University of Kansas Law Review
June, 1999
Special Issue on Juvenile Justice
Comment
"ENLIGHTENED BY A HUMANE JUSTICE" [FNa1]: AN INTERNATIONAL LAW
ARGUMENT AGAINST THE JUVENILE DEATH PENALTY [FNaa1]
Cathleen E. Hull [FNaa1]
Copyright © 1999 Kansas Law Review, Inc.; Cathleen E. Hull
I. Introduction
We cannot comprehend how people of a democratic, free and independent nation-who
have fought and continue to fight with courage and self-denial for the democracy,
freedom and independence of other people; who, after the atrocities of World War II
and Nazi concentration camps had the strength to forgive their enemies, will not grant
one of its children a chance to make amends. [FN1]
In 1642, the first juvenile [FN2] was executed in the United States. [FN3] Since then,
about 350 juveniles have been executed. [FN4] Eleven juveniles have been executed
since 1977 alone, and currently there are seventy- three juveniles on death row. [FN5]
Forty jurisdictions within the United States allow capital punishment, and twenty-three
allow capital punishment for juveniles. [FN6] While the United States continues to
sentence its juveniles to death, most countries prohibit such action. [FN7] Indeed, only
a handful of countries allow the juvenile death penalty, including Bangladesh, Iran,
Iraq, Nigeria, Pakistan, and the United States. [FN8]
*1080 Kansas requires a minimum age of eighteen to impose the death penalty.
[FN9] Recently, however, the Kansas Legislature has discussed lowering the minimum
age for the death penalty to sixteen. [FN10] Although the legislature did not change
the minimum age, the issue may arise again. In both 1998 and 1999, juveniles were
responsible for several heinous shooting incidents in schools. [FN11] Fortunately,
Kansas has not had any school shootings as have occurred in Arkansas and elsewhere.
Kansas has had an increasing problem, however, with students bringing guns to
school. In October 1998, a fourteen-year-old Oskaloosa boy was suspended for
bringing a gun to school. [FN12] Rather than addressing the reasons why these
juveniles are committing acts of violence, the Kansas Legislature very well may decide
simply to increase criminal penalties, including broadening the death penalty. [FN13]
In July 1998, the Nevada Supreme Court declined to set aside the death sentence of
Michael Domingues. [FN14] Domingues committed murder at age sixteen and was
sentenced to death at age seventeen. [FN15] On appeal, Domingues contended that
the International Covenant on Civil and Political Rights (ICCPR) superseded the Nevada
death penalty statute. [FN16] Although the ICCPR prohibits the death penalty for those
under age eighteen, the Nevada Supreme Court held that the United States had
entered a valid reservation to that provision. [FN17] Therefore, the court held that
ICCPR provides no protection for Domingues or other juveniles on death row. [FN18]
*1081 By allowing states to execute juveniles, the United States is in violation of both
its treaty obligations and customary international law. In order to demonstrate these
violations, this Comment first outlines the current United States case law concerning
the juvenile death penalty. Second, this Comment discusses relevant treaty law and
applies it to the juvenile death penalty. This section demonstrates that the United
States is in violation of its treaty obligations by allowing the juvenile death penalty.
Third, this Comment discusses and applies customary international law. This section
demonstrates that the United States is in violation of customary international law.
Finally, this Comment discusses jus cogens and applies it to the juvenile death penalty.
Although one court has held the prohibition of the juvenile death penalty as a norm of
jus cogens, this section demonstrates that it has not yet achieved that status.
II. United States Case Law
The Eighth Amendment of the United States Constitution provides: "Excessive bail shall
not be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted." [FN19] The Amendment does not directly address the death penalty for
adults or juveniles. The United States Supreme Court, however, first addressed the
issue of the juvenile death penalty in terms of the Eighth Amendment in the 1988 case
of Thompson v. Oklahoma. [FN20] The Court again addressed the issue a year later in
the consolidated cases of Stanford v. Kentucky and Wilkins v. Missouri. [FN21]
A. Thompson v. Oklahoma
William Wayne Thompson was fifteen years old when he committed murder. [FN22] An
Oklahoma court held that Thompson had "virtually no reasonable prospects for
rehabilitation" within the juvenile system and therefore certified him for trial as an
adult. [FN23] Thompson was convicted of murder and sentenced to death. [FN24] The
Oklahoma Court of Criminal Appeals affirmed the conviction and sentence, and
Thompson appealed to the United States Supreme Court. [FN25]
In 1988, the Court held that a sentence of death is cruel and unusual punishment for a
crime committed by a fifteen-year-old child. [FN26] Writing for the Court in his
plurality opinion, Justice Stevens first looked to legislative enactments. [FN27] After
reviewing state statutes and the practices of other countries, Justice Stevens
concluded that "it would offend civilized standards of decency to execute a person who
was less than 16 years old at the time of his or her offense." [FN28] Next, Justice
Stevens surveyed the practice of juries using statistical analysis and concluded that
juries rarely impose the death penalty on defendants who are under the age of sixteen.
[FN29]
Finally, Justice Stevens considered the culpability of the juvenile offender. [FN30]
Justice Stevens performed proportional analysis by determining whether the
punishment is "directly related to the personal culpability of the criminal defendant."
[FN31] The Court concluded that juveniles are more vulnerable because of
inexperience and less education. [FN32] Therefore, "less culpability should attach to a
crime committed by a juvenile than to a comparable crime committed by an adult."
[FN33] Accordingly, applying the death penalty to a fifteen-year-old defendant served
neither purpose of the death penalty-retribution or deterrence. [FN34]
B. Stanford v. Kentucky and Wilkins v. Missouri
Kevin Stanford was seventeen years old when he committed murder. [FN35] A
Kentucky juvenile court determined that it was in the best interests of Stanford, as well
as the community, for him to be tried as an adult. [FN36] Stanford was convicted of
several offenses, including murder, and was sentenced to death plus forty-five years in
prison. [FN37] The Kentucky Supreme Court affirmed the sentence and Stanford
appealed to the United States Supreme Court. [FN38]
The Court consolidated the cases of Wilkins v. Missouri and Stanford v. Kentucky.
Heath Wilkins was sixteen years old when he committed murder. [FN39] A Missouri
juvenile court terminated juvenile court jurisdiction and certified Wilkins for trial as an
adult. [FN40] Wilkins was convicted of first-degree murder and was sentenced to
death. [FN41] The Missouri Supreme Court affirmed the sentence, and Wilkins
appealed to the United States Supreme Court. [FN42]
The Court held that the imposition of the death penalty on juveniles does not fall within
the Eighth Amendment's prohibition against "cruel and unusual punishments." [FN43]
Writing for the Court in a plurality opinion, Justice Scalia applied the "evolving
standards of decency" test [FN44] prescribed in Trop v. Dulles. [FN45] "In determining
what standards have 'evolved,' however, we have looked not to our own conceptions of
decency, but to those of modern American society as a whole." [FN46]
In a lone footnote, Justice Scalia discarded the possibility of the Court following
international law principles or practices. [FN47] Rather, the Court looked to objective
indicia such as state statutes and the practice of juries. [FN48] Based on a review of
state statutes, Justice Scalia maintained that there was no national consensus that
imposing the death penalty on sixteen- and seventeen-year-olds was cruel and
unusual. [FN49] Indeed, Justice Scalia contended that "the very considerations which
induce petitioners and their supporters to believe that death should never be imposed
on offenders under 18 cause prosecutors and juries to believe that it should rarely be
imposed." [FN50]
In his dissent, [FN51] Justice Brennan argued that the Court should consider evidence
such as the opinions of respected organizations and the practices of other countries in
examining the "evolving standards of decency." [FN52] *1084 Justice Brennan noted
that several American organizations, including the American Bar Association and the
American Law Institute, recommended eighteen as the minimum age for the death
penalty. [FN53] He pointed out that over seventy-five countries had abolished the
death penalty entirely, either formally or informally, [FN54] and that another sixty-five
countries that had retained the death penalty prohibited the execution of juveniles.
[FN55]
C. The Juvenile Death Penalty and the Current Court
The Trop Court directed that the Eighth Amendment "must draw its meaning from the
evolving standards of decency that mark the progress of a maturing society." [FN56]
The Stanford Court, however, did not establish a constitutional standard concerning
the juvenile death penalty. Rather, it identified a "lowest common denominator of
existing usage." [FN57] By relying on state death penalty statutes to gauge the
"evolving standards of decency," the Court created an incomplete rule that will produce
inconsistent results. [FN58] It is important to note, however, that four Justices did
consider other sources, such as international law, to be important and relevant. [FN59]
The Court's composition has changed dramatically since it decided Stanford in 1989.
Justice Scalia wrote the plurality opinion in which Chief Justice Rehnquist and Justices
White and Kennedy joined. [FN60] Justice O'Connor wrote a concurring opinion.
