[*PG1175]KILLING KIDS: THE IMPACT OF DOMINGUES V. NEVADA ON THE JUVENILE DEATH PENALTY AS A VIOLATION OF INTERNATIONAL LAW
Abstract: This Note examines the debate over the legality of the juvenile death penalty, and concludes that the use of the juvenile death penalty in the United States represents a flagrant transgression of international human rights law. Several forms of international law, including a number of multilateral human rights treaties, customary international law and jus cogens prohibit the execution of children below the age of eighteen. The existence of these contrary legal obligations demands that the United States abandon its vigilante stance and bring its practices into conformity with the greater international community.
Over the last decade, the issue of juvenile violence has received significant public attention.1 Tragedies such as those that occurred in Littleton, Colorado and Little Rock, Arkansas, have generated heightened concern over bloodshed amongst America’s young. The anger and pain provoked by these highly publicized displays of juvenile violence have been reflected in the words and deeds of politicians who call for tougher approaches to crime and increasingly severe criminal sanctions.2 As a result, the juvenile justice system, founded on the idea that childhood is a distinct stage of life, has slowly been dismantled.3 The century-old notion of children and adolescents as less culpable and more amenable to rehabilitation has given way to a harsher reality where child criminals are frequently indistinguishable from their [*PG1176]adult counterparts.4 Since 1992, forty-five states have passed or amended legislation making it easier to prosecute juveniles as adults.5 Not only are more children being transferred out of the juvenile system and into the adult criminal system, but today, more juveniles are receiving the ultimate sanction—the death penalty.6
In January 2000 three juvenile offenders7 were put to death.8 As of October 2000, seventy-four more awaited their fate on death row.9 The United States crossed a significant barrier in 1999 when Sean Sellers became the first sixteen-year-old offender executed in over forty years.10 Explaining this increase in juvenile death sentences and executions, Texas juvenile delinquency expert Billy Bramlett noted that death sentences suit the citizenry “fed up with the expense of crime, the fear of crime, the devastation of crime and just the senselessness of crime.”11 Indeed, the majority of Americans continue to support the death penalty—even as applied to children.12
Nonetheless, while executions in the United States in the modern era13 have continued to climb, this fact is in direct contrast to movement within the greater international community.14 The United [*PG1177]States currently stands nearly alone in a world where executing people for crimes committed as children is considered a major human rights violation.15 This international legal and moral consensus against the juvenile death penalty is symbolized in large part by express provisions in a number of multilateral human rights treaties.16 Despite claiming an authoritative stance on international human rights issues, the United States has declined to ratify several of these treaties and has reserved the right not to implement important provisions of other treaties, in an effort to maintain discretion over the execution of juvenile offenders.17
Given America’s tendency to condemn human rights violations on foreign soil, it is imperative that the United States begin to examine the legally-sanctioned practices that present similar human rights concerns here at home—the juvenile death penalty. The United States’ position on the juvenile death penalty is both embarrassing and hypocritical.18 More significantly, however, the vigilante stance the United States has assumed violates existing international law prohibiting the juvenile death penalty.19 America, therefore, no longer has the discretion to continue to move in the opposite direction of an international consensus that has rejected the juvenile death penalty on human rights grounds.20
The existence of international law prohibiting the execution of children demands that the U.S. Supreme Court address the glaring violation that current U.S. practice presents. In 1999, when Michael Domingues petitioned the Court for review of his juvenile death penalty case, the Court requested the Solicitor General to present the U.S. government’s position with respect to the legality of juvenile executions under international law.21 Richard Dieter, death penalty scholar and executive director of the Death Penalty Information Center, captured the significance of this request noting, “[t]he Clinton [*PG1178]Administration [has] a unique opportunity to directly affect U.S. policy on [this] issue. . . .”22 Unfortunately, the U.S. Solicitor General’s October 1999 brief made it overwhelmingly clear that the government continues to support the use of the juvenile death penalty, despite contrary international indications.23
