1 See Victor Streib, The Juvenile Death Penalty Today: Death Sentences and Executions for Juvenile Crimes, January 1973–June 2000 (last modified June 2000) <http://www.law.onu.edu /faculty/streib/juvdeath.html>.
2 See Richard Dieter, International Perspectives on the Death Penalty: A Costly Isolation for the U.S. (last modified Oct. 1999) <http://www.deathpenaltyinfo.org/international-report. html> (noting numerous calls by politicians to lower age of death eligibility, even to as low as eleven); National Campaign to Abolish the Death Penalty, The U.S. leads the world in killing kids (visited Apr. 15, 2000) <http://www.ncadp.org> (noting that in 1996 Mississippi sought the death penalty for juveniles as young as thirteen).
3 Margaret Talbot, What’s Become of the Juvenile Delinquent, N.Y. Times Mag., Sept. 10, 2000, at 41.
4 Id.
5 Id.
6 See Streib, supra note 1. Thirty-three juvenile offenders were under death sentences at the close of 1983, compared to seventy-four juvenile offenders today: a 124% increase. See also Dieter, supra note 2 (explaining that executions in 1999 will reach record numbers, including execution of more juvenile offenders).
7 As used throughout this Note, the term “juvenile offender” describes an individual who committed a crime before the age of eighteen—the most common age dividing line between juvenile and criminal courts. See Streib, supra note 1. Due to the lengthy appeals process, actual executions of juvenile offenders typically occur years after the sentencing, when the defendant is no longer a juvenile. See id.
8 See Death Penalty Information Center (last modified Sept. 27, 2000) <http:// www.deathpenaltyinfo.org/dpicexec00.html> [hereinafter DPIC].
9 See DPIC, supra note 8 (visited Oct. 7, 2000) at <http://www. deathpenaltyinfo.org/ juvchar.html>; Streib, supra note 1.
10 See Dieter, supra note 2; L. Romano, Reaching Out as Time is Running Out, Wash. Post, Jan. 22, 1999, at A8. Despite pleas from Desmond Tutu, the ABA, and other religious and human rights leaders, and despite documented mental illness, Sellers was executed in Oklahoma in 1999. See Dieter, supra note 2.
11 See Connie de la Vega & Jennifer Brown, Can a United States Treaty Reservation Provide a Sanctuary for the Juvenile Death Penalty, 32 U.S.F.L. Rev. 735, 742 (1998).
12 See Amnesty International, Death Penalty News, AI Index: ACT 53/05/00, Dec. 1999. Amnesty International reports may be found on the World Wide Web at <http:// www.amnesty.org/ailib/themes/indxdp.htm>.
13 The “modern” American death penalty era began when new death penalty statutes were passed following the Supreme Court’s 1972 decision in Furman v. Georgia, which in effect struck down all then-existing death penalty statutes. See Streib, supra note 1, at n.2.
14 See Dieter, supra note 2; Streib, supra note 1.
15 See Dieter, supra note 2.
16 See infra notes 90–102 and accompanying text.
17 See infra notes 90–102 and accompanying text.
18 See Dieter, supra note 2.
19 See, e.g., Victor Streib, The Juvenile Death Penalty in the United States and Worldwide, 4 Loy. Poverty L. J. 173, 174 (1998); Dieter, supra note 2; Cathleen E. Hull, Comment, “Enlightened by a Humane Justice”: An International Law Argument Against the Juvenile Death Penalty, 47 U. Kan. L. Rev. 1079, 1081 (1999).
20 See, e.g., Streib, supra note 19, at 174; Hull, supra note 19, at 1081.
21 See Domingues v. Nevada, 961 P.2d 1276 (Nev. 1998), request for Solicitor General’s Brief filed, 119 S. Ct. 2044 (June 7, 1999) (No. 98–8324) [hereinafter Request for Solicitor General’s Brief].
22 Dieter, supra note 2.
23 See Solicitor General’s Amicus Brief on Behalf of the United States, Domingues v. Nevada, 961 P.2d 1279 (Nev. 1998) (No. 98–8327) [hereinafter Solicitor General’s Brief].
