International and domestic approaches to constitutional protections of individual rights: reconciling the Soering and Kindler decisions.

• Author: Kobayashi, Anne Mori

1. Introduction

   Although the death penalty may not yet be considered illegal per se as a matter of customary international law, there is clearly a trend towards its abolition.(1) Most countries of Western Europe and the Americas have abolished the death penalty, with the notable exception of the United States.(2) Furthermore, three international instruments, Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty (Protocol No. 6),(3) the Second Optional Protocol to the International Covenant on Civil and Political Rights (Second Optional Protocol),(4) and the Protocol to the American Convention on Human Rights,(5) expressly prohibit capital punishment.

   The United States stands out as a prominent exception to this worldwide trend towards abolition, as thirty-seven states have reinstated the death penalty,(6) the 1994 Federal Death Penalty Act has expanded the range of federal crimes punishable by death,(7) and the Supreme Court has upheld capital punishment against various constitutional challenges.(8) Even as the United States condemns human rights violations around the world and attempts to advocate a global platform of respect for human rights, it has had to justify its position on the death penalty in the face of criticism from the international community.(9) Consequently, the United States is conspicuously absent from several major international treaties on human rights,(10) and it has submitted several significant reservations to major international instruments.(11)

   In recent years, the United States' continued imposition of the death penalty has been challenged in the context of extradition decisions, when a fugitive facing a capital charge flees to a country where the death penalty has been abolished.(12) Modern extradition treaties generally provide that the requested state(13) may refuse extradition if its domestic law does not permit imposition of the death penalty for the charged crime.(14) The constitutional dilemma for the requested state occurs when the executive grants extradition without requesting assurances that the death penalty will not be imposed: When a fugitive facing capital charges flees to a country that has abolished the death penalty, do the requested state's constitutional protections prohibit it from granting extradition without requesting assurances?(15) This question encompasses two issues: (1) Whether the requested state's constitutional instrument holds it responsible for the imposition of the death penalty in the requesting state, where the only act of the requested state is to grant extradition(16); and (2) Whether capital punishment contravenes the constitutional protections of the requested state.

   On these questions, the decisions of the Canadian Supreme Court in Kindler v. Canada (Minister of Justice)(17) and In re Ng Extradition(18) stand in marked contrast to the refusals of the European Court of Human Rights in Soering v. United Kingdom(19) and the Supreme Court of the Netherlands in Short v. Kingdom of the Netherlands.(20) The Canadian Supreme Court upheld executive grants of extradition without assurances against challenges under the Canadian Charter of Rights and Freedoms (Canadian Charter),(21) while the European Court of Human Rights and the Netherlands Supreme Court refused to allow extradition without receiving assurances on the grounds that extradition would violate the protections of, respectively, the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention)(22) and Protocol No. 6.(23)

   In an attempt to explain the apparent conflict in the decisions, this Note asserts that the approaches of the European Court of Human Rights and the Canadian Supreme Court are consistent with each court's respective role as an international or domestic body. Part II presents the Soering, Short, Kindler, and Ng decisions and contrasts the three courts' approaches to the questions of requested state responsibility and the validity of the death penalty under the relevant constitutional instruments: (1) Whether the requested states' constitutional protections, which govern only that state's acts, apply when the requested state merely will allow extradition of the fugitive and the death penalty ultimately would be imposed by the requesting state, i.e., whether the requested state is "responsible" under its constitution for treatment imposed by the requesting state; and (2) Whether the potential subjection of the fugitive to capital punishment, and the death penalty process, violates his constitutional rights such that extradition must be denied absent assurances that the prosecution will not seek the death penalty.

   In Part III, this Note compares judicial review in the courts, focusing on the application of international human rights standards and the roles of separation of powers and policy considerations in the decisions. In addition, for comparative purposes, this Part briefly discusses some of the corresponding practices in the United States. Section A examines the sources of human rights law considered and applied by the courts. As a supranational regional human rights organization, the European court is responsible for guaranteeing Convention protections and safeguarding individual rights. Consistent with this responsibility, the European court applied international norms of human rights, according significant weight to the abolition of the death penalty by most European nations. Consequently, although the European court did not directly confront the validity of the death penalty per se, it held that, in Soering's case, subjection to "death row phenomenon"(24) would constitute "inhuman or degrading treatment or punishment" in violation of Article 3 of the European Convention.(25)

   In contrast, the Canadian decisions, while acknowledging international views on capital punishment, rested on a finding that extradition would not violate the Canadian Charter because the death penalty would be imposed by the United States and not by Canadian officials. While the Canadian majority doubted whether the death penalty would be valid under the Canadian Charter, it held that the Charter prohibition of cruel and unusual punishment was inapplicable to extradition decisions. As a domestic institution, the Canadian court applied domestic standards of human rights, noting the lack of a domestic consensus on the death penalty and citing divided votes in the Canadian Parliament and in national polls.

   Section B addresses the limitations imposed in extradition decisions by the constitutional separation of powers between the executive and judicial branches. Under the traditional rule of non-inquiry, courts, when reviewing executive decisions to grant extradition, should not look into the judicial process of the requesting state. The Canadian court followed the rule of non-inquiry, deferring to the political decision of the executive branch, while the European court departed from the rule, conducting an extensive inquiry into the death penalty process and death row conditions in the United States. Because of its position as a supranational body supreme to a domestic executive, the European court was freed of separation of powers concerns regarding the scope of its constitutional power vis-a-vis the executive; the Canadian court, on the other hand, was required under its domestic law to follow the rule of non-inquiry and defer to the political decision of the executive branch.

   Section C discusses the importance of policy considerations in the decisions, namely the force of the "safe haven"(26) and "reciprocity"(27) arguments, and the need for international cooperation in fighting crime. As a national institution vulnerable to political retaliation, the Canadian court was particularly influenced by domestic policy concerns, as well as the national call for the extradition of Charles Ng.(28) In contrast, as a supranational institution, the European court considered the policy arguments from an international point of view, according greater weight to the assurance of effective protection of Convention rights than to the "safe haven" and "reciprocity" arguments, issues more appropriately addressed by the executive branch.

   In Part IV, this Note concludes that although the Soering and Kindler decisions appear contradictory, they are consistent with each court's approach to constitutional review. In holding that extradition without assurances would violate the European Convention, the European court applied international and European views on the death penalty and placed lesser weight on the United Kingdom's domestic policy concerns. As an international body, the European court refused to apply the rule of non-inquiry and defer to the executive branch. Consistent with its mandate to protect individual human rights, the court extended Convention protections in the context of extradition. The Canadian court, on the other hand, conducted its constitutional analysis in accordance with its domestic law and the rule of non-inquiry, and Canadian precedent on separation of powers and the scope of judicial review. As a national institution, the Canadian court viewed extradition primarily as a political decision of the executive branch and ruled in favor of domestic policy concerns, notably the "safe haven" and "reciprocity" arguments.

2. The Decisions

   1. Soering v. United Kingdom(29)

      On July 7, 1989, the European Court of Human Rights, in a unanimous decision, concluded that the United Kingdom's extradition of Jens Soering, a German national, to the United States to face capital charges in the murders of his girlfriend's parents, if implemented, would give rise to a breach of Article 3 of the European Convention.[30] The court first held that a contracting state's decision to extradite a fugitive could violate Article 3 of the European Convention if there were substantial grounds to...