International Law in Capital Cases (Last updated June 2004)

	Sandra L. Babcock
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	email:  sandrababcock@earthlink.net

I.  Introduction

	International law, historically the province of diplomats and multinational corporations, has been the subject of increasing litigation in criminal courts over the last few years.  Around the country, lawyers in capital cases have begun to raise legal challenges under a wide variety of international treaties and customary international law.  While many courts remain hostile to the suggestion that they must defer to international legal norms, others have recognized that the United States is bound by its treaty obligations.   Much of the recent litigation has revolved around the International Covenant on Civil and Political Rights, a treaty ratified by the United States on June 8, 1992, and the Vienna Convention on Consular Relations, a treaty ratified by the United States in 1969.

	Perhaps the most exciting development within the last two years involves the United States Supreme Court’s recent embrace of arguments founded on international law.  More than a decade ago, the Court emphatically rejected the notion that international norms were relevant to the Court’s Eighth Amendment jurisprudence.  Stanford v. Kentucky, 492 U.S. 361, 370 n.1 (1989).  In the years following Stanford, only Justices Breyer and Stevens occasionally referred to decisions from international tribunals, and only in opinions dissenting from denial of certiorari.  See, e.g., Knight v. Nebraska, 120 S. Ct. 459 (1999)(Breyer, J., dissenting from denial of certiorari); Lackey v. Texas, 514 U.S. 1045 (1995)(Stevens, J., respecting denial of certiorari).  In 2002, however, the Court expressly considered the opinion of the “world community” in concluding that the execution of mentally retarded offenders violates the Eighth Amendment.  Atkins v. Virginia, 536 U.S. 304, n.21 (2002).  

	One year later, in Lawrence v. Texas, 539 U.S. 558 (2003), the majority cited a decision from the European Court of Human Rights in an opinion striking down Texas’ anti-sodomy law under the Fourteenth Amendment, and noted that the right of homosexual adults to engage in consensual sex was “accepted as an integral part of human freedom in many other countries.”   And, in her concurring opinion in Grutter v. Bollinger, 539 U.S. 306, 344 (2003), Justice Ginsburg cited the International Convention on the Elimination of All Forms of Racial Discrimination as evidence of the “international understanding” of affirmative action.

	These recent decisions may herald a return to a time when references to international law and practice were common elements in the Court’s interpretations of the Bill of Rights.  See, e.g., Thompson v. Oklahoma, 487 U.S. 815, n.34 (1988)(citing the International Covenant on Civil and Political Rights as support for holding that it would offend civilized standards of decency to execute a person who was less than 16 years old at the time of the offense); Coker v. Georgia, 433 U.S. 584, 596, n. 10 (1977) (“climate of international opinion” reinforces a conclusion regarding evolving standards of decency); Miranda v. Arizona, 384 U.S. 436, 488 n.59, 521-22 (1966) (comparing U.S. practice with that in India, Sri Lanka, and Scotland); Kennedy v. Mendoza-Martinez, 372 U.S. 144, n.16  (1963) (citing the provisions of the Universal Declaration of Human Rights on statelessness, in Fifth and Sixth Amendment analysis of citizenship revocation); Trop v. Dulles, 356 U.S. 86, 102 (1958) (virtual unanimity among “civilized nations of the world” that statelessness is not to be imposed as a punishment).

	The purpose of this guide is to discuss some of the international legal arguments that can be raised in nearly every capital case, both at trial and during post-conviction proceedings.  In addition, the guide includes rebuttal arguments addressing the major limiting provisions attached to the United States’ ratification of human rights treaties.  Also discussed below are opportunities to litigate before international tribunals as a way of influencing domestic courts.  The global trend is toward abolition, and international tribunals are infinitely more sympathetic than our own federal courts.

You will find little domestic case law to support the treaty-based arguments suggested here.  Domestic courts rarely confront international legal issues in criminal cases.  Most of the relevant case law derives from international commercial disputes, or civil claims arising under the Alien Tort Claims Act.  As a result, you must be creative, and make these arguments with the expectation that you may not prevail at the trial level.  The claims suggested here are novel, but there is no doubt that the courts will be facing these issues with increasing regularity in the years to come.

II.  Sources of International Law and Where to Find Them

	International legal arguments are generally based on (1) international treaties and/or (2) customary international law.  I’ll describe each of these in turn.

	A.  Treaties

Treaties may be multilateral, regional, or bilateral.  Multilateral treaties, or agreements between more than two nations – are often referred to as “conventions” or “covenants.”  A treaty is a contract between two or more nations – for example, an extradition treaty entered into between Mexico and the United States.

	There are essentially two ways in which treaty provisions, and the international body of jurisprudence regarding their interpretation, can be raised in U.S. courts.  First, practitioners can seek to directly enforce treaty provisions on behalf of individual litigants – as in the ongoing litigation over violations of foreign nationals’ rights to consular notification and access under the Vienna Convention on Consular Relations, April 24, 1963, TIAS 6820, 21 U.S.T. 77.

Second, litigants can use the text of treaties, and the opinions of international tribunals regarding individual treaty provisions – as persuasive authority in arguing for a particular interpretation of a federal or state constitutional provision.  Indeed, this is precisely what the majority of the Supreme Court did in Lawrence v. Kansas, supra.  

In the United States, treaties do not become law until they are ratified.  A prerequisite to ratification is the advice and consent of two-thirds of the Senate.  There are many treaties that the United States has signed, but not ratified.  Once ratified, a treaty is binding law under the Supremacy Clause (U.S Const. Art. VI, § 2):

[A]ll Treaties made. . .under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. 

The Supreme Court has long held that treaty obligations must take precedence over inconsistent state laws. Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796); Missouri v. Holland, 252 U.S. 416 (1920); Antoine v. Washington, 420 U.S. 194, 201 (1975).

Until the mid-twentieth century, most treaties regulated the behavior of nation-states.  Since 1945, however, the international community has adopted several treaties that focus on the rights of individuals.  A number of these are particularly relevant to capital litigation, including:  (1) the Universal Declaration of Human Rights; (2) the International Covenant on Civil and Political Rights (with its two Optional Protocols); (3) the Convention on the Elimination of All Forms of Racial Discrimination; and (4) the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment.  Specific arguments under these treaties are discussed in Part III, below.  See Part IV below, for tips on how to address the reservations and understanding attached by the United States to its ratification of human rights conventions.  

	Research Tips

When researching the interpretation of a treaty provision, there are several sources the practitioner should consult.   All treaty-based arguments must start by reference to the text of the treaty.  The best, and most current, sources for treaty text are two websites:  the first is the website for the United Nations High Commissioner for Human Rights: http://www.unhchr.ch/, and the second is the University of Minnesota Law School’s human rights website:  http://www1.umn.edu/humanrts/. Both of these websites organize treaties by subject matter, and both have search engines that allow you to search their database using keywords.  On the website for the UN High Commissioner, you will find a good collection of basic treaties at http://www.unhchr.ch/html/intlinst.htm, and you will find information on individual countries’ reporting status, ratification, and documents issued by the various treaty bodies (e.g., the Human Rights Committee) at http://www.unhchr.ch/tbs/doc.nsf/.  The official paper sources for treaties are Treaties and Other International Act Series (T.I.A.S.) and United States Treaties and Other International Agreements (U.S.T.).  These sources are hopelessly out of date, and are therefore unhelpful when searching for treaties recently ratified.

To check whether a particular country is a party to the treaty, consult the website for the UN High Commissioner, noted in the previous paragraph, or the United Nations Treaty Collection at http://www.untreaty.un.org/English/treaty.asp.  This site contains the full text of over 40,000 bilateral and multilateral treaties, as well as the text of all reservations made to each treaty and current ratification status. (Recently, the U.N. starting charging an exorbitant fee for the use of this database, and it may no longer be a viable option for many lawyers.  Check to see if your local law library is a subscriber.).

Like statutes, treaties are interpreted by reference to their plain text.  For further guidance, look for domestic case law, decisions by international tribunals, and the travaux preparatoires for the treaty in question.  The travaux are the records of the negotiation of the treaty, and are analogous to the legislative history of a statute.  They are often used as a reference in treaty interpretation.  The travaux preparatoires to certain treaties are separately bound and published.  You can obtain others through the United Nations.  Finally, assuming the United States is a party to the treaty, look its legislative history.  Some reports of the Senate Foreign Relations Committee may be published in International Legal Materials (see bibliography, infra).  

B.  Customary International Law

Customary international law is somewhat like international common law.  It has been referred to as the “oldest and original source of international law.”  Henry Steiner and Philip Alston, International Human Rights in Context 69 (2000)[hereinafter “Steiner and Alston”].  A basic definition is found in the Restatement:  “Customary international law results from the general and consistent practice of states followed by them from a sense of legal obligation.”  Restatement (Third), Foreign Relations Law of the United States  §102(2).  See also Siderman de Blake v. Argentina, 965 F.2d 699 (9th Cir. 1992).

