International law, the United States of America and capital punishment.
A year later, Germany produced a similar claim before the Court. This time, there was a finding against the United States, based upon its failure to comply with an order from the Court that the execution be stayed during the international proceedings and that the United States had violated the VCCR. (3) Mexico then followed suit, invoking the rights of fifty-four of its citizens on death row in the United States. One of those individuals was Jose Ernesto Medellin. Mexico was successful at the ICJ, (4) but for complex reasons involving the relationship between international law and the courts of the United States, the protection of Medellin's rights as affirmed by the World Court has not been a straightforward matter.
The Medellin case before the courts of Texas and the Supreme Court of the United States, like the three ICJ cases filed by Paraguay, Germany and Mexico, concerns a cluster of issues involving due process, treaty interpretation, and the implementation of international law at the domestic level. But the litigation has also taken on considerable importance among governments, scholars and human rights activists for whom the abolition of capital punishment is a primary and possibly paramount concern. Indeed, most casual observers would probably consider that the U.S. practice of capital punishment is at the core of these disputes, and they would be surprised to note its virtual absence in the pleadings. The late Joan Fitzpatrick, writing about the German application at the ICJ, said it "is, and at the same time is not, a death penalty case." (5) Certainly, nobody can have much doubt that the issue of capital punishment was relevant to the decisions by Paraguay, Germany and Mexico when they chose to challenge the United States in the ICJ. Presumably, all three states have nationals serving lengthy prison sentences in non-capital cases in the United States, but they do not appear to have ever seriously contemplated taking action based on the VCCR in such cases.
Nevertheless, the German foreign ministry apparently gave strict instructions to its counsel in the LaGrand case that they were to avoid making an issue of capital punishment. Berlin's opposition to capital punishment as practiced by the United States is well known, and had figured in diplomatic exchanges both before (6) and after (7) filing of the application before the ICJ. West Germany abolished the death penalty in 1949 and, since then, has been at the forefront of international efforts to condemn the practice. (8) In the provisional measures order, the ICJ observed carefully that the case did not concern "the entitlement of the federal states within the United States to resort to the death penalty for the most heinous crimes." (9) Only Judge Oda spoke to the point, somewhat indirectly, noting in his individual opinion that "if Mr. Walter LaGrand's rights as they relate to humanitarian issues are to be respected then, in parallel, the matter of the rights of victims of violent crime (a point which has often been overlooked) should be taken into consideration." (10)
Although the issue of capital punishment has also remained on the periphery of the Mexican cases, materials filed by the Mexican government before the ICJ refer in some detail to abuses that take place in the practice of the death penalty within the United States. In its application in Case Concerning Avena, Mexico alluded to the issue when it justified its intervention explaining that the consular function "can make the difference between life and death for Mexican nationals prosecuted for capital crimes." (11) It noted:
Particularly in capital cases, given the gravity of the penalty at stake and the crucial need for competent defence counsel, Mexico instructs its consular officers to monitor and support counsel's efforts, to communicate regularly with the defendant and his relatives, and to attend judicial proceedings. Often, Mexican consular officers provide funds and logistical support to assist defence counsel in capital cases by helping to gather evidence, thoroughly investigating the facts, and obtaining expert testimony. If necessary, Mexico attempts to secure more qualified defence counsel for its nationals. Mexico's established policy, in a word, is to provide extensive, meaningful assistance to its nationals prosecuted for capital offences. (12)
Mexico explained that in September 2000, it had formed the Mexican Capital Legal Assistance Program, whose purpose is to enhance the ability of Mexican consular officers to assist capital defendants. (13) Attorneys for the project, according to Mexico, "played a decisive role in preventing the imposition of the death penalty in 27 cases ... Often, program attorneys have raised claims and emphasized issues of international law that would otherwise have been overlooked by defence counsel inexperienced in representing foreign nationals." (14)
In its memorial, Mexico explained that the fair trial guarantees that Article 36 of the VCCR seeks to protect apply "with special force in capital proceedings, which, given the irreversible character of the death penalty, require the most rigorous enforcement of procedural safeguards." (15) Mexico's memorial also made significant reference to academic studies opposed to capital punishment in the United States, including those demonstrating a danger of racial bias in imposition of the death penalty, something Mexico said was a genuine concern for its nationals. (16)
The link between fair trial issues and the question of capital punishment per se is an important one in international human rights law. In a 1999 Advisory Opinion, the Inter-American Court of Human Rights (Inter-American Court) insisted that failure to respect the right to information about consular assistance, as enshrined in the VCCR would prejudice the due process rights of foreign nationals. In circumstances where the death penalty was threatened, this could thereby violate the human right not to be deprived of life arbitrarily. (17) Although the UN Human Rights Committee (UNHRC) has not addressed the VCCR directly, its case law frequently insists that a violation of the right to a fair trial in a capital case also amounts to a threatened breach of the right to life. (18) The Inter-American Commission on Human Rights (IACHR) has made similar pronouncements in a series of cases concerning failure to respect Article 36 of the VCCR in death penalty cases. (19)
Capital punishment has been an issue in international law since the beginning of the UN. In fact, even before the UN began to address the question in the context of elaborating its initial human rights instruments, the death penalty manifested itself in extradition treaty provisions by which states made mutual legal assistance and especially extradition conditional on assurances not to impose the death penalty. (20) The U.S. government is regularly engaged by international law with respect to capital punishment. Avena and Medellin are only among the most recent examples in a thick and clearly ongoing dossier. This article reviews the capital punishment debate in international law as it has specifically concerned the United States.
I. ELEANOR ROOSEVELT AND THE UNIVERSAL DECLARATION OF HUMAN RIGHTS
Within the UN system, the first important discussions of the issue of capital punishment took place in 1947 and 1948, in the context of the drafting of the Universal Declaration of Human Rights (Universal Declaration). A central figure in that process was Eleanor Roosevelt, who represented the United States in the Commission on Human Rights (UNCHR), a body of which she was elected chair. She also headed the U.S. delegation to the Third Committee of the General Assembly, where the final draft of the Universal Declaration was debated before its final adoption in the plenary assembly on 10 December 1948. (21) As a "common standard of achievement," to borrow the words of its preamble, the Universal Declaration set a benchmark of fundamental norms. It was largely based upon national constitutions in force at the time of its adoption, including the U.S. Bill of Rights. Nevertheless, the drafters of the Universal Declaration went beyond mere codification and engaged in a process of progressive lawmaking. The success of their endeavor is evidenced by reference to the Universal Declaration in more recent unanimous human rights resolutions of the UN General Assembly, such as, the Helsinki Final Act, (22) the Vienna Declaration and Program of Action, (23) and a range of widely-ratified human rights treaties. (24) Sixty years after its adoption, the Universal Declaration retains all of its relevance. We now quarrel only about its interpretation.
The Universal Declaration makes no mention of the death penalty. It does, however, enshrine the protection of the right to life in Article 3: "Everyone has the right to life, liberty and security of person." (25) As far back as 1942, U.S. State Department officials had given consideration to an international bill of rights as part of their scheme for the post-war UN organization. A draft of the Universal Declaration, based on the American Bill of Rights, the French Declaration des droits de l'homme et du citoyen, the English Bill of Rights, the post-World War I minority treaties, and the 1929 declaration of the Institut de Droit International, was prepared. It included guarantees of equality before the law with respect to "life, liberty, property, enterprise and employment" and stated that nobody could be deprived of life without due process. (26) Some states pushed for the inclusion of a declaration of rights within the Charter of the UN, but the San Francisco Conference decided to leave this to the future UNCHR, which was established in accordance with Article 68 of the Charter.
In preparation for the June 1947 meeting of the Commission's Drafting Committee, of which Eleanor Roosevelt was a member, the Secretariat of UNCHR submitted a working text consisting of a preamble and forty-eight articles. (27) The provision on the right to life proposed by the Secretariat recognized the death penalty as the sole exception to the right to life: "Everyone has the right to life. This right can be denied only to persons who have been convicted under general law of some crime to which the death penalty is attached." (28) The accompanying annotations (29) explained that this provision was drawn from the various proposals submitted, including that of the United States of America, as well as relevant texts from national constitutions. Plainly, the original model for the provision was the Fifth Amendment to the U.S. Constitution. In anticipation of the Drafting Committee session scheduled for June 1947, the United States produced a new proposal in which the death penalty was presented as an exception to the right to life. (30)
In the Drafting Committee, Eleanor Roosevelt commented that there was a movement underway in some states to abolish the death penalty. She suggested that it might be better not to use the term "death penalty" in the Universal Declaration. (31) Her views found support from the Soviet delegate, who argued that the UN should not in any way signify approval of the death penalty. (32) Rene Cassin of France cautioned that even countries which had no death penalty must take into account the fact that some are in the process of abolishing it. (33) The Drafting Committee settled on the following provision: "Every human being has the right to life, to personal liberty and to personal security." (34)
The text on the right to life agreed to by the Drafting Committee in June 1947 was adopted without significant change as Article 3 of the final version of the Universal Declaration, eighteen months later. (35) On its face, it appears to be neutral on the subject of capital punishment. In the Third Committee of the General Assembly there was a sharp and rather protracted debate, prompted by a Soviet amendment calling for an explicit rejection of capital punishment in peacetime. (36) During the exchanges, Eleanor Roosevelt said that the Third Committee was not attempting to write criminal law, and that the Universal Declaration was not the place for the issue of capital punishment. (37) The fact that the Soviet Union had proposed the abolitionist amendment, and that these were early days in the Cold War, did not exactly encourage a balanced and objective discussion of capital punishment or, for that matter, any other burning issue in the draft Universal Declaration. The United States voted against the Soviet Amendment, which was rejected by twenty-one to nine, with eighteen abstentions. (38) The United States voted in favor of the final text of Article 3, (39) as it did on the Universal Declaration as a whole.
II. THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
When the UNCHR began work on the Universal Declaration, it was also charged with preparing a second text, known then as "the covenant," which was to be a binding treaty. Work on this instrument proved more difficult than the Universal Declaration, and the final version was not adopted until 1966. (40) In the early 1950s, the United States led a campaign to exclude economic, social and cultural rights, which had been included in the Universal Declaration, from the text of "the covenant." Eventually, a compromise resulted in two treaty texts, (41) which became the International Covenant on Civil and Political Rights (42) (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). (43) Article 6 of the ICCPR consists of a detailed provision dealing with capital punishment as an exception to the right to life. After affirming generally that no one shall be "arbitrarily" deprived of life, the ICCPR admits that "[i]n countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime ... pursuant to a final judgment rendered by a competent court." (44) It may not be imposed on pregnant women or offenders who were under eighteen at the time of the crime. (45) The provision concludes with a signal of its abolitionist orientation: "Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant." (46) The United States ratified the ICCPR in 1992, but with a reservation to Article 6.