[FN61] Justice Brennan wrote the dissent in which Justices Marshall, Blackmun and
Stevens joined. [FN62] Four *1085 of these nine Justices have left the bench. [FN63]
Therefore, it is unclear how the Court would address the juvenile death penalty issue
today and whether the Court would apply international law in such a case. [FN64]
III. International Law Principles
International law is commonly regarded as derived from the various sources listed in
Article 38 of the Statute of the International Court of Justice (ICJ Statute). [FN65]
1. The Court . . . shall apply:
a. international conventions, whether general or particular, establishing rules expressly
recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. . . . judicial decisions and the teachings of the most highly qualified publicists of the
various nations, as subsidiary means for the determination of rules of law. [FN66]
Indeed, the Restatement (Third) of Foreign Relations Law of the United States draws
on the ICJ Statute for its listing of "sources of international law" in section 102. [FN67]
This Comment will focus on the first two sources of international law-treaties and
custom-as well as jus cogens. [FN68]
A. Treaty Law
The main source of international law is treaty law. [FN69] Treaties are basically
contracts between states [FN70] that create legal rights and duties. [FN71] The basic
principle of treaty law is pacta sunt servanda, meaning that treaties are legally binding.
[FN72] Over 25,000 treaties currently exist throughout the world. [FN73] States
generally respect their duties and obligations because of "the mutual benefit that
accrues to all sides from their reciprocal observance." [FN74]
A state may express its consent to be bound generally by a treaty, yet also refuse to
accept certain specified provisions of it by filing reservations. It is noteworthy that
eighty-five percent of all multilateral treaties do not have any reservations. [FN75] If a
state makes a valid reservation, the entire treaty except the provisions that were
reserved bind that state.
There is, however, dispute about the effect of an invalid reservation-that is, a
reservation that would not be allowed under the rules quoted above. There are three
possible effects of an invalid reservation: the reserving state is not a party, the
reserving state is a party without the reservation, or the reserving state is a party with
the reservation. The first of these effects is implausible because it makes no sense that
a reserving state may be a party with the reservation; this would "'in effect . . . give
full force and effect to the reservation."' [FN76] The other two possible effects are
plausible and can apply depending on the circumstances. If the illegal reservation can
be severed from the treaty, then the reserving state is a party without the reservation.
[FN77] If, however, it cannot be severed, then the state is not a party. [FN78]
Generally, states may assert a reservation to a treaty unless:
(a) The reservation is prohibited by the treaty;
(b) The treaty provides that only specified reservations, which do not include the
reservation in question, may be made; or
(c) In cases not falling under sub-paragraphs (a) and (b), the reservation is
incompatible with the object and purpose of the treaty. [FN79]
It is generally clear whether a treaty addresses the issue of reservations. Therefore,
section (c) is usually the provision at issue.
There is no bright-line test for whether a reservation violates the object and purpose of
a treaty. Instead, each dispute must be considered *1088 individually with attention
paid to all of the circumstances. Reservations may be either substantive or procedural;
neither type is in and of itself incompatible with the object and purpose of a treaty.
[FN80] In addition, treaties may designate certain provisions as "non-derogable."
Commentators, as well as international tribunals, contend that reservations to nonderogable provisions are not per se unacceptable. [FN81] "While there is no automatic
correlation between reservations to non-derogable provisions, and reservations which
offend against the object and purpose of [a treaty], a State has a heavy onus to justify
such a reservation." [FN82]
1. International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights (ICCPR) guarantees a wide
range of civil and political rights to individuals within the jurisdiction of the states that
are parties. [FN83] As evidenced by the preparatory works, the drafters intended to
create binding norms that give effect to the standards of the Universal Declaration of
Human Rights. [FN84] "The Covenant obligates each State Party to respect and ensure
these rights, to adopt legislative or other necessary measures to give effect to these
rights, and to provide an effective remedy to those whose rights are violated." [FN85]
In particular, Article 6(5) prohibits the death penalty "for crimes committed by persons
below eighteen years of age." [FN86]
On June 8, 1992, the United States ratified the ICCPR, twenty-six years after the
treaty was written. [FN87] Although the United States signed the ICCPR in 1977 under
President Carter, "[d]omestic and international events at the end of 1979, including
the Soviet invasion of Afghanistan and the hostage crisis in Iran, prevented the
[Foreign Relations] Committee from moving to a vote on the Covenant. The Reagan
Administration did not indicate any interest in ratifying the Covenant." [FN88]
The United States fully participated in the drafting of the ICCPR. [FN89] During the
drafting, neither the United States nor any other state *1089 protested the inclusion of
the juvenile death penalty provision. [FN90] The United States, however, ratified the
ICCPR with numerous qualifications. [FN91] In particular, the Senate stated in
Executive Session,
[t]hat the United States reserves the right, subject to its Constitutional constraints, to
impose capital punishment on any person (other than a pregnant woman) duly
convicted under existing or future laws permitting the imposition of capital
punishment, including such punishment for crimes committed by persons below
eighteen years of age. [FN92]
Because of the many reservations that states made to the ICCPR, the ICCPR Human
Rights Committee [FN93] wrote a general comment on the effects of these
reservations. [FN94] The ICCPR Human Rights Committee noted that the ICCPR
neither prohibits nor permits reservations and that "it is desirable in principle that
States accept the full range of obligations, because the human rights norms are the
legal expression of the essential rights that every person is entitled to as a human
being." [FN95] The ICCPR Human Rights Committee recognized that the normal
consequence of an illegal reservation is that the reservation will be severed from the
ICCPR. [FN96] Therefore, the reserving state will be bound to the ICCPR without the
benefit of the reservation. [FN97]
Reservations offending international custom or peremptory norms are incompatible
with the ICCPR. [FN98] The ICCPR Human Rights Committee enumerated several
rights that constitute a custom or a peremptory norm, including the prohibition on
executing juveniles. [FN99] The Senate Foreign Relations Committee recognized that
"it may be appropriate and necessary to question whether changes in U.S. law should
be made to bring the United States into full compliance at the international level" but
that changes will "occur through the normal legislative process." [FN100] Despite its
numerous qualifications, the United States nevertheless generally intends to be bound
by the ICCPR. [FN101]
Accordingly, the United States is bound by the ICCPR, and its reservation to Article
6(5) is illegal and must be severed from the treaty. [FN102] As one commentator aptly
declared,
[t]he accession to the Covenant, after decades of isolationism, indicated a recognition
by the United States that its previous indifference to contemporary international
human rights law was a source of embarrassment and had become a political liability.
The guardians of that law, the [ICCPR Human Rights] Committee, have now indicated
that the United States will have to pay a price for this. It will be declared in breach of
international law for human rights violations committed within its own territory, unless
it is prepared to adjust its domestic legislation to the fundamental norms set out in
articles 6 and 7 of the Covenant, notably by putting an end to juvenile executions.
[FN103]
2. American Convention on Human Rights
Like the ICCPR, the American Convention on Human Rights [FN104] guarantees civil
and political rights to individuals within the jurisdiction of states that are parties.
[FN105] In particular, Article 4(5) states: "Capital punishment shall not be imposed
upon persons who, at the time the crime was committed, were under 18 years of age .
. . ." [FN106] This provision was modeled on Article 6 of the ICCPR. [FN107]
Although the United States participated in the drafting of the ACHR [FN108] and has
signed it, the United States has not ratified the treaty. [FN109] The United States
failed to object to the prohibition of the juvenile death penalty. [FN110] Instead, the
United States "argued that setting a specific age limit in the treaty failed to take into
account the 'already existent trend' toward the abolition of the death penalty
altogether." [FN111] Therefore, the United States abstained to Article 4. [FN112] As a
member of the Organization of American States (OAS), the United States is subject to
the recommendations of the Inter-American Commission on Human Rights, although
the United States is not a party to the ACHR. [FN113]
3. Convention on the Rights of the Child
The Convention on the Rights of the Child [FN114] (Child Convention) seeks to provide
specific guarantees to juveniles because "childhood is entitled to special care and
assistance." [FN115] Specifically, Article 37(a) provides that "[n]either capital
punishment nor life imprisonment without possibility of release shall be imposed for
offences committed by persons below eighteen years of age." [FN116] The Child
Convention was concluded in November 1989, and it came into force within ten
months, [FN117] a remarkably short amount of time.
