been further notable successes of the EU abolitionist policies. Council Regulation (EC) No. 1236/2005, which prohibits trading in execution technologies was the first of its kind in the world. However, there was a clear lacuna in the text in that the Regulation identified the lethal injection apparatus, but did not include a designation of the execution protocol fluids to be administered. Catherine Ashton spoke in the European Parliament identifying the legislative deficiency and affirmed that the EU would rectify it. After the trade issues were dealt with by the Commission (DG Trade), the Regulation was amended with Commission Implementing Regulation (EU) No. 1352/2011 and now no EU member state can manufacture and/or export any chemical substance which would be used by a receiving state in an execution.    

The EU also has a significant multilateral function and the work of the EEAS can be seen to contribute to the strengthening of the UN General Assembly Resolution on the moratorium on the use of the death penalty, G.A. Res 67/176,U.N. Doc. A/RES/67/176 (20 December, 2012) – in which 110 member states voted in favour, 39 against, and 36 abstained. The next vote on the Resolution will occur in December 2014. Although the UN General Assembly granted the EU higher participation status it is not the “lead” on the Resolution vote, but is part of the cross-regional alliance for achieving a global removal of the death penalty. What this demonstrates is that the abolition of the death penalty is not today a “western” or “European” discourse, but it is a question of human rights which affects all people. The Resolution vote demonstrates that the death penalty is a cross-cultural and political issue.

Where can the EEAS enhance the death penalty discourse for achieving the goal of worldwide abolition?

Admitedly, we now find before us the hard task of asking resolute retentionist countries to abolish the death penalty. The future must see the abolitionist movement tackle the vestiges of absolute sovereign power. It must use human rights, the dismantling of the statist monopoly of criminal sanctions, and the deconstruction/reinterpretation of transcendent ideology/theology, to sever from sovereignty the power and right to put to death through capital punishment.

The EEAS is now a crucially important component of the worldwide movement for the abolition of the death penalty. It complements NGOs such as the World Coalition Against the Death Penalty, the International Academic Network for the Abolition of Capital Punishment, Amicus, Reprieve, and the International Commission Against the Death Penalty. It appears that the challenges ahead will need to be met through a collaborative effort. It must form a structural attack on the punishment at the bilateral and multilateral levels by governments and political regions, but also, crucially important will be the role of civil society and the cosmopolitan citizen in participation and contribution to events such as the World/European Day Against the Death Penalty. It is a government/citizen symbiosis.

This symbiosis can perhaps be viewed as an approach in hybridity discourse. It is hybrid because it involves governments and citizens of abolitionism verses the (dwindling) governments and peoples of retentionism. What is revealed by the current global trend towards abolition is that from the oldest legal code, most likely the Babylonian Code of Hammurabi (circa 1850 BC), to the mid-1980s, there was not a global drive to denounce the death penalty. The power of political sovereignty to use the death penalty has been only peripherally challenged for circa 3830 years. If we can point to around the late-1980s as the beginning of significant change, and the possibilities of global abolition solidifying, then we have only been able to see the light at the end of the tunnel for around 30 years. The global abolitionist movement is still only in the neonatal stage. It will grow-up and the EEAS has an important role in helping it to achieve maturity.

My research visit to the European External Action Service, builds upon an article I co-wrote with Christian Behrmann, The European Union and the Abolition of the Death Penalty, 4 Pace Int’l L. Rev. Online Companion 1 (2013). I am very grateful for the engaging conversations with EEAS members on the post-Lisbon Treaty external strategy. I am extremely grateful to Christian Behrmann and Antonis Alexandris for their every helpful discussions on the EEAS and the death penalty.