Document Type

Article

Disciplines

International Law

Abstract

There has not been a state sponsored execution by any Council of Europe member state in more than fifteen years.' This milestone represents a relative success for opponents of capital punishment and is only possible because of a carefully constructed legal evolution. The de facto abolition of the death penalty remains under threat by both member and non-member states. This article will explore the current state of death penalty jurisprudence in the Council of Europe, focusing particularly on attempts to export abolitionist values to retentionist countries. It argues that this awkward assertion of diplomatic power is necessary to advance the goals of the Convention for the Protection of Human Rights and Fundamental Freedoms as they are articulated in the Convention's Travaux Prdperatoires and the preamble to the Convention.

Just before Benjamin Cardozo was nominated to the U.S. Supreme Court he said, "[p]erhaps the whole business of the retention of the death penalty will seem to the next generation, as it seems to many even now, an anachronism too discordant to be suffered, mocking with grim reproach all our clamorous professions of the sanctity of life."2 Despite the failure of the United States and other retentionist countries to follow this path, the Council of Europe has realized Cardozo's prediction and begun to expand beyond it. This note explores the example of the Council of Europe while acknowledging the extent to which the Council has staked its reputation on its abolitionist stance. It begins with the goals of the convention. It continues by looking at the evolution of the Court's jurisprudence, and examining various critiques of the court's stance. It concludes by justifying the Council's progressive approach based on the Convention's purpose.

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