International law, U.S. sovereignty, and the death penalty.
The use of the death penalty in the United States has lately become a subject of diplomacy, international activism, and litigation in international forums. The European Union routinely protests executions and presented the U.S. government with a demarche on the subject in 2000. (1) U.S. and international non-governmental organizations have made appeals to international law and international public opinion to claim that the United States is both morally and legally obligated to end the practice. (2) Furthermore, Paraguay, Germany, and Mexico have sued the United States in the International Court of Justice (ICJ, or World Court) to prevent execution of their citizens on death rows in U.S. states. (3)
This Article does not seek to provide an exhaustive treatment of international law on the death penalty but, rather, examines the relationship between U.S. and international law on the subject. The Article argues that the sovereignty of the United States (4) regarding a significant aspect of its criminal justice system is threatened on three levels--first, by unsupportable claims that international law prohibits the death penalty; second, by the insinuation of international and foreign law into U.S. judicial decision-making regarding certain aspects of death penalty administration; and, third, by intrusion on U.S. sovereign authority to determine the operation of its criminal justice system by an international tribunal, the World Court.
Part II of this Article therefore examines international treaties to show that most multilateral human rights instruments do not prohibit the death penalty, and those that do are not binding on the United States. Likewise, it shows that no rule of customary international law (CIL) against the death penalty exists, and if such a norm does exist, it does not apply to the United States or, most importantly, directly in U.S. courts. Part III examines international and foreign law issues in U.S. jurisprudence raised by the execution of juveniles, the execution of the mentally handicapped, and the so-called "death row phenomenon." Part 1V critically reviews recent litigation in the ICJ regarding the Vienna Convention on Consular Relations (5) and demonstrates that the Convention does not require the overturning of convictions and death sentences in the United States. Part V, in conclusion, analyzes the dangers of selective reliance on international and foreign law in determining U.S. criminal law. A proper understanding of these issues is crucial to maintaining American sovereignty over decisions involving the punishment and deterrence of crime on American soil.
II. THE DEATH PENALTY IN INTERNATIONAL LAW AND AMERICAN LAW
A. The Death Penalty in International and Regional Human Rights Instruments
Certain international and regional human rights instruments specifically commit signatories to end the use of the death penalty: the Sixth Protocol (6) of the European Convention on Human Rights (7) (European Convention), the Protocol (8) to the American Convention on Human Rights (9) (American Convention), and the Second Optional Protocol (10) to the International Covenant on Civil and Political Rights (11) (ICCPR). Though the United States is a party to the ICCPR (with reservations), it is not a party to any of the protocols or to the European or American Conventions. As a matter of treaty law, then, the death penalty is not prohibited in the United States.
In addition to the specific instruments noted above, however, the Universal Declaration of Human Rights (12) (Universal Declaration) protects the "right to life," which could be cited for the proposition that the death penalty is prohibited as the violation of the right to life by a state. Article 3 of the Universal Declaration states, "Everyone has the right to life, liberty, and security of person." (13) Neither that article nor any other article of the Declaration refers to the death penalty, however. In fact, the subject of the death penalty arose at the document drafting sessions, and a resolution to prohibit capital punishment was defeated. (14) Indeed, the authors of the Declaration specifically avoided taking positions on euthanasia, abortion, or the death penalty in drafting article 3. (15) Furthermore, there are no authoritative, binding interpretations of the term "right to life" as used in the Declaration that would establish whether it applies to capital punishment (or euthanasia or abortion). Although various U.N. General Assembly resolutions opposing capital punishment refer to article 3, (16) those resolutions are not legal interpretations, nor are General Assembly resolutions, as a general matter, binding in themselves. (17) Finally, the Universal Declaration itself is not a binding legal document. (18) It is an aspirational instrument, whose terms are intentionally vague, and therefore cannot be used as rules of decision.
The Universal Declaration, therefore, cannot be said to prohibit the death penalty as a matter of treaty law. The text is silent, the drafting history reveals that an attempt to cover the death penalty in article 3 was rejected, no authoritative interpretation of the term "right to life" exists, and the document is aspirational and non-binding.
Next, the major international human rights treaty, the International Covenant on Civil and Political Rights, explicitly permits the death penalty. (19) Like the Universal Declaration, the ICCPR contains an article protecting the right to life. Article 6(1) states, "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life." (20) Unlike the Universal Declaration, however, the ICCPR does reference the death penalty. Subsections (2) through (5) (21) address protections for those sentenced to death "[i] n countries which have not abolished the death penalty," and article 6(6) notes that although the covenant permits the death penalty, "[n]othing in this article shall be invoked to delay or prevent the abolition of capital punishment by any State Party to this Covenant." (22) In text and structure, then, article 6 acknowledges that states are within their rights to impose the death penalty. In fact, an effort to add a ban on the death penalty was rejected in the drafting process; Uruguay and Colombia unsuccessfully offered a text of article 6 that read, "Every human being has the inherent right to life. The death penalty shall not be imposed on any person." (23) Like the authors of the Universal Declaration, the authors of the ICCPR had the opportunity to prohibit the death penalty in the text of the Covenant and chose not to do so.
Professor William Schabas nevertheless argues that article 3 of the Universal Declaration is "pertinen[t]" to "the evolution of more comprehensive abolitionist norms over subsequent decades." (24) He claims that the very fact that the death penalty was discussed during the drafting of the Declaration, with numerous countries arguing for banning it, means that article 3 of the Declaration "was aimed at eventual abolition of the death penalty." (25) In other words, Schabas finds that a document intentionally silent on a subject supports his position. (26) Based on this approach to treaty interpretation, the Declaration might also be said to be "aimed at eventual abolition" of abortion because of the discussion of abortion at the drafting sessions. Similarly, Schabas lays significant emphasis on the fact the word "abolition" is mentioned in article 6 of the ICCPR to argue that the ICCPR displays a trend toward abolition of the death penalty. (27) It is true that the Human Rights Committee (28) declared that "[t]he article also refers generally to abolition in terms which strongly suggest (paras. 2(2) and (6)) that abolition is desirable." (29) However, that is not a binding interpretation of the treaty. More importantly, the very fact that states opposed to capital punishment felt the need to draft the Second Optional Protocol to the ICCPR (30) specifically aimed at the elimination of the death penalty is proof that the ICCPR itself does not as a matter of law prohibit the death penalty. (31) Even if these two instruments were pertinent to abolition of the death penalty in the sense that some states at the time opposed the death penalty and hoped for its elimination, that fact does not invest the instruments with any significance for states that disagreed with that position.
Regional human rights instruments similarly do not prohibit the death penalty in the United States. Like article 3 of the Universal Declaration, article 1 of the American Declaration on the Rights and Duties of Man (32) (American Declaration) protects the right to life with no other explanation of the content of that right. Article 1 states, "Every human being has the right to life, liberty and the security of his person." (33) Like the Universal Declaration generally, the American Declaration purposefully does not address the death penalty; in fact, an early draft of article 1 permitted the death penalty as an exception to the right to life. (34) Nevertheless, in the case of Roach and Pinkerton, (35) the Inter-American Commission on Human Rights (IACHR), created to consider complaints of violations of the rights enumerated in the document, did address the juvenile death penalty as a violation of the right to life. However, although the Commission found that a norm against the execution of juveniles had developed, it did not find such a norm prohibiting all executions. (36)
The IACHR's position on the death penalty has no legal effect, however. As a matter of both international and U.S. law, IACHR reports are considered recommendations only. The IACHR was created, by the terms of the Charter of the Organization of American States, to "promote the observance and protection of human rights and to serve as a consultative organ of the Organization in these matters," (37) rather than to provide legal interpretations of the Declaration. Similarly, the American Convention states that the functions of the IACHR are to "promote respect for and defense of human rights" (38) and to make "recommendations." (39) Indeed, the IACHR itself admitted in Roach and Pinkerton that it was "not a judicial body." (40) As a matter of U.S. law, too, IACHR reports are non-binding. The Seventh Circuit, denying a stay of execution for Juan Raul Garza, the first person executed by the federal government in recent decades, stated that "the American Declaration of the Rights and Duties of Man, on which the Inter-American Commission relied, is merely an aspirational document that, in itself, creates no directly enforceable rights." (41) Furthermore, the court stated, "We can find no indication in the treaties Garza relies on that the parties to the treaties intended for the Inter-American Commission's reports to create privately-enforceable rights, and ample evidence that they did not." (42) The court also pointed out that the division of the interAmerican human rights system into the Declaration with its associated Commission and the American Convention with its Inter-American Court of Human Rights indicated that the Declaration and the Commission's reports are non-binding. (43) The IACHR's opinion that the right to life in the Declaration encompasses the death penalty is therefore not binding.
Three other major regional human rights treaties address the death penalty: the American Convention, the European Convention, and the Arab Charter on Human Rights. Like the ICCPR, they do not outlaw capital punishment. In fact, the conventions permit it. The American Convention states, "In countries that have not abolished the death penalty, it may be imposed only for the most serious crimes and pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such punishment, enacted prior to the commission of the crime." (44) Likewise, the European Convention states, "No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law." (45) Similarly, the Arab Charter on Human Rights acknowledges that states practice the death penalty and provides for its fair implementation. (46)
The European and American Conventions both feature later instruments added specifically to eliminate capital punishment. As noted above, as a matter of treaty law, the Sixth Optional Protocol to the European Convention outlaws the death penalty in signatory states, as does the Second Optional Protocol to the American Convention. But the primary instruments cannot ban the death penalty if they required subsequent protocols to achieve that end. Most importantly, the United States is not a party to either the American or the European Convention. Even if the agreements were interpreted as prohibiting the death penalty, they do not apply to the United States.
In sum, all that can be said about these various international and regional human rights instruments is that certain states have signed treaties committing them to eliminate the death penalty. The United States has not. Those treaties the United States did sign, such as the Universal Declaration and the American Declaration, do not on their face prohibit the death penalty and, in fact, permit its application. Furthermore, it would be perverse to reinterpret those treaties in light of later protocols prohibiting the death penalty to say that the prohibition applies to the United States. For example, in the 1981 "Baby Boy" case before the IACHR, U.S. petitioners argued that in performing an abortion a Massachusetts doctor violated the right to life of a fetus as defined in article 1 of the American Declaration, as interpreted in light of article 4(1) of the American Convention. (47) The Commission correctly refused to accept this interpretive method, stating, "[I]t would be impossible to impose upon the United States Government or that of any other State member of the OAS, by means of 'interpretation,' an international obligation based upon a treaty that such State has not duly accepted or ratified." (48) Similar logic applies in the case of the death penalty.
B. Abolition of the Death Penalty as CIL Applicable to the United States
Under the Statute of the International Court of Justice, customary international law is considered the second most important source of international law, after treaties. (49) A rule of CIL has traditionally been understood to exist on the basis of state practice with a sense of legal obligation (opinio juris), generally repeated over time by a significant number of states. (50) A trend in domestic legislation in numerous countries toward elimination of the death penalty could, therefore, be evidence that CIL bans the death penalty. This Article maintains that such a trend does not exist.
First, the number of states that have abolished the death penalty is not that great. While 117 states have eliminated the death penalty de jure or de facto, 78 have not. (51) Fifty-seven percent is a weak basis on which to establish the existence of a rule of CIL. Indeed, the number of states that impose the death penalty may actually be growing. Three English-speaking states in the Caribbean have reinstated the death penalty, including revising their constitutions to eliminate the role of the British Privy Council as their court of final appeal. (52) Likewise, the Philippines recently announced that it is ending its moratorium on executions. (53) Most importantly, CIL is not established on the basis of a majority vote. (54) Rather, to establish CIL, state practice should be consistent and uniform, (55) and fifty-seven percent does not qualify as such.
Second, states that have eliminated capital punishment may have done so out of moral, ethical, or even religious concerns rather than out of opinio juris. Without comprehensive analysis and proof as to the reason for the elimination of capital punishment, the fact that states, either de jure or de facto, have stopped executions cannot serve as ipso facto evidence of CIL. For example, moves toward eliminating the death penalty in Turkey and Russia are most likely motivated not out of opinio juris but rather in exchange for the benefits of membership in the economically and politically advantageous clubs of the European Union and the Council of Europe. (56)
Other evidence of CIL might be found in the unavailability of the death penalty as a punishment at the International Criminal Tribunals for Yugoslavia and Rwanda (ICTY and ICTR, respectively) and the newly formed International Criminal Court (ICC). Still, significant contrary evidence exists to question whether the practices of those tribunals are probative. For example, Rwanda itself opposed the creation of the ICTR because the Tribunal was predicted to be ineffective in establishing justice and was seen as an insult to Rwanda's ability to govern itself. (57) Rwanda specifically requested that the death penalty, which was part of its domestic law, be included in the available penalties. (58) Finally, the latest tribunal created to judge war crimes, crimes against humanity, and genocide--the Iraqi Special Tribunal--does not exclude the death penalty, (59) and it is likely that Saddam Hussein will be executed. (60) Although the Special Tribunal has been controversial, as a matter of contemporary state practice it is evidence that the claim that CIL prohibits the death penalty is not sufficiently uniform to establish a norm.
Even if CIL banned the death penalty, however, the United States would still not be bound to end capital punishment because of its status as a persistent objector to the norm. The rule of the persistent objector, enunciated first by the International Court of Justice in a case involving Norway's claim of a four-mile territorial sea limit, (61) is well-established in international law. (62) Relying on the principle that international law can only be made by consent of sovereign states, the rule specifies that a state that has persistently objected to the formation of a particular norm is exempt from that norm. (63) The consistent practice of the death penalty in the United States, defense of that practice in international forums, and reservations to treaties affirming that practice (as described below) qualify the United States for this exemption.