24 See infra notes 208–336 and accompanying text.
25 See infra notes 33-67 and accompanying text.
26 See infra notes 68-101 and accompanying text.
27 See infra notes 102-149 and accompanying text.
28 See infra notes 150-156 and accompanying text.
29 See infra notes 160-207 and accompanying text.
30 See infra notes 160-207 and accompanying text.
31 See infra notes 208-297 and accompanying text.
32 See infra notes 298-336 and accompanying text.
33 See Streib, supra note 1.
34 See id.
35 See id.; DPIC, supra note 8 (last modified Sept. 2000) at <http://www. deathpenaltyinfo.org/facts.html#Executions>. Seventeen juvenile offenders have been executed during the modern era of the American death penalty and as of June 2000, 196 juvenile death sentences have been imposed. See Streib, supra note 1.
36 See Streib, supra note 19. Juvenile executions constitute approximately 1.8% of approximately 19,000 confirmed American executions since 1608. See id. Since the reinstatement of the death penalty in 1976, juvenile executions have accounted for approximately 3% of executions. See id.
37 See Streib, supra note 1.
38 See id. Of the thirty-nine death penalty jurisdictions, fifteen have expressly chosen the age of eighteen at the time of the offense as the minimum age for death penalty eligibility. See id. Four jurisdictions have chosen the age of seventeen as the minimum. See id. The remaining twenty states use the age of sixteen as the minimum age, either through an express age in the statute or by court ruling. See id.
39 See Dieter, supra note 2. Ironically, some of the countries which prohibit the use of the death penalty on juveniles are the same countries that are frequent targets of U.S. human rights criticism: South Africa, China, Syria, Cuba. See Amnesty International, The Death Penalty Worldwide: Developments in 1999, AI Index: ACT 50/04/00, Apr. 2000 [hereinafter Death Penalty Worldwide].
40 See Death Penalty Worldwide, supra note 39, at Table of Juvenile Offenders.
41 See id. Between January 1990 and December 1999, executions of individuals for crimes committed under age eighteen were as follows: Iran (5), Nigeria (1), Pakistan (2), Saudi Arabia (1), Yemen (1) and the U.S. (10). See id. As of October 2000, the United States had executed an additional four juvenile offenders. See DPIC, supra note 8, (last modified Sept. 2000) at <http://www.deathpenaltyinfo.org/facts.html#Executions>. While only one juvenile was executed internationally since 1997, eight juvenile offenders were executed in the United States during the same period. See Death Penalty Worldwide, supra note 39, at Table of Juvenile Offenders; DPIC, supra note 8 (last modified Sept. 2000) at <http://www.deathpenaltyinfo.org/facts.html# Executions>. Ebrahim Qorbanzadeh, the single juvenile executed internationally, was executed in Iran in October 1999. See Death Penalty Worldwide, supra note 39, at Table of Juvenile Offenders.
42 See Amnesty International, Juveniles and the Death Penalty, AI Index: ACT 50/11/98, Nov. 1998 [hereinafter Juveniles and the Death Penalty].
43 Id.
44 See id.
45 See id.
46 See id.
47 See Juveniles and the Death Penalty, supra note 42.
48 See id.
49 See id.
50 See id.
51 See id.; Thompson v. Oklahoma, 487 U.S. 815, 834 (1988) (quoting Eddings v. Oklahoma, 455 U.S. 104, 115 n.11 (1982)).
52 See Juveniles and the Death Penalty, supra note 42; Christopher Hitchens, Old Enough to Die, Vanity Fair, June 1999, at 80.
53 See Dorothy Ottnow Lewis, et al., Neuropsychiatric, Psychoeducational, and Family Characteristics of 14 Juveniles Condemned to Death in the United States, 145 Am. J. Psychiatry 584 (1988).
54 Lewis, supra note 53, at 584–89.
55 See id.; Hitchens, supra note 52, at 80.
56 See Juveniles and the Death Penalty, supra note 42; Vega, supra note 11, at 744–45.
57 See Streib, supra note 1.
58 See Etta J. Mullin, At What Age Should They Die? The United States Supreme Court Decision with Respect to Juvenile Offenders and the Death Penalty, Stanford v. Kentucky and Wilkins v. Missouri, 16 T. Marshall L. Rev. 161, 186–88 (1990).
59 See id.
60 See Amnesty International, Facts and Figures on the Death Penalty, AI Index: ACT 50/02/99, Apr. 1999 [hereinafter Facts and Figures on the Death Penalty].
61 See DPIC, supra note 8 (visited Oct. 7, 2000) at <http://www.deathpenalty info.org/ whatsnew.html>. In addition, Time Magazine reported that 52% of Americans do not believe that the death penalty deters people from committing crime. See id.
62 See Mullin, supra note 58, at 188 (“Juveniles live for the moment and tend to act out of impulse rather than coldly calculating the risk”).