This Note explores the use of the juvenile death penalty in the United States within the context of international law, concluding that the U.S. practice of executing juvenile offenders represents a significant violation of international human rights law.24 Section I reviews the background of the juvenile death penalty in the United States and considers several of the rationales offered for banning the practice.25 The Section further considers the constitutional challenges and multilateral treaties that specifically address the juvenile death penalty.26 Section II provides a brief discussion of the sources and foundations of international law to serve as a basis for understanding the manner in which international law applies to the juvenile death penalty.27 Section III discusses the case of Domingues v. Nevada, in which a juvenile offender sentenced to death by the Supreme Court of Nevada petitioned the U.S. Supreme Court for review on international law grounds.28 The Section evaluates the persuasiveness of the arguments presented both by the Petitioner, as well as by the Solicitor General—whose recommendation for denial of certiorari was accepted by the Court.29 This case serves as an example of how international law is increasingly relevant to death penalty challenges and demonstrates the government’s position on this important issue.30 Section IV presents an analysis of the international law arguments, highlighting deficiencies in the Solicitor General’s recommendation and arguing that the Supreme Court should have granted certiorari to review these critical international law issues.31 Section V argues that foreign practice must be acknowledged as an indicator of evolving [*PG1179]standards of decency and that the Court should reconsider the constitutionality of the juvenile death penalty.32
Although the death penalty has been imposed sparingly in juvenile cases, the number of children sentenced to death in the United States is nonetheless significant.33 Since the first execution of a juvenile offender in 1642 in Plymouth County, Massachusetts, 357 individuals have been executed in the United States for juvenile crimes.34 In the twenty-six months between April 1998 and June 2000, eight juvenile offenders were executed in the United States.35 Although juvenile executions account for only a small number of total executions nationwide, the percentage of such executions appears to be rising.36
Currently, thirty-eight states and the federal government have statutes authorizing the death penalty.37 Of those thirty-nine death penalty jurisdictions, twenty-four permit the execution of juvenile offenders.38 In contrast, as of October 1999, at least 144 nations prohibited, by treaty or legislation, the juvenile death penalty.39 Consequently, the United States is one of only six countries known to have [*PG1180]executed a juvenile offender in the last decade.40 Moreover, the United States leads the world in juvenile executions, having executed as many juvenile offenders in the last decade as the other five countries combined.41
A variety of different beliefs and concerns have motivated the greater international community to prohibit the juvenile death penalty. For one, it has been widely recognized that many children who turn to violent crime have suffered childhood’s fraught with abuse, impoverishment and neglect.42 Amnesty International recently reported that “[t]he background of the majority of juvenile offenders executed since 1990 was one of serious emotional or material deprivation.”43 The story of Joseph Cannon, executed in July 1998 for a murder committed as a juvenile, highlights the way in which a juvenile offender’s background may affect one’s perception of their criminal conduct:44 As a result of a serious car accident, physical and mental disabilities left Joseph Cannon unable to function in the classroom and eventually led to his expulsion from school at the age of seven.45 After that point, Joseph received no further formal education.46 By the time he turned ten, he was diagnosed with organic brain damage.47 Severe depression led him to attempt suicide at fifteen, at which time he was diagnosed as schizophrenic and borderline mentally retarded.48 Throughout his life, Joseph repeatedly was subjected to se[*PG1181]vere sexual abuse from male relatives.49 So brutal and abusive was his upbringing that Joseph excelled more on death row, where he learned to read and write for the first time, than he ever had outside prison walls.50