Drafting of Article 6 can be divided into two phases, the first by the UNCHR from 1947 to 1954, and the second by the Third Committee of the General Assembly from 1954 to 1966. The United States withdrew from the entire process in 1953 and did not, therefore, contribute to crafting the final text in the General Assembly and its Third Committee. (47) At the earliest stages of preparation of the ICCPR, in the 1948 Drafting Committee session of the UNCHR, the United States suggested that the right to life provision take a form virtually identical to the formulation of the right to life in the Fifth Amendment to the U.S. Constitution. (48) But, after a discussion on the phrase "due process of law," the U.S. delegate agreed to its replacement with "save in execution of the sentence of a court." The United Kingdom argued strongly for a provision that enumerated detailed exceptions to the right to life. The United States preferred a more general text, where life would be protected against "arbitrary" deprivation, and those interpreting the provision would determine what exceptions might be permitted. Eleanor Roosevelt criticized the United Kingdom draft for accentuating the limitations to the right to life. (49) Such a list of exceptions only drew attention to the limitations, at the expense of the right itself, she noted. "Had the Commission nothing better to do than to declare that it saw no objection in killings resulting from legitimate acts of war?" she said. (50) The U.S. approach was rejected initially. (51) An advisor to the American delegation, James Simsarian, later explained that members of the UNCHR "were not familiar with the substantive and procedural safeguards which have developed in American law around the concept of 'due process of law' in the Fifth and Fourteenth Amendments of the U.S. Constitution, and accordingly they were not willing to accept this proposal of the United States." (52)
In the sixth session of the Commission, in 1949, the United States proposed merging paragraphs 2 and 3 of draft Article 5 so as to create a single provision dealing with the specific issue of capital punishment. (53) The delegates agreed it should include a "due process" protection where the death penalty was being imposed. The U.S. amendment was put to a vote in four parts and adopted in its entirety. (54) The U.S. proposal is very clearly the ancestor of Article 6(2) of the final version of the ICCPR.
The text was reworked during the eighth session of the UNCHR. The United States and Chile proposed adding the word "arbitrarily" to paragraph 1, (55) something Eleanor Roosevelt said "filled a gap." (56) The amendment was adopted. (57) The American approach to the right to life, which employed the term "arbitrarily," had definitively triumphed over the United Kingdom's approach, which used the term "intentionally." The United Kingdom and its allies did not abandon the point, however, and renewed the proposals several years later in the Third Committee of the General Assembly, when the United States no longer participated in discussions, although with no more success than in the Commission. The United States abstained in the final vote in the Third Committee of the General Assembly on Article 6 of the ICCPR. (58)
Eventually, the United States began moves to return to the fold of UN human rights treaties. In 1977, President Jimmy Carter signed the ICCPR, but never succeeded in taking it a step further to ratification. (59) The United States ratified the Covenant in 1992, but with a controversial reservation to Article 6 concerning capital punishment. (60) Eleven States parties to the ICCPR objected to the reservations by the United States. In its reservation to Article 6 of the ICCPR, the United States reserved the right to impose capital punishment on any person, pursuant to any existing or future law, subject only to its own constitutional constraints. What amounts to a blanket reservation includes one exception, pregnant women, whom the United States undertakes not to execute. For greater precision, probably because it has been the source of much criticism, the United States specifically mentioned that it reserved the right to impose the death penalty for crimes committed under the age of eighteen. The United States also formulated a reservation to Article 7 of the ICCPR, intended to avoid the precedent established by the European Court of Human Rights (ECtHR) in the case of Soering v. United Kingdom, (61) as the comments submitted by President Bush to Congress made clear. (62) A similar condition, known as "the Soering understanding," (63) accompanied ratification of the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. (64)
When the United States presented its initial report on compliance with the ICCPR to the UN Human Rights Committee (UNHRC), in 1995, there was substantial criticism of the reservation to Article 6. The UNHRC affirmed that at least some elements of the reservations dealing with the death penalty were "incompatible with the object and purpose of the Covenant." (65) The Committee considered that the reservations to Article 6(5) (but not to Article 6 as a whole) and to Article 7 should be held to be invalid. Although the Committee said it was "concerned about the excessive number of offences punishable by the death penalty in a number of States," it does not pronounce itself on this aspect of the reservation. (66) The Committee had already hinted at its attitude late the previous year when it adopted a "General Comment" on reservations. (67) The United States, as well as France and the United Kingdom, submitted statements contesting the legal reasoning of the "General Comment." (68)
It seems clear enough that the reservation was primarily intended to shelter the United States from complaints concerning the juvenile death penalty. The reservation was presented in this fashion to the UNHRC in the initial report of the United States. (69) With the U.S. Supreme Court ruling in Roper v. Simmons, (70) declaring the juvenile death penalty unconstitutional, this was in principle no longer an issue for the United States. (71) Predictably, when the United States presented its second and third periodic reports to the UNHRC, in 2006, members invited the United States to withdraw the reservation. But the U.S. delegation declared that it had no intention of withdrawing the reservation. In a document filed with the Committee, the United States said:
This reservation remains in effect, and the United States has no current intention of withdrawing it. We note, as a courtesy to the Committee, that U.S. judicial decisions, independent of any obligation of the United States under the Covenant, recently have tightened restrictions on the death penalty in the United States. In Roper v. Simmons, 543 U.S. 551 (2005), the U.S. Supreme Court held that imposition of capital punishment on those who were under 18 years of age at the time of the offense violates the U.S. Constitution's Eighth Amendment protection against cruel and unusual punishment. Although the decision in the Roper case does not change the formal scope of the U.S. treaty reservation to Article 6(5), the effect of the decision is that the United States, as a matter of its own constitutional law, will not execute persons who were below the age of 18 years at the time of the offense. Thus, while the last sentence in the above-referenced reservation preserves the discretion of the United States under the Covenant to impose the death penalty "for crimes committed by persons below eighteen years of age," the fact is that the United States does not do so. (72)
Presenting the report to the UNHRC in public session, one of the U.S. representatives said: "The reservation to Article 6 (5) had not been withdrawn since only a small section of that reservation involved the juvenile death penalty. It could not therefore be withdrawn in its entirety. Moreover, it was difficult and highly unusual to withdraw reservations in United States practice." (73) The report also said: "The United States had filed a reservation to Article 6 of the Covenant and any discussion with the Committee on issues pertaining to the death penalty, albeit important, had no legal validity." (74) That the United States viewed the reservation as going well beyond juvenile executions was a point that did not seem to register with the UNHRC. In its concluding observations, it "reiterate[d] the recommendation made in its previous concluding observations, encouraging the State party to withdraw its reservation to Article 6(5) of the Covenant." (75) But the U.S. delegation had a point. The reservation declares that the United States reserves the right to impose the death penalty "including" the case of crimes committed under the age of eighteen which makes it quite clear that much more is contemplated. The intention to give a broad scope to the reservation is also evidenced in the explanation submitted by the Bush administration to the Senate. It noted in particular "the sharply differing view taken by many of our future treaty partners on the issue of the death penalty (including what constitutes 'serious crimes' under Article 6(2))." (76)
The United States has not ratified the Optional Protocol to the ICCPR, (77) and as a result it is not subject to the individual petition mechanism before the UNHRC. However, death penalty issues within the United States have been addressed indirectly by the Committee in petitions directed against Canada concerning extradition or deportation of individuals to the United States in cases where they might be exposed to the death penalty. In two cases, the petitions directed against Canada were dismissed, the Committee holding that because the ICCPR did not prohibit the death penalty Canada was under no obligation to insist upon assurances from the United States. (78) A decade later, the UNHRC reversed itself, holding that Canada breached Article 6(1) of the ICCPR, because it deported a criminal to the United States without requiring an assurance the death penalty would not be imposed. The Committee explained that Article 6(2), which allows the death penalty in some circumstances, only applies to states that have not yet abolished the death penalty. Canada abolished the death penalty for all crimes in 1998, and the Committee said that as a result it could not avail itself of Article 6(2) of the ICCPR. (79) No particular pronouncement was made, however, on the specifics of application of the death penalty in the United States, and it was never suggested that the United States violated the ICCPR by the mere fact of imposition of capital punishment.
The practice of the death penalty in the United States was found by the UNHRC to be contrary to Article 7 of the ICCPR when Charles Ng successfully argued that use of the gas chamber might expose him to torture or cruel, inhuman and degrading treatment or punishment. Ng was extradited to the United States by Canada without guarantees that the death penalty would not be imposed. The UNHRC said:
In the present case, the author has provided detailed information that execution by gas asphyxiation may cause prolonged suffering and agony and does not result in death as swiftly as possible, as asphyxiation by cyanide gas may take over ten minutes. The State party had the opportunity to refute these allegations on the facts; it has failed to do so. Rather, the State party has confined itself to arguing that in the absence of a norm of international law which expressly prohibits asphyxiation by cyanide gas, "it would be interfering to an unwarranted degree with the internal laws and practices of the United States to refuse to extradite a fugitive to face the possible imposition of the death penalty by cyanide gas asphyxiation." In the instant case and on the basis of the information before it, the Committee concludes that execution by gas asphyxiation, should the death penalty be imposed on the author, would not meet the test of "least possible physical and mental suffering," and constitutes cruel and inhuman treatment, in violation of Article 7 of the Covenant.... The Committee need not pronounce itself on the compatibility, with Article 7, of methods of execution other than that which is at issue in this case. (80)
With respect to method of execution, Canada had contended that "none of the methods currently in use in the United States is of such a nature as to constitute a violation of the Covenant or any other norm of international law." (81)
In Kindler v. Canada the UNHRC had dismissed an argument that execution by lethal injection violated Article 7, but noted that the applicant had not adduced evidence on this issue. (82) Subsequently, in Cox v. Canada, (83) it rejected the argument by citing Kindler. In Cox there was substantial evidence presented to the Committee of suffering during execution by injection. An affidavit, supplied by Professor Michael Radelet, then of the University of Florida, an authority on the subject, described several "botched" executions using lethal injection. Canada argued that death by lethal injection could not be inhuman, because it was the same method proposed by advocates of euthanasia.
A. Political Organs of the UN
Capital punishment has been an issue within the political organs of the UN since the late 1950s. Various initiatives have been taken by abolitionist States, primarily in the General Assembly and in the UNCHR. In one of the first, a resolution proposed in the 1968 session of the UNCHR, the preamble stated that "the trend among experts and practitioners in the field is towards the abolition of capital punishment," and affirmed a number of safeguards respecting appeal, pardon and reprieve, and delay of execution until the exhaustion of such procedures. (84) The United States supported the resolution, noting a trend in its country towards reducing the number of executions and the federal government's contemplation of abolition of the death penalty. (85) This probably represents the high water mark in terms of U.S. policy sympathetic to abolition within the UN. At the time, there was a virtual moratorium on capital punishment in place within the United States. Explaining its vote on the resolution in the General Assembly later that year, the United States said that the preambular reference to Articles 3 and 5 of the Universal Declaration of Human Rights did not necessarily mean that respect for the Declaration implied approval of abolition of the death penalty. (86)
During the 1980s, a normative statement known as the "Safeguards Guaranteeing Protection of the Rights of those Facing the Death Penalty" was adopted by the UN Committee on Crime Prevention and Control. (87) It confirms and develops the principles set out in Article 6 of the ICCPR, and is often regarded as an authoritative statement of customary international law on the subject. Late in the same decade, the Safeguards were amended to add the category of "persons suffering from mental retardation or extremely limited mental competence" to those who could not be subjected to capital punishment. (88) The change was inspired by a pending case before the U.S. Supreme Court. But the following year, in Penry v. Lynaugh (89) the Court distinguished between the mentally retarded and the mentally incompetent, concluding that it was not "cruel and unusual" to execute the mentally retarded. It has since revisited that precedent. (90)
Beginning in the late 1990s, a spate of annual resolutions in the UNCHR continued until that body's replacement with the Human Rights Council in 2006. (91) In November 2007, a new stage was reached in the UN when a General Assembly resolution calling for a moratorium on capital punishment was adopted. (92) During this period, the United States has kept a relatively low profile. It has spoken occasionally in the debates, and has regularly voted against the initiatives. However, it has left the leadership in the fight against abolition to countries like Egypt and Singapore. When fifty-one States filed a letter with the president of the UNCHR, on March 31, 1998, asserting that there was no international consensus calling for abolition of the death penalty, the United States was not among the signatories. When the resolution was adopted by the Third Committee in November 2007, and by the plenary General Assembly in December 2007, the United States voted against it, but made no particular comment or explanation of vote.