C. Death Penalty and International Law in U.S. Courts
Along the lines outlined above, the Sixth Circuit recently ruled that the death penalty is illegal neither by treaty law nor by CIL. (64) Richard Buell was convicted and sentenced to death in Ohio for sexually assaulting and killing eleven-year-old Kristen Lee Harrison. (65) In a habeas appeal to the Sixth Circuit, he argued, inter alia, that the Ohio death penalty was illegal under the American Declaration, the ICCPR, and CIL, in particular as a jus cogens norm. (66) The court stated, "Buell's argument is wholly meritless." (67) First, it pointed out (as argued above) that both the American Declaration and the ICCPR do not outlaw capital punishment, (68) that the United States made reservations to these agreements that foreclose any reliance on them to the extent that they deviate from Supreme Court interpretations of the Constitution, (69) and that, in any event, both are non-self-executing and therefore "neither is binding on federal courts." (70) Second, the court held that CIL does not ban capital punishment, stating that "[t]he prohibition of the death penalty [in domestic law] is not so extensive and virtually uniform among the nations of the world that it is a customary international norm" (71) and that "[t]here is no indication that the countries that have abolished the death penalty have done so out of a sense of legal obligation, rather than for moral, political, or other reasons." (72) The court added that since capital punishment is not banned by CIL, it cannot be a violation of a jus cogens norm. (73)
Third, the court stated that even if CIL banned capital punishment, it would not strike down the Ohio death penalty. (74) The court stated that U.S. courts have rejected claims of private civil rights of action against state officials by U.S. citizens based on CIL, and Buell "is attempting to interpose customary international law as a defense against 'acts committed by government officials against a citizen of the United States.'" (75) The court stated, therefore, "If anything, the standards for implying a civil private right of action under international law should be less than those for using international law as a defense against otherwise lawful government action under the Constitution." (76) Perhaps most importantly, the court appropriately delineated its role in evaluating claims based on international law in the U.S. legal system, stating,
We hold that the determination of whether customary international law prevents a state from carrying out the death penalty, when the state is otherwise acting in full compliance with the Constitution, is a question that is reserved to the executive and legislative branches of the United States government, as it is their constitutional role to determine the extent of this country's international obligations and how best to carry them out. (77)
The Sixth Circuit could have gone even further than it did in rejecting the alleged applicability of international law in a death penalty case. The court began its discussion of international law by citing the Supreme Court's 1900 decision in The Paquette Habana. (78) In The Paquette Habana, the Court had to decide whether U.S. naval forces were justified in seizing two civilian Cuban fishing vessels during the Spanish-American War, an issue that had never come before the courts, been addressed by the Congress, or definitively been commented on in policy or practice by the Executive Branch.
This case has become an icon for international activists and internationalist scholars who cite it, as the Sixth Circuit did, for the proposition that "[i]nternational law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdictions as often as questions of right depending upon it are duly presented for their determination." (79) Those citing The Paquette Habana generally end at this sentence and go on to assert far-ranging claims for application of international law in U.S. courts. (80) The Sixth Circuit, in contrast, went on to draw a definitive and appropriate line between international law and U.S. law when it examined the specific international law at issue, saying that there was in fact no rule of international law that prohibits the death penalty that could displace U.S. law. (81)
The Sixth Circuit should, however, simply have cited the qualification of the Supreme Court in the next sentence of The Paquette Habana. The Court stated that international law applied in U.S. courts only "where there is no treaty and no controlling executive or legislative act or judicial decision...." (82) In other words, international law may fill a gap when a court has to make a decision but cannot find any domestic rule of decision. (83) Since the issue had never been addressed by any branch of the U.S. government, the Court decided to look to international law, and, as evidence of it, to the writings of prominent scholars. It was a far different situation than the death penalty case before the Sixth Circuit, in which the Supreme Court, Congress and various state legislatures, and the President and various state executives have provided ample controlling authority in favor of capital punishment.
Thus, the Sixth Circuit has set out a well-reasoned and convincing case for the protection of U.S. sovereignty against faulty conceptions of the formation, content, and role of international law in U.S. courts. It remains to be seen whether anti-death penalty activists take note of the court's lessons and whether other circuits follow their sister court's lead in reasserting the primacy of the Constitution and U.S. law over activists' interpretations of international law.
III. ASPECTS OF U.S. DEATH PENALTY ADMINISTRATION IN INTERNATIONAL LAW
In addition to the death penalty itself, various aspects of the administration of the death penalty in the United States may be subject to international law. This section addresses the relationship between international law and U.S. municipal law regarding the execution of the mentally handicapped, the execution of juveniles, and the so-called "death row phenomenon." As noted in the introduction, the purpose of this section is to point to the threats to American sovereignty represented by the claims of those who seek to apply international law in these cases.
A. Mentally Retarded
In the 2002 Atkins case, the Supreme Court declared that the execution of mentally retarded persons is a violation of the Eighth Amendment. (84) The Court specifically noted international opinion on the death penalty, saying in a footnote that "within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved." (85) The dissenting justices pointed out, however, that the Court's jurisprudence is based on national consensus and that the Court had rejected the idea of using international law and opinion as a source for evidence of consensus in Stanford v. Kentucky, a 1989 case involving the death penalty for juveniles (discussed in more detail below). In Adkins, Chief Justice Rehnquist wrote, "While it is true that some of our prior opinions have looked to 'the climate of international opinion,' ... we have since explicitly rejected the idea that the sentencing practices of other countries could 'serve to establish the first Eighth Amendment prerequisite, that [a] practice is accepted among our people.'" (86)
Significant forces had brought before the Court the issue of the applicability of international human rights standards to the case. In fact, the legal maneuvering of the anti-death penalty activists represents a cautionary tale to those concerned with the protection of U.S. sovereignty. Anti-death penalty activists had for years argued that executing mentally retarded murderers was a violation of international law. Human Rights Watch, for example, cited the ICCPR and various U.N. bodies' interpretations of it to support this claim. (87) Led by Professor Harold Hongju Koh, activists then sought to "bring international law home" in a well-thought-out scheme. (88) This plan is consciously modeled on the public law litigation of the 1960s and 1970s, in which activists sought political reform through the courts and relied on judges to enact their programs in policy-making, rather than just adjudicatory, roles. (89) Koh lauds this approach and now seeks to emulate it to entrench in U.S. law certain international human rights standards. He notes that such a campaign should focus on "first, provoking interactions [of international and domestic law]; second, provoking norm interpretations; and third, provoking norm-internalizations." (90) The campaign should also "expand the participation of intergovernmental organizations, NGOs, private business entities, and transnational norm entrepreneurs as process-activators." (91)
Unfortunately, with the Atkins decision, Koh and his allies were successful. On behalf of nine retired U.S. diplomats, Koh filed an amicus brief that laid out their claims that an international consensus exists against executing the mentally retarded, that U.S. diplomacy suffered because of the practice, and that the Court should take international opinion into account in evaluating the "evolving standards of decency" in guiding Eighth Amendment jurisprudence. (92) The European Union also filed an amicus brief, making similar points, that served as the direct citation for the Court in referring to world consensus. (93)
Koh's strategy and his arguments have thus scored a victory and, unless vigorously opposed, are likely to advance, (94) resulting in an undermining not only of U.S. sovereignty but of democracy as well. In a recent article, (95) Koh commends the use of foreign law in U.S. judicial decision-making as part of "the emergence of a transnational law, particularly in the area of human rights, that merges the national and international." (96) Furthermore, he states, "There is nothing antidemocratic about academics, nongovernmental organizations, judges, executive officials, Congress, and foreign governments interacting in a variety of private and public, domestic and international fora to make, interpret, internalize, and ultimately enforce rules of transnational law." (97) Koh clearly believes that unelected, unaccountable, and in some cases non-U.S., persons and institutions--"academics, nongovernmental organizations, ... and foreign governments"--should make and interpret law for the American public. Indeed, he apparently believes that legal interpretation within the American domestic political system should be subordinated to the political opinions of foreign governments, expressing concern that "our Supreme Court rulings will generate conflict and controversies with our closest global allies." (98) He does not discuss any constitutional basis for American judicial interpretation on the basis of what our allies would think, which is a consideration, if at all, for the political branches in policy-making. It is difficult to understand at least how Koh, seemingly unconcerned about American sovereignty, can deny that such positions would undermine democracy.
Four treaties explicitly prohibit the execution of juveniles: the ICCPR, (99) the American Convention, (100) the U.N. Convention on the Rights of the Child, (101) and the African Charter on the Rights and Welfare of the Child. (102) According to Amnesty International, virtually all of the 194 countries in the world are parties to at least one of these treaties, and only the United States has entered a reservation to any of the treaties (discussed in detail below). (103) Furthermore, Amnesty International claims that almost no states de jure or de facto execute juveniles. (104) In addition, the U.N. General Assembly, the U.N. Economic and Social Council, and the U.N. Human Rights Commission have adopted resolutions prohibiting the execution of juveniles. (105) According to Amnesty International, therefore, the execution of juveniles is illegal under treaty law and CIL, and a jus cogens norm against it has formed. (106) The legal merits of these arguments notwithstanding, (107) it may well be fair to concede that there is a strong bias in the international community against the execution of juveniles.
This bias cannot, however, require the United States to end the practice. For, through both U.S. treaty action and Supreme Court decision, the execution of juveniles remains a matter of domestic law alone, and within domestic law it is constitutional. Based on the 1989 Supreme Court case of Stanford v. Kentucky, (108) which permitted the execution of convicted murderers who were as young as 16 at the time of their crime, the United States Senate added a reservation to U.S. ratification of the ICCPR that states,
[T]he United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age. (109)
The reservation became controversial immediately, with 11 of the 144 other state-parties to the treaty objecting on the basis that the reservation frustrated the object and purpose of the treaty. The Human Rights Committee added its condemnation in 1995. The U.S. Congress in response added a rider to a bill later that year that prevented the State Department from spending any funds for reporting to the HRC. Schabas labels this funding provision "a bizarre legislative proposal." (110) However, Congress often expresses its policy preferences through exercise of its power of the purse, and such riders are often used, especially in foreign affairs matters, to ensure that the Executive Branch adheres to Congressional policy direction. (111)
The situation may have remained as such but for the case of Domingues v. Nevada, in which a sixteen-year-old convicted of killing a woman and her four-year-old son appealed his sentence on the basis of the ICCPR and customary international law. (112) Domingues claimed that the U.S. reservation to the ICCPR was illegal under U.S. law and under the international law of treaties, that the U.S. declaration that the ICCPR was non-self executing was invalid, that the execution of juveniles was illegal under CIL, and that the execution of juveniles violates a jus cogens norm. (113) The Solicitor-General of the United States advised the Court that certiorari should be denied because, first, Domingues' claims regarding the validity of the reservation and of the non-self executing provision were flawed; second, Domingues was asking the Court to overturn Executive and Congressional branch determinations of foreign affairs; third, if a CIL norm against execution of juveniles existed, the United States in any event was a persistent objector to it; and, fourth, the record did not contain sufficient evidence on the issues of international law raised in the certiorari petition for the Court to evaluate the claims. (114) The Court subsequently denied certiorari. (115) Another certiorari petition, by the same Stanford of the 1989 case of that name, was denied in 2002, when Stanford claimed that the logic of the Atkins case discussed above should apply to juveniles. (116)
As a matter of U.S. law, then, the United States is neither obligated by its ratification of the ICCPR nor by the Constitution to prohibit the execution of juveniles. Neither IACHR opinions nor HRC comments, as noted supra, (117) are binding on the United States, and there is no indication that the United States believes itself to be legally or politically obligated to respond or otherwise to take these opinions into account.
The Supreme Court has agreed, however, to review again the question of whether the death penalty for juveniles is barred by the Eighth and Fourteenth Amendments. In the 2004-05 term, the Court will take up the case of Christopher Simmons, whose death sentence for a murder committed at seventeen years of age was vacated by the Missouri Supreme Court. (118) In the state case, the Missouri Supreme Court, relying partly on an alleged international consensus, ruled that, on the one hand, the Missouri Constitution prohibited the execution of juveniles and that, on the other hand, the U.S. Supreme Court would overturn Stanford if it reconsidered the issue. (119) Indeed, it is likely that the Court will declare that the Constitution does bar capital punishment for juvenile murderers. The four liberal justices of the Court--Stevens, Ginsburg, Breyer, and Souter--have already expressed their opposition to the juvenile death penalty in their dissent from denial of certiorari in Stanford, (120) while Justice O'Connor has publicly commented on her uneasiness with the death penalty in general. (121) Although O'Conner joined the majority in denying certiorari to Stanford in 2002, given her developing solicitude toward international and foreign law of Court, (122) she may well reconsider her position. In that case, the international consensus against the juvenile death penalty would be invoked to support a majority decision to invalidate it.
C. "Death-Row Phenomenon"
Several courts around the world have declared that the "death row phenomenon," the often extended period of time a prisoner sentenced to death awaits actual execution, should render the imposition of the death penalty illegal. In the often-cited European Court of Justice (ECJ) case Soering v. United Kingdom, Jens Soering, a German national, contested his extradition from the United Kingdom to face charges of murdering his girlfriend's parents in Virginia. (123) The ECJ ruled that, despite the "democratic character of the Virginia legal system in general and the positive features of Virginia trial" which are "neither arbitrary nor unreasonable, but, rather, respect[ ] the rule of law and afford[ ] not inconsiderable procedural safeguards to the defendant in a capital trial," Soering should not be extradited because of the "ever present and mounting anguish of awaiting execution." (124) The U.K. Privy Council made a similar decision in Pratt, (125) ruling that more than five years spent on death row constituted torture, a decision that overturned the death sentences of dozens of inmates on death rows in Caribbean states and that galvanized the move to eliminate the role of the Privy Council as the Caribbean court of last resort described supra.
Similar arguments have been decisively rejected by the U.S. legal system. First, the Supreme Court has rejected the notion that the "death row phenomenon" renders the death penalty cruel and unusual punishment under the Eighth Amendment to the Constitution. Four times the Court has refused to review cases in which the issue was raised, although Justices Stevens and Breyer wrote dissents from denial of certiorari in these cases, with Breyer arguing that the international cases cited above rendered it necessary to address the "death row phenomenon." (126) Justice Thomas responded by stating that "were there any such support in our own jurisprudence [for invalidating death sentences based on the death row phenomenon], it would be unnecessary for proponents of the claim to rely on the European Court of Human Rights, the Supreme Court of Zimbabwe, the Supreme Court of India, or the Privy Council." (127)
Second, the Senate added specific reservations, understandings, and declarations (RUDs) to its ratification of the U.N. Convention Against Torture and other Cruel and Degrading Punishment (Torture Convention), (128) stating,
The United States considers itself bound by the obligation under Article 16 to prevent "cruel, inhuman or degrading treatment or punishment," only insofar as the term "cruel, inhuman or degrading treatment or punishment" means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States ... [and t]he United States understands that international law does not prohibit the death penalty, and does not consider this Convention to restrict or prohibit the United States from applying the death penalty consistent with the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States, including any constitutional period of confinement prior to the imposition of the death penalty, (129)
As a matter of municipal law and treaty law, therefore, the "death row phenomenon" does not invalidate the death penalty's administration in the United States. Furthermore, the decisions of a few courts cannot be sufficient evidence of CIL applicable to the United States. In fact, there is contrary evidence regarding the importance of the "death row phenomenon," with the Canadian Supreme Court contra the ECJ in Soering permitting extradition to the United States. (130) Nevertheless, given the trends in the use of foreign law in Supreme Court opinions noted in the subsections above, the Supreme Court may well address this question again and reach a different decision based on jurisprudence from other nations.