63 See Thompson, 487 U.S. at 837 (noting that likelihood that teenage offender has made the kind of cost-benefit analysis that attaches any weight to possibility of execution is so remote as to be virtually nonexistent); Vega, supra note 11, at 744.
64 See Mullin, supra note 58, at 187.
65 See 492 U.S. 361, 403 (1989) (Brennan, J., dissenting) (quoting Enmund v. Florida, 458 U.S. 782, 800–01 (1982)).
66 See Amnesty International, Betraying the Young: Children in the US Justice System, AI Index: ACT 51/60/98, Nov. 1998 [hereinafter Betraying the Young].
67 See, e.g., Vega, supra note 11, at 746–47; Streib, supra note 1, at 13. This Note in no way attempts an exhaustive analysis of these many rationales. It is sufficient merely to acknowledge the variety of motivations that have inspired provisions prohibiting the juvenile death penalty within several major human rights treaties.
68 See Stanford, 492 U.S. at 361; Thompson, 487 U.S. at 815.
69 See 492 U.S. at 361; 487 U.S. at 815.
70 See 487 U.S. at 838.
71 See id. at 819.
72See id. at 821; 356 U.S. 86, 101 (1958). The Eighth Amendment provides, “[e]x-cessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII (emphasis added).
73 See Thompson, 487 U.S. at 821 (quoting Trop, 356 U.S. at 101).
74 See id. at 823 (quoting Weems v. United States, 217 U.S. 349, 373–74 (1910), which noted “[t]he [cruel and unusual punishment clause] . . . may be therefore progressive, and is not fastened to the obsolete but may acquire meaning as published opinions become enlightened by humane justice.”).
75 See id. at 822.
76 See id. at 831 n.31. Amnesty International, the International Human Rights Group, the ABA and the American Law Institute (ALI) contributed to amicus briefs opposing the juvenile death penalty. See Ved P. Nanda, The United States Reservation to the Ban on the Death Penalty for Juvenile Offenders: An Appraisal Under the International Covenant on Civil and Political Rights, 42 DePaul L. Rev. 1311, 1332–34 (1993). Other professional organizations also filed briefs opposing the juvenile death penalty. See id. at 1334.
77 See Thompson, 487 U.S. at 836–37. As part of this consideration, the Court noted that Oklahoma, the state of original jurisdiction, recognized a basic distinction between juveniles and adults—in Oklahoma, minors cannot vote, sit on a jury, marry without parental consent, or purchase alcohol or cigarettes. See id. at 823–24.
78 See id. at 838.
79 See 492 U.S. at 361.
80 See id. at 380; Thompson, 487 U.S. at 838.
81 See Stanford, 492 U.S. at 380.
82 See id. at 365.
83 See id. at 370–71.
84 See id. at 370.
85 See id. at 377.
86 Stanford, 492 U.S. at 370 n.1. Unlike Thompson, the Stanford Court was not persuaded by the numerous amicus briefs filed by organizations opposing the death penalty. See Nanda, supra note 76, at 1334–35. In his dissent, Justice Brennan indicates that the plurality considered the development of a consensus too narrowly and advocates considering the views of organizations with expertise on the issue and the choices of governments elsewhere in the world. See Stanford, 492 U.S. at 384 (Brennan, J., dissenting).
87 See Stanford, 492 U.S. at 380.
88 See id.
89 See id.; Betraying the Young, supra note 66.
90 See International Covenant on Civil and Political Rights, opened for signature Dec. 19, 1966, 999 U.N.T.S. 172 (1976) [hereinafter ICCPR]; The Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature Aug. 12, 1949, 6 TIAS 3516, 3365[hereinafter The Fourth Geneva Convention]; American Convention on Human Rights, concluded Nov. 22, 1969, 1114 U.N.T.S. 123, reprinted in Burns H. Weston et al., Supplement of Basic Documents to International Law and World Order, 453–68 (1997) [hereinafter ACHR]; Convention on the Rights of the Child, concluded Nov. 20, 1989, 30 I.L.M. 1448, reprinted in Burns H. Weston et al., Supplement of Basic Documents to International Law and World Order 562–87 (1997) [hereinafter CRC].
91 See Dieter, supra note 2.
92 See ICCPR, supra note 90; William A. Schabas, Invalid Reservations to the International Covenant on Civil and Political Rights: Is the United States Still a Party?, 21 Brook. J. Int’l L. 277, 277 (1995). The Universal Declaration of Human Rights, adopted by the U.N. General Assembly in 1948, proclaimed a series of political, civil, economic, social and cultural rights as a universal standard. See Dieter, supra note 2.