State practice is the cornerstone of customary international law.  There are many ways of determining state practice – for example, one could look to official statements of government spokesmen, a state’s laws and judicial decisions, or even newspaper accounts.  Multilateral treaties can also constitute evidence of customary law, particularly those that are widely ratified.   Steiner and Alston, supra, at 72; Peter Malanczuk, Akehurst’s Modern Introduction to International Law 39 (7th ed. revised 1997).  As a practical matter, lawyers may find it easier to refer to the writings of international legal scholars, since debates over customary international law continue to generate a substantial body of scholarship.   Courts seeking to determine what constitutes customary international law should take guidance from the Second Circuit’s seminal opinion in Filartiga v. Pena Irala, 630 F.2d 876, 880 (2d Cir. 1980), which held that customary law may be ascertained from (1) the work of jurists, “writing professedly on public law;” (2) the general usage and practice of nations; and (3) judicial decisions recognizing and enforcing international law. 

There are three ways in which you can utilize customary international law when litigating in U.S. courts.  First, you can argue that international customary law provides an independent body of law that is binding on U.S. courts and that is completely distinguishable from our treaty obligations.  See The Paquete Habana,175 U.S. 677, 700 (1900). 

Second, you can utilize customary international law as a guide to interpreting U.S. law, even where the court rejects the notion that international customary law has binding force.  In this regard, Lareau v. Manson, 507 F. Supp. 1177 (D. Conn. 1980), is quite helpful.  The plaintiffs in Lareau challenged the conditions at the Hartford jail, citing the Eighth Amendment and various international treaties and standards, including the Standard Minimum Rules for the Treatment of Prisoners.  Citing Paquete Habana and Filartiga, the Court found these standards “significant as expressions of [Connecticut’s] obligations to the international community of the member states of the United Nations.”  Id. at 1189 n.9.  Moreover, the court found that the standards were relevant to the “canons of decency and fairness which express the notions of justice” embodied in the Due Process Clause.  Id.   

Third, you may be able to argue – in a very limited number of cases – that the customary international law you are seeking to apply constitutes “jus cogens.”  Jus cogens denotes a norm of customary international law that permits no derogation – i.e., a right that cannot be suspended for any reason.  Genocide, slavery, and torture are generally accepted to be jus cogens norms.  At least one group of jurists – the Inter-American Commission on Human Rights – believes that the execution of juveniles violates jus cogens.  See  Domingues v. United States, Report No. 62/02, para. 85, Inter-Am. Cm. H.R. (2002)(available at http://www.cidh.org/annualrep/2002eng/usa.12285.htm).  

Two important agreements that embody principles of customary international law are the Universal Declaration on Human Rights, and the American Declaration on the Rights and Duties of Man.  See Hurst Hannum, The Status of the Universal Declaration of Human Rights in National and International Law, 25 Ga. J. Int’l & Comp. L. 287 (1995-1996); Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights, Advisory Opinion OC-10/89 of July 14, 1989, Inter-Am. Ct.H.R. (Ser.A) No. 10 (1989).

Resolutions, principles, and standards issued by international organizations may also operate as a set of norms or customs that guide the behavior of nations.  Sometimes, the norms established in these documents may rise to the level of customary international law.  (One authoritative treatise on international law states that "declaratory pronouncements [by international organizations] provide some evidence of what the states voting for it regard the law to be . . . and if adopted by consensus or virtual unanimity, are given substantial weight." Restatement (Third) of the Foreign Relations Law of the United States, § 103 cmt. c.)

III.  Specific Treaty Provisions Applicable in Capital Cases

	The purpose of this section is to give practitioners an idea of the types of arguments that can be raised under international law.  The arguments suggested below are by no means exhaustive.  For example, there are additional arguments you might raise under the Convention for the Elimination of All Forms of Racial Discrimination and the provisions of the ICCPR dealing with equality before the law.  This section also does not address arguments regarding the execution of the mentally ill.  
	
	A.  Arbitrariness

	The right to life is the most fundamental of the human rights contained in the International Bill of Rights.  See, e.g., Universal Declaration on Human Rights, GA Res. 217A (III), U.N. GAOR, 3d Sess. art. 3, U.N. Doc. A/810 (1948)(“Everyone has the right to life, liberty, and security of the person”); International Covenant on Civil and Political Rights, Dec. 19, 1966, art. 6, 999 U.N.T.S. 171, 174-75 (entered into force Mar. 23, 1976)(“Every human being has the inherent right to life”). Most recent human rights treaties are also abolitionist documents, in the sense that they encourage parties to abolish or restrict their use of the death penalty.  

A number of human rights instruments also provide that a state may not take a person’s life “arbitrarily.”  See, e.g., ICCPR, art. 6; American Convention on Human Rights, art. 4, 1144 U.N.T.S. 123; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5, 4 EHRR 417, 21 I.L.M. 58, art. 4.  In its jurisprudence, the Human Rights Committee’s definition of “arbitrary” depends somewhat on the clause referred to.  For instance, the Committee held that even “lawful” killings of citizens by Colombian police constituted arbitrary deprivation of life on the grounds that the killings were “disproportionate to the requirements of law enforcement in the circumstances of the case.”  In evaluating “arbitrary arrest and detention” (barred by Art. 9(1) of the ICCPR), the Committee, relying on drafting history, concluded that “’arbitrariness’ is not to be equated with ‘against the law,’ but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability.”  The HRC has not directly addressed the stickier issue of arbitrariness in the application of an otherwise legal capital sentence.  

The Inter-American Court of Human Rights, however, has addressed the meaning of “arbitrary” executions in an advisory opinion regarding the interpretation of the Vienna Convention on Consular Relations. OC-16/99, Inter-Am. Ct. H.R. (October 1, 1999)(full text available at http://www.law.nwu.edu/humanrights/. The court observed that states may impose the death penalty only if they rigorously adhere to the due process rights set forth in the ICCPR.  The court concluded that the execution of a foreign national after his consular notification rights have been violated would constitute an “arbitrary deprivation of life” in violation of international law.  Id. at 76, para. 137.  By analogy, one could argue the execution of an individual is prohibited as “arbitrary” if a state violates any of the principles contained in the ICCPR.  See discussion of due process, infra.

Various delegates involved in the drafting of the ICCPR proposed the following definitions of the term “arbitrary:”  (1) fixed or done capriciously or at pleasure; (2) without adequate determining principle; (3) depending on the will alone; (4) tyrannical; (5) despotic; (6) without cause upon law; and (7) not governed by any fixed rule or standard.  Schabas at 76.  In Van Alphen v. The Netherlands, the Human Rights Committee held that “arbitrariness” encompasses notions of inappropriateness, injustice, and lack of predictability.  (No. 305/1988), U.N. Doc. A/45/40, Vol. II, p. 108, §5.8.  See also Daniel Nsereko, Arbitrary Deprivation of Life:  Controls on Permissible Deprivations, in The Right to Life in International Law 248 (Bertrand Ramcharan, ed., 1985)(deprivation of life is arbitrary if it is done in conflict with international human rights standards or international humanitarian law).

Some lawyers have begun to challenge state clemency procedures by combining the right to be free from arbitrary execution with the right to seek commutation of a death sentence (art. 6(4)).  Others have sought to bar the Government from seeking the death penalty, by arguing that federal or state capital punishment schemes are arbitrary and/or inequitable.   

	B.  Execution of Juveniles

	The execution of juveniles is squarely prohibited by a number of multilateral treaties, including the ICCPR (art. 6); the American Convention on Human Rights, Nov. 22, 1969, art. 4(5), 1144 U.N.T.S., 9 I.L.M. 673; and the Convention on the Rights of the Child, Nov. 20, 1989, art. 37(a), G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, U.N. Doc. A/44/49, 28 I.L.M. 1448.  

Since 1997, only Iran, the Democratic Republic of Congo, and the United States have executed juvenile offenders.  See Amnesty International, The Death Penalty Worldwide:  Developments in 2000, ACT 50/001/01 (May 14, 2001).  At present, 191 nations have ratified the Convention on the Rights of the Child, and 144 have ratified the ICCPR; both treaties expressly prohibit the execution of defendants under the age of eighteen at the time of the offense.  Moreover, the bodies of the United Nations have repeatedly condemned the execution of juvenile offenders.  See Question of the Death Penalty, Hum. Rts. Comm., 58th Sess., Resolution 1999/6, adopted Apr. 28, 1999, E/CN.4/1999/6; Question of the Death Penalty, Hum. Rts. Comm., 57th Sess., Resolution 1998/8, adopted Apr. 3, 1998, E/CN.4/1998/8; Question of the Death Penalty, Hum. Rts. Comm., 56th Sess., Resolution 1998/8, adopted Apr. 3, 1997, E/CN.4/1997/12.