Joseph’s 1998 execution demonstrates an alarming truth about the vast majority of children sentenced to death: childhood crimes represent not only a juvenile’s terrible mistake, but also the drastic failures of families, schools and social systems.51 Shocking in its own right, the greater tragedy presented by Joseph’s example rests in the fact that the majority of juvenile offenders sentenced to death share similarly depraved and abused backgrounds.52 A study conducted by the American Journal of Psychiatry of fourteen juvenile offenders on death row reinforces this assertion.53 Of the fourteen juveniles studied, only two had I.Q. scores higher than ninety; every one of them had suffered severe head trauma during childhood; all had deep psychiatric problems; and only two were spared extreme physical or sexual abuse as children.54 Only five of the juveniles studied had had the benefit of these psychological evaluations before standing trial.55 This has contributed to the belief, accepted by the majority of the international community, that a juvenile offender’s culpability frequently is diminished.56 This belief is one of many which has inspired numerous international organizations and treaties to condemn and prohibit the juvenile death penalty.57
In addition, the international prohibition against executing juvenile offenders recognizes that the practice does not logically comport with the traditional justifications for capital punishment.58 Theories such as deterrence and retribution fall short of justifying capital pun[*PG1182]ishment when considering the unique attributes of juvenile offenders.59 With respect to deterrence, scientific studies consistently fail to find convincing evidence that the death penalty deters crimes more effectively than other punishments.60 Recognizing this fact, U.S. Attorney General Janet Reno recently noted: “I have inquired for most of my adult life about studies that might show that the death penalty is a deterrent. And I have not seen any research that would substantiate that point.”61 Deterrence is arguably even less persuasive when considering a juvenile offender, given evidence of the inability of children to comprehend long-term consequences.62 Psychological and sociological reports show that juveniles live in an “intense present” whereby the “past and future seem pallid by comparison.”63
The retributive theory similarly is flawed.64 As Justice Brennan noted in his dissent to the 1989 case of Stanford v. Kentucky, “Retribution as a justification for executing offenders very much depends on the degree of their culpability. Executing juveniles does not measurably contribute to the retributive end of ensuring that the criminal gets his just deserts.”65 Similarly, the American Bar Association recently noted, “retribution . . . seems difficult enough for a government to justify where adult offenders are involved . . . vengeance against children for their misdeeds seems quite beyond justification. . . .”66 Additional considerations, such as inadequate access to counsel, poverty and race discrimination provide further impetus for the decision embraced by the greater international community to stop sentencing children to death.67
Although U.S. policy remains unaffected by the aforementioned rationales for prohibiting the juvenile death penalty, these concerns have received the attention of the U.S. Supreme Court over the course of the past two decades.68 The Court’s opinions in Thompson v. Oklahoma and Stanford v. Kentucky evidence the complicated, controversial nature of this debate.69
In 1988, the U.S. Supreme Court’s 5–4 decision in Thompson held that the death penalty was unconstitutional as applied to a fifteen-year-old child.70 There, the juvenile offender, in concert with three adults, participated in the brutal murder of his former brother-in-law.71 The Court evaluated the constitutionality of the juvenile death penalty in light of the Eighth Amendment’s ban on “cruel and unusual punishment,” following the guidance of the 1958 decision of Trop v. Dulles.72 In Trop, the Court found that in considering the parameters of the Eighth Amendment, future judges should be guided by “evolving standards of decency that mark the progress of a maturing society.”73 Based on this, the Thompson Court explained that the applicable standard under which to judge the juvenile death penalty must be progressive, informed and enlightened by humane justice.74
In applying this guidance to the Thompson facts, the Court looked to both legislative enactments and jury determinations as indicators of whether evolving standards of decency required preventing Oklahoma from imposing the death penalty on a fifteen-year-old defendant.75 The Court also emphasized that the views of the international community are relevant in determining whether punishment is cruel [*PG1184]and unusual.76 The review of these several indicators of contemporary standards of decency led the Court to conclude that because of their age and relative immaturity, juveniles are incapable of acting with the degree of culpability necessary to justify the death penalty.77 The Court therefore held that sentencing juvenile offenders below the age of sixteen to death violated the Eighth Amendment by offending civilized standards of decency.78