One of the strongest features of the UN human rights monitoring system is its team of special rapporteurs. These are independent experts who operate pursuant to a mandate assigning them a theme (torture, violence against women, etc.) or a country. There is no special rapporteur assigned to deal with capital punishment, but several of them have addressed the issue. The special rapporteur on extrajudicial, summary and arbitrary executions has the most obvious interest in the subject. In October 1997, special rapporteur Bacre Waly Ndiaye conducted a two-week mission to the United States, where he attempted to visit death row prisoners in Florida, Texas and California. At California's San Quentin Penitentiary, he was refused permission by authorities to meet with designated prisoners. Ndiaye's visit provoked the ire of Senator Jesse Helms, then chair of the Senate Foreign Relations Committee, who in a letter to William Richardson, United States Permanent Representative to the UN, described the mission as an "an absurd U.N. charade." (93) In a letter to Richardson, Helms protested: "Bill, is this man confusing the United States with some other country or is this an intentional insult to the United States and to our nation's legal system?" (94) On learning of the letter, Ndiaye replied: "I am very surprised that a country that is usually so open and has been helpful to me on other missions, such as my attempts to investigate human rights abuses in the Congo, should consider my visit an insult." (95)
In his report on the mission, the Special Rapporteur condemned the reservations, declarations and understandings formulated by the United States at the time it ratified the ICCPR, saying they were "incompatible with the object and purpose of the treaty and should therefore be considered void." (96) Ndiaye noted the serious gap between federal and state governments on the subject of the death penalty, questioning the commitment of the federal government to enforce the international obligations it had assumed. He described the practice of juvenile executions as violating international law, adding that reintroduction of the death penalty, after the brief moratorium, and extension of its scope contravened the spirit and purpose of Article 6 of the ICCPR. Ndiaye also expressed concern about the execution of the mentally retarded and insane, saying this was "in contravention of relevant international standards." (97) Ndiaye said that "[d]espite the excellent reputation of the United States judiciary," imposition of death sentences were characterized by arbitrariness and a lack of objectivity and fairness. (98) He recommended that the United States impose a moratorium on executions, in accordance with recommendations made by the American Bar Association, that it discontinue execution of mentally retarded persons, that it review the system of election of members of the judiciary and that it lift its reservations to the ICCPR. (99) The United States filed a response to the Bacre report. (100)
B. The Organization of American States
The United States has participated in the human rights system of the Organization of American States (OAS) since its creation, in the late 1940s, although it does not appear to have played a particularly active role in the drafting of the original normative instrument, the American Declaration of the Rights and Duties of Man (American Declaration). (101) The American Declaration was adopted several months before the Universal Declaration, with which it has many similarities. Both instruments were conceived of as non-binding statements of objectives or aims. However, in 1967 the OAS transformed the American Declaration into a binding normative instrument, subjecting member states that had not ratified the American Convention on Human Rights to an individual petition mechanism before the IACHR. (102) There have been several complaints directed against the United States concerning capital punishment. The United States has contested the jurisdiction of the IACHR in these contentious cases, but this has not stopped the body from deliberating and concluding that there have been violations of the American Declaration.
The first of these, Roach and Pinkerton v. United States, dates to the mid-1980s. The applicants, young Americans waiting on death row, had been convicted of murder and rape committed when they were seventeen years old. (103) When they petitioned the IACHR in late 1985 and early 1986, the dates of their executions had already been set. (104) The Commission's request that the United States stay the executions while the petitions were being studied was ignored. (105)
Roach and Pinkerton submitted that they were victims of a violation of Article I of the American Declaration, which states: "Every human being has the right to life, liberty and the security of his Person." (106) The United States insisted that "the Declaration is deliberately silent on the issue of capital punishment" (107) because the drafters wished to leave states with the discretion to legislate on the subject as they saw fit. (108) The applicants argued that the implicit content of Article I of the American Declaration was defined by customary international law. Accordingly, the death penalty for offences committed by persons under the age of eighteen was prohibited, they said. But the Commission said it was convinced by the U.S. government's argument that there is no norm of customary international law establishing eighteen to be the minimum age for imposition of the death penalty. (109) The IACHR would only say that such a norm was "emerging." (110)
The IACHR also addressed what it called the "patchwork scheme of legislation" in the United States, which resulted in considerable variations in the legislation concerning the juvenile death penalty from state to state. In leaving the issue of "this most fundamental right - the right to life" to its states, with the ensuing "pattern of legislative arbitrariness," the United States had created a situation of "arbitrary deprivation of life and inequality before the law," contrary to Articles I and II of the American Declaration, said the IACHR. (111)
The IACHR returned to the juvenile death penalty issue in 2002, in another case involving the United States. Either its own thinking on the subject had evolved, or else customary law had evolved. One way or another, this time the IACHR said that the United States was in breach of Article I of the American Declaration in a case involving execution for a crime committed when the offender was under eighteen years of age. (112) It has confirmed this interpretation of the Declaration in several other cases. (113)
Race and capital punishment has been considered by the IACHR in several petitions arising from cases in the United States. In Celestine v. United States, the applicant was an impoverished young black man with below normal intelligence who was convicted of the rape and murder of an elderly woman while he was under the influence of drugs and alcohol. (114) The IACHR ultimately conceded that this was "a poor case upon which to recommend the reversal of the U.S. criminal justice practice." (115) The Commission found that the statistical evidence demonstrating that the death penalty is applied in a racially discriminatory manner was insufficient, (116) the same conclusion that had been reached by the U.S. Supreme Court a few years earlier. (117)
The IACHR revisited the issue of racism in capital punishment in the application of another African-American, William Andrews: Andrews v. United States. During trial, a note was found in the jury room with the notation "Hang the Nigger's [sic]." The jury was not only all-white, but it included several Mormons, members of a religious group associated in the past with white supremacist views. Because the judge had admonished the jury "to ignore communications from foolish people" (118) after the racist note had been discovered, the U.S. Supreme Court refused to grant certiorari with the result that the conviction and sentence of death could stand. Dissenting Justices Marshall and Brennan described the note as "a vulgar incident of lynch-mob racism reminiscent of Reconstruction days." (119)
The IACHR held that Article XXVI(2) of the American Declaration, which ensures the right to a fair trial, had been violated. Echoing the case law of the UNHRC, it said that "[i]n capital punishment cases, the States Parties have an obligation to observe rigorously all the guarantees for an impartial trial." (120) The IACHR also ruled that Andrews had not received equal treatment, in violation of Article II of the American Declaration, and that he had been subject to "cruel, infamous or unusual punishment," contrary to Article XXVI. The IACHR took pains to distinguish the case from Celestine, noting that it applied to the specific facts of the case. (121)
In 2001, the issue of racism returned when petitioner Juan Raul Garza invoked a report prepared by the Attorney General of the United States that described endemic racism in the implementation of capital punishment by federal authorities. The U.S. government dismissed the significance of its own report, arguing it was based on "mere statistical studies" that were insufficient to support such a claim. (122) Unfortunately, the IACHR declined to consider the issue for failure to exhaust domestic remedies. (123)
In Garza v. United States, which concerned the federal death penalty, the IACHR held that executions are arbitrary, and therefore contrary to Article I of the American Declaration, when a state fails to limit the death penalty to crimes of exceptional gravity prescribed by pre-existing law; when it denies an accused strict and rigorous judicial guarantees of a fair trial; and when there is a notorious and demonstrable diversity of practice within a member state that results in inconsistent application of the death penalty for the same crimes. (124) Garza concerned the practice of considering crimes for which a person has never been convicted as aggravating factors in a death penalty determination. Garza was allegedly involved in four other murders committed in Mexico and over which the U.S. justice system could not even purport to exercise jurisdiction. The IACHR considered that it was "prejudicial and improper" to consider these four murders at the sentencing phase, especially because evidence of the crimes was admissible according to a lower standard of evidence than would be allowed during the trial proper. "Inasmuch as the jury's death sentence was influenced by the 'aggravating factor' of the unadjudicated murders, the sentence constituted a violation of Mr. Garza's rights under Articles I, XVIII, and XXVI of the American Declaration," the IACHR concluded. (125)
Before the IACHR, the United States has faced the same issue of provisional measures that it confronted in the three cases before the ICJ. In death penalty applications, the IACHR issues provisional measures orders on a systematic basis. They are defied, just as systematically, by the United States. In Garza, which concerned the federal death penalty, the Commission wrote:
[I]ts ability to effectively investigate and determine capital cases has frequently been undermined when states have scheduled and proceeded with the execution of condemned persons, despite the fact that those individuals have proceedings pending before the Commission. It is for this reason that in capital cases the Commission requests precautionary measures from states to stay a condemned prisoner's execution until the Commission has had an opportunity to investigate his or her claims. Moreover, in the Commission's view, OAS member states, by creating the Commission and mandating it through the OAS Charter and the Commission's Statute to promote the observance and protection of human rights of the American peoples, have implicitly undertaken to implement measures of this nature where they are essential to preserving the Commission's mandate. Particularly in capital cases, the failure of a member state to preserve a condemned prisoner's life pending review by the Commission of his or her complaint emasculates the efficacy of the Commission's process, deprives condemned persons of their right to petition in the inter-American human rights system and results in serious and irreparable harm to those individuals, and accordingly is inconsistent with the state's human rights obligations. (126)
The IACHR supported its views with reference to the position of the ICJ in LaGrand.