The United States has ratified neither the American Convention nor the Convention on the Rights of the Child.  In ratifying the ICCPR, the Senate expressly reserved the right to execute juvenile offenders.

Despite the United States’ reservations to the ICCPR, every attorney representing a juvenile offender must challenge the application of the death penalty under both the ICCPR and customary international law.  There is strong authority for the proposition that the execution of juvenile offenders violates jus cogens.  In 2002, the Inter-American Commission on Human Rights reached this conclusion in the case of Michael Domingues, a sixteen-year old offender sentenced to death in Nevada.  Domingues v. United States, Report No. 62/02, para. 85, Inter-Am. Cm. H.R. (2002)(available at http://www.cidh.org/annualrep/2002eng/usa.12285.htm).

The Commission observed:
[B]y persisting in the practice of executing offenders under age 18, the U.S. stands alone amongst the traditional developed world nations and those of the inter-American system, and has also become increasingly isolated within the entire global community.  The overwhelming evidence of global state practice. . . displays a consistency and generality amongst world states indicating that the world community considers the execution of offenders aged below 18 years at the time of the offense to be inconsistent with prevailing standards of decency.

Domingues, supra, at para. 85.  There is a growing consensus in the academic community on this issue, as well.  See, e.g., Constance de la Vega, “Can a United States Treaty Reservation Provide Sanctuary for the Juvenile Death Penalty?”, 32 U.S.F. L. Rev. 735 (1998).  

	Attorneys representing juvenile offenders should seek help from two sources, both of which can provide sample briefs and other useful materials:  (1) the Juvenile Justice Center of the American Bar Assocation (http://www.abanet.org/crimjust/juvjus/juvdp.html); and (2) the International Justice Project (www.internationaljusticeproject.org). 

	C.  Right To Be Free From Cruel, Inhuman, or Degrading Treatment

	Article 7 of the ICCPR provides that “[n]o one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.”  When the U.S. Senate ratified the ICCPR, it declared that this phrase meant “the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States.”  International tribunals, however, have interpreted this provision more broadly.

Article 7 should be invoked in support of eighth amendment challenges to methods of execution, as well as arguments that prolonged incarceration on death row (also known as “death row phenomenon”) constitutes cruel, inhuman, or degrading punishment.  A number of foreign courts and international tribunals have issued helpful decisions supporting the latter argument.  See, e.g., Pratt and Morgan v. The Attorney General of Jamaica, 3 SLR 995, 2 AC 1, 4 All ER 769 (Privy Council 1993)(en banc); Soering v. United Kingdom, 11 Eur. Hum. Rts. Rep. 439 (1989)(European Court of Human Rights refused to extradite a German national to face capital murder charges because of anticipated time that he would have to spend on death row if sentenced to death); Vatheeswaran v. State of Tamil Nadu, 2 S.C.R. 348, 353 (India 1983)(criticizing the “dehumanizing character of the delay” in carrying out the death penalty); Catholic Comm’n for Justice & Peace in Zimbabwe v. Attorney General, No. S.C. 73/93 (Zimb. June 24, 1993 (reported in 14 Hum. Rts. L. J. 323 (1993)).  These decisions have prompted scores of articles by legal commentators and mental health experts, some of which are listed in the bibliography appended to this article.  

In Pratt and Morgan, the Privy Council held that a delay of fourteen years between the time of conviction and the carrying out of a death sentence in the case of a Jamaican prisoner was “inhuman punishment.”  2 A.C. at 33.  The Privy Council further concluded that “in any case in which execution is to take place more than five years after sentence there will be strong grounds for believing that the delay is such as to constitute ‘inhuman or degrading punishment.’”  Id.  In Soering, the European Court found that prisoners in Virginia spend an average of six to eight years on death row prior to execution.  The court determined that “[h]owever well-intentioned and even potentially beneficial is the provision of the complex 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.”  161 Eur. Ct. H.R. (ser. A) at 42 (1989).

More recently, the Supreme Court of Canada considered evidence that death-sentenced inmates in Washington took, on average, 11.2 years to complete state and federal post-conviction review, in weighing the legality of extraditing two men to the United States to face capital charges.  The Court acknowledged a “widening acceptance” that “the finality of the death penalty, combined with the determination of the criminal justice system to satisfy itself fully that the conviction is not wrongful, seems inevitably to provide lengthy delays, and the associated psychological trauma.”  Minister of Justice v. Burns and Rafay, 2001 SCC 7 (S.C. Canada, 22 March 2001)(at para. 122).  Relying in part on this evidence, the court held that the Canadian Charter of Rights and Freedoms precluded the defendants’ extradition, absent assurances the United States would not seek the death penalty.

Although the lower federal courts have rejected the reasoning in Pratt and Morgan and Soering, see, e.g., McKenzie v. Day, 57 F.3d 1461 (9th Cir. 1995); White v. Johnson, 79 F.3d 432 (5th Cir. 1996), the Supreme Court has not yet reviewed this question.  At least two justices, Stevens and Breyer, are receptive to the argument.  See Knight v. Nebraska, 120 S. Ct. 459 (1999)(Breyer, J., dissenting from denial of certiorari); Elledge v. Florida, 119 S. Ct. 366 (1998)(Breyer, J., dissenting from denial of certiorari); Lackey v. Texas, 514 U.S. 1045 (1995)(Stevens, J., respecting denial of certiorari).  Here again, attorneys must raise this issue as early as possible so that it is not waived – even though the claim may not be fully ripe until a defendant has been awaiting execution for several years.  

When arguing that a defendant’s execution – or his prolonged incarceration on death row – would violate international norms, attorneys should rely on international treaties as well as customary international law.  The norm against cruel, inhuman, or degrading treatment is now universally recognized as a violation of international law clearly distinguishable from torture.  The Universal Declaration of Human Rights, article 5, provides:  “No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.”  Universal Declaration of Human Rights, adopted Dec.10, 1948, G.A. Res. 217A (III), U.N. Doc. A/810, at 71 (1948).  See also Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, art. 16, adopted Dec.10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doe. A/39/51 (1984) (entered into force June 26, 1987); European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 3, opened for signature Nov. 4, 1950, 213 U.N.T.S. 222 (entered into force Sept. 3, 1953); the American Convention on Human Rights, art. 5, opened for signature Nov.22, 1969, O.A.S. T.S. No.36, at 1, O.A.S. Doc. OEA/Ser. L/V/II.50, doc. 6 at 27 (1980) (entered into force July 18, 1978); the International Covenant on Civil and Political Rights, art. 7, adopted Dec.16, 1966, G.A. Res. 2200, 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 717 (entered into force Mar. 23, 1976); African Charter on Human and People's Rights, art. 5, adopted June 27, 1981, O.A.U. Doc. CAB/LEG/67/3 Rev. 5, 21 I.L.M. 58 (1982) (entered into force Oct.21, 1986).  

 Arguably, the prohibition against cruel, inhuman, or degrading treatment has attained binding force as customary international law. See Declaration of Tehran, Final Act of the International Conference on Human Rights 3, at 4, para. 2, 23 GAOR, U.N. Doc. A/CONF. 32/41 (1968) (noting status of Universal Declaration of Human Rights, including prohibition against cruel, inhuman or degrading treatment, as customary international law).  Accord De Sanchez v. Banco Central de Nicaragua, 770 F.2d 1385, 1397 (5th Cir. 1985) (noting that the right not to be subjected to cruel, inhuman, and degrading treatment constitutes universally accepted international law). 

	D.  Right to Due Process

Article 14 of the ICCPR enumerates the due process rights relating to criminal proceedings.  Specifically, article 14 provides for the following rights:

	1.   Equality before the courts and tribunals;
	2.   A fair and public hearing by a competent, independent and 
  	      impartial tribunal;
	3.   Presumption of innocence;
	4.   To be informed promptly and in a language the defendant understands of
	      the nature and cause of the charge against him;
	5.   To have adequate time and facilities for the preparation of his defense and to 
 	      communicate with counsel of his choice;
	6.   To be tried without undue delay;
	7.   To be present during the trial;
8.   To defend himself in person or through legal assistance of his own choosing,  
      and to have legal assistance assigned to him without payment “in any case 
      where the interests of justice so require;”
	9.   To confront the witnesses against him and obtain the attendance of witnesses
	      on his behalf;
          10.   To review of the conviction and sentence by a higher tribunal;
          11.   To compensation for wrongful convictions; and
          12.   Not to be prosecuted twice for the same crime.

