International Law in Capital Cases

(Last updated July 2001)            

 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.

 The purpose of this guide is to identify the sources of international law, provide some basic research guidance, and discuss some of the international legal arguments that you should consider raising in every capital case.  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. 

In researching international law, one often finds documents labeled “declarations” and “principles.”  These are usually not considered binding in the same way as treaties, but 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.) 

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. 

Until the mid-twentieth century, most treaties regulated the behavior of states.  Since 1945, however, the international community has adopted several treaties that focus on the rights of individuals.  There are three documents, in particular, that are collectively referred to as the “International Bill of Rights:”  (1) the Universal Declaration of Human Rights; (2) the International Covenant on Economic, Social, and Cultural Rights; and (3) the International Covenant on Civil and Political Rights (with its two Optional Protocols).  There has been much debate over the enforceability of the rights contained in these agreements. 

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 (9^th Cir. 1974); Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 373 (7^th 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).[1]   

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.  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 United Nations: http://www.un.org/Depts/Treaty/.  This website also contains the text of all reservations made to each treaty. (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). 

For guidance on the interpretation of treaty provisions, look first at domestic case law.  Second, look for decisions by international tribunals.  Third, look at the travaux preparatoires for the treaty in question.  These 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.  The United States Supreme Court has recognized 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 depending upon it are duly presented for their determination.”  The Paquete Habana, 175 U.S. 677, 700 (1900). 

In one of the seminal cases on this topic, the Second Circuit stated that customary international law derives from at least three sources:  (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.  Filartiga v. Pena Irala, 630 F.2d 876, 880 (2d Cir. 1980).  A norm of customary international law has binding effect when:  (1) most countries adhere to the norm in practice, and (2) those countries follow the norm because they feel obligated to do so by a sense of legal duty.  See Article 38, Statute of the International Court of Justice, 59 Stat. 1005, 1060 (1945); Siderman de Blake v. Argentina, 965 F.2d 699 (9^th Cir. 1992).  

There are three ways in which you can utilize customary international law when litigating in U.S. courts.  First, you can argue – citing The Paquete Habana – 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.  The obvious advantage here is that the Senate’s declarations and reservations to various treaties, while relevant, are not controlling.  

The second argument you can sometimes raise, in limited circumstances, is 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.  Others have argued that the execution of juveniles violates jus cogens.  See  Pinkerton and Roach v. United States, Resolution No. 3/87, Case 9647, Inter-Am.Cm. H.R., Annual Report of the Inter-American Commission on Human Rights 1986-1987 147, OES/ser.L/V/II/71m dic, 9m rev, 1 (1987), para 56. 

Finally, 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 ___ 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.  

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). 

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.”[2]  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.”[3]  The HRC has not directly addressed the stickier issue of arbitrariness in the application of an otherwise legal capital sentence. 

The Inter-American Court on 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, 44^th Sess., Supp. No. 49, U.N. Doc. A/44/49, 28 I.L.M. 1448.  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. 

            Attorneys have recently begun to challenge the execution of juveniles under international law, in light of the Supreme Court’s action in Domingues v. Nevada, No. 98-8327, Orders in Pending Cases, 67 U.S.L.W. 3747 (June 8, 1999).  Counsel for Domingues filed a petition for writ of certiorari from the Nevada Supreme Court, arguing that the execution of a sixteen-year old offender violated the United States’ obligations under the ICCPR and customary international law.  On June 8, the Supreme Court invited the Solicitor General to file briefs regarding the views of the United States on the questions raised by the petition.  The Supreme Court subsequently denied certiorari.            

            Six months later, Tim Ford wrote an original cert petition to the Supreme Court in the case of Chris Thomas, a juvenile executed by the State of Virginia in 2000.  The cert petition raises all of the international legal arguments pertaining to the execution of juveniles, and can be found on his website at www.mhb.com.  Brian Mendelsohn, from the Office of the Federal Defender in Atlanta, has also briefed these issues before the Georgia Supreme Court in the case of Alex Williams. 

All attorneys representing juvenile offenders must raise these issues as early as possible, despite the Supreme Court’s denial of certiorari in Domingues.  

            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 has been invoked most commonly by attorneys arguing that prolonged incarceration on death row (also known as “death row phenomenon”) constitutes cruel, inhuman, or degrading punishment.  These attorneys have relied primarily on the British Privy Council’s decision in Pratt and Morgan v. The Attorney General of Jamaica, 3 SLR 995, 2 AC 1, 4 All ER 769 (Privy Council 1993)(en banc), and the decision of the European Court on Human Rights in 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).  

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.  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). See also 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.  

Most 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 (9^th Cir. 1995); White v. Johnson, 79 F.3d 432 (5^th 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 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 (5^th 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 f 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 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, 45^th 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”). 

The Inter-American Court on Human Rights concurred with this conclusion in 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 at www. law.nwu.edu/humanrights). 

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 a recent brief filed on behalf of Mexico in the case of Cesar Fierro, I argued that the Supreme Court was required to grant certiorari since Mr. Fierro had been deprived of meaningful access to the courts under international law.  While this argument did not convince the Supreme Court to grant cert, it may prove useful when trying to overcome procedural hurdles. 

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[4] 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 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. 

In 1984, the Economic and Social Council of the United Nations further defined this restriction 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 subsequently endorsed by the General Assembly and are attached as Appendix B, provide that the death penalty may only be imposed for intentional crimes.[5]  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. 

            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  

            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). 

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 with 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, 37^th 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,[6] 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.   

After a detailed summary of 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,[7] 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, and the judge told the jury to disregard such “foolish” communications.   