IV. THE CONSULAR NOTIFICATION CASES
Invoking the 1963 Vienna Convention on Consular Relations, (131) Paraguay, Germany, and Mexico have claimed that the convictions and/or sentences of their citizens on death row in the United States should be set aside in cases where law enforcement officers failed to inform the consulate of their state of nationality that those persons had been arrested. It appears that these countries are essentially trying to make the ICJ a court of last resort with the power to overturn legally imposed punishments of the U.S. criminal justice system. The ICJ issued an opinion on the Mexican case on March 31, 2004, (132) and an initial review of its decision reveals that the court struggled to balance its role as interpreter of the Convention with its reluctance to intrude into the U.S. criminal justice system. Indeed, the court, while overstepping its authority in some instances, did not go as far as Mexico had urged and retained some respect for U.S. domestic sovereignty. As explained infra, however, the ultimate effects of the decision are difficult to predict.
A. The Breard Case
The origins of the consular cases lie in the 1992 murder of Ruth Dikie of Arlington, Virginia. Her murderer, Angel Breard, a citizen of Paraguay, was caught, tried, found guilty, and sentenced to death. (133) Against the advice of his attorneys and his mother, who came from Paraguay to attend the trial, he testified at his trial on his own behalf and admitted that he had attempted to rape and then killed Dikie because of a Satanic curse laid upon him by his father-in-law. In a subsequent federal habeas corpus petition, Breard claimed that his conviction and sentence should be overturned because of the alleged failure of Virginia law enforcement officials to inform him that he could contact the Paraguayan consulate, as provided for in article 36 of the Vienna Convention. His petition was rejected by the district and circuit courts as barred by procedural default because he had failed to raise the issue in state court. At the same time, Paraguay, through its ambassador and consul-general, filed suit for violation of its rights under the Vienna Convention. Their suit was rejected for lack of subject-matter jurisdiction, since they had failed to allege the continuing violation of federal law required to overcome a state's Eleventh Amendment sovereign immunity to suit in federal court.
Both Breard and Paraguay appealed to the U.S. Supreme Court, (134) and Paraguay brought suit against the United States in the ICJ. (135) Unable to address the merits of the case until several months later, the ICJ issued a "request for the indication of provisional measures"--roughly analogous to an injunction--that the "United States should take all measures at its disposal to ensure that Angel Francisco Breard is not executed pending the final decision in these proceedings, and should inform the Court of all the measures which it has taken in implementation of this Order." (136)
The Supreme Court, however, subsequently ruled against both Breard and Paraguay. The Court found that, although the Convention "arguably confers on an individual the right to consular assistance following arrest," (137) the doctrine of procedural default barred Breard from bringing the claim. The Court stated, first, that international law recognizes that "the procedural rules of the forum state govern the implementation of the treaty in that state" and that the Vienna Convention itself confirms this principle. (138) Second, the Court stated that, although the Convention, as a treaty, is "supreme law of the land" under the Constitution, it is, like any treaty, subject to nullification by subsequent Congressional action. (139) In this case, the Court held that the 1996 Anti-Terrorism and Effective Death Penalty Act prevented a hearing on the Vienna Convention claim. (140) The Court also ruled that, in any event, it was "extremely doubtful" that Breard's "speculative" claim of prejudice as a result of the Vienna Convention violation would result in the overturning of his conviction. (141) Finally, the Court upheld the lower courts' rulings that Virginia was immune to suit by Paraguay under the Eleventh Amendment. (142)
The Court did note in conclusion that a case was pending before the ICJ and that diplomatic contacts were afoot among the U.S. Executive Branch, Paraguay, and the Governor of Virginia. (143) Nevertheless, it stated,
[T]his Court must decide questions presented to it on the basis of law.... Last night the Secretary of State sent a letter to the Governor of Virginia requesting that he stay Breard's execution. If the Governor wishes to wait for the decision of the ICJ, that is his prerogative. But nothing in our existing case law allows us to make that choice for him. (144)
The Court was influenced by the amici briefs of the United States filed by the State and Justice Departments at the Court's request, in which the Executive Branch argued, inter alia, that the provisional measures request of the ICJ was non-binding and that, even if it were binding, the Court had no power, because of the federal nature of the Constitution, to order Virginia to heed the ICJ. (145) Rather, they argued, the ICJ order was directed to the United States government, as represented in foreign affairs by the Executive Branch, and the Secretary of State had taken "all measures at [her] disposal" to prevent the execution--that is, the letter referenced by the Court. (146) The letter requested a stay "in light of the [ICJ]'s request, the unique and difficult foreign policy issues, and other problems created by the [ICJ]'s provisional measures." (147) The Secretary added that she was concerned for U.S. citizens abroad who might be harmed and denied consular assistance if the United States were seen to be in violation of the Vienna Convention. (148)
Governor James Gilmore responded to the ICJ and Secretary Albright by saying,
As Governor of Virginia my first duty is to ensure that those who reside within our borders.., may conduct their lives free from fear of crime .... Indeed, the safety of those residing within the Commonwealth of Virginia is not the responsibility of the International Court of Justice. It is my responsibility and the responsibility of law enforcement and judicial officers throughout the Commonwealth. I cannot cede such responsibility to the International Court of Justice. (149)
Gilmore signed the death warrant, and Breard was executed on April 14, 1998. (150) At Paraguay's request, the ICJ dismissed the pending proceeding before it as moot. (151)
The Breard case raised a number of issues of international law and its effect in U.S. courts. First, was the ICJ request for provisional measures mandatory? As noted, the United States Executive Branch believed the measures were only precatory and so advised the Supreme Court. The Court did not address this issue in its opinion, however. Second, did the Vienna Convention provide for an individual right that could be remedied in a U.S. court? The Court, in dicta, stated that at least "arguably" it did. Third, if the order were mandatory, would the Supreme Court (as opposed to the Executive Branch) be obliged to give effect to it? Again, the Court for the most part declined to address this question, though dicta regarding the lack of case law allowing it to force Governor Gilmore to stay the execution implied that it did not see itself as having that power. Fourth, did not the United States Executive Branch have more power to prevent Breard's execution than a letter from the Secretary of State to the Governor of Virginia (e.g., a presidential executive order)? Commentary on these issues has been, as might be expected, overwhelmingly unfavorable to the United States, the Supreme Court, and Virginia, with most analysts of the case answering "Yes" to all these questions. (152)
These matters of international law awaited a later case for their resolution--the LaGrand case described in Section IV(B) of this Article. The matters of domestic law--that is, the effects of the Vienna Convention in U.S. courts--remain to be addressed by the Supreme Court, as described in Section IV(C).
B. The LaGrand Case
Since the ICJ was unable to address the merits of Breard's case before his execution, the resolution of the key questions of international law awaited the case of Walter and Karl LaGrand. The two brothers were convicted and sentenced to death in 1984 in Arizona for the 1982 murder of bank manager Kenneth Hartsock, whom Karl killed during a bank robbery by cutting Hartsock's throat and stabbing him 23 times with a letter opener from his desk. (153) Although born in Germany in 1962 and 1963, respectively, the brothers moved to the United States with their mother in 1967. (154) Except for one six-month visit in 1974, they had no other connection to the country. (155) They did not speak German and appeared for all intents and purposes to be American. (156) They may even have been unaware of their true citizenship, with Walter reportedly even telling a law enforcement officer that he was a U.S. citizen. (157) Law enforcement officials did become aware of their foreign citizenship sometime after their arrest but were evidently unaware of the import of that fact. (158) The brothers did not raise the consular issue until 1992. (159)
As in Breard, the ICJ LaGrand case came too late for the convicted men. Karl and Walter LaGrand were executed in February and March of 1999, respectively, with Walter's execution in the face of an ICJ request for provisional measures to halt the procedure. (160) The Supreme Court declined to issue a stay of execution based on Germany's filing and the ICJ's request. The majority relied on its decision in Breard that a foreign country could not make a claim against a state in federal court for a Vienna Convention violation, with the concurring justices relying on the Solicitor-General's opinion that the order was not binding and that the Vienna Convention did not provide for the relief sought. (161) Justices Breyer and Stevens, however, dissented, saying, as they had in Breard, that a stay and full briefing were necessary, in no small part because Germany and the ICJ requested them. (162) The Secretary of State did forward to the Governor of Arizona the ICJ's order, albeit with no comment as to its binding nature or otherwise. (163)
Despite the execution of the LaGrand brothers, the ICJ subsequently ruled on the merits of Germany's case against the United States, finding against the United States on every point in contention (which included a number of procedural issues). The ICJ held that the United States had breached both Germany's and the LaGrands' rights under the Vienna Convention in the first place by not informing the LaGrands of their right to consular assistance, in the second place by not reviewing their convictions and sentences in light of the violation of the Convention, and in the third place by not taking sufficient steps to prevent their execution. (164) Specifically, the ICJ ruled that 1) the Convention did provide for an individual right to consular assistance; (165) 2) that its own requests for provisional measures were mandatory; (166) 3) that states were obligated to give full effect to the rights in the treaty, whether or not domestic judicial principles such as procedural fault would bar them; (167) 4) that the United States was obligated to review and reconsider the convictions and sentences of any other German citizens who had been denied their right to consular assistance; (168) and 5) that the United States should have done more to prevent their execution, no matter what internal law problems it created. (169)
The decision is a model of judicial overreach. First, the ICJ strained to find an individual right under the Convention, relying entirely on the reference to "his" rights in article 36 regarding the detained non-citizen. (170) In doing so, however, it ignored the statement in the chapeau of the article that its purpose is "facilitating the exercise of consular functions relating to nationals of the sending state," (171) rather than protecting individual rights. Furthermore, the court ignored the preamble of the treaty itself, which could not be clearer: "The States-Parties to the present Convention ... [r]ealizing that the purpose of such privileges and immunities [in consular relations] is not to benefit individuals but to ensure the efficient performance of functions of consular posts on behalf of their respective states ... [h]ave agreed as follows...." (172) Indeed, article 36 is the only article in the entire treaty that has any application to an individual other than consular officials or their staff. The text of the treaty, read as a whole and in light of its object and purpose, does not support the court's reading of the article. It would seem that only one rationale can explain the judicial inventiveness that found a right for foreign citizens in the Convention: the court wanted to rule against the United States in a death penalty case. (173)
Second, the court strained to find justification for its claim that its own indications of provisional measures are binding. (174) It found, to begin with, an ambiguity in the two authentic language versions of its statute. (175) The French version states that the court has "le povoir d'indiquer" measures that "doivent etre prises" and refers to the court's action as "l'indication," while the English text states the court has the "power to indicate" measures that "ought" to be taken and refers to the court's "suggested" measures. (176) The court stated that "doivent etre prises" and "ought" can be read as implying mandatory power, in contrast with the other, precatory terms. (177) The court then chose to resolve this alleged ambiguity by finding that its statute as a whole was geared toward judicial settlement of disputes and that such settlement required the binding ability to prevent changes in the status quo pending a decision on the merits. (178)
The court nevertheless went on to examine the preparatory work of the statute and to interpret it oddly. As the court admitted, the original text of article 41 included more strongly worded French and English terms--"ordenner" and "order" provisional measures--that were replaced with "indiquer" and "indicate," along with similar changes to the other terms noted above. (179) Nevertheless, the court stated that "the preparatory work of the Statute does not preclude the conclusion that orders under article 41 have binding force." (180) The court stated that the non-binding language was chosen because the drafters recognized that the court had no enforcement power. (181) To the court, "the lack of means of execution and the lack of binding force are two different matters," (182) and, thus, the court's understanding of the object and purpose of the treaty trumped the intent of the drafters. This distinction without a difference is a weak reed upon which to dismiss the evident intent of the drafters. If the drafters of the statute had the opportunity to use language implying binding force but chose not to do so, a disinterested analyst would assume that the language actually used is not binding. In effect, the court found for itself the power to stop executions in the United States because it wanted to stop them, not because the text or history of its statute gave it such authority
Third, the court tried to avoid intruding into U.S. sovereignty but, nevertheless, overstepped its authority. The court stated that the procedural default rule, under which the U.S. federal courts had refused to grant habeas corpus review for Vienna Convention violations, had been applied in this case in such a manner as to prevent the LaGrands and Germany from effectively enjoying their rights under the Convention, as required by paragraph 2 of article 36. (183) The court was careful to say that it was not ruling that the procedural default rule per se was invalid, but only that its application in this case violated the Vienna Convention. (184) The ICJ must surely have been aware of the political impact of the appearance that it had invalidated a standard feature of domestic U.S. jurisprudence. In fact, the court was emphatic in denying that it was acting as a criminal appeals court. It stated, rather, that it was "doling] no more than apply[ing] the relevant rules of international law to the issues in dispute between the Parties to this case." (185) Again, this is a distinction without a difference. It matters not that the ICJ limited its decision to the application of the rule in the specific circumstances of the LaGrand case. Those circumstances were already considered by the Supreme Court in its refusal to stay the LaGrands' executions and in its Breard decision. In effect, the ICJ purported to supplant a rule of domestic law with a long history and well-deserved status within the U.S. legal system on the basis of its interpretation of a treaty and in the face ofa U.S. Supreme Court ruling on the matter.
