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Monday, June 10, 2019, 2:18:54AM

In Defense of the Right to Life: International Law and Death Penalty in the Philippines

A study by the Commission on Human Rights of the Philippines and Dr. Christopher Ward, SC, Australian Bar, Adjunct Professor, Australian National University

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II. International Law, the Philippines, and the Death Penalty

The Second Optional Protocol to the ICCPR

The Philippines ratified the ICCPR in 1986. The ICCPR contains detailed provisions on the right to life, and places serious restrictions upon the application of the death penalty to any person within the jurisdiction of the State. These restrictions are considered below.

More significantly, the Philippines is also, unambiguously and without room for argument, a State Party to the Second Optional Protocol to the ICCPR.

The Second Optional Protocol is a significant international agreement. At the date of this Opinion, it has been ratified by 84 States and 2 other States have signed it. It provides for the complete, and permanent, abolition of the death penalty for all crimes within the jurisdiction of the state party.[11]

The act of abolition required by the Second Optional Protocol is absolute. Once ratified by a State, the obligations of the Second Optional Protocol are incapable of being retracted or altered by the State at any time in the future.

To reiterate, the Philippines signed and ratified the Second Optional Protocol to the ICCPR in 2006, and thereby became immediately obliged not to defeat the object and purpose of the Protocol. It then ratified the Second Optional Protocol in 2007. The circumstances of ratification, which are discussed below, do not permit any international law argument by the Philippines that it is not a party to the Second Optional Protocol.

Article 1 of the Second Optional Protocol provides for the abolition of the death penalty to persons within a state’s jurisdiction. Article 1(1) contains an absolute prohibition upon a State party executing any person within its jurisdiction. While Article 1(2) mandates States to undertake a positive obligation to abolish the death penalty within their jurisdiction.

The prohibition in Article 1(1) is absolute and unqualified. It is not capable of interpretation in a manner that allows for the implementation of the death penalty upon any person within the jurisdiction of the Philippines.

The obligation in Article 1(2) is also absolute. By requiring States to take all necessary measures to abolish the death penalty within their jurisdiction, the Second Optional Protocol is completely inconsistent with a State party taking any steps towards the reintroduction of the death penalty.

It follows that the Philippines, as a State party to the Second Optional Protocol:

...must not take any steps to reintroduce the death penalty within the Philippines or in relation to people within its jurisdiction; and

must not execute any person within its jurisdiction.

Following Article 2 of the Second Optional Protocol, no reservation to these obligations is permissible, save for a reservation made at the time of ratification in relation to wartime acts. In any event at the time of ratification, no reservation or declaration was made by the Philippines.

Notably, the UN Human Rights Committee (HRC) may receive individual complaints in relation to allegations of failures to comply with the Second Optional Protocol unless a reservation was made at the time of ratification.[12] Because no reservations or declarations were made by the Philippines at the time of ratification, that mechanism avenue for individual complaint and international scrutiny is open to any person within the jurisdiction of the Philippines.

Footnotes:
11 ICCPR-OP2, art. 1.
12 ICCPR-OP2, art. 5.

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