Only a year later, in 1989, the Court again addressed an Eighth Amendment challenge to juvenile executions in Stanford v. Kentucky. 79 Although the Court’s reasoning was similar to that in Thompson, the Stanford plurality reached the opposite conclusion, finding that no historical or modern consensus forbid the imposition of capital punishment on sixteen or seventeen-year-olds.80 Consequently, the Court held that the juvenile death penalty did not offend the Eighth Amendment’s prohibition against cruel and unusual punishment.81 In Stanford, the juvenile offender was sentenced to death for a murder he committed at the age of seventeen.82 Although the Court again considered whether the juvenile death penalty violated evolving standards of decency, the Court focused primarily on the abundance of state statutes permitting juvenile executions as evidence of these standards.83 The Court reasoned that since death penalty statutes are passed by elected representatives, these statutes are indicative of a public consensus in support of the juvenile death penalty.84 The Court rejected the petitioner’s contention that public opinion polls and views of interest groups should also be considered as indicators of a consensus.85 Moreover, in contrast to the reasoning of the Thompson [*PG1185]Court just one year earlier, the Stanford Court specifically declined to take into account the sentencing practices of other countries, noting, “it is the American conceptions of decency that are dispositive.”86 Based on these “American conceptions,” the Court held that sentencing the seventeen-year-old defendant to death did not constitute cruel and unusual punishment.87 In so holding, the Stanford Court developed the standard that remains applicable today: in the United States, the juvenile death penalty is constitutional as applied to sixteen and seventeen-year-old defendants.88
In contrast to the Supreme Court’s decision in Stanford, the consensus of the international community points toward strictly prohibiting the practice of executing juvenile offenders.89 This consensus is reflected in a number of multilateral treaties explicitly prohibiting the imposition of the juvenile death penalty.90 The United States has signed several treaties which include such prohibitions, but has managed to avoid compliance with these terms by either refusing to ratify the treaty or, as in the case of the International Covenant on Civil and Political Rights (“ICCPR”), by making reservations to the provisions prohibiting the juvenile death penalty.91
The ICCPR, an outgrowth of the Universal Declaration of Human Rights, constitutes the cornerstone of modern international human rights law, seeking to recognize the inherent dignity and inalien[*PG1186]able rights of all people by guaranteeing certain civil and political freedoms.92 Among the rights provided by the treaty, Article 6(5) specifies that the “[s]entence of death shall not be imposed for crimes committed by persons below eighteen years of age. . . .”93 Article 4 of the ICCPR makes this provision nonderogable, even in times of public emergency “which threaten the life of the nation. . . .”94 This “nonderogability” provision essentially means that while parties to the treaty may take measures deviating from their obligations to many of the provisions of the treaty, the drafters deemed Article 6(5), the juvenile death penalty provision, to be of such paramount importance to the mission of the treaty that no derogation was permissible.95 Despite this command, the Senate’s 1992 ratification of the ICCPR was made subject to certain reservations, understandings and declarations (“RUDs”) among which was a reservation to Article 6(5) stating: “the United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person . . . including . . . persons below eighteen years of age.”96
The United States’ reservation to Article 6(5) is significant, not only for the substance of the reservation itself, but also because it manifests the solitary stance of the United States on this issue: the United States is currently the only country among the treaty’s 144 signatories with a reservation to Article 6(5).97 Sincere dissatisfaction with the United States’ refusal to comply with Article 6(5) has been expressed not only by international organizations, but similarly by eleven foreign nations who have filed complaints with the Human Rights Commission (the commission in charge of monitoring compliance with the terms of the ICCPR).98
[*PG1187] The ICCPR is not the only treaty demonstrating U.S. unwillingness to comply with the international consensus against the juvenile death penalty. The Geneva Convention Relative to the Protection of Civilian Persons in Time of War (“Fourth Geneva Convention”), ratified by the United States in 1955, similarly forbids the imposition of the death penalty on “protected persons” below the age of eighteen.99 In addition, the American Convention on Human Rights (“ACHR”) and the Convention on Rights of the Child (“CRC”) explicitly prohibit the death penalty for individuals whose crimes were committed below the age of eighteen.100 While the United States participated in the drafting and signing of both of these treaties, it has been unwilling as yet to ratify.101