The IACHR has also considered cases that specifically address the question of consular notice in accordance with the VCCR. The judicial debate often involves consideration of factual issues because, as the Commission has explained,
the fact that a state may have breached its obligations under Article 36 of the Vienna Convention on Consular Relations in respect of a defendant does not necessarily lead to the conclusion that the defendant has been denied his or her right to due process, but rather is a factor that must be evaluated together with all of the other circumstances of each case in order to determine whether a defendant received a fair trial. (127)
In Ramos v. United States, it held:
Based upon the information and evidence on the record, it is not apparent to the Commission that Mr. Moreno Ramos' proceedings were fair notwithstanding the State's failure to comply with the consular notification requirements. To the contrary, the Commission considers, based upon the information presented, that the State's failure in this regard had a potentially serious impact upon the fairness of Mr. Moreno Ramos' trial. In particular, as noted above, the Petitioners have alleged that significant mitigating evidence concerning Mr. Moreno Ramos' treatment at the hands of his father existed and that, if this information was investigated prior to trial, it could have provided the jury with additional pertinent information concerning the circumstances of Mr. Moreno Ramos' crime. Had Mr. Moreno Ramos been properly notified of his right to consular assistance and assisted by competent counsel, information about his history could have been communicated to his Consulate and the Consulate could have been engaged to assist in contacting Mr. Moreno Ramos' family in Mexico and in investigating other evidence potentially relevant to his case. Indeed, according to the Petitioners, such efforts have since been undertaken, although too late to have been of assistance in Mr. Moreno Ramos' sentencing hearing. (128)
According to the IACHR, the breach of the VCCR occasioned not only a infringement of the fair trial rights set out in the American Declaration, but also a violation of the right to life. (129)
In Fierro v. United States, the IACHR noted that consular advice might have been decisive in assisting a Mexican national who was convicted in Texas on the basis of a confession. (130) In another VCCR case, the Commission observed that following conviction, consular officials were instrumental in assembling evidence relating to the character and background of the accused. It found that the evidence could have had a decisive impact upon the jury, had it been available at trial. The evidence showed that the applicant "suffered from mental and emotional problems including mild to moderate brain damage, learning disabilities, attention deficit disorder and post-traumatic stress disorder." The IACHR found that this was relevant, especially because the only aggravating factor produced against the applicant at trial was evidence of an unadjudicated crime, as well as information concerning minor disciplinary incidents in which Mr. Suarez was alleged to have been involved. The evidence gathered by consular officials later "may have had a particularly significant impact upon the jury's determination of the appropriate punishment for Mr. Suarez Medina," the Commission concluded. (131)
The IACHR has also referred specifically to Medellin, which was recently decided by the Supreme Court of the United States, recounting representations made before it by the U.S. government:
In particular, the State informed the Commission that the President of the United States had determined that the United States would comply with the judgment of the International Court of Justice in the Avena Case. According to the State, the government's amicus brief filed with the Supreme Court in the first of the 51 cases affected by Avena (the Jose Ernesto Medellin case) reflected the U.S. commitment to compliance with its international legal obligations, and that under the President's determination, fifty-one Mexican nationals, including Medellin, may file petitions in state courts seeking review and reconsideration as provided for in the Avena judgment. The State also indicated that the decision to provide review and reconsideration in these cases does not mean that there must be a different outcome and that this is consistent with the Avena judgment. The State contended in this respect that the issue for the courts to decide is whether the failure to provide consular notification caused actual prejudice to the defense either at trial or at sentencing. In addition, the State indicated that on May 23, 2005, the United States Supreme Court dismissed Medellin's petition for certiorari as improvidently grant, noting that Mr. Medellin had filed a successive state application for a writ of habeas corpus just four days before oral arguments and "[t]hat state proceeding may provide Medellin with the review and reconsideration of his Vienna Convention claim that the ICJ required...." In its response, the State also indicated that its amicus brief in the Medellin case reflected the United States Government's longstanding interpretation of the Vienna Convention on Consular Relations and that the ICJ in Avena interpreted the Vienna Convention on Consular Relations in ways that the State did not anticipate, which in turn may have unanticipated implications for the State's domestic criminal justice system. Therefore, according to the State, although the President had determined that the State should comply with the ICJ's judgment in Avena, the United States is concerned about the breadth of the ICJ's decisions interpreting the Vienna Convention on Consular Relations. (132)
The IACHR said it was "encouraged by the State's decision to comply with the judgment of the International Court of Justice in the Avena Case." (133) It underscored the importance of compliance with Article 36 of the VCCR as "a significant factor in determining whether the State has complied with the due process rights of a foreign national." Nevertheless, the Commission complained that the United States had not provided information indicating whether it had taken measures to review its laws, procedures and practices so as to ensure that all foreign nationals who are arrested or committed to prison or to custody pending trial or are detained in any other manner in the United States will be informed without delay of their right to consular assistance. (134)
The United States is not a party to the principal human rights treaty of the Inter-American human rights system, the American Convention on Human Rights (American Convention). (135) When the American Convention was being adopted, during the late 1960s, the United States participated actively in the negotiations. At the time, the death penalty had virtually disappeared within the United States. On an international level, the federal government often expressed abolitionist sentiments. During drafting of the American Convention, the United States also urged deletion of paragraph four of Article 4, which prohibits execution for juvenile offenders. It said "the proscription of capital punishment within arbitrary age limits presents various difficulties in law." However, the United States couched its proposal in abolitionist terms, noting that such a provision weakened the text, given "the general trend, already apparent, for the gradual abolition of the death penalty." (136) Almost two decades later, in an effort to claim it was a "persistent objector" to the developing norm prohibiting execution for crimes committed while under the age of eighteen, the United States contended that "the United States delegate at the drafting of the American Convention pointed out that the United States had problems with Article 4(5)'s arbitrary age limit of eighteen conflicting with its federal structure." (137) But the context of the 1969 debates at the time the American Convention was being adopted shows this to be a misrepresentation.
The American Convention provision on the right to life is broadly similar to Article 6 of the ICCPR. Thus, it does not prohibit capital punishment outright, although it subjects its application to serious limitations, and prohibits its use in the case of juvenile offenders. In 1977, President Jimmy Carter signed the American Convention and submitted it to Congress for ratification, but with a proposed reservation to the death penalty provision:
Article 4 deals with the right to life generally, and includes provisions on capital punishment. Many of the provisions of Article 4 are not in accord with United States law and policy, or deal with matters in which the law is unsettled. The Senate may wish to enter a reservation as follows: "United States adherence to Article 4 is subject to the Constitution and other law of the United States." The following statement is recommended. "The United States ... with respect to paragraph (5), reserves the right in appropriate cases to subject minors 'to procedures and penalties applicable to adults.'" (138)
No further action has ever been taken on this matter, and the American Convention remains signed but not ratified by the United States. According to Article 18 of the Vienna Convention on the Law of Treaties, a state that has signed a treaty has an obligation not to defeat its obligation and purpose unless it has made clear its intent not to ratify the instrument. (139) The legal status of unratified treaties was surely enhanced when, in 2002, the United States "unsigned" the Rome Statute of the International Criminal Court (ICC), (140) a step it has not taken in the case of the American Convention. In Roach and Pinkerton v. United States, the IACHR took the proposed reservation as evidence that the United States had objected to formation of a customary norm on juvenile executions, (141) but it did not return to this argument fifteen years later in Dominguez v. United States. (142)
Because it is not a party to the American Convention, the United States is not subject to the jurisdiction of the Inter-American Court of Human Rights. But the consular rights issues that arose in litigation at the ICJ have also come before the Inter-American Court in the form of an advisory opinion filed by Mexico. In reality, it was a not very cleverly disguised challenge to the United States. Indeed, the United States sent a letter to the Court complaining that "Mexico has presented a contentious case in guise of a request for an advisory opinion."
In its Advisory Opinion 16, the Inter-American Court declared:
That failure to observe a detained foreign national's right to information, recognized in Article 36 [section] 1(b) of the Vienna Convention on Consular Relations, is prejudicial to the due process of law and, in such circumstances, imposition of the death penalty is a violation of the right not to be deprived of life 'arbitrarily/ as stipulated in the relevant provisions of the human rights treaties (e.g. American Convention on Human Rights, Article 4; International Covenant on Civil and Political Rights, Article 6), with the juridical consequences that a violation of this nature carries, in other words, those pertaining to the State's international responsibility and the duty to make reparation. (143)
The Inter-American Court spoke of an internationally recognised principle by which states that still maintain the death penalty must only impose it after the strictest observance of procedural safeguards. (144) The Inter-American Court noted that the right to be informed of the right to consular assistance affects the legal guarantees available to the defence. The Court's advisory opinion was subsequently endorsed by the General Assembly of the Organization of American States in a June 2000 resolution on the protection of migrants, in a preambular paragraph that was proposed by Mexico. (145)
C. The European Human Rights Systems
Three important European institutions are engaged in the monitoring and protection of human rights, the Council of Europe (CE), the European Union (EU) and the Organization for Security and Cooperation in Europe (OSCE). The United States is a member of the OSCE, and has observer status with the CE. All three institutions have been engaged in questions concerning the use of capital punishment.
The Council of Europe is the oldest of the three. It was established in 1949, with the objective of providing political leadership in post-war Europe so as to prevent any recurrence of the continent's tragic past. The centerpiece of the Council of Europe's human rights activity is the European Convention on Human Rights (European Convention), adopted in 1950. (146) Two subsequent protocols have in effect amended the European Convention so as to make it an abolitionist instrument. As the Council of Europe expanded in Central and Eastern Europe in the 1990s, elimination of capital punishment was one of the standards that it promoted in a manner so effective that the death penalty has essentially disappeared from its territory.
The primary monitoring body for the European Convention (147) is the European Court of Human Rights (ECtHR). The ECtHR, and a subordinate body that no longer exists, the European Commission of Human Rights, have addressed death penalty issues in the United States on several occasions. One of the landmark decisions by the ECtHR concerned Jens Soering, the wayward son of Washington-based German diplomats, who had been arrested in the United Kingdom under an extradition warrant issued at the request of the United States. In 1985, when he was eighteen years old, Soering and his girlfriend had murdered her parents in Bedford, Virginia, and then fled to Europe where they lived on the run for a considerable time before Soering was arrested in Britain. The United Kingdom was empowered to refuse Soering's extradition to the United States because of a provision in the extradition treaty between the two countries entitling either contracting party to insist upon an undertaking from the other that the death penalty would not be imposed. (148) The prosecutor in Virginia agreed to make representations before the judge to the effect that the United Kingdom did not want the death penalty to be imposed, but also confirmed that he personally would request the court to impose the ultimate sanction. (149)
In its 7 July 1989 judgment, the ECtHR concluded that extradition would violate the European Convention, not because the death penalty was prohibited as such, but because Soering would be exposed to the so-called "death row phenomenon" if he were to be extradited to Virginia. The ECtHR noted that a condemned prisoner could expect to spend six to eight years on death row before being executed. The Court agreed that this was "largely of the prisoner's own making," in that it was the result of systematic appellate review and various collateral attacks by means of habeas corpus. "Nevertheless," said the Court:
just as some lapse of time between sentence and execution is inevitable if appeal safeguards are to be provided to the condemned person, so it is equally part of human nature that the person will cling to life by exploiting those safeguards to the full. However well-intentioned and even potentially beneficial is the provision of the complex of post-sentence procedures in Virginia, the consequence is that the condemned prisoner has to endure for many years the conditions on death row and the anguish and mounting tension of living in the ever-present shadow of death. (150)
The Court took note of the exceptionally severe regime in effect on death row, adding that it was "compounded by the fact of inmates being subject to it for a protracted period lasting on average six to eight years." (151)
The ECtHR held that these factors constituted a breach of Article 3 of the European Convention:
[I]n the Court's view, having regard to the very long period of time spent on death row in such extreme conditions, with the ever present and mounting anguish of awaiting execution of the death penalty, and to the personal circumstances of the appellant, especially his age and mental state at the time of the offence, the applicant's extradition to the United States would expose him to a real risk of treatment going beyond the threshold set by Article 3. (152)
As a result of the Court's decision, the United Kingdom sought and obtained more thorough and satisfactory assurances that the death penalty would not be imposed, as was noted by the Committee of Ministers of the Council of Europe on 12 March 1990. (153) Soering was subsequently extradited to Virginia, where he pleaded guilty and was sentenced to life imprisonment.
The Council of Europe's Parliamentary Assembly is made up of elected parliamentarians from the body's forty-six member states. In June 2001, the Assembly's rapporteur on capital punishment, Renate Wohlwend, submitted a report recalling that observer states have to accept the principles of democracy, the rule of law, and the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, pursuant to Statutory Resolution (93) 26 on observer status. (154) Two observer States, the United States and Japan, retain capital punishment. On 25 June 2001, the Parliamentary Assembly adopted a resolution requiring Japan and the United States to put a moratorium on executions without delay, and to take steps towards abolition, failing which it called for the withdrawal of observer status. The Parliamentary Assembly set a deadline of January 2003. It was obviously not followed by the United States and Japan. However, the Parliamentary Assembly does not control the determination of observer status, and is therefore powerless to withdraw this. In 2006, the Parliamentary Assembly said it was "inadmissible" that the appeal had gone unheeded, and that the United States continued to apply the death penalty and violate its "fundamental obligation to uphold human rights." (155) The following year, a Resolution of the Parliamentary Assembly lamented the fact that the United States, "despite recent encouraging national judicial findings, including those of its Supreme Court, has not made any efforts to abolish the death penalty." (156)
The EU is significantly smaller than the Council of Europe, consisting currently of twenty-seven states committed by treaty to economic and political integration. Although not always the case, the death penalty has now been abolished by all members of the EU, and is a condition of admission for any new members. (157) For many years, the EU did not particularly concern itself with human rights issues such as the death penalty, leaving these to the Council of Europe. More recently, though, the EU, through its three main component parts, the European Parliament, the European Commission and the European Council, has taken an increasingly dynamic role in efforts to abolish capital punishment internationally.