As of 1998, every United Nations (UN) member had ratified the Child Convention
except the United States and Somalia. [FN118] The United States is the only signatory
that has not yet ratified it. [FN119] "Even though almost every country ratified the
convention, the United States refused and decided to 'retain the flexibility and
authority to impose sentences in accordance with the tenets of its citizens and elected
officials."' [FN120] Only Myanmar made a reservation to the juvenile death penalty
provision, and Myanmar subsequently withdrew it. [FN121] Indeed, a few months
before signature of the Child Convention, the United Nations Human Rights Committee
"announced that reservations concerning execution of children were incompatible with
rules of customary international law" and were therefore invalid. [FN122]
In 1997, the UN Human Rights Commission called upon "all states that have not yet
abolished the death penalty to restrict progressively the number of offenses for which
the death penalty may be imposed, with a view to its complete abolition." [FN123] The
Commission further called upon states to uphold their obligations under the ICCPR and
the Child Convention. The Commission particularly stressed the obligation that the
states that are parties must not impose the juvenile death penalty. [FN124]
4. Convention Relative to the Protection of Civilian Persons in Time of War
The Convention Relative to the Protection of Civilian Persons in Time of War (Fourth
Geneva Convention) [FN125] provides guarantees for individuals during war. Article 68
states that "the death penalty may not be pronounced against a protected person who
was under eighteen years of age at the time of the offence." [FN126] In addition,
Article 77(5) of Protocol I to the Fourth Geneva Convention declares, "[t]he death
penalty for an offence related to the armed conflict shall not be executed on persons
who had not attained the age of eighteen years at the time the offence was
committed." [FN127] Further, Article 6(4) of Protocol II provides that "[t]he death
penalty shall not be pronounced on persons who were under the age of eighteen years
at the time of the offence." [FN128]
Although the United States has not ratified either Protocol, it has ratified the Geneva
Convention. [FN129] Upon the adoption of the text of the Geneva Convention, the
United States reserved "the right to impose the death penalty in accordance with the
provisions of Article 68, paragraph 2, without regard to whether the offenses referred
to therein are punishable by death under the law of the occupied territory at the time
the occupation begins." [FN130] The United States, however, made no reservation to
Article 68 at the time of ratification. [FN131]
B. Customary Law
The second source of international law is custom. "The fundamental idea behind the
notion of custom as a source of international law is that states in and by their
international practice may implicitly consent to the creation and application of
international legal rules." [FN132] In the North Sea Continental Shelf Cases, [FN133]
the International Court of Justice affirmed the concept of custom as a source of
international law. [FN134] Examples of *1094 violations of international customary
law include slavery, arbitrary detention, and consistent, gross breaches of accepted
human rights standards. [FN135] An international practice has ripened into binding
custom when four elements are met: generality, consistency, duration, and opinio
juris. [FN136]
1. Generality
The first element, generality, requires that the practice be widespread. [FN137] While
the practice need not be universal, it must occur in more than a specific area of the
world. [FN138] "When . . . a wrong is found to be of mutual, and not merely several,
concern among nations, it may be termed an international law violation." [FN139]
Although there may be regional custom, [FN140] "there is no justification for an
'American standard' when the issue is human dignity." [FN141]
Today, there is a global, widespread prohibition of juvenile executions. [FN142] As of
1993, fifty-nine states had completely abolished the death penalty. [FN143] Another
fifteen states had abolished it for all but exceptional crimes. [FN144] Notably, every
state in Western Europe belongs to one of these two groups. [FN145] At least seventytwo states worldwide expressly prohibit the juvenile death penalty. [FN146] This group
includes Russia, South Africa, Syria, Paraguay, and Libya. [FN147] Another twelve
states have become parties to the ICCPR without reservation to Article 6. [FN148]
Between 1981 and 1991 only a handful of states executed juveniles: Bangladesh,
Barbados, Iran, Iraq, Nigeria, Pakistan, and the United States. [FN149] Indeed, the
United States reported the most juvenile executions during that period with four
executions. [FN150] Because only six states [FN151] continue to execute juveniles,
the first element of generality is met.
2. Consistency
Consistency, the second element, requires that the practice not differ greatly from
state to state. Unlike determining the borders of the continental shelf (at issue in the
North Sea Continental Shelf Cases before the International Court of Justice), [FN152]
the rule prohibiting the execution of juveniles leaves little room for discrepancy-either
a state permits the execution of juveniles or it does not permit such executions. As
discussed above, it is clear that very few states execute juveniles. Indeed, the
preparatory works of the ICCPR reveal that Article 6 simply codified the consensus of
states. [FN153] Therefore, the second element of consistency is met.
3. Duration
Duration, the third element, concerns how long the practice has existed. Custom may
develop "[b]y an ancient usage among civilized nations, beginning centuries ago, and
gradually ripening into a rule of international law." [FN154] Custom, however, also
may develop quite quickly, such as the freedom to explore space. [FN155]
Although the passage of only a short period of time is not necessarily, or of itself, a bar
to the formation of a new rule of customary international law on the *1096 basis of
what was originally a purely conventional rule, an indispensable requirement would be
that within the period in question, short though it might be, State practice, including
that of States whose interests are specially affected, should have been both extensive
and virtually uniform in the sense of the provision invoked; and should moreover have
occurred in such a way as to show a general recognition that a rule of law or legal
obligation is involved. [FN156]
Although the prohibition of the juvenile death penalty is not an "ancient usage," it has
nonetheless ripened into a customary norm. State practice demonstrates that the rule
is "both extensive and virtually uniform." [FN157] Moreover, because at least four
major treaties prohibit the juvenile death penalty, it is plainly "a rule of law or legal
obligation." Therefore, the duration element of custom is met.
4. Opinio Juris
The final element, opinio juris, is the psychological element of custom. Opinio juris "is
usually defined as a conviction felt by states that a certain form of conduct is required
by international law." [FN158] In examining a particular rule, one typically infers the
existence of opinio juris from state behavior. [FN159] If the behavior demonstrates
that the rule is permissive, there is no opinio juris. [FN160] Opinio juris exists,
however, if the behavior demonstrates that the rule is obligatory. [FN161]
When a large number of states recognize a particular rule, a presumption arises that
the rule is generally recognized. [FN162] The International Court of Justice, as well as
commentators, have recognized such a presumption. [FN163] Although a rule may be
breached, it can still be binding custom. "The best evidence for the existence of
international law is that every actual State recognizes that it does exist and that it is
itself under an obligation to observe it. States often violate international law, just as
individuals often violate municipal law; but no more than individuals do." [FN164]
*1097 Because only a handful of states practice the juvenile death penalty, there is a
presumption that its prohibition constitutes a binding customary rule. Indeed, treaty
provisions such as Article 6 of the ICCPR and Article 37 of the Child Convention serve
as the "crystallization" of the custom prohibiting the execution of juveniles. [FN165]
The preparatory works of the ICCPR, for example, indicate that Article 6(5) "reflected a
consensus of a majority of nations and was merely a codification of an existing, binding
norm." [FN166] In 1980, the United States sponsored a United Nations General
Assembly Resolution which recognized that Article 6 of the ICCPR constitutes a
"'minimum standard' for all U.N. members, not just those who ratified the Covenant."
[FN167]
5. The Effect of a Dissent to a Customary Norm
In some circumstances, a state may avoid being bound to a customary rule only if it
expressly and consistently objects to the rule from the beginning of the rule's
existence. [FN168] It is difficult to determine the precise moment when a custom
becomes binding. One may safely say, however, that the prohibition of the juvenile
death penalty dates back at least to 1966, when the ICCPR was drafted. [FN169]
The United States fully participated in the drafting of all four of the treaties previously
discussed that outlaw the juvenile death penalty. While the United States had the
opportunity to object to Article 6(5) of the ICCPR at the time of drafting, it declined to
do so. Instead, the United States did not expressly state its objection until 1992, over
twenty-*1098 five years after the conclusion of the treaty. [FN170] In addition, the
United States has not filed a reservation to either the ACHR [FN171] or the Child
Convention. [FN172] The United States made a reservation to Article 68 of the Geneva
Convention at the time of the drafting, but not at the time of ratification. [FN173] This
behavior of the United States clearly fails to meet the standard of express and
consistent dissent dating back to the rule's creation.
At least one commentator contends that the United States is not subject to the
customary rule disallowing juvenile death sentences because it has continued to
execute juveniles. [FN174] According to this commentator, because the United States
continues to practice the juvenile death penalty, it has voiced sufficient dissent.
[FN175] The United States continues to execute juveniles, but that does not mean that
the United States is exempt from the prohibition on the juvenile death penalty.
[FN176] Rather, it simply means that the United States is in violation of its duties
under international treaty and customary law.
6. Customary International Law and United States Law
It is axiomatic that "[i]nternational law is part of our law, and must be ascertained and
administered by the courts of justice of appropriate jurisdiction, as often as questions
of right." [FN177] United States courts must interpret international law as it currently
exists, not as it was in 1789. [FN178] When interpreting international law, courts may
look to both custom and treaty law. Indeed, the United States Supreme Court based
the holding in The Paquete Habana [FN179] on "the general consent of the civilized
nations of the world." [FN180]
Within the last twenty years, United States courts have become much more willing to
address and apply international human rights norms. For example, the Filartiga court
held that a citizen of Paraguay may be liable under the Alien Tort Statute for torturing
and killing a fellow Paraguayan citizen. [FN181] In its conclusion, the court addressed
the role of international law, and of human rights norms specifically, in the courts of
the United States:
In the twentieth century the international community has come to recognize the
common danger posed by the flagrant disregard of basic human rights and particularly
the right to be free of torture. Spurred first by the Great War, and then the Second,
civilized nations have banded together to prescribe acceptable norms of international
behavior. From the ashes of the Second World War arose the United Nations
Organization, amid hopes that an era of peace and cooperation had at last begun.
Though many of these aspirations have remained elusive goals, that circumstance
cannot diminish the true progress that has been made. In the modern age,
humanitarian and practical considerations have combined to lead the nations of the
world to recognize that respect for fundamental human rights is in their individual and
collective interest. Among the rights universally proclaimed by all nations, as we have
noted, is the right to be free of physical torture. Indeed, for purposes of civil liability,
the torturer has become-like the pirate and slave trader before him-hostis humani
generis, an enemy of all mankind. Our holding today, giving effect to a jurisdictional
provision enacted by our First Congress, is a small but important step in the fulfillment
of the ageless dream to free all people from brutal violence. [FN182]
Also in 1980, the United States District Court for the District of Kansas applied
international human rights norms in Fernandez v. Wilkinson. [FN183] The appellant, a
Cuban detainee, sought relief through habeas corpus, claiming that his detention
violated, inter alia, international law. [FN184] Specifically, the appellant cited the
Universal Declaration of Human Rights and the American Convention on Human Rights.