Article 6 of the ICCPR provides that the death penalty may only be imposed where these standards are observed.  Schabas at 108-09.  The Human Rights Committee has accordingly held that when a state violates an individual’s due process rights under the ICCPR, it may not carry out his execution.  See, e.g., Johnson v. Jamaica, No. 588/1994, H.R. Comm. para. 8.9 (1996)(finding delay of 51 months between conviction and dismissal of appeal to be violation of ICCPR art. 14, para. 3(c) and 5, and reiterating that imposition of a death sentence is prohibited where the provisions of the ICCPR have not been observed); Reid v. Jamaica, No. 250/1987, H.R. Comm. para. 11.5 (“[T]he imposition of a sentence of death upon the conclusion of a trial in which the provisions of the Covenant have not been respected constitutes [. . .] a violation of article 6 of the Covenant.”); McLawrence v. Jamaica, No. 702/1996, H.R. Comm. para. 5.13 (1997)(same); OC-16/99, para. 135, Inter-Am. Ct. H.R. (October 1, 1999)(“[s]tates that still have the death penalty must, without exception, exercise the most rigorous control for observance of judicial guarantees in these cases”)(full text available http://coreteidh-oea.nu.or.cr/ci/PUBLICAT/SERIES.A/A_16_Ing.H., or through the website of the Organization of American States at www.oas.org aw.nwu.edu/humanrights); Report of the Human Rights Committee, GAOR, 45th Session, Supplement No. 40, Vol. II (1990), Annex IX, J, para. 12.2, reprinted in 11 Hum. Rts. L.J. 321 (1990)(“in capital punishment cases, the duty of States parties to observe rigorously all the guarantees for a fair trial. . . is even more imperative”); G.A. Res. 35/172, Dec. 15, 1980 (member states must “review their legal rules and practices so as to guarantee the most careful legal procedures and the greatest possible safeguards for the accused in capital cases”).

Although some of the provisions noted above parallel the individual rights protected under the U.S. Constitution, they may be interpreted differently under international law.  For example, the Human Rights Committee has reviewed several cases involving the right to counsel in capital cases.  In Reid v. Jamaica, for example, the Committee held that “in cases involving capital punishment, in particular, legal aid should enable counsel to prepare his client’s defence [sic] in circumstances that can ensure justice.  This does include provision for adequate remuneration for legal aid.”  No. 250/1987, para. 13.  

	E.  Access to Courts	

	In practice, the draconian rules governing post-conviction litigation, combined with the abysmal legal representation so often provided in capital cases, severely restrict the ability of death row inmates to obtain meaningful review of their legal claims.  Arguments founded on the internationally-recognized right to access to the courts should be considered whenever the courts have imposed procedural bars to preclude merits review in capital cases.  

The right of meaningful access to the courts is recognized in every major human rights instrument.  Moreover, the United States has signed and ratified multilateral instruments, such as the ICCPR and the American Declaration on Human Rights that require it, as a matter of law, to provide detainees with effective access to the courts.  See, e.g., ICCPR art. 9(4)(“Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.”); American Declaration of the Rights and Duties of Man, art. 18, OAS Res. XXX, O.A.S. Rec. OEA/Ser.L/V/I.4 (1945)(“[e]very person may resort to the courts to ensure respect for his legal rights.”).  See also Body of Principles, Principle 32 (“A detained person or his counsel shall be entitled at any time to take proceedings according to domestic law before a judicial or other authority to challenge the lawfulness of his detention. . . The proceedings . . . shall be simple and expeditious. . .”); American Convention on Human Rights art. 7(6)(“[a]nyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention. . .”); European Convention on Human Rights art. 5(4)(“[e]veryone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful”).

	International tribunals have observed that the right to effective recourse to a competent court “constitutes one of the basic pillars. . .of the very rule of law in a democratic society,” and must be more than a mere formality.  See, e.g., Suarez Rosero v. Ecuador, Inter-Am. Ct. H.R., Nov. 12, 1997, at para. 63, 65 (Article 7(6) of the American Convention on Human Rights, involving right of access to a competent tribunal, is not satisfied “with the mere formal existence” of the remedy); Report on the Situation of Human Rights in Panama, Inter-Am. C.H.R., OEA/Ser.L/V/II.44, doc. 38, rev. 1, 1978; Ashingdane v. United Kingdom, 93 Eur. Ct. H.R. (ser. A), para. 57 (1985)(while a country may impose reasonable limitations on the right of access to the courts, “the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired”).  Finally, in a case interpreting the right of access to the courts under the ICCPR, the Human Rights Committee held that if a country provides for more than one appeal as part of the appellate process, the convicted person must be given effective access to each stage of appeal.  Henry v. Jamaica, 230/1987, Nov. 1, 1991, Report of the Human Rights Committee, A/47/40, 1992, at 218, para. 8.4.

	F.  “Most Serious Crimes”

	Article 6 (2) of the International Covenant on Civil and Political Rights also provides that the death penalty may only be imposed for the “most serious crimes.”  International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March  23, 1976.  The Human Rights Committee has observed that this expression must be “read restrictively,” because death is a “quite exceptional measure.”  Human Rights Committee, General Comment 6(16), para. 7.  The Committee has also expressed concern about the “excessive number of offences punishable by the death penalty” in a number of states in the USA.  The Committee urged the authorities to revise federal and state law with a view to restricting the number of offenses punishable by death strictly to the most serious crimes.  Human Rights Committee, Observations of the HRC: USA, UN Doc. CCPR/C/79/Add.50, 7 April 1995, para.16,31. 

	Article 4 of the American Convention on Human Rights, to which the United States is a signatory but not yet a ratifying party, also provides that “In countries that have not abolished the death penalty, it may be imposed only for the most serious crimes. . . .”  Interpreting this restricting provision, the Inter-American Court of Human Rights determined:

The fact that the Convention limits the imposition of the death penalty to the most serious of common crimes not related to political offenses indicates that it was designed to be applied in truly exceptional circumstances only. . . three types of limitations can be seen to be applicable to States Parties which have not abolished the death penalty. First, the imposition or application of this sanction is subject to certain procedural requirements whose compliance must be strictly observed and reviewed. Second, the application of the death penalty must be limited to the most serious common crimes not related to political offenses. Finally, certain considerations involving the person of the defendant, which may bar the imposition or application of the death penalty, must be taken into account. 

I/A Court H.R., Advisory Opinion OC-3/83, (September 8, 1983), Restrictions to the Death Penalty (Arts. 4(2) and 4(4) of the American Convention), paras. 54-55.

	In 1984, the Economic and Social Council of the United Nations further defined the restriction to “most serious crimes” in its Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, E.S.C. res. 1984/50; GA Res. 39/118.  Those Safeguards, which were endorsed by the UN General Assembly, provide that the death penalty may only be imposed for intentional crimes with lethal or other extremely grave consequences.  The United Nations Special Rapporteur on extrajudicial, summary, or arbitrary executions considers that the term “intentional” should be “equated to premeditation and should be understood as deliberate intention to kill.”  United Nations, Report of the Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions, UN Doc. CCPR/C/79/Add.85, 19 Nov. 1997, para. 13.  

Consistent with these principles, courts in other common law jurisdictions have vacated death sentences imposed on accomplice defendants who did not conclusively act with lethal intent.  See, e.g., State v. Branam, 855 S. W.2nd 563 (Tenn. 1993); Vernon Kills on Top v. State, 928 P.2d 182 (Mont. 1996); Jackson v. State, 575 So. 2d 181 (Fla. 1991); Ram Anup Singh & Ors. v. State of Bihar, 2002(3) RCR Criminal 7856 (Supreme Court of India).  See also Haroon Khan v. the State, (Trinidad and Tobago) Privy Council Appeal No. 28 of 2003, Judgment of 20 November 2003, UKPC (2003) (vacating death sentence imposed under a statute not requiring determination of intent to kill); Machhi Singh v. State of Punjab 1983 3 SCC 470 (Supreme Court of India) (death penalty not to be applied except in gravest cases of extreme culpability); R. v Vaillancourt v The Queen (1987) 47 DLR 399, (4th) 415-417 and R. v Martineau [1990] 2 SCR 633, 646-647 (Canadian felony murder statute not requiring establishment of requisite intent inconsistent with fundamental principles of justice).  Article 6 (2) of the ICCPR provides that the death penalty may only be imposed for the “most serious crimes.”  See also American Convention on Human Rights, art. 4(2), Nov. 22, 1969, OAS/Ser.L.V/11.92, doc. 31 rev. 3 (May 3, 1996).   The Human Rights Committee has observed that this expression must be “read restrictively,” because death is a “quite exceptional measure.”  Human Rights Committee, General Comment 6(16), para. 7.  