Abolition of the death penalty has become an important component of the foreign policy of the EU. This has brought it regularly into conflict not only with countries like China and Iran, but also with the United States. The first manifestation of debate with the United States dates to 1990, when the president of the European Parliament announced that he had forwarded a motion for a resolution on abolition of the death penalty in the United States. (158) In February 1999, the European Parliament criticized the failure of the United States to abide by its commitments under the VCCR. (159)
The EU approach is outlined in the "Guidelines to EU Policy Towards Third Countries on the Death Penalty" (Guidelines) adopted in 1998. (160) The objectives, according to the Guidelines, are "to work towards universal abolition of the death penalty as a strongly held policy view agreed by all EU Member States" and "where the death penalty still exists, to call for its use to be progressively restricted and to insist that it be carried out according to minimum standards." (161) The Guidelines include a list of "minimum standards" to be used in auditing third states that still maintain capital punishment. Pursuant to the Guidelines, the EU has adopted a practice of communicating with third governments (demarches) with the goal of achieving formal or de facto moratoriums on executions and the eventual abolition of the death penalty. For example, on 10 May 2001, the EU sent a demarche to the United States reiterating its opposition to the use of the death penalty under any circumstances and expressing concern about the relatively high number of executions. (162) In December 1999, the EU embassies in Washington drew up a document entitled "Common EU Embassy Actions on Death Penalty in the U.S." The EU has written to governors and other officials in Arizona, Illinois, Georgia, Nevada, New Hampshire, Missouri, Ohio, Oklahoma, Tennessee, Texas and Virginia. The European Parliament has denounced the death sentences imposed in the United States upon Joaquin Jose Martinez, Mumia Abu Jamal, Larry Robinson, (163) Derek Rocco Barnabei (164) and Juan Raul Garza. (165)
The EU has also participated in death penalty proceedings in the Supreme Court of the United States. In Atkins v. Virginia, which concerned execution of mentally disabled offenders, the majority of the U.S. Supreme Court took account of the views of the "world community," as expressed in an amicus curiae brief submitted by the EU. (166) In its amicus curiae brief in Medellin, the EU expressed its interest as follows:
The European Union (EU) considers the respect for treaty based rights to be of vital importance both nationally and within the international community. This principle is common to its twenty-seven Member States: Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, and the United Kingdom. Like the United States, all EU Member States are party to the Vienna Convention on Consular Relations (VCCR). (167) Article 36 of the VCCR (Article 36) confers both individual and State rights. As such, the EU has an interest in securing compliance with rights guaranteed under Article 36. This position has been expressed to the Government of the United States through specific demarches in cases involving individual foreign nationals who have been deprived of their rights under Article 36. (168) As nations committed to the rule of law, the Member States of the EU have a fundamental interest in promoting general compliance with international instruments. The EU believes that it can provide this Court with a special and unique perspective that is not available through the views of the parties. The Council of Europe, (169) Liechtenstein, Norway and Switzerland have explicitly expressed to the European Union and its Member States their shared interest as amici and their support for the arguments put forward in the present brief. (170)
European Council directives concerning development cooperation support initiatives to abolish the death penalty. The European Commission has provided substantial funding to nongovernmental organisations in their efforts to promote abolition of capital punishment throughout the world. The Centre for Studies of Capital Punishment at the University of Westminster, in London, has received 675,859 euro for a range of projects focused on the death penalty in the United States. (171)
The United States is a member of the OSCE. It is the successor to the Conference on Security and Cooperation and Europe, known commonly as the "Helsinki process." Although the Organization is also engaged in human rights issues, primarily through its Office for Democratic Institutions and Human Rights, the Organization operates by consensus, and for this reason it has never taken robust positions opposed to capital punishment or to American policy. Its normative documents limit themselves to calls for exchanges of information on the subject of abolition of the death penalty. (172)
D. International Criminal Law
The United States confronts the death penalty directly on an international level in the context of the international criminal courts and tribunals. Although the United States has stayed outside the ICC for the time being, it participated actively in the adoption of the Rome Statute (173) and made many constructive contributions to the final text. U.S. policy has, in a general sense, been favorable to international criminal courts and tribunals, dating back to the Nuremberg and Tokyo trials at the end of the Second World War.
Aside from the ICC, the United States has been seriously engaged with and committed to UN initiatives, such as the establishment of the ad hoc tribunals for the former Yugoslavia, Rwanda, Sierra Leone and Lebanon. All of these institutions exclude the death penalty. The documents concerning establishment of these institutions provide no evidence that the United States ever argued that they should be able to impose capital punishment. When the International Criminal Tribunal for the former Yugoslavia was being created in early 1993, the United States submitted a proposal that read: "[t]he Trial Court shall have the power to sentence convicted persons to imprisonment or other appropriate punishment." (174) At the time the International Criminal Tribunal for Rwanda was set up by the Security Council the following year, Rwanda itself argued that capital punishment should be an available penalty. It found no support on this point from the United States, however, and the Security Council held to its abolitionist position. (175)
During the negotiations for adoption of the Rome Statute of the ICC, a group of states, mainly from Arab and Islamic countries and from the Commonwealth Caribbean, argued that the new institution should be in a position to impose capital punishment. To the surprise of many observers, the United States was opposed. In a defining moment of the debates, U.S. Ambassador David Scheffer took the floor at the formal, public session of the Working Group on Penalties of the Diplomatic Conference during the evening of July 3, 1998, to argue that an international court empowered to impose the death penalty would be doomed to failure because a large number of states would simply refuse to transfer suspects to it. (176)
Medellin not only brought international law issues into the heart of American law, but it also provided the occasion to consider, although admittedly somewhat indirectly, the important role that international law and international institutions have played and continue to play in the current debate. Opponents of the American death penalty have marked important victories in a variety of forums, including the institutions of the UN, the Council of Europe, the EU and the OAS. From their standpoint, the ICJ is nothing more than another front in the battle.
Medellin is about an international treaty, but it is also very much about the bilateral relationship between the United States and Mexico, an important friend and neighbor. Capital punishment has brought the United States into conflict with many close allies, countries with whom it shares a great deal in terms of values and priorities. The LaGrand case, with Germany, has already been discussed. (177) In 2001, the Supreme Court of Canada denied extradition to the United States without assurances that the death penalty would not be imposed. The Supreme Court of Canada considered in some detail the important debate within the United States about the danger of execution of the wrongfully convicted. Politely, but firmly, it took into account the fear of a miscarriage of justice within the United States in its decision not to allow extradition. (178)
Only a few months after the United States v. Burns ruling by the Supreme Court of Canada, the Constitutional Court of South Africa tackled much the same issue. (179) In 1995, the South African Court had issued a landmark ruling holding capital punishment to be inconsistent with the post-apartheid interim constitution's protection of the right to life, and prohibition of cruel, inhuman, and degrading treatment or punishment. (180) In June 2001, the same Court granted a petition from Khalfan Khamis Mohamed, who was a participant in the Al Qaeda bombing of the U.S. embassy in Dar es Salaam. After being arrested in South Africa, Mohamed had been summarily turned over to the FBI in what the state called a deportation, although the Court saw no reason to view it as anything but a disguised extradition. (181) According to the Court:
In handing Mohamed over to the United States without securing an assurance that he would not be sentenced to death, the immigration authorities failed to give any value to Mohamed's right to life, his right to have his human dignity respected and protected and his right not to be subjected to cruel, inhuman or degrading punishment. (182)
But Mohamed was already on trial in New York when the South African Constitutional Court issued its ruling. He was being prosecuted jointly with an accomplice, Mahmoud Mahmud Salim, who had been extradited to the United States from Germany subsequent to a commitment that capital punishment would not be imposed. The South African Court noted the unfairness of the situation, and also refuted any suggestion that the United States might not have provided the assurance had it been sought. (183) As a remedy for the constitutional violation, the South African Constitutional Court ordered "the full text of this judgment to be drawn to the attention of and to be delivered to the Director or equivalent administrative head of the Federal Court for the Southern District of New York as a matter of urgency." (184) It noted in addition,
Not only is the learned judge presiding aware of these proceedings, but the very reason why they were instituted by the applicants was said to be that our findings may have a bearing on the case over which he is presiding. On the papers there is a conflict of opinion as between one of the defence lawyers on the one hand and a member of the prosecution team on the other, both of whom have filed affidavits expressing their respective views as to the admissibility and/or cogency in the criminal proceedings of any finding we might make. It is for the presiding judge to determine such issues. For that purpose he may or may not wish to have regard to disputed material such as our findings. It is therefore incumbent on this Court to ensure as best it can that the trial judge is enabled to exercise his judicial powers in relation to the proceedings in this Court ... (185)
Apparently Judge Sand, who was presiding over the trial, had specially authorized the use of funds for the court-appointed defense team to pursue Mohamed's interests in South Africa, as the South African Constitutional Court observed. (186)
Within days of the Constitutional Court ruling, the New York jury found Mohamed guilty of murder. Under federal law, the jury had then to deliberate again as to whether or not the convicted man should be sentenced to death. Judge Sand took the extraordinary step of informing the jury of the South African Constitutional Court's views. The jury also knew that Salim, who had also been found guilty, could not be sentenced to death because this had been a condition of his extradition from Germany. On June 10, 2001, eleven of the twelve jurors concluded that "others of equal or greater culpability in the murders [would] not be sentenced to death," which is a mitigating factor under the applicable federal statute. Mohamed was given a sentence of life imprisonment. (187)
These cases illustrate the extent to which U.S. policy on capital punishment has become an important issue in bilateral relations as well as in many of the world's primary international organizations. Where the death penalty is concerned, the United States is increasingly viewed as an international pariah. Regrettably, this unfortunate turn of affairs did not weigh more heavily on the justices of the Supreme Court of the United States as they considered the legal and policy questions engaged when components of the domestic justice system risk being in potential conflict with international legal obligations.
(1.) See Vienna Convention on Consular Relations and Optional Protocol on Disputes art. 36, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 [hereinafter VCCR] (requiring free access to consular officers for arrested nationals and notification of this right).
(2.) Vienna Convention on Consular Relations (Para. v. U.S.), 1998 LCJ. 248 (Provisional Measures of Apr. 9).
(3.) LaGrand Case (F.R.G. v. U.S.), 1999 I.C.J. 9 (Provisional Measures of Mar. 3); LaGrand Case (F.R.G. v. U.S.), 2001 I.C.J. 466 (June 27).
(4.) Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2003 I.C.J. 77 (Provisional Measures of Feb. 5); Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 LCJ 12 (Mar. 31).
(5.) Joan Fitzpatrick, The Unreality of International Law in the United States and the LaGrand Case, 27 Yale J. Int'l L. 427, 432 (2002).
(6.) LaGrand Case (F.R.G. v. U.S.), 2001 I.C.J. 466, 478 (June 27).
(7.) See Dan Eggen, U.S. to Get Moussaoui Data From Europe, Wash. Post, Nov. 28, 2002, at A19; Christopher Marquis, Germany Agrees to Share Evidence Against 9/ 11 Defendant, N.Y. Times, Nov. 28, 2002, at A18; Bruce Zagaris, Germans and French Agree to Give Evidence in Moussaoui Case, 19 Int'l Env't L, Rep. 21 (2003).