[FN185] Because the United States has ratified very few human rights agreements, the
court recognized the difficulty in using international agreements as a legal source.
[FN186] Nevertheless, the court looked to international agreements, including the
ACHR and ICCPR, as "indicative of the customs and usages of civilized nations."
[FN187]
The Fernandez court, however, even went beyond the Filartiga court in its application
of international law. While the Second Circuit simply applied international law in the
context of a federal statute, the District Court in Fernandez applied international law
without statutory support. "[E]ven though the indeterminate detention of an excluded
alien cannot be said to violate the United States Constitution or our statutory laws, it is
judicially remedial as a violation of international law." [FN188] In granting habeas
corpus, the court aptly identified the irony in the application of human rights by the
United States government:
More broadly, and certainly more importantly for the international human rights
movement, is the effectiveness of international agreements in protecting individuals in
the nations which are most committed to human rights. The United States, for
example, preaches incessantly about the superiority of its system as a bulwark for
human rights. The Constitution, it is claimed, is a remarkable document for many
reasons, but particularly because it is a blueprint for the protection of individuals
against government infringement. Thus, the argument goes, the United States need
not concern itself with international human rights agreements. Rather, the United
States should act as a catalyst to encourage other nations to create and be bound by
international human rights agreements.
The United States, therefore, is signatory to very few international human rights
agreements and ratifying state to even fewer such agreements. Moreover, a strong
argument can be made that the United States does not follow even the spirit of some
of the international human rights agreements to which it is a party. Instead, other
concerns-economic, political, and social-assume preeminence to the detriment of
human rights on an international scale. [FN189]
For the foregoing reasons, it seems clear that the prohibition of the juvenile death
penalty has ripened into customary international law. All four elements have been metgenerality, consistency, duration, and opinio juris. The United States is bound because
it has not expressly and consistently voiced dissent to the rule. Therefore, United
States courts should apply the prohibition just as they would apply a constitutional
provision or statute. [FN190]
C. Jus Cogens
The third source of international law pertinent to a discussion of the juvenile death
penalty is peremptory norms, or jus cogens. The Vienna Convention defines jus cogens
as "a norm accepted and recognized by the international community of States as a
whole as a norm from which no derogation is permitted and which can be modified
only by a subsequent norm of general international law having the same character."
[FN191] Jus cogens possesses attributes of both natural and positive law. [FN192]
Commentators agree on very few international rules that are so fundamental and
widely accepted that they qualify as jus cogens. It is well- settled, however, that the
principles of non-intervention and pacta sunt servanda constitute matters of jus
cogens. [FN193] Beyond these two norms, however, there is a dispute about whether
there are any other peremptory norms.
A small but growing number of commentators and resources include certain human
rights norms as jus cogens. For example, section 702 of the Restatement (Third) of
Foreign Relations Law of the United States, lists six rules with the characteristics of jus
cogens:
A state violates international law if, as a matter of state policy, it practices,
encourages, or condones
(a) genocide,
(b) slavery or slave trade,
(c) the murder or causing the disappearance of individuals,
(d) torture or other cruel, inhuman, or degrading treatment or punishment,
(e) prolonged arbitrary detention [or]
(f) systematic racial discrimination. . . . [FN194]
Further, the Restatement recognizes that the United States is obligated to respect
human rights in general. [FN195] One commentator has likened jus cogens to the
United States Bill of Rights because both "necessarily limit[] a state's ability to
transgress a norm reflecting widely held fundamental concerns of the international
community." [FN196]
To be considered jus cogens, an international norm must satisfy three criteria: (1) a
large number of states consider it necessary for international public order; (2)
multilateral agreements prohibit derogation from the norm; and (3) international
tribunals have applied the norm. [FN197] This Comment discussed the first two criteria
above. [FN198] Therefore, we turn to the third criterion, whether international
tribunals have applied the prohibition of the juvenile death penalty.
1. Inter-American Commission on Human Rights Case 9647 [FN199]
In 1987, the Inter-American Commission on Human Rights (IACHR) found the United
States in violation of jus cogens because the federal government did not prohibit the
execution of juveniles. [FN200] Case 9647 concerned the executions of James Terry
Roach and Jay Pinkerton. Both were seventeen years old at the time they committed
murder, and were therefore too old for the juvenile courts in their home states.
[FN201] After the United States Supreme Court denied certiorari to address the
sentence of either defendant, Roach and Pinkerton were both executed in 1986.
[FN202]
Petitioners claimed that the United States violated the American Declaration of the
Rights and Duties of Man [FN203] (ADRDM) and customary international law by
executing Roach and Pinkerton. [FN204] Specifically, petitioners maintained that the
execution of juveniles violated Article XXVI of the ADRDM that forbids "cruel, infamous
or unusual punishment." [FN205] "Killing a young person who has not had the chance
to mature to adulthood," the petitioners contended, "is the 'ultimate cruel
punishment."' [FN206] The petitioners added that human rights instruments, as well as
state practices, evidence the existence of a custom prohibiting the juvenile death
penalty. [FN207]
The United States, however, maintained that the ADRDM was the only relevant treaty
and that no customary rule existed. [FN208] Because the United States had not
ratified the ACHR or the ICCPR, neither treaty binds the United States. [FN209]
Moreover, the ADRDM is silent on the issue of the death penalty. [FN210] Although the
drafters considered adopting a provision concerning capital punishment, "a standard on
capital punishment could not be devised due to the diversity of State legislation in the
hemisphere." [FN211] In addition, the United States contended that it had not ripened
into custom because there was no uniformity and no opinio juris. [FN212] Even if it
had ripened into custom, however, the United States, as a persistent objector, would
not be bound. [FN213]
The IACHR agreed with the United States that it was not bound to the ACHR and that
the ADRDM was silent on the issue of the death penalty. [FN214] It also agreed with
the United States that it would not be bound by a customary rule prohibiting the
juvenile death penalty even if such a rule existed. [FN215]
Since the United States has protested the norm, it would not be applicable to the
United States should it be held to exist. For a norm of customary international law to
be binding on a State which has protested the norm, it must have acquired the status
of jus cogens. Petitioners do not argue that a rule prohibiting the execution of juvenile
offenders has acquired the authority of jus cogens, a peremptory norm of international
law from which no derogation is permitted. The Commission, however, is not a judicial
body and is not limited to considering only the submissions presented by the parties to
a dispute. [FN216]
The IACHR went on to hold that the prohibition of the juvenile death penalty had
reached the status of jus cogens, although the rule had not yet ripened into a
customary norm. [FN217] Indeed, "it is the kind of rule that . . . would shock the
conscience of mankind and the standards of public morality for a State to protest."
[FN218] Furthermore, the IACHR contended that all OAS members accepted this rulethe existence of a juvenile court system evidenced the acceptance by the United
States. [FN219] The IACHR argued that "[t]he deprivation by the State of an offender's
life should not be made subject to the fortuitous element of where the crime took
place." [FN220] Therefore, the current rule under United States law *1105 constitutes
"a patchwork scheme of legislation" that "results in a pattern of legislative
arbitrariness." [FN221]
2. Reactions to Case 9647
Case 9647 was a monumental case, because it stated for the first time that the
prohibition of juvenile executions constitutes jus cogens. The case and its reasoning,
however, have provoked both dissent and criticism. [FN222] The IACHR inconsistently
used preparatory works for treaty interpretation. Because the ADRDM does not have a
provision specifically addressing the death penalty, the IACHR should have looked to
the preparatory works for guidance. [FN223] The preparatory works of the ADRDM
demonstrate that there was not a consensus about the legality of the death penalty or
the juvenile death penalty. [FN224]
Second, the IACHR failed to address adequately the issue of custom. Although the
IACHR correctly identified the elements of custom, it did not apply the elements to the
prohibition of the juvenile death penalty. [FN225] Instead, it simply stated that the
United States would not be bound even if such a rule of custom existed. [FN226] The
United States, despite the questionable reasoning of Case 9647, has not expressly and
consistently objected to the prohibition and is therefore not exempt from following it.
[FN227]
Finally, the IACHR broke with precedent and established a regional rule of jus cogens.
Besides this case, there is no other support for the notion of regional jus cogens
[FN228]-"one must be in the presence of an imperative norm that has gained
acceptance in the international community 'as a whole."' [FN229] In his dissent, Dr.
Cabra stated:
While there is undoubtedly a tendency towards abolishing the death penalty, it cannot
be said that the prohibition of the death penalty for minors under 18 years of age is a
norm that has been accepted by the international community as a whole, and
consequently, a norm of jus cogens has not been created. [FN230]
Despite its faults, however, this case is quite significant for recognizing the
international disapproval of the juvenile death penalty.
IV. Conclusion
The United States is in violation of its international law obligations by continuing to
execute juveniles. The United States is in violation of the ICCPR, the ACHR, the Child
Convention, and the Fourth Geneva Convention. Although the United States reserved
the right to execute defendants according to the standards set by the Supreme Court,
its reservations are invalid because they are incompatible with the object and purpose
of these treaties. Although its reservations are illegal, the United States is still a party
with its reservations severed from the treaties.
