Customary International Law and the Right to Seek Clemency in Death Penalty Cases

• In Event: Capital Punishment and Its Diversion in Chinese and Global Perspective

Abstract

This paper is on the development of customary international law and the right to seek clemency in death penalty cases, including application to countries that do not have a formal clemency mechanism such as China and Taiwan. Under Article 6(4) of the International Covenant on Civil and Political Rights, any person sentenced to death must have the ability to seek clemency, pardon, or amnesty in all cases. However, over time, this requirement has become more robust: rather than interpret a minimal “right to seek,” increasingly international legal sources require greater obligations on states. International law increasingly recognizes that this right to seek clemency must be genuine and states must provide effective measures for the proper consideration. According to the Draft General Comment on Article 6 of the ICCPR, persons sentenced to death also have the right not to be executed while a clemency petition is pending; the right to make representations to a mercy authority; and the right to be promptly informed of the outcome. In addition, states may not categorically exclude prisoners from clemency consideration or impose burdensome, discriminatory, or ineffectual procedures for petitioners. Nonetheless, international law does not yet impose a specific constitutional formula for processing or considering such claims. Looking at international legal sources, this paper will argue that the right to seek clemency in international law is increasingly constraining the application of the death penalty.

Author

• Andrew Novak, George Mason University