As the European Union advocates for human rights and the abolition of the death penalty, it is facing a number of challenges in trade relations. These include internal and external pressures, as well as the need to reconcile its commitment to human dignity and justice with the views of member states and non-EU countries. The EU is currently experiencing a pivotal moment in this regard, as it attempts to reconcile its founding values with the reality of international diplomacy and human rights advocacy.

Abolishing Death Penalty: The Elimination of One of the Oldest Legal Institutions

In the history of Europe, the death penalty has been applied in various cultures and religions, for the most serious crimes, which has been unforgivable due to the social and religious barriers set up by the historical societies of our ancestors. The archaic legal institution of capital punishment continued to be a dominant feature of European jurisprudence for centuries until the ideas of the Enlightenment began to bring about change.  New perspectives are emerging in the changing legal mindsets within European societies with regard to the nature of punishment. In parallel with the emergence of natural law, a group of thinkers have been developing a critique of the death penalty as a sanction. Beccaria’s seminal work on criminal law, “Dei delitti e delle pene”, was published in 1764 (On Crimes and Punishments). Beccaria demanded that only laws should determine which acts could be considered criminal, thus placing him among the founders of the principles of criminal law. He argued that the purpose of punishment was to deter the offender from committing further crimes. At the same time, punishment also served a general preventive effect: it had a deterrent effect on the rest of society.

Another noteworthy figure from the same period, Adam Smith, also addressed the functions of sanction systems and the question of the death penalty. His name is associated with the theory of rational choice, which provides guidelines for understanding economic and social behavior. Although the theory has an economic orientation, it plays a pivotal role in the rationalization of punishment and its implementation. He considers it essential to identify the causes of crime and the underlying social processes.

For more than two centuries, there has been a lively debate about whether it should be preserved or abolished. Arguments have focused on delivering appropriate retribution and deterring other criminals, among other things. In the aftermath of the Second World War, the abolitionist movement gained significant ground, driven by a growing public awareness of the intrinsic value of life and the right to life, the inherent dignity of human beings, the potential for judicial errors, and the fact that execution involves torture. The emergence of European integration in post-war Europe also contributed to a unified position on the death penalty. Closer cooperation between the states therefore also began work on this issue.

In 1982, the Council of Europe made a significant stride forward with the adoption of Protocol No. 6 to the European Convention on Human Rights. This marked the first instance of a legally binding instrument abolishing the death penalty in peacetime. This protocol has been ratified by 46 of the Council of Europe’s 47 member states, with the exception of Russia. A few years later, in 1989, the first international document aiming at worldwide abolition was adopted by the UN: the Second Optional Protocol to the International Covenant on Civil and Political Rights. To date, it has been ratified by 86 states.

The European Union is legally bound by its Treaties to uphold and advance human rights within all its policies, both internal and external. The EU Charter of Fundamental Rights, which reflects the ECHR, places great emphasis on the inviolable right to life in Article 2. This principle must therefore be considered by EU institutions in the formulation of their policies. Consequently, the EU places a high priority on the global abolition of the death penalty. The EU Action Plan on Human Rights and Democracy (2015-2019) includes an objective aimed at eradicating torture, ill-treatment, and capital punishment. In order to coordinate its global anti-death penalty efforts, the Council issued EU guidelines on the death penalty in 1998. These were the first human rights guidelines adopted by the EU and were subsequently updated in 2001, 2008, and 2013. The guidelines unequivocally declare the EU’s unwavering and unconditional opposition to the death penalty in all circumstances. The guidelines set out a number of actions that the EU should take, including engaging in discussions with third countries on the death penalty, participating in legal cases, encouraging states to ratify relevant international agreements, supporting civil society efforts to abolish the death penalty, and strengthening legal systems to ensure fair trials. In nations that still practice the death penalty, the EU advocates for either a moratorium or, if this is unattainable, for a more restrictive use of the death penalty and adherence to international legal standards.

The Death Penalty Ban: A Dilemma of the Past or a Possible Reappearance?

In a Europe that prides itself on progressive values and human rights, the call for the return of the death penalty by certain political factions appears to be an anachronistic and troubling development. Despite the European Union’s long-standing opposition to capital punishment, as enshrined in its Charter of Fundamental Rights and echoed by the European Convention on Human Rights, a few political parties within the EU continue to challenge this consensus.

At the vanguard of this movement are far-right parties, which have gained traction in several EU member states. These parties frequently capitalize on public fear and anger in the aftermath of heinous crimes to advance their agenda. Notable examples include the Alternative for Germany (AfD), France’s National Rally (formerly National Front), and Italy’s La Liga. Those in favor of the death penalty argue that it serves as a deterrent against serious crimes and is a necessary measure for ensuring justice and public safety.

Populist leaders exploit high-profile criminal cases to arouse emotions and garner support for their cause. They posit that the reintroduction of the death penalty would not only provide retribution for victims but also restore a sense of order and security. Nevertheless, these arguments frequently fail to acknowledge the intricacies of criminal justice systems and the potential for erroneous convictions.