The prohibition of the juvenile death penalty has ripened into a customary rule of
international law. There is a global, widespread prohibition of the juvenile death
penalty, which satisfies the first element of generality. Because there is little
discrepancy concerning the prohibition of the juvenile death penalty, the second
element of consistency is met. The prohibition has lasted long enough for an extensive
and virtually uniform practice to develop, which satisfies the third element of duration.
A presumption exists that opinio juris, the final element, is satisfied because only a
handful of states practice the juvenile death penalty. Therefore, the United States is in
violation of international customary law regardless of whether its reservations to these
four treaties are valid.
Although the prohibition of the juvenile death penalty violates both treaty and
customary international law, it has not yet become a rule of jus cogens. The InterAmerican Commission on Human Rights, in its flawed opinion in Case 9647, held that
the prohibition was not custom but was a peremptory norm. Although this case is
flawed in its analysis, Case 9647 nevertheless evidences the strong disapproval of the
juvenile death penalty.
V. Appendices
A. Treaty Matrix
TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE
B. Statutory Summary Matrix
TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE
C. Death Penalty Statutes Matrix
TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE
[FNa1]. Weems v. United States, 217 U.S. 349, 378 (1910) (citations omitted) ("The
clause of the Constitution [the Eighth Amendment] in the opinion of the learned
commentators may be therefore progressive, and is not fastened to the obsolete but may
acquire meaning as public opinion becomes enlightened by a humane justice.").
[FNaa1]. Cathleen E. Hull, J.D. 1999. The author would like to thank her husband, Bruce,
and her family for their support. The author would also like to thank Professor John Head
and the entire staff of the University of Kansas Law Review for their time, effort, and
advice.
[FN1]. Suzanne D. Strater, The Juvenile Death Penalty: In the Best Interests of the
Child?, 26 Loy. U. Chi. L.J. 147, 169 n.154 (1995) (quoting Amy Linn, Should We Kill Our
Children? The Death Penalty Debate, Philadelphia Inquirer, Oct. 4, 1987, at 12 (quoting a
letter from Italy to Governor Robert Orr of Indiana)).
[FN2]. Within this Comment, "juvenile" means a person under the age of eighteen at the
commission of the crime.
[FN3]. See Strater, supra note 1, at 151.
[FN4]. See Victor L. Streib, The Juvenile Death Penalty in the United States and
Worldwide, 4 Loy. Poverty L.J. 173, 179 (1998).
[FN5]. See [Current Service] Death Row USA Reporter (NAACP Legal Def. & Educ. Fund)
1243-51, 1286 (Oct. 1, 1998).
[FN6]. See infra Appendix B.
[FN7]. See Ved P. Nanda, The United States 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, 1332-33 (1993).
[FN8]. See id. at 1333.
[FN9]. See Kan. Stat. Ann. § 21-4622 (1995). The statute provides: "Upon conviction of
a defendant of capital murder and a finding that the defendant was less than 18 years of
age at the time of the commission thereof, the court shall sentence the defendant as
otherwise provided by law, and no sentence of death shall be imposed hereunder." Id.
[FN10]. See H.B. 2532, 76th Leg. (Kan. 1995).
[FN11]. See Rick Bragg, Judge Punishes Arkansas Boys Who Killed 5, N.Y. Times, Aug.
12, 1998, at Al ("[T]he Jonesboro attack, the deadliest in a series of school shootings
that left people dead in Pearl, Miss., West Paducah, Ky., and Springfield, Ore.").
[FN12]. See Chris Grenz, Boy Suspended for Gun Hidden Near Oskaloosa High Property,
Topeka Cap. J., Oct. 8, 1998, at 1-A.
[FN13]. Professor Victor Streib "contends that political leaders use the juvenile death
penalty as a panacea to teenage violence and crime, hindering the search for a real
solution to these problems." Strater, supra note 1, at 160.
[FN14]. See Domingues v. State, 961 P.2d 1279 (Nev. 1998).
[FN15]. See id. at 1280.
[FN16]. See id.
[FN17]. See id. "'Reservation' means a unilateral statement, however phrased or named,
made by a State, when signing, ratifying, accepting, approving or acceding to a treaty,
whereby it purports to exclude or to modify the legal effect of certain provisions of the
treaty in their application to that State." Vienna Convention on the Law of Treaties, May
23, 1969, art. 2(1)(d), 1155 U.N.T.S. 331, 333 [hereinafter Vienna Convention].
[FN18]. It is beyond the scope of this Comment to discuss whether the ICCPR, or any
other treaty, is self-executing or non-self-executing. "When a treaty is non-selfexecuting, it 'addresses itself to the political, not the judicial department; and the
Legislature must execute the contract, before it can become a rule for the court."' Laura
Dalton, Note, Stanford v. Kentucky and Wilkins v. Missouri: A Violation of an Emerging
Rule of Customary International Law, 32 Wm. & Mary L. Rev. 161, 173 (1990). For a
complete analysis of the differences between self-executing and non-self-executing
treaties, see Sei Fujii v. State, 242 P.2d 617 (Cal. 1952).
[FN19]. U.S. Const. amend. VIII.
[FN20]. 487 U.S. 815 (1988).
[FN21]. 492 U.S. 361 (1989).
[FN22]. See Thompson, 487 U.S. at 819-20.
[FN23]. Id. at 819.
[FN24]. See id. at 820.
[FN25]. See id.
[FN26]. See id. at 838.
[FN27]. See id. at 823-31.
[FN28]. Id. at 830.
[FN29]. See id. at 831-33.
[FN30]. See id. at 833-38.
[FN31]. Id. at 834 (quoting California v. Brown, 479 U.S. 538, 545 (1987) (O'Connor, J.,
concurring)).
[FN32]. See id. at 834-35.
[FN33]. Id. at 835.
[FN34]. See id. at 836-38.
[FN35]. See Stanford v. Kentucky, 492 U.S. 361, 365 (1989).
[FN36]. See id.
[FN37]. See id. at 366.
[FN38]. See id.
[FN39]. See id.
[FN40]. See id. at 367.
[FN41]. See id.
[FN42]. See id. at 368.
[FN43]. See id.
[FN44]. See id. at 369.
[FN45]. 356 U.S. 86, 101 (1958) (plurality opinion).
[FN46]. Stanford, 492 U.S. at 369.
[FN47]. See id. at 369 n.1.
[FN48]. See id. at 370-74.
[FN49]. See id. at 370-71.
[FN50]. Id. at 374 (emphasis added).
[FN51]. Justices Marshall, Blackmun, and Stevens joined Justice Brennan in his dissent.
[FN52]. See Stanford, 492 U.S. at 388-90 (Brennan, J., dissenting).
[FN53]. See id. at 388-89. The Model Penal Code § 210.6 (1985) states: "(1) Death
Sentence Excluded. When a defendant is found guilty of murder, the Court shall
________________________ impose sentence for a felony of the first degree if it is
satisfied that: . . . (d) the defendant was under 18 years of age at the time of the
commission of the crime . . . ."
[FN54]. See Stanford, 492 U.S. at 389.
[FN55]. See id.
[FN56]. Trop v. Dulles, 356 U.S. 86, 101 (1958).
[FN57]. Nanda, supra note 7, at 1338.
[FN58]. See id. ("The use of state laws is certainly an inadequate gauge of evolving
standards of decency for the elevated purposes of the U.S. Constitution."); see also
Elisabeth Gasparini, Juvenile Capital Punishment: A Spectacle of a Child's Injustice, 49
S.C. L. Rev. 1073, 1083 (1998) (stating that "calculating whether the majority of states
allow juveniles below the age of eighteen to be sentenced to death can lead to subjective
and inconsistent results that do not necessarily reflect reality"). Justice Scalia's analysis,
for example, ignored the states that prohibit the death penalty altogether. See Stanford,
492 U.S. at 384 (Brennan, J., dissenting).
[FN59]. Justices Brennan, Marshall, Stevens, and Blackmun considered international law
relevant to juvenile death penalty cases. See Dalton, supra note 18, at 162 n.8 (citing
Stanford, 492 U.S. at 388-89 (Brennan, J., dissenting); Thompson v. Oklahoma, 487 U.S.
815, 830 (1988) (plurality opinion)).
[FN60]. See Stanford, 492 U.S. at 364.
[FN61]. See id. at 380.
[FN62]. See id. at 382.
[FN63]. Justices Souter, Thomas, Breyer, and Ginsburg have filled the positions of
Justices Brennan, Marshall, Blackmun, and White, respectively. See Kha Q. Nguyen,
Note, In Defense of the Child: A Jus Cogens Approach to the Capital Punishment of
Juveniles in the United States, 28 Geo. Wash. J. Int'l L. & Econ. 401, 415 n.95 (1995).
[FN64]. One commentator maintains that a new procedural rule of custom is emerging
which "requires that a court consider the body of international law relevant to human
rights whenever an individual's fundamental rights are in jeopardy." Dalton, supra note
18, at 198. For an explanation of international customary law, see infra Part III.B.
[FN65]. See Mark W. Janis, An Introduction to International Law 42 (2d ed. 1993).