(8.) Richard J Evans, Rituals of Retribution, Capital Punishment in Germany 1600-1987, at 862 (1996).
(9.) LaGrand Case (F.R.G. v. U.S.; 2001 I.C.J. 466, 478 (June 27).
(10.) LaGrand Case (F.R.G. v. U.S.) 1999 I.C.J. 9,18 (Mar. 3) (separate opinion of Judge Oda).
(11.) Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), Application Instituting Proceedings, 2003 I.C.J. 6, [paragraph] 23 (Feb. 5), available at http://www.icjcij.org/docket/files/128/1913.pdf.
(12.) Id 1 24.
(13.) Id. f 25.
(14.) Id, [paragraph][paragraph] 25-26; see also Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12, [paragraph][paragraph] 4, 35-38 (Mar. 31).
(15.) Avena, 2004 I.C.J. 12, [paragraph] 7.
(16.) Id. [paragraph][paragraph] 40-47.
(17.) See Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion, 1999 Inter-Am. C.H.R., Report No. OC-16/199 (ser. A) No. 16, [paragraph][paragraph] 26,141(7) (Oct. 1,1999) [hereinafter Right to Information on Consular Assistance],
(18.) See U.N. Human Rights Comm., The Right to Life (Article 6), [paragraph] 7, U.N. Doc. CCPR/C/21/Rev/7/Add/l (Apr. 30,1982) [hereinafter HRC, General Comment 6]; see also U.N. Human Rights Committee, Report of the Human Rights Committee, Carlton v. Jamaica / Views Adopted on 20 July 1990, [paragraph][paragraph] 11.5, 12.1, U.N. GAOR, 45th Sess., Supp. No. 40, U.N. Doc. A/45/40 (July 20, 1990). The views of the Human Rights Committee were endorsed by the Inter-American Court in Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law. Right to Information on Consular Assistance, supra note 17, [paragraph] 132.
(19.) Ramos v. United States, Case No. 12.430, Inter-Am. C.H.R., Report No. 1/ 05, OEA/Ser. L/V/IT.124, doc. 5 [paragraph] 72 (2005); Medina v. United States, Case 12.421, Inter-Am. C.H.R., Report. No. 91/05, OEA/Ser.L/v/II.124, doc. 5 [paragraph] 87 (2005).
(20.) J.S. Reeves, Extradition Treaties and the Death Penalty, 18 Am. J. Int'l L. 290 (1924).
(21.) See Mary Ann Glendon, A World Made New, Eleanor Roosevelt and the Universal Declaration of Human Rights 139, 170 (2001) (explaining debates before final adoption date); Paul Gordon Lauren, The Evolution of International Human Rights, Visions Seen, 205-40 (2003).
(22.) Final Act of the Conference on Security and Cooperation in Europe, Aug. 1, 1975, 14 I.L.M. 1292.
(23.) World Conference on Human Rights, Vienna Declaration and Programme of Action, [paragraph] 23, June 25, 1993, 32 I.L.M. 1661.
(24.) See e.g., Convention for the Protection of Human Rights and Fundamental Freedoms, preamble, Nov. 4,1950, 213 U.N.T.S. 221; International Covenant on Civil and Political Rights, preamble, Dec. 16,1966, 999 U.N.T.S. 171 [hereinafter ICCPR]; Organization of American States, American Convention on Human Rights, preamble, Nov. 22,1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123; African Charter on Human and Peoples' Rights, preamble, June 27, 1981, 21 I.L.M. 58.
(25.) Universal Declaration of Human Rights, G.A. Res. 217A (III), at 71, art. 3, U.N. GAOR, 3d Sess., 1st plen. mtg, U.N. Doc. A/810 (Dec. 12, 1948) [hereinafter Universal Declaration] ("Everyone has the right to life, liberty and security of person.").
(26.) Ruth B. Russell, A History of the United Nations Charter: The Role of the United States 323-25 (1958) (stating equal rights of life, liberty, property, enterprise, and employment contemplated in draft declaration); Louis B. Sohn, How American International Lawyers Prepared for the San Francisco Bill of Rights, 89 Am. J. Int'l 540, 545-48 (1995) (providing text of Institute of International Law discussing due process); Johannes Morsink, World War Two and the Universal Declaration, 15 Hum. Rts. Q. 357, 366-68 (1993) (discussing deliberations concerning Article 3).
(27.) U.N. Econ. & Soc. Council [ECOSOC], Comm'n on Human Rights, Drafting Comm., Draft Outline of International Bill of Rights, U.N. Doc. E/CN.4/AC.1/3 (June 4, 1947) reprinted in Commission on Human Rights, Drafting Committee on an International Bill of Human Rights, Report of the Drafting Committee to the Commission on Human Rights, Annex A, art. 3, U.N. Doc. E/CN.4/21 (July 1, 1947).
(28.) Id. at art. 3.
(29.) Comm'n on Human Rights, Drafting Comm. International Bill of Rights, Documented Outline, UN Doc. E/CN.4/AC.1/3/Add.1 (June 2, 1947).
(30.) See U.N. Econ. & Soc. Council [ECOSOC], Drafting Comm. on an Int'l Bill of Human Rights, United States Suggestions for Redrafts of Certain Articles in the Draft Outline, U.N. Doc. E/CN.4/AC.1/8 (June 11, 1947), reprinted in U.N. Econ. & Soc. Council [ECOSOC], Drafting Committee on an International Bill of Human Rights, Report of the Drafting Comm. to the Comm'n on Human Rights, Annex C, U.N. Doc. E/CN.4/21 (July 1, 1947) [hereinafter Report of the Drafting Committee]. The right to life is fundamental and may not be denied to any person except upon conviction for the gravest of crimes under general law providing for the penalty of death." Id. at art. 8.
(31.) See U.N. Econ. & Soc. Council [ECOSOC], Drafting Comm. on an Int'l Bill of Human Rights, Summary Record of the Second Meeting, [paragraph] 10, U.N. Doc. E/CN.4/ AC.1/SR.2, (June 13, 1947) [hereinafter Summary of the Second Meeting].
(32.) Id. [paragraph] 11 (view supported by Santa Cruz of Chile and Wilson of the United Kingdom); See also Phillipe De La Chapelle, La Declaration Universelle Des Droits De L'Homme Et Le Catholicisme 94 (1967).
(33.) See Summary of the Second Meeting, supra note 31, [paragraph] 10.
(34.) See U.N. Econ. & Soc. Council [ECOSOC], Drafting Comm. on an Int'l Bill of Human Rights, Revised Suggestions Submitted by the Representative of France for Articles of the International Declaration of Rights, U.N. Doc. E/CN.4/AC.1/W.2/Rev.2 (June 20, 1947) [hereinafter Revised Suggestions]; U.N. Econ. & Soc. Council [ECOSOC], Drafting Comm. on an Int'l Bill of Rights, Summary of Record of the Twelfth Meeting, U.N. Doc. E/CN.4/AC.1/SR.12 (Jul. 3, 1947) [hereinafter Summary of the Record of the Twelfth Meeting]; Report of the Drafting Committee, supra note 30, at Annex F.
(35.) Universal Declaration, supra note 25.
(36.) Draft Declaration of Human Rights, Union of Soviet Socialists Republics: Amendment to Article 3 of the Draft Declaration, U.N. Doc. A/C.3/265 (Oct. 12,1948).
(37.) U.N. GAOR, 3d Comm., 3d Sess., 103d mtg. at 7, U.N. Doc. A/C.3/SR 107 (Oct. 20, 1948).
(38.) U.N. GAOR, 3d Comm., 3d Sess., 107th mtg. at 7, U.N. Doc. A/C3/SR 107 (Oct. 20, 1948).
(39.) Id. at 16.
(40.) ICCPR, supra note 24.
(41.) See Preparation of Two Draft International Covenants on Human Rights, G.A. Res.543(VI), U.N. GAOR, 6th Sess., 375th plen. mtg., U.N. Doc. A/2119 (Feb. 5, 1952); John P. Humphrey, Human Rights and the United States: A Great Adventure 130 (1984).
(42.) ICCPR, supra note 24.
(43.) International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3.
(44.) ICCPR, supra note 24, at 53, [paragraph][paragraph] 1-2.
(45.) ICCPR, supra note 24, at 53, [paragraph] 5.
(46.) ICCPR, supra note 24, at 53,16.
(47.) Louis Henkin, U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker, 89 Am. J. Int'l L. 341 (1995).
(48.) U.N. Econ. & Soc. Council [ECOSOC], Drafting Comm., Draft International Covenant on Human Rights with United States Recommendations, at 5, U.N. Doc. E/ CN.4/AC.1/19 (May 3,1948) ("No one shall be deprived of his life, liberty or property, without due process of law.").
(49.) U.N. Econ. & Soc. Council [ECOSOC], Comm'n on Human Rights, 5th Sess., Summary Record of the Ninetieth Meeting, at 9, U.N. Doc.E/CN.4/SR.90 (May 20, 1949).
(50.) U.N. Econ. & Soc. Council [ECOSOC], Comm'n on Human Rights, 5th Sess., Summary Record of the Ninety-First Meeting, at 6, U.N. Doc. E/CN.4/SR.91 (May 31,1949).
(51.) Id. at 10 (seven votes to two, with three abstentions).
(52.) James Simsarian, Draft International Covenant on Human Rights Revised at Fifth Session of United Nations Commission on Human Rights, 43 Am. J. Int'l L. 779, 780-81 (1949).
(53.) The Secretary-General, Comments of Governments on the Draft International Covenant on Human Rights and Measures of Implementation: The United States of America, at 3, U.N. Doc. E/CN.4/353/Add.1 (Apr. 17, 1950) [hereinafter U.S. Comments]; The Secretary-General, Compilation of the Comments of Governments on the Draft International Covenant on Human Rights and on the Proposed Additional Articles, at 22, U.N. Doc. E/CN.4/365 (Mar. 22, 1950). The substitute for paragraph 3 would read: "In such countries, sentence of death may be executed only pursuant to the sentence of a competent court and in accordance with law." US. Comments, supra, at 3. The merging of paragraphs 2 and 3 would give the following result: "In countries where capital punishment exists, sentence of death may be imposed only as a penalty for the most serious crimes pursuant to the sentence of a competent court and in accordance with law." U.S. Comments, supra, at 3; See also U.N. Econ. & Soc. Council [ECOSOC], Comm'n on Human Rights, 6th Sess., Draft International Covenant on Human Rights: United States of America, Amendment to Paragraph 2 of Article 5, U.N. Doc. E/CR.4/393 (Apr. 3, 1950); U.N. Econ. & Soc. Council [ECOSOC], Comm'n on Human Rights, 6th Sess., Summary of the Record of the One Hundred Forty-Ninth Meeting, [paragraph][paragraph] 46, 66, U.N. Doc. E/CN.4/SR.149 (Apr. 17, 1950).
(54.) U.N. Econ. & Soc. Council [ECOSOC], Comm'n on Human Rights, Provisional Summary Record of the Hundred and Fifty-third Meeting, [paragraph] 12, U.N. Doc. E/ CN.4/SR.153 (Apr. 11, 1950).
(55.) U.N. Econ. & Soc. Council [ECOSOC], Comm'n on Human Rights, Draft International Covenants on Human Rights and Measures of Implementation, [paragraph] 1, U.N. Doc. E/CN.4/L.176 (May 23, 1950) (stating "No one shall be arbitrarily deprived of life").