On the fourth point of the decision, the court did not just overreach but went entirely against the standard understanding of remedies in international law. International law provides for four types of remedies for an illegal act: restitution, that is, restoration of the situation prior to the illegal act; compensation, that is, payment of economic damages; satisfaction, that is, some kind of verbal acknowledgement of responsibility, such as an apology; and assurances and guarantees of non-repetition. (186) In the aftermath of Breard, the United States apologized to Paraguay and began a campaign to educate federal, state, and local law enforcement officials about the Vienna Convention, including training and provision of a booklet and pocket-sized information card on the Convention and establishment of an office in the State Department to ensure compliance. (187) When the LaGrand case arose, the United States apologized to Germany and gave assurances that it was doing everything it could to ensure non-repetition (neither economic damages nor restitution being feasible at that point). (188)
Germany was not satisfied and told the ICJ that it wanted "[a]n effective remedy [that] requires certain changes in US law and practice." (189) While the ICJ noted U.S. efforts to ensure compliance with the Vienna Convention and admitted that those efforts satisfied a general requirement for assurance of non-repetition, it went further--in fact, far beyond any previous understanding of this type of remedy. Agreeing with Germany, the court stated that if another violation of the Vienna Convention were to occur despite the U.S. efforts at compliance, "it would be incumbent upon the United States to allow the review and reconsideration of the conviction and sentence [of the affected German citizen] by taking account of the violations of the rights set forth in the Convention." (190)
Although the court added that "[t] he choice of means must be left to the United States," (191) at the most basic level the court required the United States to change its criminal justice system as a way to guarantee non-repetition. It provided no authority in law or state practice for this step, and it would have had a difficult time doing so. As one commentator generally favorable to the LaGrand decision stated, "[T]o date, guarantees and assurances of non-repetition had at best played a marginal role in the international law of state responsibility." (192) Indeed, in its commentary on non-repetition in its model articles on state responsibility (written after the LaGrand decision), the International Law Commission (ILC) could refer only to LaGrand and to cases and incidents between 60 and 120 years old to find examples of such action. (193) Furthermore, the ILC emphasized that the language of its model article is designed "to prevent the kinds of abusive or excessive claims which characterized some demands for assurances and guarantees by states in the past." (194) Although changes in domestic law are often the expected outcome of a violation of international law, the claims to changes in U.S. law domestic jurisprudence expected by the ICJ are the kind of excessive claim the ILC means--especially when, as the ILC noted in discussing LaGrand, "[the ICJ] did not ... discuss the legal basis for assurances of non-repetition." (195)
Finally, the court found that the United States had not done as much as possible to prevent the execution of the LaGrands. The court stated that the State Department could have asked the Governor of Arizona for a stay of execution, rather than just transmitting the order with a note that it was non-binding, that the United States Supreme Court could have issued a stay, and that the Governor of Arizona could have stayed the execution in the face of the ICJ's order, particularly since the Arizona Clemency Board had suggested a stay. (196) The criticism is highly fact-specific, and the court stated that it was not declaring that the United States should have guaranteed a particular result. (197) Rather, the court stated that the United States did not "take all measures at its disposal" to ensure that Walter LaGrand was not executed, as the order on provisional measures stated. (198)
The court decision on this point is more than meets the eye. On one level, it is rather restrained because the court recognized that it could not force the United States "to exercise powers it did not have" (199) and criticized the United States only for not doing as much as it could even within its powers. In a larger sense, though, the decision highlights the problem for ICJ and death penalty opponents--and as a matter of international law theory in all cases--of the dualist conception of the relationship between international law and domestic law. The dualist conception views domestic law and international law as two distinct spheres, with actions in one requiring translation--so to speak--into the other through separate rules unique to that sphere. (200) This is the concept lying behind, for example, the need for domestic implementing legislation for treaties, rather than having treaties self-executing and directly applicable in U.S. courts. This approach stands in sharp contrast to the monist conception of international law that views an international law rule as having direct application in domestic law, overriding any domestic rules. (201) In other words, the dualist conception views international law as binding on a state, the monist, as binding in a state. (202)
The United States is and always has been a dualist state. (203) Thus, the United States may well incur state responsibility for a breach without being able to prevent it because of the domestic federal structure of the state. If the actions of Virginia officials cause a breach of an international law obligation of the United States, the only choice is for the U.S. government to accept responsibility and provide a remedy at the international law level. As the U.S. Supreme Court stated in Breard, U.S. law provided no means for it to order Virginia to stay the execution, and any resolution of the conflict between the ICJ, Virginia, and the federal government was in a different forum. No matter what the ICJ held regarding the United States' responsibility to prevent the execution of the LaGrands, therefore, if U.S. law did not provide some authority for stopping Arizona's execution procedures, it simply could not be done. (204)
In sum, on the critical questions of the case, the court created the results it wanted in order to claim the United States had violated international law in applying the death penalty. On the individual rights issue, the court read one word in article 36 of the Vienna Convention without considering the stated object and purpose of the article or the treaty as a whole. On the provisional measures issue, the court ignored the plain meaning of the terms and focused on its own understanding of the object and purpose of the treaty, in apparent defiance of the intention of the treaty's drafters. On the question of breach, the court, while denying that it was serving as a criminal appeals court, acted just so--invalidating a principle of U.S. domestic criminal jurisprudence as applied in the case. On the remedies issue, the court--with no authority--practically invented a new remedy for violation of international law. Finally, on the question of how the United States should have reacted, the ICJ came up against a basic and insoluble conflict between the dualist and monist conceptions of international law as they operate in a federal state. The United States federal government could not order the State of Arizona to prevent the execution because of the lack of direct effect on states of international law, even if the federal government itself incurred international state liability for the violation.
C. The Avena Case
Breard and LaGrand were part of a growing trend of litigation by foreign countries and anti-death penalty activists. The Inter-American Court of Human Rights (205) in 1999 issued an advisory opinion claiming that not providing consular notification in a capital case constituted an arbitrary deprivation of life under the ICCPR and the American Convention, (206) while the Inter-American Commission had been issuing provisional measures to stop U.S. executions and declaring that the United States had violated the Vienna Convention in specific cases. (207) Breard and LaGrand energized this movement. Amnesty International, for example, produced a report on the Vienna Convention that cited the ICJ's LaGrand opinion and called for, among other things, the commutation by executive authorities of the death sentences of those who had not been given notice under the Convention. (208)
Most importantly, Mexico instituted suit in 2003 at the ICJ to halt execution of 54 of its citizens on death row, (209) and the ICJ issued provisional measures to halt executions in three of those cases. (210) Mexico petitioned the court to order the United States to vacate its citizens' convictions and sentences, to provide them new trials, to suppress any statements made prior to consular notification, and to prohibit operation of any municipal legal doctrine that prevents these remedies, such as procedural default and the requirement to show prejudice. (211) Furthermore, Mexico petitioned the court to order the United States "to take all legislative, executive, and judicial steps necessary" (such as prohibiting the application of procedural default) in order to ensure no further violations of the Convention. (212) Mexico's claims in the Avena case went far beyond those of Germany in LaGrand, and if they had been accepted by the court they would have amounted to an unwarranted and unprecedented interference in U.S. domestic affairs. As described infra, the court rejected most of Mexico's claims and reached a relatively modest decision. Nevertheless, for purposes of an examination of the nature of the dispute over the soverign right of the United States to determine the operation of its criminal justice system, it is worth examining Mexico's arguments.
Mexico's claims had no basis in either fact or law, even under the flawed LaGrand decision. For example, in some of these cases, it was not even clear that the individuals were actually Mexican citizens. At least one is a dual citizen of the United States, to whom the U.S. owes no duty under the Convention; (213) in seven cases, the defendants claimed to be U.S. citizens when arrested; (214) and in twenty cases, there was no apparent reason to suspect non-U.S. citizenship, (215) Mexico did not even establish before the court that there was a single case in which law enforcement officials knew of non-U.S. citizenship and failed to provide consular notification, (216) and in twenty-two cases, as Mexico conceded, notification was provided soon enough to allow Mexican consular officials to assist in pre-trial or trial proceedings. (217)
Second, LaGrand required only that the United States provide for "review and reconsideration" of cases in which defendants had been deprived of their right to consular notification, (218) Although Mexico in its argument to the court impugned the fairness of the U.S. criminal justice system, the United States maintained that both the judicial system and executive clemency provide that review. (219) Most importantly in this regard, the court in LaGrand specifically stated, as noted above, that the United States should provide that review by means of its own choosing and that the U.S. domestic rule of procedural default was not illegitimate per se, only its application in the case of the LaGrands. (220)
Third, as the United States pointed out, Mexico sought to apply to the United States rules that neither Mexico itself nor any other party to the Convention follows. For example, Mexico claimed that the United States was obliged to notify a consular official of the arrest of a citizen immediately and prior to any interrogation, but the United States pointed out that Mexico does not do so and only a handful of parties to the Convention do so. (221) Likewise, "there is not a single recorded case in Mexico that has resulted in the exclusion of evidence--much less the vacation of a conviction or remittal of sentence--where the requirement of Article 36 was not met." (222) The United States noted, "Not a single criminal justice system in the world--not one among the more than 160 Parties to the [Vienna Convention]--operates in accordance with the rules Mexico would have this Court adopt and impose on the United States." (223)
Finally, Mexico's claim that the right to consular notification has the status of a human right is overreaching. This claim is off the mark on three points. As a basic matter, Mexico misreads article 36. The only individual right at stake is that of notification of the consul. The detained individual has no right to consular assistance;, indeed, a consul can refuse to assist the individual. (224) It cannot be the case, therefore, that notification of a consul, no matter what other results might flow from it, is a human right per se, fundamental to due process on the level of the privilege against self-incrimination or the right to counsel. Further, the U.S. criminal justice system provides a range of due process rights that apply to all defendants, regardless of nationality, in accordance with the requirements of the U.S. Constitution. Mexico tries to obscure this fact and have a consul assume the role that an attorney performs in the U.S. system regarding legal advice, assistance during interrogation, etc., a role that was never intended by the Vienna Convention and is not even hinted at in its text. (225) Mexico offered no evidence that any state practice treats consular notification and assistance as fundamental rights of due process or grants the remedies Mexico demands. (226) Mexico, in essence, sought to convert a treaty on consular privileges and immunities into a human rights instrument, claiming that the mere provision of a consul is fundamental to ensuring the due process that its nationals would otherwise not be afforded.
In the end, Mexico's far-reaching claims attempted to put important elements of the U.S. criminal justice system itself on trial before the ICJ. It appears that Mexico's purpose was to maneuver the ICJ into a determination that the U.S. judicial and executive clemency systems do not provide adequate protections for criminal defendants on their own and must be forced by the court through the Vienna Convention to meet standards that Mexico believes are sufficient--even though its own judicial system and those of other parties to the Convention do not meet those standards.
As this Article went to press, the ICJ issued its decision in the Avena case. (227) A full discussion of the decision is not possible in this Article, but a few initial comments can be made. Most importantly, the court rejected the most extensive of Mexico's claims, stating that it would order only that the United States "permit review and reconsideration" of the cases of the Mexican nationals, (228) and would not order the vacating of the convictions and sentences of those individuals. (229) The court stated that
the case before [the court] concerns Article 36 of the Vienna Convention and not the correctness as such of any conviction or sentencing. The question of whether the violations of Article 36, paragraph 1, are to be regarded as having, in the causal sequence of events, ultimately led to convictions and severe penalties is an integral part of criminal proceedings before the courts of the United States and is for them to determine in the process of review and reconsideration. (230)
The court declined to address the claim that consular notification was a human right but added that "neither the text nor the object and purpose of the Convention, nor any indication in the travaux preparatoires, support the conclusion that Mexico draws from its contention in that regard." (231) Furthermore, the court reiterated its position in LaGrand that the United States had provided sufficient evidence that it was attempting to end violations of the Vienna Convention and did not therefore have to offer other assurances of non-repetition. (232) The court did order, as noted, that the United States provide effective review and reconsideration of the convictions and sentences (233) of the cases at issue and ruled that executive clemency was not sufficient for this purpose; (234) but this final outcome is far more measured than Mexico had hoped for. Indeed, the decision does not go much beyond LaGrand.
The real impact of Avena and its predecessors will therefore occur in U.S. courts. So far, all of the federal appellate courts that have dealt with habeas claims based on the Convention have found either that the Convention does not protect individual rights (235) or have found, without deciding that issue, that the Convention does not provide for a judicially cognizable remedy. (236) Furthermore, in most of the latter cases, dicta indicate that the courts were highly skeptical of the claim for an individual right in the Convention based on the Convention's text and the consistent position of the Executive Branch to the contrary. (237) The Sixth Circuit, the only appellate court to have specifically addressed whether the Convention provides an individual right, (238) added two other important considerations. The court noted that the Supreme Court had denied Paraguay and Germany a right of action for a violation of the Convention and stated that "[i]f a foreign sovereign to whose benefit the Vienna Convention inures cannot seek a judicial remedy, we cannot fathom how an individual foreign national can do in the absence of express language in the treaty." (239) Perhaps more significantly, the court stated that it would not create a right for foreign nationals under the Vienna Convention because to do so "risks aggrandizing the power of the judiciary and interfering in the nation's foreign affairs, the conduct of which the Constitution reserves for the political branches." (240)
Nevertheless, in the face of these decisions, one district court in Illinois sought to use the ICJ's opinion in LaGrand to find an individual right and a judicial remedy in the Vienna Convention. In Madej v. Schomig, (241) the court, which had previously declared a habeas claim based on a Vienna Convention violation to be procedurally barred, (242) declared that the ICJ's decision in LaGrand "conclusively determines that Article 36 of the Vienna Convention creates individually enforceable rights, resolving the question most American courts (including the Seventh Circuit) have left open;" it also suggests that courts cannot rely upon procedural default rules to circumvent a review of Vienna Convention claims on the merits. (243)
The court went on to read the Supreme Court's decision in Breard narrowly in conjunction with the ICJ's LaGrand decision. It stated that the ICJ's decision that the procedural default rule prevented full effect of the rights in the Convention "undermin[ed] a major premise of the [Breard] holding." (244) Furthermore, the court held that Breard was bad precedent because it was argued and decided in haste, was a per curiam decision, and did not address the United States' Vienna Convention obligations directly. (245) Regarding the remedy, the court found that Madej likely would not have been prejudiced at trial since the evidence of his guilt was substantial, but that a consul's assistance may have helped at sentencing. (246) In the end, however, the court declared the issue moot because it had already vacated the death sentence on the basis of a claim of ineffective assistance of counsel. (247) The court rejected a motion for reconsideration, explaining, "This interpretation of the Convention [granting an individual right] is binding upon the United States and this Court as a matter of federal law due to the [U.S.] ratification of the [Vienna Convention's] Optional Protocol [regarding the ICJ's authority to interpret the Convention]. (248)
In any event, the Governor of Illinois, noting the Vienna Convention violation, commuted Madej's sentence, along with the sentences of all the prisoners on death row in his state in February 2003. Nevertheless, the district court's Madej decision should be deeply troubling to those concerned with both American sovereignty and the orderly functioning of the federal courts. To be clear: the Madej court declared that a decision of a foreign court superceded the decision of the U.S. Supreme Court in a domestic criminal law case. The court simply did not understand the difference between the dualist and monist conceptions of international law. It seemed as if the court believed that since the United States had entered into a treaty that gave the ICJ the authority to interpret it, the ICJ's interpretation was then binding in domestic law. This is a serious error. The ICJ's flawed opinion may well have created an obligation on the United States, but that obligation is to be discharged by the political branches of the nation, not by the judicial branch within the court system. (249) The interpretation of the Vienna Convention and its impact within the U.S. domestic legal system is the province only of the U.S. judiciary acting under its authority to interpret the laws and treaties of the United States in accord with the Constitution. The district court cannot abdicate its authority to interpret a treaty of the United States to a foreign court, nor can it decide to ignore a decision of the U.S. Supreme Court and the persuasive authority of circuit courts in favor of the International Court of Justice.