	G.  Right to be Tried Before an Impartial Tribunal

Article 14 of the ICCPR guarantees the right to a “fair and public hearing by a competent, independent, and impartial tribunal,” and the right to be presumed innocent.  ICCPR, art. 14(1); (2).  In its Implementing Comments, the drafters stressed that Article 14 must be read as broadly as needed to root out the threat to fairness that arises in a particular proceeding.  ICCPR, General Comment on Implementation, Para. 5.  And finally, Article 26 specifically guarantees that “[a]ll persons are equal before the law and are entitled without any discrimination to the equal protection of the law.”  ICCPR, art. 26.

	The Human Rights Committee has held that “[t]he right to be tried by an independent and impartial tribunal is an absolute right that may suffer no exception.”  Gonzales del Rio v. Peru, No. 263/1987, H.R. Comm. para. 5.2 (1992).  Moreover, in Richards v. Jamaica, No. 535/1993, H.R. Comm. para. 7.2 (1997), the Committee found a violation of article 14 in a capital case involving extensive pretrial publicity, and ruled that Jamaica could not lawfully carry out the execution.  Id.  

 	The Committee’s decision in Richards is consistent with the notion that nations must rigorously observe a defendant’s fair trial rights in capital cases, and may only impose the death penalty where these standards are observed.  William Schabas, The Abolition of the Death Penalty in International Law 108-09 (1997).  See also, Öcalan v. Turkey, Application no. 46221/99, Eur. Ct. H.R. (2003), §IIA, available at http://hudoc.echr.coe.int. 

	H.  Equal Protection

In 1998, the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions concluded that the application of the death penalty in the United States was both “discriminatory and arbitrary.”  He concluded that “race, ethinic origin, and economic status appear to be key determinants of who will, and who will not, receive a death sentence.”  Report of United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Addendum:  Mission to the United States of America, U.N. Doc. E/CN.4/1998/68/Add.3, para. 2, para. 148 (1998).  

Both the ICCPR and the Convention for the Elimination of All Forms of Racial Discrimination both serve to protect defendants in criminal cases from discriminatory application of the laws.  The Convention for the Elimination of All Forms of Racial Discrimination opened for signature May 7, 1966, and was signed by the United States September 28, 1966.  600 U.N.T.S. 195.  The Senate ratified the convention October 21, 1994.  140 Cong. Rec. S7634-02 (daily ed., June 24, 1994).  The Senate’s ratification was accompanied by three reservations, a non-self-executing declaration, and an understanding.

In relevant part, the Race Convention obligates member states to “prohibit and eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law,” including the “right to equal treatment before the tribunals and all other organs administering justice.”  CERD, Article 5(a), emphasis added.  

Likewise, Article 6 of the Race Convention provides that parties “shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention.”  Furthermore, the Convention defines racial discrimination broadly to include “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.” Article 1, emphasis added.

The Committee on the Elimination of Racial Discrimination – the Race Convention’s adjudicative counterpart to the Human Rights Committee – has already made clear that the protections of the treaty reach criminal prosecutions, and that Article 5(a) “applies to all types of judicial proceedings, including trial by jury.”  Narrainen v. Norway, Communication No 3/191: Norway, 15/03/94, U.N. Doc. CERD/C/44/D/3/1991 at para. 9.2 (considering whether racist comment by juror in criminal case violates Article 5(a)).  In addition, the broad definition of racial discrimination in Article 1 makes clear that member states must protect against conduct that produces a discriminatory effect, and not merely that which reveals a discriminatory intent.  CERD, Article 1; see also Note, Rethinking McClesky v. Kemp:  How U.S. Ratification of the International Convention on the Elimination of All Forms of Racial Discrimination Provides a Remedy for Claims of Racial Disparity in Death Penalty Cases, 22 Fordham Int’l L.J. 2270 (1999).

The United States’ first report to the Race Committee contains a page and a half (out of more than 100) on the death penalty, in which it acknowledges racial patterns in sentencing and mentios that “many remain concerned about racial and geographic disparities in the application of the death sentence.  Third Periodic Reports of States Parties Die in 1999:  Addendum:  United States of America, Committee on the Elimination of Racial Discrimination, U.N. Doc. CERD/C/351/Add.1 (Sept. 2000).

As noted above, Article 26 of the ICCPR specifically guarantees that “[a]ll persons are equal before the law and are entitled without any discrimination to the equal protection of the law.”  Moreover, article 14 states that all persons “shall be equal before the courts and tribunals.”  Though discrimination is not defined in the ICCPR, the Human Rights Committee employed the Race Convention’s “purpose or effect” definition of discrimination to explain the meaning of the term.  ICCPR General Comment 18:  Non-discrimination para. 12, Human Rights Committee, 37th sess. (1989).  

The Inter-American Commission on Human Rights has a somewhat inconsistent record regarding claims of racial discrimination in capital sentencing.  In Willie L. Celestine, the African American petitioner was sentenced to death in 1982 for the rape and murder of a white woman.  He argued the United States had violated his right not to be deprived of life arbitrarily under Art. 1 of the American Declaration on the Rights and Duties of Man, due to Louisiana’s violations of Art. 2 of the American Declaration and Art. 3 of the OAS charter.

Celestine relied on statistical evidence to show racial discrimination in capital sentencing, and argued that “if reliable statistical studies demonstrate the likelihood of racial discrimination within the criminal justice system, the burden must shift to the Government to prove that the capital hearing was free of racial discrimination.”  Petitioner also argued that a prohibition on racial discrimination was a peremptory norm, jus cogens, which “places ‘a heavy burden of justification … upon the United States for the continuation of existing legal doctrines and policies that have permitted this state of affairs.’”  He also claimed that his death-qualified jury meant that a disproportionate number of African Americans and women had been removed from the pool.  

Relying heavily on the United Supreme Court’s decision in McClesky v. Kemp, the Commission concluded that the statistics provided were not sufficient to make a prima facie case that Celestine’s sentence was the result of racial discrimination.  The Commission noted that the United States has not abolished capital punishment, and it found the United States’ argument that “‘[a]n entire criminal justice system cannot be proved invalid by mere citations to statistical studies without more’” to be persuasive.  The Commission found further that “this is a poor case upon which to recommend a reversal of the U.S. criminal justice practice” because it was a particularly heinous crime, the jury included several black members, and the Louisiana Supreme Court had specifically reviewed the case for racial prejudice and found none. 

In Andrews v. United States, however, the Commission was more sympathetic.  Andrews, who was African American, was sentenced and executed after being charged with murder and aggravated robbery.  A note containing a vicious racial slur was found among the all-white jurors during the trial, which took place in Utah at a time when Mormon church doctrine taught that blacks were inferior and condemned. A defense request to question the jurors on the note was denied.  Instead, the judge merely instructed the jury to disregard such “foolish” communications.  
Petitioners alleged violations of article 3 (k) and 44 (a) of the OAS Charter, arts. 1 (right to life), 2 (right to equality before law) and 26 (right to an impartial hearing, and right not to receive cruel, infamous or unusual punishment) of the American Declaration.  Counsel for Andrews argued that the specific facts of the racist note and judge’s response distinguished his case from Celestine.  

The Commission found that, despite the judge’s warning to the jurors to ignore the racist note and the jury’s acquittal of an African-American co-defendant, Andrews had not received an impartial hearing because there was a “reasonable appearance” of racial bias.  Factors cited were the white, Mormon composition of the jury, the manner in which the racist note was handed to the bailiff, the judge’s inadequate response to the note, and concerns expressed by defense attorneys that “talk in the hallway” and the note would influence jurors.  The U.S.’ failure to provide Andrews with an impartial trial was found to have violated the American Declaration’s equal protection clause, and both of these violations, the Commission held, violated his right to life.  

The Commission recommended that the United States compensate Andrews’ next of kin as a remedy for the violation, since Andrews had already been executed at the time the Commission issued its findings.  

IV. Self-Execution Doctrine and U.S. Reservations to Human Rights Treaties

Generally speaking, a treaty must be “self-executing” to create enforceable rights.  If a treaty provision is self-executing, it requires no legislation to confer legal rights that are directly enforceable by a litigant in domestic courts.  To determine whether a treaty is self-executing, one must look to the intent of the parties, the language of the treaty, and its legislative history in the Senate.  See, e.g., Stefan A. Riesenfeld and Frederick M. Abbott, The Scope of U.S. Senate Control Over the Conclusion and Operation of Treaties, 67 Chi-Kent L. Rev. 571, 631 (1991); Joan Hartman, “Enforcement of International Human Rights Law in State and Federal Courts,” 7 Whittier L. Rev. 741 (1985); Stefan A. Riesenfeld, Comment:  The Doctrine of Self-Executing Treaties and U.S. Postal:  Win at Any Price?, 74 Am. J. Int’l Law 892 (1980).   Other factors to consider include the purposes of the treaty, the existence of domestic procedures and institutions appropriate for direct implementation, the availability and feasibility of alternative enforcement methods, and the immediate and long-range social consequences of self- or non-self-execution.  People of Saipan v. United States Department of Interior, 502 F.2d 90, 97 (9th Cir. 1974); Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 373 (7th Cir. 1985). 