93 ICCPR, supra note 90, art. 6(5).
94 See id. art. 4(3).
95 See id. art. 4(2).
96 See 138 Cong. Rec. S4781–01 (daily ed. Apr. 2, 1992) at S4783. The United States ratified the ICCPR in 1992, over two decades after its adoption by the General Assembly in 1966. See id.
97 See Dieter, supra note 2; Schabas, supra note 92, at 290.
98 See Dieter, supra note 2. These objecting countries are among the United States’ closest allies: France, Sweden, Belgium, Denmark, Finland, Germany, Italy, Netherlands, Norway, Portugal and Spain. See id.
99 See The Fourth Geneva Convention, supra note 90. The Fourth Geneva Convention, dated August 12, 1949, was signed by 154 nations, including the United States, who ratified the treaty in July 1955. See id. This treaty has limited applicability because it only comes into force during times of war or occupation. See id. As an indication of an international consensus it is nonetheless persuasive. See id.
100 See ACHR, supra note 90, art. 4(5); CRC, supra note 90, art. 37(a).
101 See Dieter, supra note 2.
102 See Burns H. Weston et al., International Law and World Order 76 (1997). The ICJ, popularly known as the World Court, is the principal judicial organ of the U.N. See id.
103 See Statute of the International Court of Justice, concluded June 26, 1945, 59 Stat. 1031, reprinted in Burns H. Weston et al., Supplement of Basic Documents to International Law and World Order 36 (1997) [hereinafter ICJ Statute].
104 See ICJ Statute, supra note 103; Weston, supra note 102, at 77.
105 See Weston, supra note 102, at 77.
106 See U.S. Const. art. VI.
107 See U.S. v. Pink, 315 U.S. 203, 230–31 (1942).
108 See Weston, supra note 102, at 91.
109 See id.
110 See id. at 91–92.
111 See id. at 92; The Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 U.N.T.S. 331 reprinted in Burns H. Weston et al., Supplement of Basic Documents to International Law and World Order 69 [hereinafter Vienna Convention].
112 See Vienna Convention, supra note 111.
113 See ICJ Statute, supra note 103; Restatement (Third) of Foreign Relations Law § 102 cmt. i (1987) [hereinafter Restatement].
114 See ICJ Statute, supra note 103, art. 38; Restatement, supra note 113, § 102(2).
115 See Restatement, supra note 113, § 102. A “practice” need not be universally followed in order to contribute to the creation of customary law. See id. cmt. b. Moreover, the practice of states that builds customary international law may include what states do through international organizations. See id. Rep. Note 2. For example, United Nations General Assembly resolutions and declarations may, in some circumstances, contribute to the process of forming international law. See id.
116 See id. § 102. Explicit evidence of a sense of legal obligation (e.g., by official statements) is not necessary; opinio juris may be inferred from acts or omissions. See id.
117 See id. § 102 cmt. d. Historically such dissent and consequent exemption from a principle has been rare. See id.
118 See The Paquete Habana, 175 U.S. 677, 707–08 (1900).
119 See id. at 694, 708.
120 See id. at 679.
121 Id. at 694.
122 See id. at 707–08.
123 See 630 F.2d 876, 880 (2d Cir. 1980).
124 See id.
125 See id. at 880, 886. The aliens, citizens of the Republic of Paraguay, were served with process within U.S. borders. See id. at 879.
126 See id. at 880.
127 See id. The court indicated that the right to be free of torture has become part of customary international law evidenced by the Universal Declaration of Human Rights. See id. at 882. The court found that the resolution created an expectation of adherence, and insofar as the expectation was gradually justified by State practice, it may by custom become recognized as laying down rules binding on the states. See id. at 883.
128 See 630 F.2d at 883; ICJ Statute, supra note 103, art. 38.
129 Vienna Convention, supra note 111, art. 53.
130 See David F. Klein, A Theory for the Application of the Customary International Law of Human Rights by Domestic Courts, 13 Yale J. Int’l L. 332, 351 (1988) (noting that jus cogens is based on a rational ideal of the good per se, in contrast to jus dispositivum, which is based merely on the fortuitous or self-interested choice of participating states).
131 See Vienna Convention, supra note 111, art. 53; Restatement, supra note 113, § 102 rep. note 6 (noting that being recognized by the international community of states as a whole means “by a very large majority of states, even if over the dissent of a very small number of states”).