Cases on the conflict between international and U.S. law almost reached the Court in 2002 and 2003, and at least two justices of the Court appeared to accept the authority of the ICJ as superior to their own. In 2002, the Court denied certiorari in the case of Javier Suarez Medina, who had petitioned for review of his conviction and sentence specifically on the basis of the Vienna Convention and the ICJ's LaGrand decision. (250) In 2003, Osbaldo Torres petitioned for habeas review of his conviction and death sentence in Oklahoma, asserting that LaGrand prohibited the application of procedural default and lack of prejudice to deny his Vienna Convention claim. (251) Justice Stevens wrote straightforwardly that the LaGrand decision was the "authoritative interpretation" of the Convention, binding on federal and state courts as a treaty of the United States. (252) Justice Breyer was more cautious but stated that he would defer a decision on certiorari until after a decision in Avena, in order to examine the question of whether the ICJ's opinion is in fact binding on U.S. courts. (253) Now that the decision has been handed down, the stage is set so that when a case like Madej, Medina, or Torres reaches the Court, this conflict between domestic and international law will be settled. Indeed, given the ICJ's specific reference to Torres in Avena, it is possible that he will renew his appeal to the U.S. Supreme Court, and the other Mexican nationals will use the Avena decision in their own appeals in lower courts.
Since some justices are already open to the idea that foreign and international law should influence the Court's decisions, as seen in the Lawrence and Atkins decisions, in Justice Breyer's comments in Breard, and in Justice Breyer's and Justice Stevens' dissents from denial of certiorari in Torres, it is clear that the ICJ Avena decision will have a great impact on the Court's view of the issues at stake. (254) While the Court is unlikely to adopt Justice Stevens' monist view of the relationship of the Supreme Court and the ICJ, it will certainly try to incorporate Avena into its own deliberations. The most likely line of reasoning will be to invoke "judicial comity." Judicial comity, as explained by Dean Anne-Marie Slaughter, is the notion that judges should consciously engage in transnational dialogue with each other through both their decisions and other professional activities to create a united profession of global judiciary that shares values and, importantly, similar judicial temperament and interpretive approaches. (255) The justices might choose to interpret the Convention as a treaty of the United States under its constitutional authority but refer to the ICJ (and the Inter-American Court) decisions as evidence of the meaning of the Convention. In that case, the Court could find that the appropriate remedy is for federal courts to allow for extraordinary hearings to consider habeas appeals based on that right, which would give effect to the ICJ's Avena decision, although the Court might not explicitly say that Avena was binding on it. The Court would thus preserve its nominal independence, but would in fact have forsaken its duty to the Constitution and the American public.
As demonstrated in this Article, the U.S. death penalty survives scrutiny under international law. First, various human rights instruments do not prohibit the death penalty, are non-binding as matters of international law, and/or do not apply internally as a matter of U.S. law. Likewise CIL does not prohibit the death penalty, and if a CIL norm existed, it would not apply directly in U.S. courts. Second, neither treaty law nor CIL prohibits the execution of the mentally retarded or juveniles in the United States, and neither treaty law nor CIL prohibits the death penalty because of the so-called "death row phenomenon," although international law has influenced the Supreme Court on these issues. Third, attempts to prevent the execution of foreign nationals in the United States based on the Vienna Convention on Consular Relations rely on a forced interpretation of the treaty and an unprecedented understanding of the appropriate remedies for violations of international law.
The death penalty thus provides an illuminating case study of the importance of maintaining American sovereignty in the face of organized campaigns by the human rights movement to "impose foreign moods, fads, or fashions on Americans." (256) If these campaigns are successful, other elements of American criminal law could also come under international scrutiny. Few countries around the world, for example, have life in prison without parole as a punishment, which would likely become the next target of human rights advocates. Mexico, for example, has recently begun refusing to extradite accused criminals to the United States if they may be subject to life without parole. (257) Similarly, the EU, in discussing alternatives for the death penalty as punishment, specifically disclaimed life imprisonment without parole, stating that "the present criminal policy in the EU Member States ... is moving towards keeping imprisonment to an absolute minimum." (258) Given that the American public strongly supports capital punishment, with 74 percent of the public in favor (a figure that drops only if the alternative punishment is life in prison without parole), (259) the American public would be rightly concerned about the sovereignty and democratic accountability of their government if international and/or foreign law were considered determinative of American law.
As an intellectual and policy matter, too, the use of foreign and international law are problematic. As Roger Alford has explained, the Court's recent use of such sources exacerbates the "countermajoritarian" problem of the judicial branch, privileges treaties over federal legislation, and is neither rigorously nor consistently applied. (260) He notes, for example, that in Lawrence, "the Court used only those international and foreign tools that were within its ... grasp. In a subject area where the Supreme Court is woefully lacking in basic knowledge, the sources at its ready reference were materials that international legal experts selectively chose to make available to it." (261) Indeed, selectivity is a serious problem for advocates of foreign and international law in U.S. courts. As Alford explains, the "enthusiasm for comparativism" is based on "the assumption that it will enhance rather than diminish basic human rights" in the United States, even though the United States is more protective than most other nations regarding issues such as abortion, freedom of speech, and freedom of religion. (262) A rigorous, theoretically sound method for using international and foreign law would result in restrictions on American rights, a result likely as unpalatable to the American public as that of a prohibition of the death penalty or life in prison without parole.
Furthermore, as Michael D. Ramsey has pointed out, such a project is likely impossible to achieve. (263) Koh, for example, has no sound theory explaining "why international materials matter, beyond the facile observation that it is broadminded and cosmopolitan to consider 'the opinions of mankind.'" (264) Interpretations of foreign constitutions, Ramsey points out, address "different documents, written in different times and different countries (and sometimes different languages)." (265) What relevance do they have to the meaning of the U.S. Constitution? Equally important, citations to foreign and international law are often simply wrong. Ramsey notes that Koh's brief in Atkins relies on a student note written in 1987 for its claim that China does not execute the mentally handicapped, a note that in fact nowhere says so. (266) Likewise, the EU amicus brief in Atkins relied for its claim that world practice was against the death penalty for the mentally handicapped on a single U.N. survey to which only 63 nations responded, most of which did not have the death penalty for anyone. (267) Thus, the Atkins Court, claiming that world opinion opposed the death penalty for the mentally handicapped based on the EU brief's allegation alone, "could not be bothered to cite (nor presumably to read) any actual source that even purportedly endorsed its conclusion." (268) Such "false shortcuts to world 'consensus'" thus result in the privileging of "a subset of the world's almost infinite opinions: those held by selected judges, personnel of UN agencies, and international leaders." (269)
Despite these evident problems, campaigns to override U.S. law on the basis of foreign practices are gaining credibility among U.S. elites in politics and law and among the Supreme Court justices themselves. This trend must be vigorously resisted by all those concerned about preserving America's unique values, as formed by our history, established in our traditions, and enshrined in our Constitution. A nation's laws are and should be expressions of its fundamental values, as shaped by its political and cultural experience. One prominent scholar of U.S. Constitutional law, Professor Jed Rubenfeld, discovered during his recent experience as the U.S. member of a Council of Europe legal commission that many members of the international legal community are unconcerned about such matters. (270) His conclusion was that "international law is a threat to democracy and to the hopes of democratic politics all over the world." (271) This Article has demonstrated that Rubenfeld's warning is amply borne out by the attempts to restrict the use of the death penalty in the United States with claims under international law.
(1.) See generally Delegation of the European Commission to the United States, EU Policy & Action on the Death Penalty, at http://www.eurunion.org/legislat/DeathPenalty/deathpenhome. htm (last visited Apr. 13, 2004); Council of Europe, Death Penalty, at http://www.coe.int/T/E/Com/ Files/Themes/Death-penalty (last visited Apr. 13, 2004).
(2.) See generally Death Penalty Information Center, The Death Penalty: An International Perspective, at http://www.deathpenaltyinfo.org/article.php?did=127&scid=30 (last visited Apr. 13, 2004); HUGO ADAM BEDAU, AMERICAN CIVIL LIBERTIES UNION, THE CASE AGAINST THE DEATH PENALTY 34-35 (1997), available, at http://www.aclu.org/DeathPenalty/DeathPenalty.cfm?ID=9082&c=17.
(3.) See Application Instituting Proceedings, Avena and other Mexican Nationals (Mex. v. U.S.) (I.C.J. Jan. 9, 2003), available at http://www.icj-cij.org/icjwww/idocket/imus/imusorder/ imus_iapplication_20030109.PDF; LaGrand (F.R.G. v. U.S.), 40 I.L.M. 1069 (I.C.J. June 27, 2001); Case Concerning the Vienna Convention on Consular Relations (Para. v. U.S.), 1998 I.C.J. 426 (Discontinuance Order of Nov. 10).
(4.) For purposes of the Article, sovereignty means "the international independence of a state, combined with the right and power of regulating its internal affairs without foreign dictation." BLACK'S LAW DICTIONARY 1396 (6th ed. 1990).
(5.) Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 [hereinafter Vienna Convention].
(6.) Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty, as amended by Protocol 11, entered into force Mar. 1, 1985, E.T.S. 114, available at http://conventions.coe.int/treaty/en/Treaties/Html/ 114.htm (last visited Feb. 12, 2004).
(7.) Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol 11, entered into force Mar. 9, 1953, E.T.S. 005, available at https://conventions.coe.int/Treaty/ en/Treaties/Html/005.htm (last visited Feb. 19, 2004) [hereinafter European Convention].
(8.) Protocol to the American Convention on Human Rights to Abolish the Death Penalty, adopted June 8, 1990, 29 I.L.M. 1447, available at http://www.oas.org/juridico/english/Treaties/ a-53.htm (last visited Sept. 7, 2004).
(9.) American Convention on Human Rights. Nov. 22, 1969, 1144 U.N.T.S. 123, available at http://www.oas.org/juridico/ english/Treaties/b-32.htm (last visited Sept. 7, 2004) [hereinafter American Convention].
(10.) Second Optional Protocol to the International Covenant on Civil and Political Rights, Dec. 15, 1989, art. I, 1642 U.N.T.S. 414, 415.
(11.) International Covenant on Civil and Political Rights, Mar. 23, 1976, 999 U.N.T.S. 171 [hereinafter ICCPR].
(12.) Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3rd Sess., U.N. Doc. A/810 (1948).
(13.) Id. art. 3.
(14.) See WILLIAM SCHABAS, THE ABOLITION OF THE DEATH PENALTY IN INTERNATIONAL LAW 35-40 (2d ed. 1997).
(15.) MARY ANN GLENDON, A WORLD MADE NEW: ELEANOR ROOSEVELT AND THE UNIVERSAL DECLARATION OF HUMAN RIGHTS 92 (1st ed. 2001) ("The [Drafting] Commission decided to retain the general statement 'Everyone has the right to life, to liberty, and security of person' rather than try to reach agreement on specific issues such as euthanasia, abortion, or the death penalty. This was a defeat for the representatives of Chile and Lebanon, who had pushed for express protection of the lives of the unborn, and for the Soviet-bloc delegates, who had argued for a ban on capital punishment.") (footnote omitted).
(16.) See, e.g., G.A. Res. 2393, U.N. GAOR, 23rd Sess., Supp. No. 18, U.N. Doc. A/7218 (1968); G.A. Res. 2857, U.N. GAOR, 26th Sess., Supp. No. 29, U.N. Doc. A/8429 (1971); G.A. Res. 32/61, U.N. GAOR, 32d Sess., Supp. No. 45, U.N. Doc. A/32/45 (1977); G.A. Res. 44/128, U.N. GAOR, 44th Sess., Supp. No. 49, U.N. Doc. A/44/128 (1989).
(17.) The U.N. Charter refers only to the General Assembly's power to make "recommendations." U.N. CHARTER, art. 10. But see Western Sahara, 1975 I.C.J. 12, 30-31 (Oct. 16) (finding that General Assembly resolutions on decolonization had legal effect as interpretations of the U.N. Charter).
(18.) HENRY J. STEINER & PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS 123 (1996) ("Under international law, approval by the General Assembly of a declaration like the UDHR has a different consequence from a treaty.... [W]hen approved or adopted, it is hortatory and aspirational, recommendatory rather than, in a formal sense, binding.").
(19.) Since the ICCPR is intended to be the instrument incorporating the Universal Declaration's principles as legally binding, and it does not outlaw the death penalty, it should be clear that the Universal Declaration must not have done so either.
(20.) ICCPR, supranote 11, art. 6(1).
(21.) Id. art. 6(2)-(5).
(22.) Id. art. 6(6).
(23.) SCHABAS, supra note 14, at 67-73.
(24.) Id. at 45.
(25.) Id. at 44.
(26.) See id.
(27.) Id. at 94.