As a means of limiting individuals’ rights under international agreements, the U.S. Senate has declared that certain treaties, including the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Elimination of All Forms of Racial Discrimination, are not self-executing.  (Although the Senate made the same declaration with regard to the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Congress has passed implementing legislation – The Torture Victim Protection Act (TVPA) of 1991.  The TVPA, however, only establishes the crime of torture for offenders – including U.S. nationals – who commit acts of torture outside the United States.  It does not, standing alone, establish a civil cause of action.  See 18 U.S.C. §§ 2340, 2340A.).

If you raise a claim under the ICCPR, you should anticipate the Government’s reliance on the Senate’s declaration regarding self-execution.  In response, you should argue that the Senate’s declarations, reservations, and understandings violate the doctrine of the separation of powers, since the interpretation of treaty provisions is the prerogative of the judicial branch.  See Foster & Elam v. Neilson, 27 U.S. (2 Pet. 253 (1829). 

Second, you should argue that while the non-self-executing clause may preclude an individual from using the ICCPR affirmatively as grounds for a civil lawsuit, it does not prevent a defendant from invoking treaty rights defensively in a criminal proceeding.  In its report to the President on the ICCPR, the Senate Foreign Relations Committee said, “the intent [of the non-self-executing declaration] is to clarify that the Covenant will not create a private cause of action in U.S. courts.”  U.S. Senate Committee on Foreign Relations Report at 19, reprinted in 31 I.L.M. 648 (1992).  See also John Quigley, Human Rights Defenses in U.S. Courts, 20 Hum. Rts. Q. 555 (1998); 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); David Sloss, The Domestication of International Human Rights:  Non-Self-Executing Declarations and Human Rights Treaties, 24 Yale J. Int’l L. 129, 214 (1999).

Third, you should argue that the Senate’s statements regarding self-execution are inconsistent with the Supremacy Clause of the Constitution.  Professors Louis Henkin and Richard Wilson have argued that since the Supremacy Clause already deems treaties to be the “supreme Law of the Land,” it would be superfluous – and perhaps unconstitutional – to require passage of a federal statute before a treaty takes effect.  Louis Henkin, Comment:  U.S. Ratification of Human Rights Conventions:  The Ghost of Senator Bricker, 89 A.J.I.L. 341, 346 (1995); Richard J. Wilson, Defending a Criminal Case with International Human Rights Law, Champion, May, 2000, at 28.  Moreover, only the President has the constitutional authority to make Treaties.  U.S. Const. art. II, sec. 2.  The Senate may only grant or withhold its consent, and is not authorized to limit the scope of treaties.  Id. 

The Senate has also made certain “reservations” to its ratification of the ICCPR, the Convention on Racial Discrimination, and the Torture Convention.  Among other things, the Senate’s reservations declare that many of the substantive rights within these treaties are co-extensive with certain constitutional rights.  For example, the Senate has made a reservation in both the Torture Convention and the ICCPR, stating that the prohibition against cruel, inhuman, or degrading treatment means nothing more than the cruel and unusual punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments of the U.S. Constitution.  These reservations have been the subject of much commentary and debate.  See, e.g., William A. Schabas, Invalid Reservations to the International Covenant on Civil and Political Rights:  Is the United States Still a Party?, 21 Brooklyn J. Int’l L. 277 (1995); M. Christian Green, “The Matrioshka Strategy:  U.S. Evasion of the International Covenant on Civil and Political Rights,” 10 South African Journal of Human Rights 357 (1994); Lawyers Committee for Human Rights, “Statements On U.S. Ratification of the CCPR,” 14 Human Rights Law Journal 125 (1993).

If raising a claim under the ICCPR, you should argue that the Senate’s reservations to the ICCPR are invalid, since they are inconsistent with the object and purpose of the treaty. Under the Vienna Convention on the Law of Treaties, a state may not submit a reservation to a treaty obligation if it “is incompatible with the object and purpose of the Covenant.”  U.N. Doc. A/CONF. 39/27 (1969), at Art. 19(c); Restatement (Third) of the Foreign Relations of the United States, §313(1)(c) Rptr. N.5 (1987).  The United Nations Human Rights Committee, in commenting on the U.S. reservations to the ICCPR, has held that they are “incompatible with the object and purpose of the Covenant.”  Concluding Observations of the Human Rights Committee:  United States of America, U.N.Doc. CCPR/C/79/add.50 (1995).  See also Human Rights Committee, General Comment No.24, U.N. Doc. CCPR/C/21/Rev.1/Add.6 (1994).  

V.  Litigation Before International Tribunals

	There are numerous international courts and human rights bodies whose decisions have given rise to a rich jurisprudence relating to the administration of the death penalty.
	
	The highest court in the international community is the International Court of Justice (ICJ).  The Court only hears disputes between nations, and individuals may not petition the Court to review a treaty violation.  The International Court of Justice has issued two decisions relating to death sentences imposed on foreign nationals whose rights to consular access had been violated.  In the LaGrand Case (Germany v. United States), 2001 I.C.J. 104 (Jun. 2001), and in Avena and Other Mexican Nationals (Mexico v. United States), 2003 I.C.J. -- (Judgment) (available at http://www.icj-cij.org), the court held, by a vote of 14 to 1, that foreign nationals are entitled to judicial “review and reconsideration” of their convictions and sentences whenever state authorities have violated their right to consular notification and access under article 36 of the Vienna Convention on Consular Relations.  The ICJ also held that the federal courts’ refusal to review Vienna Convention claims on their merits, under domestic rules of procedural default, violated the United States’ obligation to give “full effect” to the treaty’s provisions.

There are two bodies that address human rights violations in the Americas:  the Inter-American Commission of Human Rights, and the Inter-American Court on Human Rights.  Death row inmates in the United States may file complaints with the Commission alleging violations of human rights set forth in the American Declaration of the Rights and Duties of Man, and may request a hearing before the Commission.  Although the Commission proceeds slowly, and will typically not review cases until domestic remedies have been exhausted, filing a petition may result in tangible benefits.  For example, death row inmates may also petition the Commission for “precautionary measures” that call for a stay of execution.  The Commission will invariably issue precautionary measures if a petition appears to be admissible and raises a prima facie case of a human rights violation.  Filing a petition with the Commission is easy, and sample petitions can be obtained from the author.  The Commission’s regulations, and guidelines for the submission of petitions, can also be found on the Commission’s website at www.cidh.org.  

The Inter-American Commission follows diplomatic protocol, and is not a court.  When requesting a stay of execution, the Commission will send a letter to the U.S. Secretary of State describing the basis for its request.  The State Department must then relay the request to the appropriate state authorities.   Attorneys are advised to file a petition and seek precautionary measures before an execution date is scheduled.  Once precautionary measures are issued, counsel may then request compliance with the Commission’s request as a matter of comity, and/or may seek injunctive relief in state and federal court.  The author is aware of at least one Texas court that has complied with the Commission’s request not to schedule an execution date, without the need to resort to litigation.  Litigation in this area has rarely been pursued, despite several helpful decisions from the Judicial Committee of the Privy Council, which has repeatedly addressed these matters in death row appeals from the Carribbean nations.  See, e.g., Thomas v. Baptiste, [1999] 3 W.L.R. 249 (P.C. 1998); Lewis v. Att’y Gen. of Jamaica, [2001] 2 A.C. 50 (P.C. 2000).

The Inter-American Commission also has the power to conduct on-site investigations and hearings.  

	The Inter-American Court on Human Rights has issued several decisions relating to the death penalty in other nations.  The United States has not accepted the jurisdiction of the Inter-American Court on Human Rights to resolve “contentious cases,” or cases in which an individual or country seeks redress for wrongdoing by the United States.  Nevertheless, the Court’s decisions can be used as persuasive authority in arguing for a particular interpretation of an international norm.  

The Inter-American Court also has jurisdiction to issue advisory opinions, at the request of an OAS member state, “regarding the interpretation of the [American] Convention or other treaties concerning the protection of human rights in the American States.”  American Convention on Human Rights, Nov. 22, 1969, OAS/Ser.L.V/11.92, doc. 31 rev. 3 (May 3, 1996).  On occasion, the United States will appear before the Court in such cases, thereby implicitly accepting the jurisdiction of the Court to issue “advisory opinions.”  One such case was the opinion issued October 1, 1999, regarding the Vienna Convention on Consular Relations.   “There mere fact that the Court has made a pronouncement in an advisory opinion rather than in a contentious case does not diminish the legitimacy or authoritative character of the legal principle enunciated by it.”  Thomas Buergental, International Human Rights in a Nutshell 220 (2d ed. 1995).  