132 See Restatement, supra note 113, § 102 cmt. k; Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 718 (9th Cir. 1992) (noting that jus cogens norms enjoy the highest status within international law).
133 See Siderman, 965 F.2d at 717.
134 See id.
135 See id. at 703.
136 See id.
137 See id. at 718, 723.
138 See Restatement, supra note 113, § 702.
139 See id.
140 See id. § 702 cmt. n; Siderman, 965 F.2d at 717.
141 See Schabas, supra note 92, at 312–13.
142 See Restatement, supra note 113, intro. note, Part VII.
143 See id.; Schabas, supra note 92, at 311.
144 See Restatement, supra note 113, intro. note, Part VII.
145 See Schabas, supra note 92, at 310–13.
146 See id.
147 See id. at 311.
148 See id. at 312.
149 See id. at 310–13.
150 See Domingues v. Nevada, 961 P.2d 1279, 1279 (Nev. 1998).
151 See id.
152 See id.
153 See id.
154 See id.
155 See Domingues, 961 P.2d at 1280.
156 See id. Two dissenting Justices, compelled by concern over the validity of the reservation to the ICCPR, supported a more thorough investigation of the Petitioner’s claim. See id. at 1280–81 (Springer, C.J., and Rose, J., dissenting). Chief Justice Springer noted the glaring incongruity of the United States becoming a party to the ICCPR while simultaneously rejecting one of its most vital terms. See id. (Springer, C.J., dissenting). Justice Rose, noted that the complexity of the issue before the court deserved a full hearing on the effect of the U.S. reservation to the ICCPR, with the penultimate issue being whether the Senate’s reservation was valid in light of the nonderogability clause. See id. at 1281 (Rose, J., dissenting).
157 See Petition for Certiorari at 8, Domingues v. Nevada, 961 P.2d 1276 (Nev. 1998) (No. 98–8327) [hereinafter Cert. Petition].
158 See Request for Solicitor General’s Brief, supra note 21, at 2044.
159 See Cert. Petition, supra note 157; Solicitor General’s Brief, supra note 23.
160 See Cert. Petition, supra note 157, at 8.
161 See id. at 20–26.
162 See id. at 26.
163 See id. at 23–24; supra notes 95-96 and accompanying text.
164 See Cert. Petition, supra note 157, at 23–24; supra notes 95–97 and accompanying text.
165 See Cert. Petition, supra note 157, at 25–26.
166 See id.; Vienna Convention, supra note 111.
167 See Cert. Petition, supra note 157, at 25–26.
168 See id. at 20–22.
169 See id. at 22; 524 U.S. 417, 421 (1998).
170 See Cert. Petition, supra note 157, at 22; Clinton, 524 U.S. at 439–50. The Presentment Clause states: “Every Bill which shall have passed the House . . . and the Senate, shall, before it becomes a Law, be presented to the President . . . if he approves he shall sign it, but if not he shall return it, with his Objections, to that House in which it shall have originated, who shall . . . proceed to reconsider it. . . .” U.S. Const. art. I, § 7. The Clinton Court interpreted the Presentment Clause to mean that the President had no option to simply alter the bill on his own, thereby making new law. See 524 U.S. at 439–50; Cert. Petition, supra note 157, at 22.
171 See Cert. Petition, supra note 157, at 22.
172 See id. at 6–7. The Treaty Clause provides that the president shall have the power “by and with the Advice and Consent of Senate, to make Treaties. . . .” U.S. Const. art. II, § 2.
173 See Cert. Petition, supra note 157, at 11–17.
174 See id. at 17.
175 See id. at 14.
176 See id. at 18.
177 See id.
178 See Cert. Petition, supra note 157, at 18.
179 See id. at 18, 19. The Inter-American Commission monitors compliance with the American Declaration of Rights and Duties of Man, a resolution adopted by the Organization of American States (OAS). See Donald Fox, Inter-American Commission on Human Rights Finds United States in Violation, 82 Am. J. Int’l L. 601, 601–02 (1988).
The U.S. is a member of OAS and has ratified the OAS charter. See id. In 1987, the Inter-American Commission found that two juvenile executions in the United States violated Article I of the American Declaration of Rights and Duties of Man (“Every human being has the right to life. . . .”) insisting that the rule prohibiting the execution of juvenile offenders had acquired the authority of jus cogens. See id.