[FN66]. Statute of the International Court of Justice, June 26, 1945, art. 38(1), 59 Stat.
1055, 1060 [hereinafter I.C.J. Statute].
[FN67]. See Restatement (Third) of Foreign Relations Law of the United States § 102
reporters' note 1 (1987) (citations omitted). Section 102 provides:
(1) A rule of international law is one that has been accepted as such by the interna tional
community of states
(a) in the form of customary law;
(b) by international agreement; or
(c) by derivation from general principles common to the major legal systems of the
world.
(2) Customary international law results from a general and consistent practice of states
followed by them from a sense of legal obligation.
(3) International agreements create law for the states parties thereto and may lead to
the creation of customary international law when such agreements are intended for
adherence by states generally and are in fact widely accepted.
(4) General principles common to the major legal systems, even if not incorporated or
reflected in customary law or international agreement, may be invoked as supple
mentary rules of international law where appropriate.
Id. § 102.
[FN68]. Jus cogens are peremptory norms of international law. See id. § 102 cmt. k.
[FN69]. See Janis, supra note 65, at 9.
[FN70]. The term "state" means an entity that has a population, a territory, a
government, and the capacity to engage in foreign relations. See Thomas Buergenthal &
Harold G. Maier, Public International Law in a Nutshell 2 (2d ed. 1990).
[FN71]. See id.; see also Vienna Convention, supra note 17, art. 2(1)(a), at 333
("'Treaty' means an international agreement concluded between States in written form
and governed by international law, whether embodied in a single instrument or in two or
more related instruments and whatever its particular designation.").
[FN72]. See Janis, supra note 65, at 11; see also Vienna Convention, supra note 17, art.
26, at 339 ("Every treaty in force is binding upon the parties to it and must be performed
by them in good faith.").
[FN73]. See Janis, supra note 65, at 11.
[FN74]. Id. at 13.
[FN75]. See Restatement (Third) of Foreign Relations Law of the United States § 313
reporters' note 5 (1987). This provision mirrors a similar provision in the Vienna
Convention. See Vienna Convention, supra note 17, art. 19, at 336-37. Although the
United States is not a party to the Vienna Convention, it is well-settled that in most
respects the Vienna Convention simply codified existing international customary law
concerning treaties. See 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, 287 (1995) ("In 1951, the International Court of Justice (ICJ) recognized that, in
the absence of a provision to the contrary, reservations to multilateral treaties are
permissible to the extent that they do not conflict with the 'object and purpose' of the
treaty.") (citing Reservations to the Convention on the Prevention and Punishment of the
Crime of Genocide, 1951 I.C.J. 15 (May 28) (accepted by the U.N. General Assembly,
G.A. Res. 598(VI), U.N. GAOR, 6th Sess., 360th plen. mtg. at 84, U.N. Doc. A/L.37
(1952)); see also General Comments Adopted by the Human Rights Committee
Paragraph 4, of the International Covenant on Civil and Political Rights, U.N. GAOR, Hum.
Rts. Comm., 52d Sess., 1382d mtg. at 3 n.3, U.N. Doc. CCPR/C/21/Rev. 1/Add. 6 (1994)
[hereinafter General Comments].
[FN76]. Schabas, supra note 75, at 317 (quoting R. St. J. MacDonald, Reservations Under
the European Convention on Human Rights, 21 Revue de Belge de Droit International
[R.B.D.I.] 429, 449 (1988)).
[FN77]. See id. at 278.
[FN78]. See id.; see also Vienna Convention, supra note 17, art. 44(3), at 343.
[FN79]. Vienna Convention, supra note 17, art. 19, at 336-37.
[FN80]. See Schabas, supra note 75, at 292.
[FN81]. See id. at 293-95 (discussing the positions of the Inter-American Court of Human
Rights and the International Covenant on Civil and Political Rights Human Rights
Committee).
[FN82]. General Comments, supra note 75, at 4.
[FN83]. See International Covenant on Civil and Political Rights, Dec. 19, 1966, art. 2(1),
999 U.N.T.S. 171, 173 [hereinafter ICCPR].
[FN84]. See Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d
Sess., pt. 1, 183d plen. mtg. at 71, U.N. Doc. A/810 (1948); Schabas, supra note 75, at
298.
[FN85]. S. Exec. Rep. No. 102-23, at 1-2 (1992), reprinted in 31 I.L.M. 645, 648-49
(1992).
[FN86]. ICCPR, supra note 83, art. 6(5), at 175.
[FN87]. See Burns H. Weston et al., Supplement of Basic Documents to International Law
and World Order 1298-99 (3d ed. 1997) [hereinafter Weston, Basic Documents].
[FN88]. S. Exec. Rep. No. 102-23, supra note 85, at 2.
[FN89]. See Dalton, supra note 18, at 176.
[FN90]. See Nanda, supra note 17, at 1328.
[FN91]. See 138 Cong. Rec. S4783-84 (1992) (enumerating the five reservations, five
understandings, four declarations, and one proviso). For a discussion on the distinction
between these qualifications, see Burns H. Weston et al., International Law and World
Order 91-93 (3d ed. 1997) [hereinafter Weston, World Order].
[FN92]. 138 Cong. Rec. S4783 (1992).
[FN93]. The Human Rights Committee was established pursuant to Article 28 of the
ICCPR. See ICCPR, supra note 83, art. 40, at 179.
[FN94]. See General Comments, supra note 75. "The number of reservations, their
content and their scope may undermine the effective implementation of the Covenant
and tend to weaken respect for the obligations of States parties." Id. at 1. It is within the
province of the ICCPR Human Rights Committee to determine whether a reservation is
compatible with the ICCPR. See id. at 7; see also id. at 4 ("[A] reservation that rejects
the Committee's competence to interpret the requirements of any provisions of the
Covenant would also be contrary to the object and purpose of that treaty.").
[FN95]. Id. at 2.
[FN96]. See id. at 7.
[FN97]. See id.
[FN98]. See id. at 3.
[FN99]. See id.
[P]rovisions in the Covenant that represent customary international law (and a fortiori
when they have the character of peremptory norms) may not be the subject of
reservations. Accordingly, a State may not reserve the right to engage in slavery, to
torture, to subject persons to cruel, inhuman or degrading treatment or punishment, to
arbitrarily deprive persons of their lives, to arbitrarily arrest and detain persons, to deny
freedom of thought, conscience and religion, to presume a person guilty unless he proves
his innocence, to execute pregnant women or children, to permit the advocacy of
national, racial or religious hatred, to deny to persons of marriageable age the right to
marry, or to deny to minorities the right to enjoy their own culture, profess their own
religion, or use their own language. And while reservations to particular clauses of article
14 may be acceptable, a general reservation to the right to a fair trial would not be.
Id. (emphasis added).
[FN100]. S. Exec. Rep. No. 102-23, supra note 85, at 4.
[FN101]. See Schabas, supra note 75, at 316-17.
[FN102]. See General Comments, supra note 75, at 7 ("The normal consequence of an
unacceptable reservation is not that the Covenant will not be in effect at all for a
reserving party. Rather, such a reservation will generally be severable, in the sense that
the Covenant will be operative for the reserving party without benefit of the
reservation."). In addition, the Committee denounced
reservations which essentially render ineffective all Covenant rights which would require
any change in national law to ensure compliance with Covenant obligations. No real
international rights or obligations have thus been accepted. And when there is an
absence of provisions to ensure that Covenant rights may be sued on in domestic courts,
and, further, a failure to allow individual complaints to be brought to the Committee
under the first Optional Protocol, all the essential elements of the Covenant guarantees
have been removed.
Id. at 5. Therefore, the Helms proviso also may be illegal. See 138 Cong. Rec. S4784
(1992).
[FN103]. Schabas, supra note 75, at 325 (footnote omitted).
[FN104]. See American Convention on Human Rights: "Pact of San Jose, Costa Rica,"
Nov. 22, 1969, 1144 U.N.T.S. 144 [hereinafter ACHR].
[FN105]. See id. arts. 1-2, at 145.
[FN106]. Id. art. 4(5), at 146.
[FN107]. See Schabas, supra note 75, at 303.
[FN108]. See id. at 304.
[FN109]. See Weston, Basic Documents, supra note 87, at 1301. Because the United
States has not ratified the ACHR, it is not a party. The United States, however, must
"refrain from acts which would defeat the object and purpose" of the treaty. Vienna
Convention, supra note 17, art. 18, at 336; see also supra note 75 (arguing that the
United States is bound to follow the Vienna Convention as a codification of international
law).
[FN110]. See Nanda, supra note 7, at 1329.
[FN111]. Id. (quoting Brief of Amicus Curiae Amnesty Int'l in Support of Petitioner,
Stanford v. Kentucky, 492 U.S. 361 (1989) (No. 87-6026)).
[FN112]. See id.
[FN113]. See Dalton, supra note 18, at 180. The United States is subject to
recommendations by the Inter-American Commission on Human Rights because the
Commission serves as an organ of both the OAS and the ACHR. See id.
[FN114]. U.N. GAOR, 44th Sess., Supp. No. 49, at 166, U.N. Doc. A/RES/44/25 (1989)
[hereinafter Child Convention].
[FN115]. Id., preamble, at 167.