(56.) U.N. Econ. & Soc. Council [ECOSOC], Comm'n on Human Rights, Summary Record of the Three Hundred and Ninth Meeting, at 4, U.N. Doc. E/CN.4/SR.309 (May 26,1952). Eleanor Roosevelt's explanation of the article described it as filling a gap in the Soviet proposal. Id.
(57.) U.N. Econ & Soc. Council [ECSOC], Comm'n on Human Rights, Summary Record of the Three Hundred and Eleventh Meeting, at 5, U.N. Doc. E/CN.4/SR.311 (May 27,1952). The amendment was adopted by ten votes to five, with three abstentions. Id.
(58.) Commission on Human Rights, 12th Sess., U.N. Doc. A/C.3/SR.820 (1957).
(59.) Warren Christopher, Dept. of State, Message from the United States, Transmitting Four Treatises Pertaining to Human Rights, 95th Cong., (Feb. 23, 1978), in U.S. Ratification of the International Covenant on Economic, Social and Cultural Rights: With or Without Qualification?, in U.S. Ratification of Human Rights Treaties (Richard Lillich ed., 1981); see also David Weissbrodt, United States Ratification of the Human Rights Covenants, 63 Min. L. Rev. 35 (1978).
(60.) Staff of Senate, Senate Committee on Foreign Relations, 102d Cong., Report on the International Covenant on Civil and Political Rights, 102 (1992) reprinted in 31 I.L.M. 645, 653 (1992); see also John Quigley, Criminal Law and Human Rights: Implications of the United States Ratification of the International Covenant on Civil and Political Rights, 6 Harv. Hum. Rts. J. 59 (1993); Ved Nanda, The U.S. Reservation to the Ban on the Death Penalty for Juvenile Offenders: An Appraisal under the International Covenant on Civil and Political Rights, 42 Depaul L. Rev. 1311 (1993); E.F. Sherman, The U.S. Death Penalty Reservation to the International Covenant on Civil and Political Rights - Exposing the Limitations of the Flexible System Governing Treaty Formation, 29 Tex. Int'l L.J. 69 (1994); William A. Schabas, Invalid Reservations to the International Covenant on Civil and Political Rights: Is the United States Still a Party?, 21 Brook. J. Int'l L. 277 (1995).
(61.) Soering v. United Kingdom, Case No. 161, 11 Eur. H.R. Rep. 439 (1989).
(62.) United States: Senate Committee on Foreign Relations Report on the International Covenant on Civil and Political Rights, 31 I.L.M. 645, 654 (Jan. 30, 1992).
(63.) Richard B. Lillich, The Soering Case, 85 Am. J. Int'l L. 128, 148 (1991).
(64.) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10,1984, S. Treaty Doc No. 100-20 (1988), 1465 U.N.T.S. 112 [hereinafter Torture Convention]. On October 27,1990 the Senate gave its advice and consent to ratification of the Torture Convention. The United States ratified the Torture Convention in 1994, with the following reservation:
That 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.
(65.) Comments of the Human Rights Comm., Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant, % 14, U.N. Doc. CCPR/C/79/ Add.50 (Apr. 6, 1995).
(66.) Id. [paragraph] 16.
(67.) U.N. Human Rights Comm., General Comment Adopted by the Human Rights Committee Under Article 40, Paragraph 4 of the International Covenant on Civil and Political Rights, U.N. Doc. CCPR/C/21/Rev.1/Add.6 (Nov. 11, 1994).
(68.) See U.N. Human Rights Comm., Observations by the United States of America on General Comment No. 24(52), U.N. Doc. A/40/40 (Mar. 28, 1995), reprinted in 16 Hum. Rts. L.J. 422 (Dec. 1995).
(69.) U.N. Human Rights Comm., Doc. CCPR/C/81/Add.4, [paragraph][paragraph] 147-48; see also David P. Stewart, U.S. Ratification of the Covenant on Civil and Political Rights: The Significance of the Reservations, Understandings and Declarations, 14 Hum. Rts. L. J. 77, 82 (Apr. 1993).
(70.) 543 U.S. 551, 578 (2005).
(71.) See Roper v. Simmons, 543 U.S. 551, 578 (2005) (ruling Eighth and Fourteenth Amendments of U.S. Constitution forbid death sentence of offenders who were under eighteen at time of crime).
(72.) Human Rights Committee, International Covenant on Civil and Political Rights, Written Replies, U.N. Doc. CCPR/C/SR. 2380, [paragraph][paragraph] 7-8.
(73.) See Human Rights Committee, International Covenant on Civil and Political Rights, U.N. Doc. CCPR/C/SR.2380, [paragraph][paragraph] 7 & 100.
(74.) Id. [paragraph] 100.
(75.) Human Rights Committee, International Covenant on Civil and Political Rights, U.N. Doc. CCPR/C/USA/CO/3, [paragraph] 6.
(76.) United States: Senate Committee on Foreign Relations Report on the International Covenant on Civil and Political Rights, 31 I.L.M. 645, 653 (1992). The Report from the Committee on Foreign Relations is ambiguous, and seems to suggest that the Senate felt the only issue was imposition of the death penalty for juvenile offences. Id. at 650.
(77.) Optional Protocol to the International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. Doc. A/6316 (Mar. 23, 1976).
(78.) Kindler v. Canada, No. 470/1991, U.N. Doc. CCPR/C/48/D/470/1991 (1993); Cox v. Canada, No. 539/1993, U.N. Doc. CCPR/C/52/D/539/19930 (1994).
(79.) Judge v. Canada, No. 829/1998, U.N. Doc. CCPR/C/78/D/829/1998 (2003).
(80.) Ng v. Canada, No. 469/1991, [paragraph][paragraph] 16.3-16.5, U.N. Doc. CCPR/C/49/D/469/1991 (1994).
(81.) Id. [paragraph] 16 (Herndl, Kurt, dissenting).
(82.) Kindler, No. 470/1991.
(83.) Cox, No. 539/1993.
(84.) U.N. Econ. & Soc. Council [ECOSOC] Res. 1337 (XLIV), U.N. Doc. E/4475 (May 31, 1968).
(85.) U.N. Econ & Soc. Council [ECSOC], Comm'n on Human Rights, Summary Record of the Nine Hundred and Ninetieth Meeting, at 266, U.N. Doc. E/CN.4/SR.990 (1968).
(86.) U.N. GAOR, 23 Sess., 3d Comm., 1560th mtg., [paragraph] 1, U.N. Doc. A/C.3/SR.1560 (Oct. 4, 1968).
(87.) See Draft resolution VII: Safeguards Guaranteeing Protection of the Rights of those Facing the Death Penalty, U.N. ESCOR, 8th Sess., Supp. No. 6, at 19-21, U.N. Doc. E/1984/16 (1984) (stating safeguards).
(88.) U.N. Econ. & Soc. Council [ECOSOC] Res. 1989/64, [paragraph] 1(d), U.N. Doc. E/ 1989/91 (May 24, 1989).
(89.) Penry v. Lynaugh, 492 U.S. 302 (1989).
(90.) Atkins v. Virginia, 536 U.S. 304, 306 (2002).
(91.) U.N. Econ. & Soc. Council [ECOSOC], Comm'n on Human Rights, Question of the Violation of Human Rights and Fundamental Freedoms in any Part of the World, with Particular Reference to Colonial and Other Dependent Countries & Territories, U.N. Doc. E/CN.4/1997/L.40 (Apr. 7, 1997); U.N. Econ. & Soc. Council [ECOSOC], Comm'n on Human Rights, Question of the Death Penalty, U.N. Doc. E/ CN.4/Res/1998/8 (Apr. 3, 1998); U.N. Econ. & Soc. Council [ECOSOC], Comm'n on Human Rights, Question of the Death Penalty, U.N. Doc. E/CN.4/Res/1999/61; see also Ilias Bantekas & Peter Hodgkinson, Capital Punishment at the United Nations: Recent Developments, 11 Criminal Law Forum 23 (2000).
(92.) U.N. Gen. Assembly, Moratorium on the Use of the Death Penalty, U.N. Doc. A/C.3/62/L.29 (Nov. 1, 2007).
(93.) John M. Goshko, Helms Calls Death Row Probe 'Absurd U.N. Charade/ Wash. Post, Oct. 8, 1997 at A7.
(96.) U.N. Econ. & Soc. Council [ECOSOC], Comm'n on Human Rights, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, [paragraph] 140, U.N. Doc. E/CN.4/1998/68/Add.3 (Jan. 22, 1998) (submitted by Bacre Waly Ndiaye).
(97.) Id. [paragraph] 145.
(98.) Id. [paragraph][paragraph] 148-50.
(99.) Id. [paragraph] 156.
(100.) U.N. Econ. & Soc. Council [ECOSOC], Comm'n on Human Rights, U.S. Government Response to the Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions: Mission to the United States of America, U.N. Doc. E/ CN.4/1998/174 (Apr. 23, 1998) (prepared by Nancy Rubin).
(101.) Organization of American States, American Declaration of the Rights and Duties of Man, O.A.S. Off. Rec., OEA/Ser.L./V/IL23, Doc. 21, rev. 6 (1979) [hereinafter American Declaration].
(102.) Organization of American States, American Declaration of the Rights and Duties of Man, May 2, 1948, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L./V/II.71, Doc. 6, rev. 1, at 65, 75 (1988).
(103.) See generally Roach v. Martin, 757 F.2d 1463 (4th Cir. 1983); Roach v. So. Carolina, 444 U.S. 1026, rehearing denied, 444 U.S. 1104 (1980); Roach v. So. Carolina, 455 U.S. 927 (1982); State v. Shaw, 255 S.E.2d 799 (S.C. 1979); Pinkerton v. McCotter, 474 U.S. 865 (1985).
(104.) Roach v. United States, Case 9647, Inter-Am. C.H.R., Report No. 3/87, OEA/Ser.L/V/II.71 doc. 9 rev. 1, [paragraph] 147 (1987). See generally David Weissbrodt, Execution of Juvenile Offenders by the United States Violates International Human Rights Law, 3 Am. U. J. Int'l L. & Pol'y 339 (1988); D.T. Fox, Inter-American Commission on Human Rights Finds United States in Violation, 82 Am. J. Int'l L. 601, 601 (1988); Christina M. Cerna, US. Death Penalty Tested Before the Inter-American Commission on Human Rights, 10 Neth. Q. H.R. 155 (1992).
(105.) Roach, Case 9647, Inter-Am. C.H.R., Report No. 3/87, [paragraph][paragraph] 149-50.
(106.) American Declaration, supra note 101, at art. 1.
(107.) Roach, Case 9647, Inter-Am. C.H.R. 1987, [paragraph] 1.
(108.) Id. [paragraph] 38(b), (c).
(109.) Id. [paragraph] 60.
(110.) Id. [paragraph] 60.
(111.) Id. [paragraph] 63.
(112.) Domingues v. United States, Case No. 12.285, Inter-Am. C.H.R. Report No. 62/02, [paragraph][paragraph] 84-85 (2002).
(113.) Graham v. United States, Case No. 11.193, Inter-Am. C.H.R., Report 97/03, [paragraph] 52 (2003); Patterson v. United States, Case 12.439, Inter-Am. C.H.R., Report No. 25/05, [paragraph][paragraph] 45-47 (2005); Beazley v. United States, Case 12.412, Inter-Am. C.H.R., Report 101/03, [paragraph][paragraph] 48-50 (2003); Thomas v. United States, Case 12.240, Inter-Am. C.H.R., Report 100/03, [paragraph][paragraph] 40-42 (2003).
(114.) Celestine v. United States, Case 10.031, Inter-Am. C.H.R., Resolution No. 23/89, OEA/Ser.L/V/II.77 rev.1.doc.7, [paragraph] 6 (1989).