180 See Cert. Petition, supra note 157, at 32–33.
181 Id. at 9.
182 See id. at 11.
183 See Solicitor General’s Brief, supra note 23, at 7.
184 See id. at 3.
185 See id.
186 See id. at 3–4.
187 See Solicitor General’s Brief, supra note 23, at 3; 524 U.S. at 439–50.
188 See Solicitor General’s Brief, supra note 23, at 4.
189 See id. at 5.
190 See id.
191 Id.
192 See id. at 4.
193 See Solicitor General’s Brief, supra note 23, at 4.
194 Id.
195 See id. at 5; supra notes 119–123 and accompanying text discussing the Paquete decision and its implications with respect to customary international law.
196 See Solicitor General’s Brief, supra note 23, at 5.
197 See id.
198 See id.
199 See id.
200 See id. at 6.
201 See Solicitor General’s Brief, supra note 23, at 6.
202 See id.
203 See id.
204 See id. at 7.
205 See id.
206 See Solicitor General’s Brief, supra note 23, at 7.
207 Domingues v. Nevada, 961 P.2d 1279, (Nev. 1998) cert denied, 526 U.S. 1156 (U.S. Nov. 1, 1999) (No. 98–8327).
208 See Domingues, 961 P.2d at 1281 (Rose, J., dissenting) (noting that federal court that deals with federal law on daily basis might be better equipped to address issues of international law).
209 See Solicitor General’s Brief, supra note 23, at 4.
210 See id.
211 Vienna Convention, supra note 111, § 2 art. 19(c) (emphasis added).
212 See ICCPR, supra note 90.
213 See generally Schabas, supra note 92, at 292, 294–302.
214 See generally id.
215 See Restatement, supra note 113, § 313 (1)(a).
216 See Solicitor General’s Brief, supra note 23, at 5.
217 See ICCPR, supra note 90, art. 4(2).
218 See id.
219 See Solicitor General’s Brief, supra note 23, at 5.
220 See United Nations Human Rights Committee, General Comment No. 24(52) Relating to Reservations, 15 Hum. Rts. L. J. 464–65 (1994) [hereinafter Human Rights Committee Comments].
221 See id.; Cert. Petition, supra note 157, at 24; Vega, supra note 11, at 755. In reaction to the Committee’s vote regarding the invalidity of reservations to Article 6, the U.S. Senate threatened to withhold funds slated for U.S. participation in the work of the Committee. See Dieter, supra note 2.
222 See Schabas, supra note 92, at 315.
223 See ICCPR, supra note 90, Part IV; Cert. Petition, supra note 157, at 24.
224 See Edward Sherman, The U.S. Death Penalty Reservation to the International Covenant on Civil and Political Rights: Exposing the Limitations of the Flexible System Governing Treaty Formation, 29 Tex. Int’l L. J. 69, 79 (1994).
225 Restrictions to the Death Penalty (Arts. 4(2) and 4(4) American Convention on Human Rights), Advisory Opinion No. OC-3/83 of Sept. 8, 1983, Inter-Am. Ct. H.R., ser. A: Judgments and Opinions, No. 3 (1983), reprinted in 23 I.L.M. 320, 341 (1984); see Sherman, supra note 224, at 79.
226 See Sherman, supra note 224, at 79.
227 Solicitor General’s Brief, supra note 23, at 4.
228 See id.
229 See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (reviewing executive order to possess and operate nation’s steel mills).
230 See Solicitor General’s Brief, supra note 23, at 4.
231 See ICCPR, supra note 90, art. 6(5).
232 See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
233 See id. (noting further that if two laws conflict with each other, the courts must decide on the operation of each).
234 See Solicitor General’s Brief, supra note 23, at 4.
235 See supra notes 146–150 and accompanying text discussing the unique character of human rights law.
236 See supra notes 146–150 and accompanying text; Schabas, supra note 92, at 311; Sherman, supra note 224, at 79.
237 See Schabas, supra note 92, at 311.
238 See id.
239 See id.
240 See Solicitor General’s Brief, supra note 23, at 4. Furthermore, while the Solicitor General seems to belittle the fact that only eleven countries have formally objected to the U.S. reservation, since objecting to a reservation has no legal consequence, it is quite likely that many objections are never made. See Human Rights Committee Comments, supra note 220, at 465.
241 See Schabas, supra note 92, at 324.
242 See id. at 317.
243 See U.S. Const. art. VI. The Supremacy Clause reads in relevant part, “[A]ll Treaties made, or which shall be 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. . . .” Id. (emphasis added).