International law generally is considered to be derived from the sources listed in Article 38 of the Statute of the International Court of Justice (“ICJ”).102 These sources, regarded as substantial means for the determination of rules of law, include: international conventions and established rules expressly recognized by contesting states; international custom, as evidence of a general practice accepted as law; general principles of law recognized by civilized nations; and judicial decisions and teachings of the most highly qualified publicists of the various nations.103
The first source listed in Article 38, “international conventions,” is simply another name for treaties.104 Treaties are international agreements containing the mutual promises of signatory states—as such, they represent an especially strong source of international law.105 International treaties signed and ratified by the United States [*PG1188]are laws of the United States and are supreme over the laws of the several states.106 State law must yield whenever it is inconsistent with, or impairs, the policy or provisions of a treaty or international agreement.107
As international relations have grown increasingly complex, so too have international treaties. Interpreting the thousands of obligations and duties imposed by these multiple treaties is made even more difficult by the fact that parties to treaties will occasionally qualify their consent to be bound by “reserving” specific treaty provisions.108 In essence, a reservation indicates a country’s desire to be bound by the treaty in general, with the exception of the particular provision to which it reserved against.109 This creates an extremely complicated situation, particularly with respect to multilateral treaties, because not all parties necessarily will agree on the permissibility of the reservation.110 Such debate concerning the legality of reservations is often guided by the Vienna Convention on the Law of Treaties (“Vienna Convention”).111 This agreement, created with the intent of codifying the development of treaty law, represents a valuable source for interpreting treaties given the array of complicated questions that frequently arise.112
Beyond creating legal obligations between signatory nations, treaties may occasionally give rise to the creation of customary international law, binding even on non-party states.113 Customary international law is the result of practices consistently followed by the majority of states because of a sense of legal obligation.114 Specifically, a norm attains the status of customary international law only if two conditions are met: the norm must be (1) reflected in the general practice of nations;115 and (2) a sense of legal obligation (“opinio ju[*PG1189]ris”) must have attached.116 Even when these two conditions are met, however, a country that indicates its dissent from a particular practice or norm while the law is still in the process of development, is not bound by the rule, even after it matures.117
The U.S. Supreme Court has recognized international custom as a time-honored and essential component of binding international law.118 As early as 1900, in The Paquete Habana, the Court held that international custom provided solid legal grounds for prohibiting the capture of a foreign vessel.119 In Paquete, a Cuban fishing vessel was captured by a U.S. steamship and sold at auction as a prize of war.120 Although no domestic law prohibited the capture, the Court reasoned that as a result of ancient usage among civilized nations, “what originally may have rested in custom or comity, courtesy or concession . . . [had become] . . . a settled rule of international law” prohibiting the capture of coastal fishing vessels.121 Despite acknowledging several occasions where the custom was ignored over the course of history, the Court nonetheless concluded that the practice had evolved into international law that the United States was bound to obey.122
Eighty years later, in 1980, the Second Circuit’s decision in Filartiga v. Pena-Irala likewise found customary international law to be controlling.123 In Filartiga, the court held that deliberate torture perpetrated under the color of official authority violated universally accepted norms of international law.124 The Filartiga case considered whether the United States had jurisdiction over two non-citizens for violent conduct they had undertaken as Paraguayan governmental officials.125 In answering this jurisdictional question, the court examined whether the alleged conduct violated customary international [*PG1190]law.126 Acknowledging the universal condemnation of torture found in numerous international agreements, multiple declarations of the United Nations General Assembly, as well as the general renunciation of torture as an instrument of official policy by virtually all the nations of the world, the court held that torture violated an established norm of international human rights law.127 Both of these cases indicate the willingness of U.S. courts to find the existence of binding international law even when its formation is not signified by explicit documents and terms.