[FN116]. Id. art. 37(1), at 171.
[FN117]. See Weston, Basic Documents, supra note 87, at 1305-06.
[FN118]. See Michael J. Dennis, The Fifty-Third Session of the UN Commission on Human
Rights, 92 Am. J. Int'l L. 112, 116 n.27 (1998).
[FN119]. See Weston, Basic Documents, supra note 87, at 1305-06. Because the United
States has not ratified the Child Convention, it is not a party. The United States,
however, must "refrain from acts which would defeat the object and purpose" of the
treaty. Vienna Convention, supra note 18, art. 18, at 336; see also supra note 75
(discussing that the United States is bound to follow the Vienna Convention as a
codification of international customary law).
[FN120]. Gasparini, supra note 58, at 1087 (quoting Cele Hancock, The Incompatibility of
the Juvenile Death Penalty and the United Nation's Convention on the Rights of the Child:
Domestic and International Concerns, 12 Ariz. J. Int'l & Comp. L. 699, 700 (1995)).
[FN121]. See Schabas, supra note 75, at 307-08.
[FN122]. Id. at 323 (citing General Comments, supra note 75, at 3).
[FN123]. Dennis, supra note 118, at 113. The resolution passed by a vote of 27 to 11
with 14 abstentions. See id. The United States dissented because "[p] ast resolutions
have always provided a balance between abolitionist countries and capital punishment
countries, condemning arbitrariness, disproportionality, discriminatory application and
summary executions," while the current resolution did not. Id. at 114.
[FN124]. See id. at 113-14.
[FN125]. Convention Relative to the Protection of Civilian Persons in Time of War, Aug.
12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Fourth Geneva Convention].
[FN126]. Id. art. 68, at 3561, 75 U.N.T.S. at 330.
[FN127]. Protocol Additional to the Geneva Conventions of 12 Aug., 1949, and Relating to
the Protection of Victims of Int'l Armed Conflicts, June 8, 1977, art. 77(5), 1125 U.N.T.S.
2, 39.
[FN128]. Protocol Additional to the Geneva Conventions of 12 Aug., 1949, and Relating to
the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, art. 6(4),
1125 U.N.T.S. 610, 614.
[FN129]. See Weston, Basic Documents, supra note 87, at 1277-79, 1286-87.
[FN130]. Schabas, supra note 75, at 305-06 (citations omitted).
[FN131]. See id.
[FN132]. Janis, supra note 65, at 42.
[FN133]. North Sea Continental Shelf (F.R.G. v. Den.; F.R.G. v. Neth.), 1969 I.C.J. 3
(Feb. 20).
[FN134]. See id. at 41.
[FN135]. See Restatement (Third) of Foreign Relations Law of the United States § 702
(1987).
[FN136]. See Weston, World Order, supra note 91, at 109-11 (quoting David H. Ott,
Public International Law in the Modern World 13-16 (1987)).
[FN137]. See id. at 111.
[FN138]. See id.; see also Lisa Kline Arnett, Comment, Death at an Early Age:
International Law Arguments Against the Death Penalty for Juveniles, 57 U. Cin. L. Rev.
245, 256 (1988) (discussing the generality element of custom).
[FN139]. Fernandez v. Wilkerson, 505 F. Supp. 787, 798 (D. Kan. 1980) (emphasis
added).
[FN140]. See Janis, supra note 65, at 43.
[FN141]. Nanda, supra note 7, at 1339.
[FN142]. See Arnett, supra note 138, at 256 ("[T]he widespread, although not universal
ban on juvenile executions, in conjunction with widely ratified treaties presents a strong
case for a norm of customary law that should be incorporated into federal common
law.").
[FN143]. See Nanda, supra note 7, at 1333 (citing Amnesty Int'l, The Death Penalty: List
of Abolitionist and Retentionist Countries 2 (1993)) [hereinafter Amnesty Int'l I].
[FN144]. See id. (citing Amnesty Int'l I, supra note 143, at 3). "'Exceptional crimes' are
such as those under military law or crimes committed in exceptional circumstances such
as in wartime." See id. at 1333 n.149.
[FN145]. See id.
[FN146]. See id. (citing Amnesty Int'l, The Death Penalty and Juvenile Offenders 78-79
(1991)) [hereinafter Amnesty Int'l II].
[FN147]. See id.
[FN148]. See id.
[FN149]. See id.
[FN150]. See id.
Of the reported juvenile executions between 1981 and 1991 worldwide, four were carried
out in the United States, one in Barbados (which subsequently changed its minimum age
for capital punishment to eighteen), one in Nigeria, one in Bangladesh, and three in
Pakistan. An unknown number of juvenile offenders have been executed by Iran and
Iraq.
See id.
[FN151]. Barbados has since raised the minimum age of its death penalty to eighteen.
See id.
[FN152]. See North Sea Continental Shelf (F.R.G. v. Den.; F.R.G. v. Neth.), 1969 I.C.J. 3
(Feb. 20).
[FN153]. See Nanda, supra note 7, at 1328 (citing Brief of Amicus Curiae Int'l Human
Rights Law Group in Support of Petitioner at 60, Thompson v. Oklahoma, 487 U.S. 815
(1988) (No. 86-6169)).
[FN154]. The Paquete Habana, 175 U.S. 677, 686 (1900).
[FN155]. See, e.g., Treaty on Principles Governing the Activities of States in the
Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies,
opened for signature Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205.
[FN156]. North Sea Continental Shelf, 1969 I.C.J. at 43.
[FN157]. See supra Part III.B.1-2.
[FN158]. Michael Akehurst, A Modern Introduction to International Law 29 (6th ed.
1987).
[FN159]. See id.
[FN160]. See id.
[FN161]. See id. at 30.
[FN162]. See id. at 32 (citing G.I. Tunkin, Droit International Public: Probl mes
Theoriques 87 (1965)). Akehurst then criticizes Tunkin, contending that "a large number
of states" may be too high. See id. at 32 n.8.
[FN163]. See Arnett, supra note 138, at 258 (citing North Sea Continental Shelf (F.R.G.
v. Den.; F.R.G. v. Neth.), 1969 I.C.J. 3, 42 (Feb. 20)).
[FN164]. Filartiga v. Pena-Irala, 630 F.2d 876, 884 n.15 (2d Cir. 1980) (quoting J.
Brierly, The Outlook for International Law 5 (1944)).
[FN165]. See, e.g., Schabas, supra note 76, at 308-10.
[FN166]. Arnett, supra note 138, at 259 (citations omitted). But see Dalton, supra note
18, at 191 ("The particular practices of the states that are parties to the conventions do
not establish a rule of customary international law because those states act not under a
sense of obligation, but rather under a contractual duty which commenced with
ratification."). Dalton, however, maintained that the United States Supreme Court
violated a different rule of custom in Stanford v. Wilkinson, 492 U.S. 361 (1989):
This new rule requires that a court consider the body of international law relevant to
human rights whenever an individual's fundamental rights are in jeopardy. Not only must
a court be aware of infringing upon the rights to which an individual's national citizenship
entitles him, but the court also must ascertain whether any rights attach under
international law.
Dalton, supra note 18, at 198.
[FN167]. Arnett, supra note 138, at 259 (citing G.A. Res. 172, U.N. GAOR, 35th Sess.
Supp. No. 48, at 195, U.N. Doc. A/35/48 (1980)). At the time of the Resolution, the
United States had signed, but not yet ratified, the ICCPR. See Weston, Basic Documents,
supra note 87, at 1298-99.
[FN168]. See Akehurst, supra note 158, at 32-33; see also Dalton, supra note 18, at 193
(stating that dissent can only relieve a state from its obligation to perform if such dissent
was evident at the rule's creation).
[FN169]. See supra note 165 and accompanying text.
[FN170]. See supra notes 87-92 and accompanying text.
[FN171]. See supra notes 108-13 and accompanying text.
[FN172]. See supra notes 118-22 and accompanying text.
[FN173]. See supra notes 129-31 and accompanying text.
[FN174]. See Dalton, supra note 18, at 193 ("The United States has never formally
repudiated the norm but has acted inconsistently with it throughout its evolution, thereby
avoiding the binding effect of customary law.")
[FN175]. See id.
[FN176]. See supra note 164 and accompanying text.
[FN177]. The Paquete Habana, 175 U.S. 677, 700 (1900); see also The Nereide, 13 U.S.
(9 Cranch) 388, 423 (1815) (stating that United States courts are "bound by the law of
nations which is a part of the law of the land."; Filartiga v. Pena-Irala, 630 F.2d 876, 886
(2d Cir. 1980) ("The law of nations forms an integral part of the common law . . . .").
[FN178]. See Filartiga, 630 F.2d at 881 ("[I]t is clear that courts must interpret
international law not as it was in 1789, but as it has evolved and exists among the
nations of the world today."). "It is an ancient and a salutary feature of the AngloAmerican legal tradition that the Law of Nations is a part of the law of the land to be
ascertained and administered, like any other, in the appropriate case." Id. at 886.
[FN179]. 175 U.S. 677 (1900).
[FN180]. Id. at 708.
[FN181]. Filartiga, 630 F.2d at 889.
[FN182]. Id. at 890.
[FN183]. 505 F. Supp. 787 (D. Kan. 1980).