244 See supra notes 174–176 and accompanying text discussing creation of customary law and Petitioner’s customary international law claim.
245 See Restatement, supra note 113, § 102.
246 See Death Penalty Worldwide, supra note 39, at Table of Juvenile Offenders; Amnesty International, Action at the United Nations, AI Index: 53/04/99, Sept. 1999 [hereinafter Action at the UN].
247 See Restatement, supra note 113, § 102 cmt. b.
248 See 175 U.S. at 707–08.
249 See The Death Penalty Worldwide, supra note 39 (emphasis added).
250 See Restatement, supra note 113, § 324 cmt. e; ICJ Statute, supra note 102, art. 38.
251 CRC, supra note 90, art. 37(a) (“Neither capital punishment nor life imprisonment without the possibility of release shall be imposed for offences committed by persons below eighteen years of age”); ACHR, supra note 90, art. 4(5) (“Capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age”); The Fourth Geneva Convention, supra note 90, art. 68 (“[T]he death penalty may not be pronounced against a protected person who is under eighteen years of age at the time of the offence”).
252 See Dieter, supra note 2 (noting near universal endorsement of ICCPR). Although Norway and Ireland originally reserved against Article 6 of the ICCPR, Norway has since withdrawn its reservation and Ireland has abolished the death penalty entirely. See Schabas, supra note 92, at 290–91; Juveniles and the Death Penalty, supra note 42, at 2 (noting that as of November 1998, 191 states had become parties to CRC). Indeed, the U.S. and Somalia are the only parties not to have ratified the CRC. See Dieter, supra note 2.
253 See Dieter, supra note 2.
254 See id.
255 See Juveniles and the Death Penalty, supra note 42; Action at the United Nations, supra note 246.
256 See Juveniles and the Death Penalty, supra note 42.
257 See id. Although this resolution is not legally binding, its adoption by the General Assembly (resolution 39/118) without a vote, was a sign of strong consensus among nations that its provisions should be observed. See id.
258 See Action at the United Nations, supra note 246.
259 See id.
260 See Filartiga, 630 F.2d at 128; Restatement, supra note 113, § 102, rep. n.1 (noting that U.N. resolutions contribute to the process of forming customary international law and demonstrate consensus).
261 See Nanda, supra note 76, at 1333 (noting Joan Hartman’s observation that opinio juris poses the most troubling problem in constructing an intellectually honest and convincing theory for customary human rights norms).
262 See Vega, supra note 11, at 757.
263 See id.
264 See generally Nanda, supra note 76, at 1333–34.
265 See id. at 1333.
266 See Restatement, supra note 114, § 102.
267 See id.
268 See id.
269 See id. at 1333–34; Vega, supra note 11, at 757.
270 See generally Nanda, supra note 76, at 1333–34; Vega, supra note 11, at 757.
271 See Cert. Petition, supra note 157, at 14. The preparatory works to the ICCPR reflect the drafters’ discussions during the treaty formation process and therefore serve as supplementary means of interpretation, similar to legislative histories. See id.
272 See Restatement, supra note 113, § 102.
273 See Solicitor General’s Brief, supra note 23, at 4.
274 See Restatement, supra note 113, § 102 cmt.
275 See Vega, supra note 11, at 758–59.
276 See id.
277 See id.; Nanda, supra note 76, at 1332. From 1964 to 1983, the U.S. did not execute a single juvenile. See Nanda, supra note 76, at 1319.
278 See Vega, supra note 11, at 759.
279 See id.; Vienna Convention, supra note 111, art. 18 (noting that a state is obliged to refrain from acts which would defeat the object and purpose of the treaty when it has signed the treaty and has not clearly made known any intention not to become a party to the treaty).
280 See Vienna Convention, supra note 111, art. 18; Vega, supra note 11, at 759.
281 See J. Joyce, Capital Punishment: A World View 196–217 (1961).
282 See Vega, supra note 11, at 758.
283 See Solicitor General’s Brief, supra note 23, at 5.
284 See id.
285 See id.
286 See id. at 5–6.
287 Id.; see Marbury, 5 U.S. at 177.
288 See Marbury, 5 U.S. at 177.
289 See 175 U.S. at 694; 630 F.2d at 880.
290 See Solicitor General’s Brief, supra note 23, at 5–6.
291 See Cert. Petition, supra note 157, at 9. It is similarly questionable whether elected state judges have sufficient political independence to decide against their constituents (who generally support the death penalty) despite the demands of international law.