Another source of jurisprudence are the treaty bodies of the United Nations.  These treaty bodies are comprised of international legal experts who are responsible for monitoring human rights treaties such as the ICCPR and the Torture Convention.  The United States does not accept their jurisdiction to hear individual complaints of treaty violations.  As a result, individuals in the United States may not petition these committees to hear their individual cases.  Nevertheless, the decisions of the Committee – like the decisions of the Inter-American Court and other bodies – provide persuasive precedent relating to a number of the subject matter areas outlined above.  

The Torture Committee has independent authority to conduct investigations of systemic violations of the Convention, and it appears individuals could petition the Committee to review a pattern or practice of disregard for the treaty.  With regard to the ICCPR, the United States has accepted the jurisdiction of the Human Rights Committee to hear complaints from other nations regarding alleged violations of the treaty.  Thus far, no nation has filed a complaint with the Committee.  The Committee has resolved numerous individual complaints originating in countries other than the United States.

VI.  Research Tips

	International legal research is sometimes difficult.  You may not find the documents you need at a local library, and international legal databases such as LEXIS and WESTLAW are incomplete.  That having been said, here is a suggested route for researching international law (it goes without saying that you should also search U.S. cases for relevant precedent):

1.  Look at the relevant treaty text, and determine whether the United States has ratified the treaty.  Find the U.S. reservations and read them.

2.  Search for law review articles on the topic.  

3.  If the treaty has been ratified, check the legislative history of the treaty, including any reports by the Senate Foreign Relations Committee, and any hearings or debates.  (Check the Congressional Index, Congressional Information Service, and Senate Treaty Documents.  The Senate Treaty Documents are available on WESTLAW under USTREATIES).  The Senate Committee on Foreign Relations Report on the ICCPR has been reprinted in 31 I.L.M.645 (1992).  Look at the travaux preparatoires.

4.  Check decisions by various human rights tribunals, including the following:

a.  The European Court on Human Rights adjudicates violations of the European Convention on Human Rights.  The European Convention contains many of the same rights set forth in the International Bill of Rights, so a decision by the court may be useful in interpreting a provision of the ICCPR or the Universal Declaration of Human Rights.  You can search the court’s opinions on LEXIS, or you can find them on the internet at http://www.dhdirhr.coe.fr/.  

b.  The Human Rights Committee of the United Nations hears individual complaints and complaints by state parties regarding violations of the ICCPR.  Selected decisions of the Human Rights Committee are available at the website of the United Nations High Commissioner on Human Rights: http://www.unhchr.ch/.

c.  The Inter-American Court on Human Rights adjudicates disputes between states, between individuals and states, and issues advisory opinions.  For example, the court recently issued an advisory opinion regarding the interpretation of the Vienna Convention on Consular Relations.  The court’s website is http://corteidh-oea.nu.or.cr/ci/HOME_ING.HTM.  The website is also accessible through the University of Minnesota at http://www1.umn.edu/humanrts/.  The Court’s 1998 opinion regarding the Vienna Convention may be found at http://coreteidh-oea.nu.or.cr/ci/PUBLICAT/SERIES.A/A_16_Ing.H., or through the website of the Organization of American States at www.oas.org.  

d.  The Inter-American Commission on Human Rights hears complaints from individuals regarding violations of the American Declaration on the Rights and Duties of Man, as well as the American Covenant on Human Rights.  Both of these documents contain provisions analogous to those under the International Bill of Rights.  The Commission’s site contains some country reports, annual reports from 1970-2001, and other basic documents, such as the American Convention on Human Rights and the American Declaration on the Rights and Duties of Man:  http://www.cidh.oas.org/DefaultE.htm.  For more on the Commission, check out the University of Minnesota website (noted above), which contains an excellent introduction to the Inter-American system by Richard Wilson, and the Inter-American Human Rights Database, which is maintained by the Washington College of Law at the American University:  http:///www.wcl.american.edu/pub/humright/digest/index.html.  

e.  The Committee Against Torture monitors compliance with the Torture Convention. Its decisions, as well as country reports, are available through the University of Minnesota website, or through the “treaty bodies” database at the website of the U.N. High Commissioner (both cited above).  

	5.  Finally, you can search for decisions by foreign courts that interpret international law.  The jurisprudence of selected foreign tribunals is available in LEXIS and WESTLAW. 

BIBLIOGRAPHY

Guides to International Legal Research

Jeanne Rehberg & Radu D. Popa, Accidental Tourist on the New Frontier:  An Introductory Guide to Global Legal Research (1998).

Rights International Research Guide for International Human Rights Lawyers:  <http://www.rightsinternational.org/>.  A truly excellent resource, with many useful links.

American Society of International Law Guide to Electronic Resources for International Law:  International Criminal Law.  <http://www.asil.org/resource/>.  

Human Rights Program, Harvard Law School, Getting Started in Human Rights Research:  On-Line and Off-Line Resources, http://www.law.harvard.edu/programs/HRP/Publications/research.html.

Human Rights Libraries On-Line

The University of Minnesota’s Human Rights Library contains a collection of more than 10,400 international human rights treaties, instruments, and other documents.  They can be accessed by subject matter, or by using one of the search mechanisms.  It is an excellent resource, and should be one of the first places you start any research:  http:///www1umn.edu/humanrts/

Compilations of International Law

Restatement (Third) of the Law of Foreign Relations of the United States (1987).  This is an authoritative treatise, frequently cited by U.S. courts, that describes the interpretation of international law in domestic courts.

International Legal Materials (I.L.M).  This series is an excellent, albeit incomplete, collection of international legal materials, including the text of treaties, decisions by international tribunals, and significant judicial decisions in the United States and foreign countries regarding international law.
Available on-line through LEXIS, but only from 1980 to present.

Francisco Forrest Martin, et. al., eds., International Human Rights Law and Practice:  Cases, Treaties, and Materials (Kluwer, 1997).

Francisco Forrest Martin & Richard Wilson, The Rights International Companion to Criminal Procedure:  An International Human Rights and Humanitarian Law Supplement (Kluwer, 1999).

Interpretation of International Agreements Regarding the Death Penalty

William A. Schabas, The Abolition of the Death Penalty in International Law (Cambridge University Press 1997).

Introduction to Human Rights Law

Thomas Buergental, International Human Rights in a Nutshell (1995).

International Covenant on Civil and Political Rights

Sarah Joseph, Jenny Schultz, and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (2000).

Manfred Nowak, CCPR Commentary (1993).

Dominic McGoldrick, The Human Rights Committee (1991).

Marc J. Bossuyt, Guide to the Travaux Preparatoires of the International Covenant on Civil and Political Rights (1987).

William Schabas, Invalid Reservations to the International Covenant on Civil and Political Rights:  Is the United States Still a Party?, 21 Brooklyn J. Int’l L. 277 (1995).

Death Row Phenomenon

Dwight Aarons, Can Inordinate Delay Between a Death Sentence and Execution Constitute Cruel and Unusual Punishment?, 29 Seton Hall L. Rev. 147 (1998).

Mirna E. Adjami, African Courts, International Law, and Comparative Case Law: Chimera or Emerging Human Rights Jurisprudence?, 24 Mich. J. Int’l L. 103, 146-152 (2002).

Lou Ann Bohn, Notes and Comments, Understanding the Imposition of Capital Punishment on Foreign Nationals in the United States as a Human Rights Violation, 21 Wis. Int’l L.J. 435 (2003).

Michael P. Connolly, Better Never than Late:  Prolonged Stays on Death Row Violate the Eighth Amendment, 23 N. E. J. on Crim. & Civ. Con. 101 (1997).

Ronan Doherty, Note, Foreign Affairs v. Federalism: How State Control of Criminal Law Implicates Federal Responsibility Under International Law, 82 Va. L. Rev. 1281 (1996).

Jessica Feldman, Comment, A Death Row Incarceration Calculus: When Prolonged Death Row Imprisonment Becomes Unconstitutional, 40 Santa Clara L. Rev. 187 (1999).

Ryan S. Hedges, Note, Justices Blind: How the Rehnquist Court’s Refusal to Hear a Claim for Inordinate Delay of Execution Undermines its Death Penalty Jurisprudence, 74 S. Cal. L. Rev. 577 (2001).

David Heffernan, Comment: America the Cruel and Unusual? An Analysis of the Eighth Amendment Under International Law, 45 Cath. U. L. Rev. 481 (1996).