The existence of international consensus, such as that discussed in Paquete and Filartiga, likewise is important to the third source of law identified by Article 38 of the ICJ: “general principles of law recognized by civilized nations,” commonly referred to as jus cogens.128 Article 53 of the Vienna Convention defines jus cogens as a standard “accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted.”129 Thus, jus cogens generally is considered to be derived from values held fundamental by the international community—an ideal of a “good per se.”130 Jus cogens is distinct from customary international law because it is nonderogable—a country cannot avoid compliance with a jus cogens norm by refusing to consent to its application.131 As a result, jus cogens prevails over and invalidates international agreements and other rules of international law in conflict with its own nonderogable principles, in this sense representing the strongest and most compelling source of international law.132
[*PG1191] Evidence of the force of jus cogens as a source of international law is further supported by U.S. common law.133 In 1992, in Siderman v. Republic of Argentina, the Ninth Circuit went even further than the Second Circuit’s Filartiga decision, holding that the prohibition against torture had attained the status of a jus cogens norm.134 Siderman involved the horrific actions of a violent and brutal anti-Semitic military junta that ruled Argentina following the government of Maria Peron.135 Seventy-five year old Jose Siderman was kidnapped, beaten and tortured for seven days by members of the military junta.136 The Ninth Circuit reasoned that Argentina was not entitled to the immunity afforded most sovereign acts because the prohibition against official torture had attained the status of jus cogens—no derogation from the norm was permissible.137 Certain human rights have been specifically identified as jus cogens norms by the Third Restatement of Foreign Relations Law.138 These include: genocide, slavery, murder, torture, prolonged arbitrary detention, systematic racial discrimination, and consistent patterns of gross violations of internationally recognized human rights.139 The Restatement provides, and cases have so held, that any international agreement violating these peremptory norms is void.140
These three sources of international law—treaties, customary international law and jus cogens—all operate to establish human rights standards throughout the world. Before considering which sources of law specifically prohibit the juvenile death penalty, it is first imperative to understand the unique character of human rights law.141 While international jurisprudence traditionally insisted that the individual was not a “subject” of international law, modern international laws have created obligations for states in relation to natural persons.142 Increasingly, international human rights agreements create obligations and responsibilities for states with respect to all individuals subject to their jurisdiction, including their own nationals.143 This reflects a general [*PG1192]consensus that how states treat individuals, including their own citizens, is not the state’s business alone, but is instead a matter of international concern and the proper subject for regulation by international law.144
The unique character of human rights law, however, creates particular enforcement problems, particularly with respect to the aforementioned treaty reservation process.145 Although reservations are an accepted feature of treaty law, they are fundamentally unsuited for human rights treaties.146 The reservation technique was developed in the context of multilateral treaties concerned with preserving the reciprocity of obligations between contracting states.147 In the context of human rights treaties, however, none of the parties are exchanging rights or benefits, and reciprocity has no place.148 This diminished reciprocal character makes a country’s ability to enforce treaty provisions and human rights law extremely difficult, because unlike traditional multilateral agreements, individual states have no coercive power.149
On October 22, 1993, sixteen-year-old Michael Domingues murdered a woman and her four-year-old son.150 In August 1994, a Nevada jury found Domingues guilty of two counts of first-degree murder.151 At seventeen years of age, Domingues was sentenced to death for each of these murder convictions.152 On appeal, in 1996, the Supreme Court of Nevada affirmed the trial court’s convictions and sentence.153 The defendant then filed a motion for correction of an illegal sentence, contending that the execution of a juvenile offender violates the ICCPR and customary international law.154 The District Court denied the defendant’s motion and, in a 3–2 decision, the Supreme Court of Nevada upheld the District Court’s conviction and death sentence, concluding that the Senate’s express reservation to the [*PG1193]ICCPR preserved the United States’ right to impose the death penalty on juveniles.155 The Supreme Court of Nevada failed to explicitly address whether the reservation itself is valid, or whether the execution of juveniles violates customary international law.156