(115.) Id. [paragraph] 45.
(116.) Id. [paragraph] 41.
(117.) McCleskey v. Kemp, 481 U.S. 279 (1987).
(118.) Andrews v. Shulsen, 485 U.S. 919 (1988).
(119.) Id. at 921; see also Witherspoon v. Illinois, 391 U.S. 510 (1968); Wainwright v. Witt, 469 U.S. 412 (1985).
(120.) Andrews v. United States, Case 11.139, Inter-Am. C.H.R., Report No. 57/ 96, OEA/Ser.L/V/II.98, doc. 6 rev. [paragraph] 172 (1996).
(121.) Id. [paragraph][paragraph] 117, 180, 182.
(122.) Garza v. United States, Case 12.234, Inter-Am. C.H.R., Report No. 52/01, [paragraph] 51 (2001).
(123.) Id. [paragraph] 68.
(124.) Id. [paragraph] 91.
(125.) Id. [paragraph] 108; see also Medina v. United States, Case 12.421, Inter-Am. C.H.R., Report No. 91/05, [paragraph][paragraph] 75-80 (2005).
(126.) Garza v. United States, Case 12.234, Inter-Am. C.H.R. Report No. 52/01, [paragraph] 117 (2001); see also Rahman v. United States, Petition 136/02, Inter-Am. C.H.R., Report No. 39/03, [paragraph][paragraph] 33-34 (2003); Gray v. United States, Petition 396/04, Inter-Am. C.H.R., Report No. 79/05, [paragraph] 1 (2005); Medina v. United States, Case 12.421, Inter-Am. C.H.R., Report No. 91/05, [paragraph] 90 (2005).
(127.) Ramos v. United States, Case 12.430, Inter-Am. C.H.R., Report No. 1/05, [paragraph] 62 (2005).
(128.) Id. [paragraph] 63.
(129.) Id. [paragraph] 72; see also Medina v. United States, Case 12.421, Inter-Am. C.H.R., Report No. 91/05, [paragraph] 88 (2005).
(130.) Fierro v. United States, Case 11.331, Inter-Am. C.H.R., Report 99/03, [paragraph] 39 (2003).
(131.) Medina v. United States, Case 12.421, Inter-Am. C.H.R., Report No. 91/05, [paragraph] 86 (2005).
(132.) Id. [paragraph][paragraph] 97-98.
(133.) Id. [paragraph] 100.
(134.) Id. [paragraph][paragraph] 100-01.
(135.) Organization of American States, American Convention on Human Rights, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123.
(136.) Observations of the Governments of the Member States Regarding the Draft Inter-American Convention on Protection of Human Rights, United States (6 October 1969), in 2 Inter-American System, Part II, ch. II, Booklet 13 (Aug. 1982), OAS Doc. OEA/SerK/XVI/1.1 Doc. 10, at 9.
(137.) Roach v. United States, Case 9647, Inter-Am. C.H.R., Resolution No. 3/87, OEA/Ser.L/V/II.71, doc. 9 rev. 1, [paragraph] 38(f) (1987).
(138.) Office of Public Commc'n, Bureau of Public Affairs, Dep't of State, Publication 8961 (1978).
(139.) Vienna Convention on the Law of Treaties, art. 18, May 23, 1969, 1155 U.N.T.S. 331.
(140.) Harold Hongju Koh, On American Exceptionalism, 55 Stan. L. Rev. 1479, 1483 (2003); Edward T. Swaine, Unsigning, 55 Stan. L. Rev. 2061, 2077 (2003).
(141.) Roach, Case 9647, Inter-Am. C.H.R. Report No. 3/87, [paragraph] 53.
(142.) Domingues v. United States, Case 12.285, Inter-Am. C.H.R. Report No. 62/ 02, [paragraph][paragraph] 84-85.
(143.) The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion, Inter-Am. Ct. H.R. (ser. A) No. 16, [paragraph] 141(7) (Oct. 1, 1999).
(144.) Id. [paragraph][paragraph] 135-36.
(145.) The Human Rights of All Migrant Workers and Their Families, AG/RES. 1717 (XXX-O/00) at 53.
(146.) Convention for the Protection of Human Rights and Fundamental Freedoms, Sept. 3, 1955, 213 U.N.T.S. 221, Eur. T.S. No. 5.
(148.) The extradition treaty stated:
If the offence for which extradition is requested is punishable by death under the relevant law of the requesting Party, but the relevant law of the requested Party does not provide for the death penalty in a similar case, extradition may be refused unless the requesting Party gives assurances satisfactory to the requested Party that the death penalty will not be carried out....
Extradition Treaty, U.S.-U.K., art. 4, June 8, 1972, 28 U.S.T. 227.
(149.) Richard B. Lillich, The Soering Case, 85 Am. J. Int'l L. 128,130 n.15 (1991).
(150.) Soering v. United Kingdom, 11 Eur. Ct. H.R. 439, 475 (1989).
(152.) Id. at 478.
(153.) Council of Europe, Information Sheet No. 26, Strasbourg, 1990, 116.
(154.) Eur. Consult. Ass., Abolition of the Death Penalty in Council of Europe Observer States, 17th Sess., Doc. No. 9115, [paragraph] 4 (2001).
(155.) Eur. Pari. Ass., Recommendation 1760, [paragraph] 7 (June 28, 2006).
(156.) Eur. Pari. Ass., The United States of America and International law, Resolution 1539, [paragraph] 34 (Mar. 16, 2007).
(157.) Commission Communication on the European Union's Role in Promoting Human Rights and Democratization in Third Countries, at 16, COM (2001) 252 final (8 May 2001).
(158.) Motion for a Resolution, Eur. Parl. Doc. B3-0605/89 (1992); see also Motions for Resolutions, Eur. Parl. Doc. B3-0682/90, 1915/90 (1992).
(159.) Resolution on the Death Sentence Handed Down on Greg Summers in Texas, USA, B4-0188/99, 1999 O.J. (C 1501383).
(160.) See European Annual Report on Human Rights, 87-90 (2000), available at http://ec.europa.eu/external_relations/human_rights/doc/report_00_eu.pdf [hereinafter Human Rights Report 2000].
(162.) See Press Release, Embassy of Sweden, EU Policy on the Death Penalty (May 10, 2001), available at http://www.eurunion.org/legislat/DeathPenalty/Demarche10May.htm. A similar demarche was issued in February 2000. See Human Rights Report 2000, supra note 160, at 30.
(163.) Motion for Resolutions, Eur. Parl. Doc. B5-0272, 0274, 0282, 0283, 0284, 0287, 0297, and 0306 (1999); Moratorium on the Death Penalty, Eur. Parl. Doc. 2000 OJ. (C189) 111, 111 (adopting resolutions).
(164.) Motion for Resolutions, Eur. Parl. Doc. B5-0613, 0624, 0631, and 0638 (2000), European Parliament Resolution on the Death Penalty in the United States, Eur. Parl. Doc. 2001 O.J. (C121) 404, 404-05 (adopting resolutions).
(165.) Resolution, Eur. Parl. Doc. B5-0341, 0359, 0370, 0376 (2000), European Parliament Resolution on the Abolition of the Death Penalty in the United States, Eur. Parl. Doc. 2001 O.J. (C40) 424-25 (adopting resolutions).
(166.) Atkins v. Virginia, 536 U.S. 304, 316 n.21 (2002).
(167.) Vienna Convention on Consular Relations, 21 U.S.T.77, 596 U.N.T.S. 261 (1963).
(168.) Demarches in the cases of foreign nationals were transmitted in each of the following: Javier Suarez Medina, Texas (Mexican), July 23, 2002; Hung Thanh Le, Oklahoma (Vietnamese), Dec. 4, 2003; Gerardo Valdez, Oklahoma (Mexican), July 13, 2001; Osvaldo Torres, Oklahoma (Mexican) Apr. 30, 2004. See EU Policy and Action on the Death Penalty, http://www.eurunion.org/legislat/DeathPenalty/ deathpenhome.htm#ActiononUSDeathRowCases; see also European Union, Guidelines to EU Policy Towards Third Countries on the Death Penalty, (June 3,1998), Part III(v), available at http://www.eurunion.org/legislat/DeathPenalty/Guidelines.htm.
(169.) The Council of Europe is composed of forty seven Member States: Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia & Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Monaco, Montenegro, Netherlands, Norway, Poland, Portugal, Romania, Russian Federation, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, The Former Yugoslav Republic of Macedonia, Turkey, Ukraine, and the United Kingdom. See The Council of Europe, The Council of Europe's Member States, available at http://www.coe.int/T/E/Com/About_Coe/ Member_states/default.asp (last visited Apr. 10, 2008) (listing member states and dates of membership).
(170.) Brief for European Union and Members of the International Community as Amici Curiae Supporting Petitioner, at 1-2, Medellin v. Texas, 128 S. Ct. 1346 (2008) (No. 06-984), 2007 WL 1874804.
(171.) Commission Staff Working Document: Report on the Implementation of the European Initiative for Democracy and Human Rights in 2000, at 14-15 (2001), available at http://ec.europa.eu/external_relations/ human_rights/doc/sec01_801.pdf.
(172.) Organization for Security and Cooperation in Europe, The Death Penalty in the OSCE Area, 'Human Rights and Inhuman Treatment or Punishment,' (Mar. 27, 2000), available at http://www.osce.org/documents/odihr/2000/03/ 1497_en.html.
(173.) Rome Statute of the International Criminal Court, July 1, 2002, 2187 U.N.T.S. 90.
(174.) Letter Dated 5 April 1993 from the Permanent Representative of the United States of America to the United Nations Addressed to the Secretary-General, U.N. SCOR, U.N. Doc. A/25575 (1993).
(175.) The Situation Concerning Rwanda: Establishment of an International Tribunal for the Prosecution of Persons Responsible for Violations of International Humanitarian Law in the Territory of Rwanda and Rwandan Citizens Responsible for Such Violations Committed in the Territory of Neighboring States, U.N. SCOR, 49th Sess. 3453rd mtg., U.N. Doc. S/PV.3453 (1994).
(176.) There are no published records of the session. This account is based upon my personal notes. I was present at the session. See William A. Schabas, Life, Death and the Crime of Crimes: Supreme Penalties and the ICC Statute, 2 Punishment & Soc'y 263 (2000).
(177.) See supra notes 6-10 and accompanying text (discussing LaGrand).
(178.) United States v. Burns,  1 S.C.R. 283, 2001 SCC 7 (Can.).
(180.) S. v. Makwanyane 1995 (3) SA 391 (CC) at 151 (S. Afr.).
(181.) Mohamed v. President of Republic of South Africa 2001 (3) SA 893 (CC) [paragraph][paragraph] 40, 60 (S. Afr.).
(182.) Id. [paragraph] 49.
(183.) Id. [paragraph][paragraph] 44, 55.
(184.) Id. [paragraph] 74.
(185.) Id. [paragraph] 71.
(186.) Mohamed, 2001 (3) SA 893 (CC) at 971.
(187.) United States v. Bin Laden, 156 F. Supp. 2d. 359 (S.D.N.Y. 2001).
William A. Schabas *
* OC, MRIA, Professor of Human Rights Law, National University of Ireland, Galway and Director, Irish Centre for Human Rights; Global Legal Scholar, University of Warwick School of Law; Visiting Professor, Queen's University Belfast School of Law; Visiting Professor, LUISS Guido Carli University, Rome (2008).
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|Title Annotation:||The Medellin v. Texas Symposium|
|Author:||Schabas, William A.|
|Publication:||Suffolk Transnational Law Review|
|Date:||Jun 22, 2008|
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