(28.) The Human Rights Committee (not to be confused with the U.N. Human Rights Commission) was set up by the ICCPR to receive reports on state practice regarding the Covenant. The Human Rights Committee is not, however, an authoritative interpreter of the Covenant, and its comments are not legally binding on signatories. See ICCPR, supra note 11, art. 40 (defining the Committee's functions as to "study the reports submitted" by the parties to the ICCPR and to "transmit its reports, and such general comments as it may consider appropriate" to the parties); see also First Optional Protocol to the International Covenant on Civil and Political Rights, Dec. 16, 1966, Preamble, 999 U.N.T.S. 302 (defining the Committee's functions as to "receive and consider" communications from individuals claiming human rights violations by a state-party to the ICCPR).
(29.) General Comment 6 of the Human Rights Committee, 16th Sess., 37 U.N. GAOR, Supp. (No. 40), U.N. Doc. A/37/40 (1982).
(30.) Second Optional Protocol to the International Covenant on Civil and Political Rights, supra note 10.
(31.) Schabas nevertheless still spins the documents his way: "[The Protocol] is important first by its very existence, even though the number of States parties ... is still relatively modest.... The Protocol begins the completion of a process that began in 1948, with article 3 of the [Universal Declaration], and that advanced in 1957, with article 6 of the [ICCPR]." SCHABAS, supra note 14, at 181.
(32.) American Declaration of the Rights and Duties of Man (1948), art. 1, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/ser.L.V/II.71 doc.6 rev.1, at 17, available at http://www.cidh.org/Basicos/basic2.htm (last visited Sept. 7, 2004) [hereinafter American Declaration].
(34.) SCHABAS, supra note 14, at 263-65.
(35.) Roach and Pinkerton v. United States, Case 9647, Inter-Am. C.H.R. 147, OEA/ser.L/V./ II.71, doc. 9 rev. 1 (1987).
(36.) See id. [paragraphs] 56, 60.
(37.) Charter of the Organization of American States, Apr. 30, 1948, art. 106, 2 U.S.T. 2394, 119 U.N.T.S. 3.
(38.) American Convention, supra note 9, art. 41.
(40.) Roach and Pinkerton, Inter-Am. C.H.R. 147, [paragraph] 54; see also American Convention, supra note 9, art. 50.
(41.) See Garza v. Lappin, 253 F.3d 918, 923 (7th Cir. 2001). Garza had claimed his sentence should be set aside following the IACHR's finding that he had been deprived of his human rights because evidence of four previous murders he had committed in Mexico was introduced at his sentencing hearing, allegedly depriving him of the right to a fair trial. Garza actually admitted that the American Declaration per se was not binding, but said that the issuance of the IACHR's report based on the American Declaration did create a binding obligation under the O.A.S. Charter, which created the Commission. The Supreme Court denied a stay and habeas corpus review, In re Garza, 533 U.S. 914 (2001), and certiorari, In reGarza, 533 U.S. 924 (2001). Garza was executed on June 19, 2001. See CNN.com, Second federal inmate executed in Indiana (June 20, 2001), at http://www.cnn.com/2001/LAW/06/19/garza.execution/index, html (last visited Sept. 7, 2004).
(42.) Garza, 253 F.3d at 924.
(43.) Id. at 925.
(44.) American Convention, supra note 9, art. 4(2). Article 4(1) states, "Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life." Id. art. 4(1) (emphasis added). This phrase is a significant addition; other than that, the article is similar to the ICCPR. This is not surprising, since the Latin American nations were those who were initially insistent that the Universal Declaration ban abortion through inclusion of such a phrase. Perhaps not surprisingly, given the political leanings of those involved, one does not see activism or scholarship in the international human rights community citing the American Convention for the proposition that international law prohibits abortion.
(45.) European Convention, supra note 7, art. 2(a).
(46.) Arab Charter on Human Rights, Sept. 15, 1994, reprinted in 18 HUM. RTS. LJ. 151, arts. 10-12 (1997).
(47.) Case 2141, OAS Charter Res. 23/81, OAS/ser. L/V/II.52, doc. 48 (1981), available at http://www.cidh.org/annualrep/ 80.81eng/USA2141.htm (last visited Sept. 7, 2004).
(48.) Id. [paragraph] 31.
(49.) Statute of the International Court of Justice, June 26, 1945, art. 38(1)(b), 59 Stat. 1055, T.I.A.S. 993, available at http://www.icj-cij.org/icjwww/ibasicdocuments/ibasictext/ibasicstatute.htm (last visited Sept. 7, 2004).
(50.) IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 7 (5th ed. 1998).
(51.) See, e.g., AMNESTY INTERNATIONAL, ABOLITIONIST AND RETENTIONIST COUNTRIES, at http:// web.amnesty.org/pages/deathpenalty-countries-eng (last updated. June 9, 2004).
(52.) Owen Bowcott, Caribbean Severs Link to Privy Council, THE GUARDIAN, Feb. 15, 2001, available at http://www.guardian.co.uk/Archive. Somewhat surprisingly, Amnesty International responded to these events by claiming that it was the death penalty itself--not the reversal of death sentences by foreign courts--that was "colonialist." AMNESTY INTERNATIONAL, STATE KILLING; IN THE ENGLISH SPEAKING CARIBBEAN: A LEGACY OF COLONIAL TIMES, Apr. 23, 2002, at http://web.amnesty. org/library/Index/engAMR050032002 (last visited Sept. 7, 2004).
(53.) BBC News, Philippines Executions to Resume, Dec. 5, 2003, available at http://news.bbc.co.uk/ 2/hi/asia-pacific/3293119.stm (last updated Dec. 5, 2003).
(54.) It is also a principle that would undermine many current concerns of human rights activists. Amnesty International, for example, states,
At least 70 states have entered the 21st century with laws on their statute books prohibiting same-sex relations.... Laws criminalizing homosexual relations exist on all continents, albeit in different forms. In some countries, consensual sex between adults of the same sex is criminalized as "sodomy", "crimes against nature" or "unnatural acts." In others, vague provisions such as "immoral acts" or "public scandal" are used to criminalize different expressions of homosexual identity.
AMNESTY INTERNATIONAL, CRIMES OF HATE, CONSPIRACY OF SILENCE: TORTURE AND ILL-TREATMENT BASED ON SEXUAL IDENTITY (2001), at http://www.ai-lgbt.org/ai_report_torture.htm#content (last visited Apr. 8, 2004). Amnesty International considers these facts to be evidence of violations of international human rights law, not evidence of a norm of CIL prohibiting homosexuality.
(55.) See BROWNLIE, supra note 50, at 7.
(56.) Furthermore, the death penalty remains popular among the European public, with between half and two-thirds of the populations in Italy, Germany, and Britain in favor of it. Joshua Micah Marshall, Death in Venice: Europe's Death-Penalty Elitism, THE NEW REPUBLIC (July 31, 2000). In fact, the ban on capital punishment in Europe may be the result of the democratic deficit that plagues Europe, in which governments, especially the supranational European Union, are often criticized as being unresponsive to their citizens. Id.
(57.) PHILIP GOUREVITCH, WE WISH TO INFORM YOU THAT TOMORROW WE WILL BE KILLED WITH OUR FAMILIES 252-53 (1999).
(58.) Id. at 254. Furthermore, the tribunal was created following the failure of European countries and the United States to intervene in the crisis that spawned the atrocities at issue. Id. at 253. As a moral matter, distinct from purely legal matters, the stature of the tribunal and its jurisprudence is weak.
(59.) Coalition Provisional Authority, Statute of the Iraqi Special Tribunal (Dec. 10, 2003), at http://www.cpa-iraq.org/ human_rights/Statute.htm (last visited Mar. 21, 2004).
(60.) Niko Price, Official: Saddam Could Face Execution, ASSOCIATED PRESS, Dec. 15, 2003; see also Shi'ites Demand Saddam Hussein's Execution, ASSOCIATED PRESS, Jan. 20, 2004.
(61.) See Fisheries (U.K. v. Nor.), 1951 I.C.J. 116, 139 (Dec. 18).
(62.) See, e.g., RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW [section] 102 cmt. d and Reporter's Note 2 (1987).
(63.) BROWNLIE, supra note 50, at 10.
(64.) See Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001). This appears to be the only case in which a circuit court addressed these issues. However, because the court declared Buell's claim procedurally defaulted, its reasoning is dicta. Id. at 367. Nevertheless, the Buell court's reasoning has been cited by other courts. See, e.g., United States v. Davis, No. CR.A. 01-282, 2003 U.S. Dist. LEXIS 5745, at *49 (E.D. La. Apr. 9, 2003); see also United States v. Bin Laden, 126 F. Supp. 2d 290, 294 (S.D.N.Y. 2001) (stating that defendants' claim "that international law completely bars this nation's use of the death penalty is unsupportable since the United States is not party to any treaty that prohibits capital punishment per se, and since total abolishment of capital punishment has not yet risen to the level of customary international law"); Jamison v. Collins, 100 F. Supp. 2d 647, 766 (S.D. Ohio 2000) (examining the OAS Charter, the American Convention, the American Declaration, the ICCPR, and CIL and finding "no indication that the international obligations of the United States compel elimination of capital punishment").
(65.) Buell, 274 F.3d at 344.
(66.) Id. at 370.
(68.) Id. at 371.
(70.) Id. at 372. A self-executing treaty is one that has direct effect in a domestic court, while a non-self-executing treaty does not. A self-executing treaty may be relied upon by courts just as any law, while a non-self-executing treaty requires implementing legislation by Congress.
(71.) Id. at 373.
(74.) Id. at 373-74.
(75.) Id. (citing Hawkins v. Comparet-Cassani, 33 F. Supp. 2d 1244, 1255 (C.D. Cal. 1999), rev'd on other grounds, 251 F.3d 1230 (9th Cir. 2001)).
(76.) Buell, 274 F.3d at 374-75.
(77.) Id. at 375-76.
(78.) 175 U.S. 677 (1900).
(79.) Id. at 700.
(80.) See, e.g., Brief Amicus Curiae of International Law Expert in Support of Petitioners at 4, Rasul v. Bush, 534 S. Ct. 2686 (2004) (No. 03-334) (arguing that CIL of international human rights law requires that detainees at Guantanamo Bay, Cuba, have access to U.S. courts to contest their detention).
(81.) Buell, 274 F.3d at 376.
(82.) The Paquette Habana, 175 U.S. at 700. The Court went on to say that the works of commentators can be consulted regarding international law "not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is." Id. Then, quoting the nineteenth century writer Henry Wheaton, the Court stated that such works were trustworthy because commentators were "generally impartial in their judgment." Id. Contemporary international law commentators, as demonstrated by some of the secondary sources cited in this Article, should not be considered impartial analysts of what the law is.
(83.) The Paquette Habana may be bad law anyway. As Professors Bradley and Goldsmith have shown, The Paquette Habana was no longer relevant after the Court decided in Erie v. Tompkins, 304 U.S. 64 (1938), that federal courts have no authority to create "general common law." Curtis A. Bradley & Jack L. Goldsmith, Customary. International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L. REV. 815 (1997). But see Harold Hongju Koh, Is International Law Really State Law?, 111 HARV. L. REV. 1824 (1998). This has become a highly contested debate in international legal academia. The debate has only recently seeped into the general consciousness of constitutional scholars, but at least one leading expert has taken Bradley & Goldsmith's position. See Daniel J. Meltzer, Customary International Law, Foreign Affairs, and Federal Common Law, 42 VA. J. INT'L L. 513, 519 ("[T]he fact that a rule has been recognized as CIL, by itself, is not an adequate basis for viewing that rule as part of federal common law.").
(84.) Atkins v. Virginia, 536 U.S. 304 (2002).
(85.) Id. at 316 n.21.
(86.) Id. at 325 (Rehnquist, C.J., dissenting) (citations omitted).
(87.) Human Rights Watch, Beyond Reason: The Death Penalty and Offenders with Mental Retardation, Section III (Mar. 2001), at http://www.hrw.org/reports/2001/ustat/ (last visited Feb. 19, 2004).
(88.) See Harold Hongju Koh, Transnational Public Law Litigation, 100 YALE L.J. 2347, 2397 (1991) (advocating litigation that "encourag[es] dialogue between domestic and international law-declaring institutions" and that "moves us closer to a unitary, 'monist' legal system, in which domestic and international law are integrated"); Harold Hongju Koh, The 1998 Frankel Lecture: Bringing International Law Home, 35 HOUS. L. REV. 623, 680 (1998) (arguing that "those who favor application of international norms to state behavior cannot afford to be passive observers.... [T]hey must seek self-consciously to participate in, influence, and ultimately enforce transnational legal process, by promoting the interaction, interpretation, and internalization of international norms into domestic law."); Harold Hongju Koh, Paying "Decent Respect" to World Opinion on the Death Penalty, 35 U.C. DAVIS L. REV. 1085, 1129 (2002) (calling Atkins "an invitation" to the Supreme Court to begin the process of declaring the death penalty in violation of the Eighth Amendment by "internalizing the global norm against execution of persons with mental retardation through a judicial process of constitutional adjudication ... [that] would give new energy to 'vertical' efforts to internalize international law norms into domestic constitutional law"). The quote in the title of the third article is from the Declaration of Independence's comment about paying "a decent respect to the opinions of mankind." See id. at 1087. The Declaration also refers to "the Laws of Nature and of Nature's God" and invokes the "Creator," but Koh does not cite them or argue for their role--either legal or rhetorical--in Establishment Clause issues.
(89.) See Abram Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281 (1976).
(90.) Koh, 1998 Frankel Lecture: Bringing International Law Home, supra note 88, at 676.
(92.) Brief of Amici Curiae Diplomats Morton Abramowitz et al. at 5-6, McCarver v. North Carolina, 548 S.E.2d 522 (N.C. 2001), cert. granted, 532 U.S. 941 (2001) (No. 00-8727), cert. dismissed, 533 U.S. 975 (2001), available at http://www.internationaljusticeproject.org/pdfs/ FormerUSDiplomatBrief.pdf (last visited Sept. 7, 2004). The Supreme Court dismissed certiorari in this case when North Carolina enacted a law forbidding execution of the mentally retarded and accepted all amici curiae briefs for Atkins.
(93.) See Brief of Amicus Curiae the European Union, McCarver v. North Carolina, 548 S.E.2d 522 (N.C. 2001), cert. granted, 532 U.S. 941 (2001) (No. 00-8727), cert. dismissed, 533 U.S. 975 (2001), available at http://www.eurunion.org/legislat/DeathPenalty/McCarverEUAmicusCuriaeBr.doc (last visited Sept. 7, 2004).