On March 1, 1999, Michael Domingues filed a petition with the United States Supreme Court requesting certiorari to consider his claims that the juvenile death penalty violates the ICCPR, customary international law and jus cogens.157 Upon reviewing this petition, the Court asked the Solicitor General to file an amicus brief presenting the U.S. government’s view of its international obligations related to the use of the juvenile death penalty.158 As international legal issues surrounding the juvenile death penalty begin to receive heightened attention, the Domingues petition and the response elicited from the Solicitor General serve as key examples of the different sides of this important debate.159
As noted above, Michael Domingues’ Petition for Certiorari (“the Petition”), filed with the U.S. Supreme Court, argues that Nevada is prohibited from imposing the death penalty on juveniles in light of the ICCPR, customary international law and jus cogens.160 In addressing the alleged violations of the ICCPR, the Petition focuses on the invalidity of the United States’ reservation to Article 6(5)—the provision prohibiting the juvenile death penalty.161 This claim is premised on the fact that if the reservation is determined to be invalid, the United States will be deemed to have accepted the terms of the treaty [*PG1194]in its entirety, including Article 6(5).162 The Petition first contends that the language of ICCPR prohibits any reservation to Article 6(5), emphasizing that the Article is specifically made nonderogable by the treaty’s terms.163 As previously noted, while the ICCPR provides for derogation from a number of its provisions in times of “public emergency,” Article 4 explicitly prohibits derogation from Article 6(5), even in extreme circumstances.164 The Petition further asserts that the U.S. reservation to Article 6(5) violates the “object and purpose” of the ICCPR.165 The Vienna Convention on the Law of Treaties explains that any reservation that is “incompatible with the object and purpose of the treaty” is invalid.166 Again relying on the nonderogation clause of Article 4, the Petition argues that Article 6(5) is of such paramount importance to the treaty as a whole that any reservation to its terms undoubtedly violates the object and purpose of the agreement.167
Furthermore, the Petition alleges that even if the reservation were valid in substance, the Senate’s reservation to the juvenile death penalty provision was an unconstitutional violation of the separation of powers doctrine.168 Relying on Clinton v. New York, a 1998 U.S. Supreme Court decision that held the line-item veto unconstitutional, the Petition argues that the Senate’s ICCPR reservation process suffered from deficiencies similar to those found in Clinton.169 In Clinton, the Court held that the President, acting alone, did not have the constitutional authority under Article 1, section 7 (the Presentment Clause) to alter the content of a bill by vetoing individual line-items.170 The Petition contends that allowing the Senate to unilaterally alter the provisions of the ICCPR represents precisely the same consti[*PG1195]tutionally-prohibited activity rejected in Clinton.171 Moreover, the Petition argues that the Treaty Clause provides further evidence of the unconstitutionality of the Senate’s ratification, because the clause does not contain any language suggesting that the Senate can “particularly consent” to a treaty by placing conditions on it that materially alter a treaty proffered by other nations.172
In addition to the arguments asserting the invalidity of the U.S. treaty reservation, the Petition further proposes that international custom provides alternative grounds for finding the practice of the juvenile death penalty illegal.173 The Petition claims that a consensus against the juvenile death penalty has been clearly established by the significant number of countries that refuse to partake in the “unconscionable act [of executing juvenile offenders],” and also by the many treaties and U.N. Resolutions codifying this prohibition.174 The Petition emphasizes that the records from the drafting of the ICCPR indicate that Article 6 indeed was considered by the drafters to be a codification of existing customary international law.175
