Japan’s legal obligations on the use of the death penalty
A number of points emerge from the above that inform the interpretation of this instrument whether by a national court or the United Nations Human Rights Committee (HRC)3
:
1. All individuals are protected, not just citizens or even lawful residents but everybody. Tese are human rights and not constitutional rights. Even irregular aliens may have rights that need protecting.
2.Te view of the HRC and the settled jurisprudence of the European Court of Human Rights, is that individuals who are subject to the jurisdiction of contracting states have human rights claims whether or not they are also within the sovereign territory of those states.4
3. All branches of the state must respect these rights, national, federal and local, executive, administrative and judicial. A state cannot evade its obligations by contending that an independent branch of government is committing the violation.
4.Tere can be no discrimination in application of the rights. Tis emphasises not merely the point about citizens and aliens, but differential treatment on grounds of sex, race or social status. Tese terms are to be given a broad meaning developing as societies become more complex.
5.Where laws have not been passed to give effect to the rights there is a duty to do so.
6.Depending on the constitutional traditions judges may be able to fill the gap in legal measures by creative interpretation, strike down incompatible laws or grant declarations that laws need to be amended to bring them into compliance. What is not satisfactory is to remain indifferent to a failure to secure the rights in question.
Tese principles lie at the heart of human rights law and inform the nature of the obligation that states undertake when they introduce these provisions into their own legal systems. Tere is considerable discretion as to how states incorporate the ICCPR rights and principles into law: in some states international treaties are automatically incorporated without further legislation; in others they are presumed to be respected unless the terms of national law prevent such a conclusion.
Te obligation, however, is to respect the rights and give effective remedies to individuals whose rights are, have been and in some cases will be violated. Te fact that national law does not at present recognise these rights is not a sufficient answer to the ICCPR. States need to do something to bridge the gap between the incompatible laws and practices and the rights promised by either accession or incorporation into law.
Rights which cannot be derogated
Not all rights are of the same importance in the scheme of the ICCPR, but certain rights are non- derogable even in time of war or national emergency. Article 4 provides:
1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures
3 4
Most of these points are drawn from General Comment 31 adopted March 2004, available at
http://www.unhcr.org/refworld/pdfid/478b26ae2.pdf “Tis principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the
circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation.” GC 31 paragraph 10.
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