(94.) The Court in the 2002-2003 term also cited foreign law in Lawrence v. Texas, 539 U.S. 558 (2003), a case regarding sodomy.
(95.) Harold Hongju Koh, International Law as Part of Our Law, 98 AM. J. INT'L L. 43 (2004).
(96.) Id. at 53.
(97.) Id. at 56.
(98.) Id. at 47.
(99.) ICCPR, supra note 11, art. 6(5).
(100.) American Convention, supra note 9, art. 4(5).
(101.) Convention on the Rights of the Child, opened for signature Nov. 20, 1989, art. 37, 1577 U.N.T.S. 43, 28 I.L.M. 1448.
(102.) African Charter on the Rights and Welfare of the Child, entered into force Nov. 29, 1999, art. 5(3), OAU Doc. CAB/LEG/24.9/49 (1990), available at http://www.africa-union.org.
(103.) AMNESTY INTERNATIONAL, THE EXCLUSION OF CHILD OFFENDERS FROM THE DEATH PENALTY UNDER GENERAL INTERNATIONAL LAW 1, at http://www.amnestyusa.org/abolish/reports.html (July 2003).
(104.) Id. at 5.
(105.) Id. at 3.
(106.) Id. at 10.
(107.) For an extensive discussion of this issue, see Curtis A. Bradley, The Juvenile Death Penalty and International Law, 52 DUKE L.J. 485 (2002). Professor Bradley examines in detail and dismisses the claim that the juvenile death penalty is illegal under the ICCPR and under CIL. Id. Furthermore, he points out, even if it were illegal under the ICCPR and CIL, the United States has persistently objected to the norm and is therefore not bound. Id. at 516-35. He establishes that neither a treaty nor a CIL norm against the juvenile death penalty would be enforceable in a U.S. court. Id. at 550-56. He also examines in somewhat greater detail than I do below the question of the U.S. reservation to the ICCPR. Id. at 499-511.
(108.) 492 U.S. 361 (1989).
(109.) U.S. Reservations, Declarations, and Understandings, International Covenant on Civil and Political Rights, Reservation I(2), 138 Cong. Rec. S4781-01 (Apr. 2, 1992), available at http://www.unhchr.ch/html/menu3/b/treaty5_asp.htm.
(110.) SCHABAS, supra note 14, at 90.
(111.) See, e.g., Pablo Bachelet, Senate Votes to Deny Cuba Travel Ban funding, REUTERS, Oct. 23, 2003 (Senate votes to deny Administration funds to enforce ban on travel to Cuba); Joshua Partlow, Senate Votes to Deny Funding to Computer Surveillance Effort, WASHINGTON POST, July 19, 2003, at E01 (Senate votes to prohibit funds being used for Defense Department's Total Information Awareness project).
(112.) Petition for Writ of Certiorari to the Nevada Supreme Court, Domingues v. Nevada, 528 U.S. 963 (1999) (No. 98-8327), available at http://www.mhb.com/profiles/ford/cases/ford ... death.htm (last visited Feb. 20, 2004). Like other arguments on the death penalty and international law, this petition relies heavily for authority on non-binding political declarations, such as those of the U.N. Human Rights Commission, the Inter-American Commission on Human Rights, and the U.N. General Assembly, and on academic commentaries.
(114.) Brief for the United States as Amicus Curiae, Domingues v. Nevada, 528 U.S. 963 (1999) (No. 98-8327), available at http://www.usdoj.gov/osg/briefs/1999/2pet/6invit/98-8327.pet.ami .inv.html (last visited July 13, 2004).
(115.) Domingues v. Nevada, 528 U.S. 963 (1999). The activism continued, however, with Domingues petitioning the IACHR for a decision that the U.S. had violated international law. Refining its 1987 decision in Roach and Pinkerton v. United States, Case 9647, Inter-Am. C.H.R. 147, OEA/ser.L/V./II.71, doc. 9 rev. 1 (1987), which declared the existence of a jus cogens norm against juvenile executions but reached no consensus on a minimum age, the IACHR declared that in the years since that decision, the jus cogens norm had developed and now prohibited execution of any person under eighteen years of age. Domingues v. United States, Case 12.205, Inter-Am. C.H.R. 62, OEA/ser.L/V./II.117 (2002), available at http://www.iachr.org/annualrep/ 202eng/USA. 12285.htm (last visited July 13, 2004).
(116.) In re Stanford, 537 U.S. 968 (2002).
(117.) See supra Section II (A).
(118.) Roper v. Simmons, 112 S.W.3d 397 (Mo. 2003), cert. granted, 124 S. Ct. 1171 (2004).
(119.) Id. at 407, 410-12.
(120.) In re Stanford, 537 U.S. 968 (2002) (Stevens, J., dissenting from denial of cert.). Interestingly, Stevens did not cite foreign or international law or public opinion in his dissent.
(121.) FoxNews.com, O'Connor, in Speech, Blasts Death Penalty, Lawyer Fees and Zero Tolerance (July 1, 2001), at http://www.foxnews.com/story/0,2933,28675,00.html (last visited Sept. 7, 2004).
(122.) See Sandra Day O'Connor, Remarks at the Southern Center for International Studies (Oct. 23, 2003), at http://www.southerncenter.org/OConnor_transcript.pdf (last visited Mar. 21, 2004); see also Sandra Day O'Connor, Keynote Address at the American Society of International Law 96th Annual Meeting (Mar. 16, 2002), at http://www.humanrightsfirst.org/us_law/ inthecourts/ASIL_Keynote_Add_2002_just_O'Connor.pdf.
(123.) Soering v. United Kingdom, App. No. 3324/76, 11 Eur. H.R. Rep. 439 (1989).
(124.) Id. [paragraph] 111. Significantly, the ECJ ruled that the European Convention did not prohibit capital punishment per se, along the lines of the same logic in Section II supra regarding the ICCPR. The ECJ ruled that the protection of the "right to life" in the convention could not have banned capital punishment if another article of the same treaty assumed its permissibility and if a subsequent protocol was necessary specifically to eliminate it. Id. [paragraph] 103.
(125.) Pratt v. Attorney-General for Jamacia, 2 A.C. 1 (P.C. 1994) (appeal taken from Jamaica).
(126.) Lackey v. Texas, 514 U.S. 1045 (1995) (Stevens, J., respecting denial of cert.); Elledge v. Florida, 525 U.S. 944 (1998) (Breyer, J., dissenting from denial of cert.); Knight v. Florida, 528 U.S. 990, 993 (1999) (Breyer, J., dissenting from denial of cert.); Foster v. Florida, 537 U.S. 990 (2002) (Breyer, J., dissenting from denial of cert.). Note that in each of these cases, the time on death row was far more extensive, 17, 23, 24 and 19, and 27 years, respectively, than the ranges found unacceptable by the ECJ, 6 to 8 years, and the Privy Council, 5 years.
(127.) Knight, 528 U.S. at 990 (Thomas, J., concurring in denial of cert.).
(128.) The ICCPR also bans torture and cruel, inhuman, or degrading treatment or punishment, but, as noted above, the ICCPR is non-self-executing.
(129.) U.S. Reservations, Declarations, and Understandings, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Reservations I(1) and II(4), 136 Cong. Rec. S17486-01 (Oct. 27, 1990), available at http://wwwl.umn.edu/humanrts/usdocs/ tortres.html (emphasis added). The United States added a similar reservation to its ratification of the ICCPR. See supra note 109.
(130.) Kindler v. Canada,  2 S.C.R. 779. The main issue in the case was whether the Canadian government could extradite an accused murderer to the United States without assurances that he would not be executed. The court ruled that the government could do so, but split four to three, ld. It would likely not rule the same way today.
(131.) Vienna Convention, supra note 5, art. 36 states:
Communication and contact with nationals of the sending State
1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;
b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;
c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.
2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.
(132.) Avena and other Mexican Nationals (Mex. v. U.S.), 43 I.L.M. 581 (I.C.J. Mar. 31, 2004), available at http://www.icj-cij.org/icjwww/ idocket/imus/imusjudgment/imus_imusjudgment_20040331.pdf.
(133.) The following discussion and analysis is based on the per curiam opinion in Breard v. Greene, 523 U.S. 371 (1998) and Jonathan I. Charney & W. Michael Reisman, Agora: Breard: The Facts, 92 AM.J. INT'L. L. 666 (1998).
(134.) Breard, 523 U.S. 371.
(135.) Concerning the Vienna Convention on Consular Relations (Para. v. U.S.), 1998 I.C.J. 99 (Provisional Measures Order of Apr. 9).
(136.) Id. [paragraph] 41.
(137.) Breard, 523 U.S. at 376.
(138.) Id. at 375.
(139.) Id. at 376.
(141.) Id. at 377.
(142.) See id.
(143.) Breard, 523 U.S. at 378.
(144.) Id. The court also rejected a claim by the Paraguayan consul-general himself, since he was acting only in his official capacity. Id.
(145.) Charney & Reisman, supra note 133, at 672-73.
(146.) Id. at 672.
(147.) Id. at 671-72.
(148.) Id. at 672.
(149.) Id. at 674-75.
(150.) CNN.com, Paraguayan National Executed After Appeals Fail (Apr. 14, 1998), at http:// www.cnn.com/WORLD/americas/9804/14/paraguay.execution.11pm (last visited Apr. 9, 2004).
(151.) Press Release, International Court of Justice, Case Concerning the Vienna Convention on Consular Relations (Para. v. U.S.): Case Removed from the Court's List at Request of Paraguay (Nov. 11, 1998), at http://www.lawschool.cornell.edu/library/cijwww/icjwww/ipresscom/ iPress1998/ipr9836.htm.
(152.) See, e.g., Louis Henken, Agora: Breard: Provisional Measures, U.S. Treaty Obligations, and the States, 92 AM. J. INT'L L. 679, 681 (1998) (arguing that the ICJ order was binding on all parties in the United States--the Executive Branch, the Supreme Court, and the Governor of Virginia); Carlos Manuel Vazquez, Agora: Breard: Breard and the Federal Power to Require Compliance with ICJ Orders of Provisional Measures, 92 AM. J. INT'L L. 683, 685 (1998) (arguing that the federal government had the duty to intervene and the President should have issued an executive order preventing Breard's execution);Jordan Paust, Agora: Breard: Breard and Treaty-Based Rights Under the Consular Convention, 92 AM. J. INT'L L. 691, 694 (1998) (arguing, contra the Supreme Court, that the Vienna Convention does grant individual rights, rights to the consular officials, and rights to states in domestic courts); Lori Fisler Damrosch, Agora: Breard: The Justiciability of Paraguay's Claim of Treaty Violation, 92 AM. J. INT'L., L. 697, 700, 702 (1998) (arguing that states should be able to sue for redress of treaty violations in U.S. courts, that the Eleventh Amendment is not a bar to such suits, and that the Supreme Court should have given effect to the ICJ's provisional measures order in order to preserve the "important federal interest" of upholding the ICJ's authority in international disputes); Frederic L. Kirgis, Agora: Breard: Zschernig v. Miller and the Breard Matter, 92 AM. J. INT'L L. 704 (1998) (arguing that under Zschernig v. Miller states are not allowed to intrude on foreign affairs interests of the federal government, such as those involved in Breard); Anne-Marie Slaughter, Agora: Breard: Court to Court, 92 AM.J. INT'L L. 708 (1998) (arguing that the Supreme Court should have stayed Breard's execution as a matter of "judicial comity"). But see Curtis A. Bradley & Jack L. Goldsmith, Agora: Breard: The Abiding Relevance of Federalism to U.S. Foreign Relations, 92 AM. J. INT'L. L. 675, 679 (1998) (arguing that the political branches of the federal government should take state interests into account when determining the federal government's position on foreign relations).
(153.) See LaGrand v. Stewart, 133 F.3d 1253 (9th Cir. 1998), for the facts of the case.
(154.) LaGrand (F.R.G.v.U.S.), 40 I.L.M. 1069, [paragraph] 13 (I.C.J. June 27, 2001).
(157.) Id. [paragraph] 16.
(159.) Id. [paragraph] 22.
(160.) CNN.com, German Executed in Arizona, Legal Appeal Fails (Mar. 4, 1999), at http:// www.cnn.com/US/9903/04/arizona.execution.01 (last visited Apr. 9, 2004).
(161.) Federal Republic of Germany v. United States, 526 U.S. 111 (1999) (per curium opinion); id. at 112 (Souter and Ginsburg, JJ, concurring).
(162.) Id. at 112-13 (Breyer and Stevens, JJ, dissenting).
(163.) See LaGrand, 40 I.L.M. 1069, [paragraphs] 111-12.
(164.) Id. [paragraph] 128.
(165.) Id. [paragraph] 77.
(166.) ld. [paragraph] 102.
(167.) Id. [paragraphs] 90-91.
(168.) Id. [paragraph] 125. A separate statement by the president of the court, Gilbert Guillaume, indicated that such was the appropriate remedy for citizens of other countries, even though the case specifically applied only to Germans. Id. (declaration of President Guillaume).
(169.) Id. [paragraphs] 114-15.
(170.) See id. [paragraph] 77. One of the concurring opinions and the dissenting opinion similarly criticized the court's reasoning. See id. (separate opinion of Judge Shi), [paragraphs] 5-8, 15; id. (dissenting opinion of Judge Oda), [paragraphs] 23-25.
(171.) Vienna Convention, supra note 5, art. 36 (emphasis added).
(172.) Id. at pmbl.
(173.) Indeed, one of the judges admitted that he disagreed with much of the court's reasoning but still voted with the majority because this was a death penalty case. LaGrand, 40 I.L.M. 1069 (separate opinion of Judge Shi), [paragraph] 17.
(174.) The dissenting judge found the majority's discussion of this issue "vain and unproductive." Id. (dissenting opinion of Judge Oda), [paragraph] 33.
(175.) LaGrand, 40 I.L.M. 1069, [paragraph] 100.
(178.) Id. [paragraphs] 102-03.
(179.) Id. [paragraph] 106.
(180.) Id. [paragraph] 104.
(181.) LaGrand, 40 I.L.M. 1069, [paragraph] 107.
(183.) Id. [paragraphs] 90-91.
(184.) Id. [paragraph] 90.
(185.) Id. [paragraphs] 52.