292 See id.
293 See id. (referencing United Nations, Human Rights Committee, Comments on the United States of America, U.N. Doc. CCPR/79/Add.50 (1995)).
294 See Banco Nacional de Cuba v. Sabbatine, 376 U.S. 398 (1964).
295 See Phillip Jessup, The Doctrine of Erie Railroad v. Tompkins Applied to International Law, 33 Am. J. Int’l L. 740, 740–43 (1939).
296 The Supreme Court of Nevada declined to even address the customary international law or jus cogens argument presented by Domingues. See Domingues, 961 P.2d at 1279–81.
297 Id. at 1281 (Rose, J., dissenting).
298 See Cert. Petition, supra note 157.
299 See id. at 5–8.
300 See Solicitor General’s Brief, supra note 23, at 3–4.
301 See id. at 3.
302 See id.; Cert. Petition, supra note 157, at 5–6.
303 U.S. Const. art. II, § 2 (emphasis added); see Solicitor General’s Brief, supra note 23, at 3.
304 See Solicitor General’s Brief, supra note 23, at 3.
305 See id. at 4 (referencing the Treaty of Amity, Commerce, and Navigation, Nov. 19, 1794, 8 Stat. 116).
306 See Cert. Petition, supra note 157, at 18–20; Restatement, supra note 113, § 702.
307 See Cert. Petition, supra note 157, at 18–20.
308 See Karen Parker, Jus Cogens: Compelling the Law of Human Rights, 12 Hastings Int’l & Comp. L. Rev. 411, 415 (1989) (quoting statement made by Mexican delegate to the U.N. Conference on the Law of Treaties) (emphasis added).
309 See Restatement, supra note 113, § 702.
310 See id.; Siderman, 965 F.2d at 717.
311 See Restatement, supra note 113, § 702; National Campaign to Abolish the Death Penalty, The U.S. leads the world in killing kids (visited Apr. 15, 2000) <http:// www.ncadp.org>.
312 See National Campaign to Abolish the Death Penalty, The U.S. leads the world in killing kids (visited Apr. 15, 2000) <http://www.ncadp.org>; see also, Streib, supra note 1.
313 See Dieter, supra note 2. The International Commission of Jurists also noted, “the administration of capital punishment in the United States continues to be discriminatory and unjust. . . .” See id.
314 See DPIC, supra note 8 (visited Oct. 7, 2000) at <http://www.deathpenaltyinfo. org/whatsnew.html>.
315 See id.
316 See Restatement, supra note 113, § 702.
317 See id.
318 See Nanda, supra note 76, at 1329.
319 See id.
320 See id.; The Inter-American Commission found the existence of jus cogens based on the fact that the norm against the juvenile death penalty is accepted by the member states of the OAS. See Fox, supra note 179, at 602.
321 See Fox, supra note 179, at 603.
322 See 492 U.S. at 361–405; 487 U.S. at 815–39.
323 See supra notes 71–87 and accompanying discussion of the Stanford and Thompson challenges.
324 See Stanford, 492 U.S. at 380.
325 See id.
326 See 217 U.S. at 373–74.
327 See 492 U.S. at 370.
328 Knight v. Florida, No. 98–9741, 1999 U.S. Lexis 7479, *16 (1999) (Breyer, J. dissenting).
329 175 U.S. at 700; 961 P.2d 1281, (Rose, J., dissenting).
330 See Cert. Petition, supra note 157, at 9 (noting the failure of Supreme Court of Nevada to enforce treaty was consistent with pattern of lack of awareness of United States international obligations).
331 See DPIC, supra note 8, (visited Apr. 13, 2000) at <http://www.deathpenaltyinfo. org/dpic/dicintl.html>.
332 See Cert. Petition, supra note 157, at 9.
333 See id. at 9–10 (quoting Sandra Day O’Connor, Federalism of Free Nations, in International Law Decisions in National Courts 13, 18 (1996) and noting further, “[t]he Supremacy Clause of the United States Constitution gives legal force to foreign treaties, and our status as a free nation demands faithful compliance with the law of free nations.”).
334 See Dieter, supra note 2.
335 See id. at 21. This statement was made in the process of announcing a suit against the United States in the International Court of Justice for the execution of two German nationals in September 1999. See id.
336 See Solicitor General’s Brief, supra note 23, at 5–6.
337 Lung-chu Chen, The United Nations Convention on the Rights of the Child: A Policy-Oriented Overview, 7 J. Hum. Rts. 16, 19 (1989).