The legal and ethical implications of the death penalty in Europe are significant. The EU’s legal framework prohibits capital punishment, rendering any move towards its reinstatement a direct challenge to EU treaties and the Charter of Fundamental Rights. Furthermore, ethical concerns regarding human rights violations, the possibility of executing innocent individuals, and the overall effectiveness of the death penalty as a deterrent remain significant arguments against its reinstatement. While the majority of EU member states and political parties continue to uphold the abolition of the death penalty, the persistence of pro-death penalty rhetoric indicates that this issue remains a flashpoint in European politics.

In conclusion, while the European Union’s legal and ethical stance against the death penalty appears robust, the advocacy by certain political parties for its return underscores a significant and contentious divide. Those who advocate for human rights and justice must remain vigilant and engaged, ensuring that the values of dignity, fairness, and humanity remain central to European society. The challenge is not merely legal, but also deeply moral, requiring a reaffirmation of the principles that define the European project.

Trading Values: EU Trade Policies Reflecting Against the Death Penalty

In accordance with its trade policy, the European Union has enacted legislation that prohibits the trade in goods that can be used for the purpose of torture or execution. Such goods include barbiturate agents, which are used in lethal injections for the execution of human beings. The EU ban has resulted in a shortage of lethal injection materials and considerable obstacles to executions in the United States. The EU plays a pivotal role in the establishment of a new global alliance with the objective of prohibiting the trade in goods that can be used for torture or executions. The Alliance for Torture-Free Trade is an initiative of Argentina, the European Union, and Mongolia, which brings together countries from around the world with the objective of ending the trade in goods used for capital punishment and torture. By uniting countries against the production and distribution of such tools, the alliance seeks to reinforce human rights standards and promote the global abolition of the death penalty. This collaborative effort highlights the EU’s commitment to aligning its trade policies with its core values of human dignity and justice.

Furthermore, the EU employs its trade policy to encourage countries to comply with their international human rights obligations. The GSP+ system provides trade preferences to countries that have ratified and are in compliance with a range of international conventions, including the International Covenant on Civil and Political Rights, which outlines minimum standards on the use of the death penalty. Under GSP+, beneficiary countries receive preferential access to the EU market through reduced tariffs on their exports, provided they commit to implementing international conventions related to human rights, labor rights, environmental protection, and good governance. This system not only supports economic growth in developing nations but also encourages adherence to fundamental values and standards, reinforcing the EU’s broader commitment to global human rights [user1] and sustainable development.

The EU is the largest donor in the global effort to abolish the death penalty. As indicated by the Commission, the European Instrument for Democracy and Human Rights (EIDHR) allocated a sum exceeding €22 [user2] million to initiatives that support the abolition of the death penalty worldwide. The instrument finances civil society organizations that campaign for the abolition of the death penalty and the implementation of moratoria. It also supports organizations that advocate for the observance of international minimum standards in countries where the death penalty is still in force. The EU raises its opposition to the death penalty in international fora, where it aims to build alliances to this end. It has supported the adoption in the UN General Assembly of several resolutions on a moratorium on the use of the death penalty.

All in all, the European Union’s unwavering commitment to the abolition of the death penalty is a testament to its foundational values of human rights, dignity, and justice. The EU’s comprehensive trade policies and international alliances enable it to leverage its economic influence in order to promote global human rights standards. This is exemplified by initiatives such as the Alliance for Torture-Free Trade and the GSP+ system. Moreover, the EU is the main voice in the global political spectrum to abolish the death penalty, with substantial funds allocated to civil society organizations that are campaigning for the abolition of the death penalty and the adherence to international standards. Despite the fact that the abolition of the death penalty has been considered a closed issue for a long time, the EU is clearly working hard to maintain the legislation that has been achieved.

The continued advocacy for the death penalty by certain political factions within Europe serves to highlight an ongoing moral and political challenge. This internal division, which has been exacerbated by populist rhetoric and public fear, represents a significant threat to the EU’s unified stance on human rights. The legal and ethical implications are profound, with the potential for wrongful convictions and human rights abuses making the return of capital punishment a deeply contentious issue.

Benedikt Levstok is a fourth-year undergraduate law student at the University of Szeged, Hungary, Faculty of Law and Political Sciences, holding a talent scholarship from the Aurum Foundation. He is a former Vice President in charge of marketing and communication at ELSA Szeged in the academic year of 2022/2023 and Member of the ConSIMium Council simulation experience national team of Hungary at the University of Szeged, Faculty of Law and Political Sciences. His research focuses on the European values and the future of Europe.

 [user1]Is this also a part of human rights dialogue (HRD) negotiations?

 [user2]In comparison, this is roughly the annual budget of the EU Agency for Fundamental Rights. (A comparative data should be included to demonstrate, how big this sum actually is)