Petitioners alleged violation 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.  Arguments in favor of these claims included: 

·        Unlike in Celestine, the specific facts of the racist note and judge’s response shifted the burden of proof to the United States to prove no racial prejudice. 

·        These specifics, coupled with the overwhelmingly Mormon and white court, constituted invidious racial discrimination.  They also claimed that the “trial was pervaded by racial controversy and fear” and that “public sentiment … was such that there were rumors of mob action, and jurors were afraid to serve, and the Prosecutor appealed to racial fears in his opening statement.” 

·        State and federal court denials of requests for inquiry into the racist note violated Andrews’ right to an impartial trial and sentencing. 

·        Since there was no official hearing on the note incident, the worst case scenario could not be ruled out: the entire jury was in on the note, joked about it to the bailiff, and were winked at by the judge, in a sign of “lynch-mob racism” (which Justices Marshall and Brennan warned of in their dissention from denial of certiorari). 

·        The disproportionality of sentencing between blacks and whites in Utah, where blacks were less than one half of one percent the state’s population but twenty five percent of those on death row, showed violations of equality, as did examples of whites in Utah who committed heinous racist killings but avoided the death penalty.   

·        The international standard for proving racial discrimination was the CERD’s “purpose or effects” test, as applied by the European Commission of Human Rights in Gregory v. United Kingdom to mean circumstances that pose a real danger of discriminatory effect.  

The Commission found that the U.S. did violate Andrews’ right to a fair trial, his right to equal protection of his right to life, and his right to not receive cruel, infamous or unusual punishment.  The Commission, citing the CERD, found that international law did employ an “objective test based on ‘reasonableness, and the appearance of rationality.”  

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 did not, however, hold that all American executions are in violation, limited its findings to Andrews’ specific case. 

The United States refused to agree with the Commission’s findings or carry out its recommendation that it compensate Andrews’ next of kin.   

IV.  Litigation Before International Tribunals 

            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 recently decided the LaGrand Case (Germany v. United States), in which the court held, by a vote of 14 to 1, that foreign nationals are entitled to a meaningful remedy when state authorities violate their right to consular notification and access under article 36 of the Vienna Convention on Consular Relations.  Among other things, the ICJ held that the federal courts’ refusal to review the LaGrands’ treaty claim on the merits, under domestic rules of procedural default, violated the United States’ obligation to give “full effect” to the treaty’s provisions.  Attorneys have already begun to argue that LaGrand applies to all capital cases involving foreign nationals, and there will be much litigation in the years to come over the binding effect of the decision.[8] 

The United Nations has established committees to monitor the enforcement of the ICCPR and the Torture Convention, but 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.   The Torture Committee, however, 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. 

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.  Individuals 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/or the American Convention on Human Rights.  The Commission proceeds slowly, and may take years to issue an opinion in any given case.  Individuals may also petition the Commission for “precautionary measures,” or injunctive relief.  In death penalty cases with imminent execution dates, petitioners may request that the Commission issue precautionary measures that call for a stay of execution.  The 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.   

The Inter-American Commission also has the power to conduct on-site investigations and hearings.  The regulations of the Inter-American Commission for Human Rights may be found at the organization’s website: http://www.oas.org/EN/PROG/ichr/index.htm.   

            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.  The Inter-American Court has jurisdiction to issue advisory opinions “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).  The Court may issue advisory opinions on human rights issues at the request of an OAS member state.  

V.  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 recent opinion regarding the Vienna Convention may be found (currently only in Spanish) at http://www.law.nwu.edu/humanrights/. 

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 best place to start your research is the University of Minnesota website (noted above), which contains an excellent introduction to the Inter-American system by Richard Wilson. 

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/>.   

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 

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). 

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). 

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 ad a Case Study, 40 St.  Louis L. J. 699 (1996). 

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

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). 

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). 

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. 

Questions Presented in Domingues v. Nevada 

1.  Is the state of Nevada bound through the Supremacy Clause of Article VI of the United States Constitution to abide by the International Covenant on Civil and Political Rights entered into by the United States which prohibits the execution of children who committed crimes under eighteen years of age, as well as through customary international law and jus cogens? 

2.  Should the Court grant Certiorari to examine and interpret the Senate’s authority in exercising its power under Article II § 2 to “advise and consent” to a treaty made by the president, to determine whether the Senate can, consistent with the constitutional separation of powers, purport to impose a “reservation” which wholly or partially abrogates the treaty signed by the president, while purporting to ratify it?  Specifically: 

A.  In exercising its power to “advise and consent” to a treaty, does the Senate have the power to make “reservations” to its ratification of a treaty which have the effect of materially altering the treaty made by the president, particularly when the treaty made by the president contains an explicit provision that does not allow reservations from the terms of the treaty and when the reservation violates the “object and purpose” of the treaty? 

B.  When a treaty made by the president gives individual citizens of the party states enforceable rights, does the Senate have the power to declare the treaty “non-self-executing,” in order to deprive individuals in the United States of the ability to enforce the rights recognized by the treaty in courts in the United States in the absence of enabling legislation, and thus to give the House of Representatives a legislative veto over the effectiveness of the treaty which the Constitution does not recognize? 

C.  Does a declaration by the Senate purporting to declare that the provisions of a treaty are “non-self-executing” violate the Supremacy Clause, by purporting to deprive the treaty of its explicit Constitutional status as part of the “supreme Law of the Land,” or the separation of powers, by usurping the power of the United States courts to interpret whether the provisions of a treaty bestow rights upon individuals which are enforceable in the courts?