[FN184]. See id. at 795.
[FN185]. See id. at 796-97.
[FN186]. See id. at 796.
[FN187]. Id. at 797.
[FN188]. Id. at 798.
[FN189]. Id. at 798-99 (citation omitted).
[FN190]. As Judge Philip C. Jessup wrote, [t]he application of international law by the
federal courts does not need to be justified by the theory that we took over international
law as part of the common law. International law is applied by the courts of many
countries who look back upon no inheritance from England. . . .The duty to apply it is one
imposed upon the United States as an international person. . . . It would be as unsound
as it would be unwise to make our state courts our ultimate authority for pronouncing the
rules of international law.Dalton, supra note 18, at 186 (quoting Philip C. Jessup, The
Doctrine of Erie Railroad v. Tompkins Applied to International Law, 33 Am. J. Int'l L. 740,
742 (1939)).
[FN191]. Vienna Convention, supra note 18, art. 53, at 344; see also supra note 75
(discussing that the United States is bound to follow the Vienna Convention as a
codification of international customary law); see also Janis, supra note 65, at 62-66
(discussing jus cogens).
[FN192]. See Nguyen, supra note 63, at 420 ("Jus cogens norms are an expression of the
belief that, in the absence of a supranational entity governing the international
community, there must exist ethical and moral restraints on a state's positivist powers to
enter into agreements or engage in practices hostile to the public order.").
[FN193]. See Janis, supra note 65, at 64-66. For an explanation of pacta sunt servanda,
see supra note 72 and accompanying text.
[FN194]. Restatement (Third) of Foreign Relations Law of the United States § 702
(1987); see also id. cmt. n, reporters' note 11 (stating that the human rights norms
listed in section 702 are jus cogens); Daniel T. Murphy, The Restatement (Third)'s
Human Rights Provisions: Nothing New, But Very Welcome, in Commentaries on the
Restatement (Third) of the Foreign Relations Law of the United States 175-88 (The
International Lawyer ed., 1992) (discussing the additional human rights provisions in the
Third Restatement).
[FN195]. See Restatement (Third) of Foreign Relations Law of the United States § 701
(1987). "Ordinarily, international law does not assume restrictions on state autonomy.
But the universal acceptance of human rights in principle, and active international
concern with human rights, has led to some readiness to conclude that states have
assumed human rights obligations." Id. reporters' note 1.
[FN196]. Nguyen, supra note 63, at 443 ("Ultimately, the failure to consider this norm
when determining contemporary values will retard the growth of the Constitution as a
'growing, living' document and will deny children in the United States rights deemed
fundamental by the rest of the world.").
[FN197]. See id. at 423; cf. id. at 422 (discussing the three criteria recognized by the
International Law Commission: "(1) that the norm is embodied in part or in whole in an
international agreement; (2) that the rule has been applied by courts, including the
International Court of Justice, and other organs; and (3) that the rule, when incorporated
into multilateral conventions, prohibits derogation").
[FN198]. For a discussion of the law and practice of states concerning the juvenile death
penalty, see supra Part III.B, and for a discussion of treaties addressing the juvenile
death penalty, see supra Part III.A. Judge Jan De Meyer of the European Court of Human
Rights contends that no reservation concerning "the inherent dignity and . . . the equal
and inalienable rights of all members of the human family" may be made to the ICCPR.
Schabas, supra note 75, at 292 (quoting ICCPR, supra note 83, preamble, at 172). "It
may even be thought that such reservations, and the provisions permitting them, are
incompatible with the jus cogens and therefore null and void, unless they relate only to
arrangements for implementation, without impairing the actual substance of the rights in
question." Id. (quoting Belilos v. Switzerland, 132 Eur. Ct. H.R. (Ser. A) at 36 (1988) (De
Meyer, J., concurring)).
[FN199]. Case 9647, Inter-Am. C.H.R. 147, OEA/ser. L./V./II.71, doc. 9 rev. 1 (1987),
reprinted in Inter-American Commission on Human Rights, Inter- American Yearbook on
Human Rights 260 (1987).
[FN200]. See id. ¶ 63, reprinted in Inter-American Commission on Human Rights, supra
note 199, at 304-06.
[FN201]. Roach was seventeen years old and borderline mentally retarded when he
committed murder in South Carolina. See id. ¶¶ 23-24, reprinted in Inter- American
Commission on Human Rights, supra note 199, at 268. Pinkerton was also seventeen
years old when he committed murder in Texas. See id. ¶ 30, reprinted in Inter-American
Commission on Human Rights, supra note 199, at 272.
[FN202]. See id. ¶¶ 28, 33, reprinted in Inter-American Commission on Human Rights,
supra note 199, at 270, 272.
[FN203]. American Declaration of the Rights and Duties of Man, May 2, 1948, O.A.S.
Official Rec., OEA ser. L./V./II.23 doc. 21 rev. 6 (1979) [hereinafter ADRDM].
[FN204]. See Case 9647, supra note 199, ¶ 34, reprinted in Inter-American Commission
on Human Rights, supra note 199, at 272-74.
[FN205]. ADRDM, supra note 203, art. XXVI.
[FN206]. Case 9647, supra note 199, ¶ 37(e), reprinted in Inter-American Commission
on Human Rights, supra note 199, at 276.
[FN207]. See id. ¶ 37(g), (h), reprinted in Inter-American Commission on Human Rights,
supra note 199, at 276-78 (listing the ACHR, the ICCPR, and the Geneva Convention as
major human rights instruments).
[FN208]. See id. ¶ 38, 38(h), reprinted in Inter-American Commission on Human Rights,
supra note 199, at 280, 284.
[FN209]. See id. ¶ 38(f), reprinted in Inter-American Commission on Human Rights,
supra note 199, at 282. The United States did not ratify the ICCPR until 1992, five years
after this case. See Weston, Basic Documents, supra note 87, at 1298-99.
[FN210]. See Case 9647, supra note 199, ¶ 38(a), reprinted in Inter-American
Commission on Human Rights, supra note 199, at 280.
[FN211]. Id. ¶ 38(b), reprinted in Inter-American Commission on Human Rights, supra
note 199, at 280.
[FN212]. See id. ¶ 38(g), reprinted in Inter-American Commission on Human Rights,
supra note 199, at 282-84.
[FN213]. See id. ¶ 38(h)-(i), reprinted in Inter-American Commission on Human Rights,
supra note 199, at 284.
[FN214]. See id. ¶¶ 44, 47, reprinted in Inter-American Commission on Human Rights,
supra note 199, at 294.
[FN215]. See id. ¶ 54, reprinted in Inter-American Commission on Human Rights, supra
note 199, at 298.
[FN216]. Id. ¶ 53, reprinted in Inter-American Commission on Human Rights, supra note
199, at 298 (footnote omitted).
[FN217]. See id. ¶¶ 55, 60, reprinted in Inter-American Commission on Human Rights,
supra note 199, at 298-302, 304.
[FN218]. Id. ¶ 54, reprinted in Inter-American Commission on Human Rights, supra note
199, at 298.
[FN219]. See id. ¶ 56, reprinted in Inter-American Commission on Human Rights, supra
note 199, at 302.
[FN220]. Id. ¶ 61, reprinted in Inter-American Commission on Human Rights, supra note
199, at 304.
[FN221]. Id. ¶ 63, reprinted in Inter-American Commission on Human Rights, supra note
199, at 304-06.
[FN222]. See, e.g., Nguyen, supra note 63, at 431 ("The Commission's decision in the
Roach case has been widely criticized as unsound, flawed, inconsistent, and circular.")
(citations omitted); see also Dalton, supra note 18, at 183.
If a custom is not even prevalent enough to be binding as a matter of customary
international law, which requires common and widespread practice, then the
Commission's conclusion defies logic by implicitly deciding that the prohibition is a matter
of universal acceptance similar to the prohibition against genocide. The greater
commitment necessarily includes the lesser.
Id. (citations omitted).
[FN223]. See Vienna Convention, supra note 17, art. 32, at 340; see also note 75
(stating that the Vienna Convention codified international customary law). Article 32
provides:
Recourse may be had to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its conclusion, in order to
confirm the meaning resulting from the application of Article 31, or to determine the
meaning when the interpretation according to Article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.
Vienna Convention, supra note 17, at 340.
[FN224]. See generally Case 9647, supra note 199, ¶ 37(a)-(c), reprinted in InterAmerican Commission on Human Rights, supra note 199, at 274; see also id., reprinted
in Inter-American Commission on Human Rights, supra note 199, at 312 (Cabra, J.,
dissenting) (stating that the ADRDM does not regulate the death penalty).
[FN225]. See id. ¶¶ 50-51, reprinted in Inter-American Commission on Human Rights,
supra note 199, at 296.
[FN226]. See id. ¶ 53, reprinted in Inter-American Commission on Human Rights, supra
note 199, at 298.
[FN227]. See supra notes 168-76 and accompanying text.
[FN228]. See Nguyen, supra note 63, at 432.
[FN229]. Case 9647, supra note 199, reprinted in Inter-American Commission on Human
Rights, supra note 199, at 324 (Cabra, J., dissenting).
[FN230]. Id., reprinted in Inter-American Commission on Human Rights, supra note 199,
at 322.