(186.) PETER MALANCZUK, AKEHURST'S MODERN INTRODUCTION TO INTERNATIONAL LAW 270-71 (7th ed. 1997).
(187.) SeeLaGrand, 40 I.L.M. 1069, [paragraph] 121.
(188.) Id. [paragraphs] 119, 125.
(189.) Id. [paragraph] 122.
(190.) Id. [paragraph] 125.
(192.) Christian J. Tams, Consular Assistance and Rights and Remedies: Comments on the ICJ's Judgment in the LaGrand Case, 13 EUR. J. INT'L L. 1257, 1275 (2002), at http://www.ejil.org/journal/ Vol13/No5/srl.pdf.
(193.) Commentaries to the Draft Articles on Responsibility of States for Internationally Wrongful Acts, U.N. GAOR, 56th Sess., Supp. No. 10, at 221-222, U.N. Doc. A/56/10 (2001).
(194.) Id. at 222.
(195.) Id. at 221.
(196.) LaGrand, 40 I.L.M. 1069, [paragraphs] 111-14.
(197.) Id. [paragraph] 111.
(198.) Id. [paragraph] 115.
(199.) See id.
(200.) For more on monism and dualism, see Curtis Bradley, Breard, Our Dualist Constitution, and the Internationalist Conception, 51 STAN. L. REV. 529, 531 (1999) (noting, inter alia, that monism has experienced a recent revival among international law academics, while U.S. courts, including the Supreme Court in Breard, are firmly dualist).
(201.) Id. at 530 ("The monist view is that international and domestic law are part of the same legal order, international law is automatically incorporated into each nation's legal system, and international law is supreme over domestic law.").
(202.) See id.
(203.) See id. at 531.
(204.) Some commentators argue that the president should have invoked his authority under the Constitution to see that the laws (i.e., the Vienna Convention) were faithfully executed and liken the case to previous exercises of presidential authority, such as those at issue in Dames & Moore v. Regan, in which President Reagan ordered the suspension of lawsuits against Iran in order to ensure the conclusion of an agreement with Iran on the creation of the U.S.-Iran Claims Tribunal. See, e.g., Vazquez, supra note 152, at 684-85, 690.
(205.) The court should not be confused with the Inter-American Commission on Human Rights. The court is organized under the American Convention, to which, as noted above, the United States is not a party, while the Commission is organized under the American Declaration, to which the United States is a party but which is not legally binding. For more information, see Inter-American Commission on Human Rights, Basic Documents--Introduction, at http:// www.cidh.org/basicos/basicl.htm (last visited Feb. 19, 2004).
(206.) The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion OC-16/99, Inter-Am. Ct. H.R. (ser A) No. 16, [paragraph] 137 (1999), http://www.corteidh.or.cr/ serie_a_ing/serie_a_16_ing.doc.
(207.) See, e.g., Martinez-Villareal v. United States, Case 11.753, Inter-Am. C.H.R. 821, OEA/ Ser.L/V/II.117, doc. 1 rev. 1 (Merits) (Oct. 10, 2002) (detailing history of case going back to 1997, including issuance of provisional measures order).
(208.) AMNESTY INTERNATIONAL, a TIME FOR ACTION--PROTECTING THE CONSULAR RIGHTS OF FOREIGN NATIONALS FACING THE DEATH PENALTY (2001), at http://www.amnesty.org.
(209.) Application Instituting Proceedings, Avena and other Mexican Nationals (Mex. v. U.S.) (I.C.J. Jan. 9, 2003), available at http://www.icj-cij.org/icjwww/idocket/imus/imusorder/ imus_iapplication_20030109.pdf.
(210.) Avena and other Mexican Nationals (Mex. v. U.S.), 42 I.L.M. 309 (I.C.J. Order, Request for Indication of Provisional Measures of Feb. 5, 2003), available at http://www.icj-cij.org/icjwww/ idocket/imus/imusorder/imus_iorder_20030205.pdf.
(211.) Memorial of Mexico, Arena and other Mexican Nationals (Mex. v. U.S.), [paragraph] 407 (I.C.J. June 20, 2003), available at http:/ /www.icj-cij.org/icjwww/idocket/imus/imusframe.htm.
(213.) Counter-Memorial of the United States, Avena and other Mexican Nationals (Mex. v. U.S.), [paragraph] 7.8 (I.C.J. Nov. 3, 2003), available at http://www.icj-cij.org/icjwww/idocket/imus/ imusframe.htm.
(214.) Id. [paragraph] 7.10.
(215.) Id. [paragraph] 7.11.
(216.) See id. [paragraph] 7.12.
(217.) Id. [paragraph] 7.15.
(218.) See LaGrand, 40 I.L.M. 1069, [paragraph] 125.
(219.) Counter-Memorial of the United States, supra note 213, [paragraph] 6.63.
(220.) LaGrand, 40 I.L.M. 1069, [paragraphs] 90, 125.
(221.) Counter-Memorial of the United States, supra note 213, [paragraphs] 6.63, 6.35.
(222.) Id. [paragraph] 4.15.
(223.) Id. [paragraph] 1.20.
(224.) See id. [paragraph] 1.12.
(225.) See, e.g., Memorial of Mexico, supranote 211, [paragraphs] 317-30.
(226.) Counter-Memorial of the United States, supranote 213, [paragraph] 6.86.
(227.) Avena and other Mexican Nationals (Mex. v. U.S.), 43 I.L.M. 581 (I.C.J. Mar. 31, 2004), available at http://www.icj-cij.org/icjwww/idocket/imus/imusjudgment/imus_imusjudgment _20040331.pdf.
(228.) Id. [paragraph] 121.
(229.) Id. [paragraph] 123.
(230.) Id. [paragraph] 122.
(231.) Id. [paragraph] 124.
(232.) Id. [paragraph] 150.
(233.) Id. [paragraph] 138.
(234.) Id. [paragraph] 143.
(235.) United States v. Emuegbunam, 268 F.3d 377 (6th Cir. 2001); United States v. Jimenez-Nava, 243 F.3d 192, 198 (5th Cir. 2001).
(236.) United States v. Li, 206 F.3d 56, 60 (1st Cir. 2000) (suppression of evidence and dismissal of indictment not remedies for Vienna Convention violation); United States v. De La Pava, 268 F.3d 157, 163 (2d Cir. 2001) (dismissal of indictment not a remedy for Vienna Convention violation); United States v. Page, 232 F.3d 536, 540 (6th Cir. 2000) (suppression of evidence and dismissal of indictment not remedies for Vienna Convention violation); United States v. Chaparro-Alcantara, 226 F.3d 616, 621-22 (7th Cir. 2000) (suppression of evidence not a remedy for Vienna Convention violation); United States v. Ortiz, 315 F.3d 873, 886-87 (8th Cir. 2002) (suppression of evidence and preclusion of death penalty not remedies for Vienna Convention violation); United States v. Lombera-Camorlinga, 206 F.3d 882, 885 (9th Cir. 2000) (en banc) (suppression of evidence not a remedy for Vienna Convention violation); United States v. Cordoba-Mosquera, 212 F.3d 1194, 1195-96 (11th Cir. 2000) (per curiam) (exclusion of evidence, dismissal of indictment, and vacation of sentence not remedies for Vienna Convention violation); United States v. Duarte-Acero, 296 F.3d 1277, 1284 (11th Cir. 2002) (dismissal of indictment not a remedy for Vienna Convention violation).
(237.) See, e.g., Li, 206 F.3d at 62 ("[I]t is far from clear that the Vienna Convention confers any rights upon criminal defendants."); id. at 67 (Selya and Boudin, JJ, concurring) (The Vienna Convention "contain[s] no explicit language conferring on private citizens rights enforceable in court, and there is nothing in the character of the subject matter that compels (or even suggests) an inference in favor of private rights."); De La Pava, 268 F.3d at 164 (Although the Supreme Court in Breard left it open, "[a] s a general matter, however, there is a strong presumption against inferring individual rights from international treaties."); Duarte-Acero, 296 F.3d at 1281 C[T]he Vienna Convention itself disclaims any intent to create individual rights.").
(238.) See Emuegbunam, 268 F.3d 377. A panel of the Ninth Circuit did find an individual right under article 36 in Lombera-Camorlinga, but the decision was reversed by an en banc panel that decided the case without addressing that issue. Lombera-Camorlinga, 206 F.3d at 885.
(239.) Emuegbunam, 268 F.3d at 394.
(241.) United States ex rel Madej v. Schomig, 223 F. Supp. 2d 968 (N.D. Ill. 2002).
(242.) United States ex rel Madej v. Gilmore, No. 98 C 1866, 2002 WL 370222 (N.D. Ill. Mar. 8, 2002).
(243.) Schomig, 223 F. Supp. 2d at 979.
(245.) Id. The district court's argument finds some support in the Restatement of Foreign Relations Law (Third), which states that courts interpreting international law should give "particular attention" to the decisions of international tribunals. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW [section] 112(1) (1987). Nevertheless, the Restatement affirms that decisions of the Supreme Court on international law are "conclusive." Id. [section] 112 (2). This is probably why the court chose to read Breard narrowly. Furthermore, as the Restatement points out, the interpretation of international law by the Executive Branch must be given weight, as the courts in other cases on the Vienna Convention, including the Supreme Court, have also noted. Id. [section] 112 cmt. c.
(246.) Schomig, 223 F. Supp. 2d. at 980.
(247.) Id. Madej's counsel had failed to put on evidence of childhood abuse at the sentencing hearing.
(248.) United States ex rel Madej v. Schomig, No. 98 C 1866, 2002 WL 31386480, at *1 (N.D. Ill. Oct. 22, 2002).
(249.) See discussion of dualism and monism supra Section IV.B.
(250.) Petition for Writ of Certiorari to the Texas Court of Criminal Appeals, Suarez Medina v. Texas, 536 U.S. 979 (2002) (No. 02-5752), available at http://www.internationaljusticeproject.org/ briefs.cfm#briefs. Suarez was executed on August 14, 2002. Mexican President Vicente Fox cancelled a trip to visit President Bush in protest. Mexico had filed an amicus brief asking the court to review the case as well, which was signed by 13 other countries. Mary Robinson, then-U.N. Commissioner for Human Rights, also called for a stay of execution and for a review of the case. BBC News, Mexico's Fox Cancels Texas Trip (Aug. 15, 2002), available at http://news.bbc.co.uk/1/ hi/world/americas/2194566.stm.
(251.) Torres v. Mullin, 124 S. Ct. 562 (2003).
(252.) Torres, 124 S. Ct. at 919 (Stevens, J., dissenting from denial of cert.).
(253.) Torres, 124 S. Ct. at 562 (Breyer, J., dissenting from denial of cert.).
(254.) See generally Ruth Bader Ginsberg, Looking Beyond Our Borders: The Value of a Comparative Perspective in Constitutional Adjudication, 40 IDAHO L. REV. 1 (2003); Stephen Breyer, The Supreme Court and the New International Law, Remarks at the American Society of International Law 97th Annual Meeting, Apr. 4, 2003, in 97 AM. Soc. INT'L L. PROC. 265 (2003), available at http:// www.aclu.org/hrc/JudgesPlenary.pdf.
(255.) See, e.g., Anne-Marie Slaughter, Judicial Globalization, 40 VA. J. INT'L L. 1103, 1124 (2000). Slaughter notes that judicial globalization requires
recognition of participation in a common judicial enterprise, independent of the content and constraints of specific national and international legal systems. It requires that judges see one another not only as servants or even representatives of a particular government or polity, but as fellow professionals in a profession that transcends national borders. This recognition is the core of judicial globalization, and judges, like the litigants and lawyers before them, are coining to understand that they inhabit a wider world.
(256.) Lawrence v. Texas, 123 S. Ct. 2472, 2495 (2003) (Scalia, J., dissenting) (quoting Foster v. Florida, 537 U.S. 990 n. (2002) (Thomas, J., concurring in denial of cert.)).
(257.) See Kathleen Flynn, Feinstein Decries Mexico's Extradition Policy, COPLEY NEWS SERVICE, Dec. 8, 2003, available at http://www.signonsandiego.com/news/mexico/20031208-1736-cnsextradite.html.
(258.) EUROPEAN UNION, EU MEMORANDUM ON THE DEATH PENALTY, available at http:// www.eurunion.org/legislat/deathpenalty/eumemorandum.htm (last visited Feb. 18, 2004).
(259.) See Support for the Death Penalty Remains High at 74%, GALLUP POLL NEWS SERVICE, May 19, 2003, available at http://www.gallup.com/content/default.asp?ci=8419&pg=1.
(260.) See Roger P. Alford, Misusing International Sources to Interpret the Constitution, 98 AM. J. INT'L L. 57 (2004).
(261.) Id. at 66.
(262.) See id. at 67-68.
(263.) Michael D. Ramsey, International Materials and Domestic Rights: Reflections on Atkins and Lawrence, 98 AM. J. INT'L L. 69 (2004).
(264.) Id. at 73.
(266.) Id. at 78.
(268.) Id. at 79.
(270.) Jed Rubenfeld, Two World Orders, WILSON Q., Autumn 2003, at 23, 28. Rubenfeld states,
International constitutionalism contemplates a constitutional order embodying universal principles that derive their authority from sources outside national democratic processes and that constrain national self-government. American or democratic national constitutionalism, by contrast, regards constitutional law as the embodiment of a particular nation's democratically self-given legal and political commitments Hence, it requires that a nation's constitutional law be made and interpreted by that nation's citizens, legislators, and judges.
(271.) Id. at 34.
LAURENCE E. ROTHENBERG, Attorney-Advisor, U.S. Department of Justice. B.A. Amherst College (1991), M.A.L.D., Fletcher School of Law and Diplomacy, Tufts University (1995), J.D., Harvard Law School (2001). An earlier version of this paper appeared on the joint Federalist Society-American Enterprise Institute NGO Watch Project website, www.NGOwatch.org. The opinions in this Article are solely those of the author. Thanks to Brian Gottesman and Brian Hooper for their research assistance and to Avi Bell, Mark Chenowith, Brian Hook, Grace McMillan, and the staff of the Georgetown Journal of International Law, in particular Graeme Smyth, for their editorial suggestions.
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|Author:||Rothenberg, Laurence E.|
|Publication:||Georgetown Journal of International Law|
|Date:||Mar 22, 2004|
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