Richard B. Lillich, Harmonizing Human Rights Law Nationally and Internationally: The Death Row Phenomenon As A Case Study, 40 St.  Louis L. J. 699 (1996).

Karl S. Meyers, Comment, Practical Lackey: The Impact of Holding Execution After a Long Stay on Death Row Unconstitutional Under Lackey v. Texas, 106 Dick. L. Rev. 647 (2002).

Mary K. Newcomer, Arbitrariness and the Death Penalty in an International Context, 45 Duke L. J. 611 (1995).

Manfred Nowak, Is the Death Penalty an Inhuman Punishment?, in The Jurisprudence of Human Rights Law: A Comparative Interpretive Approach, 27, 30 (Theodore S. Orlin, et al., eds., 2000).

Craig R. Roecks, Extradition, Human Rights, and the Death Penalty:  When Nations must Refuse to Extradite a Person Charged with a Capital Crime, 25 Cal. W. Int’l L. J.  189 (1996).

William Schabas, Developments in Criminal Law and Criminal Justice:  Execution Delayed, Execution Denied, 5 Crim. L. F. 180 (1994).

Natalia Schiffrin, Current Development, Jamaice Withdraws the Right of Individual Petition Under the International Covenant on Civil and Political Rights, 92 A.J.I.L. 563 (1998).

Markus G. Schmidt, The Death Row Phenomenon: A Comparative Analysis, in The Jurisprudence of Human Rights Law: A Comparative Interpretive Approach, 47-72 (Theodore S. Orlin, et al., eds., 2000).

Richard E. Shugrue, “A Fate Worse Than Death” – An Essay On Whether Long Times On Death Row Are Cruel Times, 29 Creighton L. Rev. 1 (1995).

Florencio J. Yuzon, Conditions and Circumstances of living on Death Row – Violative of Individual Rights and Fundamental Freedoms?:  Divergent Trends of Judicial Review in Evaluating Death Row Phenomenon, 30 G.W.J. Int’l L. & Econ. 39 (1996).

Death Penalty and International Law

Ursula Bentele, Back to an International Perspective on the Death Penalty as a Cruel Punishment: The Example of South Africa, 73 Tul. L. Rev. 251 (1998).

Toni M. Fine, Comment, Moratorium 2000: An International Dialogue Toward a Ban on Capital Punishment, 30 Colum. Human Rights L. Rev. 421 (1999).

Stephen H. Jupiter, Comments, Constitution Notwithstanding: The Political Illegitimacy of the Death Penalty in American Democracy, 23 Fordham Urb. L.J. 437 (1996).

Manfred Nowak, Is the Death Penalty an Inhuman Punishment?, in The Jurisprudence of Human Rights Law: A Comparative Interpretive Approach, 27 (Theodore S. Orlin, et al., eds., 2000).

Natasha Parassram Concepción, Notes and Comments, The Legal Implications of Trinidad and Tobago’s Withdrawal from the American Convention on Human Rights, 16 Am. U. Int’l L. Rev. 847 (2001).

Rebecca Trail, Note, The Future of Capital Punishment in the United States: Effects of the International Trend Toward the Abolition of the Death Penalty, 26 Suffolk Transnat’l L. Rev. 105 (2002).

Panel Discussions, Human Rights and Human Wrongs: Is the United States’ Death Penalty System Inconsistent with Internationl Human Rights Law?, 67 Fordham l. Rev. 2793.

United States Reservations and Self-Executing Treaties

Dinah Shelton, Issues Raised by the United States Reservations, Understandings, and Declarations in U.S. Ratification of the International Covenants on Human Rights 269 (Hurst Hannum & Dana D. Fischer eds., 1993).

Louis Henkin, The Covenant on Civil and Political Rights, in U.S. Ratification of the Human Rights Treaties: With or Without Reservations? 20 (Richard E. Lillich ed., 1981) (reprinted in Richard E. Lillich, International Human Rights 217  (2d ed. 1991)).

Lori Fisler Damrosch, The Role of the United States Senate Concerning "Self‑Executing" and "Non‑Self‑Executing" Treaties, 67 Chi.-Kent L. Rev. 515 (1991).

Charles H. Dearborn III, Note: The Domestic Legal Effect of Declarations That Treaty Provisions Are Not Self‑Executing, 57 Tex. L. Rev. 233 (1979).

Michael J. Glennon, The Constitutional Power of the United States Senate to Condition Its Consent to Treaties, 67 Chi.-Kent L. Rev. 533 (1991).

Yuji Iwasawa, The Doctrine of Self‑Executing Treaties in the United States: A Critical Analysis, 26 Va. J. Int’l L. 627 (1986).

Richard B. Lillich, Invoking International Human Rights Law in Domestic Courts, 54 U. Cin. L. Rev. 367 (1985).

Jordan J. Paust, Self‑Executing Treaties, 82 Am. J. Int’l L. 760 (1988).

Jordan J. Paust, On Human Rights: The Use of Human Rights Precepts in U.S. History and the Right to an Effective Remedy in Domestic Courts, 10 Mich. J. Int’l L. 543 (1989). 

Jordan J. Paust, Symposium: The Ratification of the International Covenant on Civil and Political Rights: Article: Avoiding "Fraudulent" Executive Policy: Analysis of Non‑Self‑Execution of the Covenant on Civil and Political Rights, 42 DePaul L. Rev. 1257 (1993).

Charles W. Stolter, Note: Self‑Executing Treaties and the Human Rights Provisions of the United Nations Charter: A Separation of Powers Problem, 25 Buff. L. Rev. 773 (1976).

Carlos Manuel Vazquez, The Four Doctrines of Self-Executing Treaties, 89 Am. J. Int’l L. 695 (1995).

Judicial Enforceability of Treaties

Treaties are binding on the states, and treaty rights stand on the same footing of supremacy as do provisions of the US Constitution and laws.  Asakura v. Seattle, 265 U.S. 332, 391 (1924)(finding U.S.-Japanese trade treaty self-executing, and applying it to bar discriminatory withholding of pawnbroking license).

Treaties are on the same footing and carry the same obligations as an act of legislation.  To the extent that a treaty and statute are consistent, the courts should give effect to both.  To the extent they are inconsistent, the last in time will control, provided the treaty is self-executing.  Whitney v. Robinson, 124 U.S. 190, 194 (1888).

A national interest of the highest magnitude is at stake in the enforcement of international treaties, which take precedence over state ordinances.  Missouri v. Holland, 252 U.S. 416 (1920).

An Act of Congress ought never be construed to violate the law of nations, where any other possible construction remains.  Murray. v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64,
118 (1804).

Individual Rights Under Treaty Law

Individuals may enforce a treaty when it prescribes a rule by which the rights of private citizens may be determined.  The Head Money Cases, 112 U.S. 580, 598‑99 (1884).

Individuals gain the right to treaty enforcement only when the treaty expressly confers a right on private individuals.  Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 937 (D.C. Cir. 1988)(finding that the U.N. Charter is not self-executing).

Courts must interpret international law as it has evolved and exists today.  The right to be free from torture is prescribed by international customary law.  Filartiga v. Pena-Irala, 630 F.2d 876,883 (2d. Cir.1980)(upholding suit brought pursuant to the Alien Tort Claims Act).  Note:  this is one of the seminal cases on customary international law and provides an excellent and helpful discussion on the obligations of U.S. courts to interpret and enforce the rights of individuals under international law.

Determination whether a self‑executing treaty creates private rights is a matter for judicial interpretation, based on an analysis of 6 factors, including the language and purpose of the agreement.  More v. Intelcom Support Services, Inc., 960 F.2d 466 (5th Cir. 1992)(rejecting plaintiff’s arguments that employment-related treaty was self-executing).

Vienna Convention on the Law of International Treaties, art. 31(1), (1969), 1155 U.N.T.S. 331: "A treaty shall be interpreted in good faith in accordance with the ordinary meaning
to be given to the terms of the treaty in their context and in the light of its object and purpose".

Helpful Websites

www.asil.org:  The website of the American Society of International Law.  ASIL publishes International Legal Materials (I.L.M.), one of the best sources for international legal documents (you can find I.L.M. on Westlaw or Lexis, as well as in most university law libraries).  On its website, ASIL allows you to search its library by subject, author, or title.  For example, you can search for the key word, “International Covenant on Civil and Political Rights,” and find the Senate Foreign Relations Committee Report on the ICCPR, as well as the Human Rights Committee’s Comment regarding reservations to the document.  You will not find the text of the document on the internet, but you can either order it from ASIL’s publications department, or jot down the cite and find it in the library.

	ASIL also has an excellent guide to research in international criminal law, with many helpful links to other websites of interest.

http://www.rightsinternational.org:  Described above.  Contains an excellent research guide, with links to other useful websites.