Finally, the Petition uses the fact that the ICCPR makes Article 6(5) nonderogable to argue that the prohibition against the juvenile death penalty has risen to the level of jus cogens.176 Not only is there an international consensus prohibiting the juvenile death penalty, but the nonderogation provision of Article 4 supports the conclusion that departure from the consensus is prohibited.177 The Petition notes that in addition to the ICCPR, other international human rights treaties similarly have made the provision prohibiting the juvenile death penalty nonderogable, further emphasizing this quality.178 Moreover, both the Inter-American Commission and the United Nations Special Rapporteur have each concluded that the juvenile death penalty is a per se violation of jus cogens.179
[*PG1196] Based on the aforementioned considerations, Domingues’ Petition for certiorari concludes that the juvenile death penalty is prohibited by three sources of international law: treaty, custom and jus cogens.180 The Petition further asserts that while judges in every state are bound to apply international law, the Nevada Supreme Court’s decision upholding the death penalty as applied to Domingues, was part of a pattern of state courts’ “lack of awareness of United States international obligations.”181 The Petition thus concludes that it is precisely this failure of state courts to recognize and adhere to such significant international obligations that makes the issue of the juvenile death penalty particularly ripe for Supreme Court resolution.182
In October 1999, Solicitor General Steven Waxman filed an amicus brief (“the Brief”) on behalf of the United States, recommending that certiorari be denied in the case of Domingues v. Nevada.183 The Brief first addresses the validity of the Senate’s reservation to ICCPR Article 6(5), asserting that the reservation does not present a constitutional problem, as alleged by the Petitioner.184 The Solicitor General focuses on the language of the Treaty Clause to the U.S. Constitution, which provides that treaty ratification is based upon the “advice and consent of the Senate.”185 Thus, the Brief concludes that any alterations offered by the Senate rest on solid constitutional ground.186 More significantly, the Brief contends that the reservations to the ICCPR were in fact suggested by the President himself, adopted verbatim by the Senate, thereby distinguishing the process at issue in Domingues from that of the “line-item veto” found unconstitutional in Clinton v. New York.187
[*PG1197] The Solicitor General goes on to address the Petitioner’s claim that the reservation to Article 6(5) was invalid in light of the non-derogation clause and the “object and purpose” of the ICCPR.188 The Brief asserts that there is no correlation between the derogability of a right and its importance or centrality to the treaty, contending that several “profound” rights were not made nonderogable, such as the right against arbitrary arrest.189 Thus, the Brief concludes that the mere fact that Article 6(5) is nonderogable does not suggest that a reservation to its terms offends the treaty’s object and purpose.190 Furthermore, the Brief argues that if the parties had intended to prohibit a reservation to Article 6(5), they would have done so “explicitly . . . rather than . . . obliquely.”191 Given that the drafters of the ICCPR chose not to expressly declare that any reservations to Article 6(5) would be deemed invalid, the Solicitor General determines that the reservation at issue is controlling as a matter of domestic law, emphasizing that courts have no authority to add provisions that were not adopted by the other branches.192 The Brief suggests that if other nations are dissatisfied with the U.S. reservation, those nations may voice their opposition.193 While the Brief acknowledges that eleven states have in fact made formal objections, it notes, “not one of the states have declared that the treaty is not in effect between them and the U.S.”194
In order to address the Petitioner’s customary international law argument, the Brief begins by distinguishing the Paquete Habana case from the Domingues case in an effort to show that the customary international law argument is inapplicable to Domingues.195 The Brief suggests that the Paquete decision is distinct because it articulated a rule in a subject area—the adjudication of prizes of war—in which federal courts traditionally devised rules in a common law manner.196 The Brief argues that in contrast, with respect to the juvenile death penalty, the Court had no occasion to determine the circumstances in [*PG1198]which customary international law might preempt a state statute in an area within the usual purview of the States, such as criminal law.197
Moreover, the Brief suggests that the Domingues case does not present an appropriate vehicle for the Court to address customary international law issues.198 The Solicitor General draws this conclusion from what he regards as a deficiency in the lower courts’ records which he finds to lack probative materials concerning the development of customary international law.199 In light of this deficiency, the Brief asserts that there is nothing for the Court to refer to in deciding whether international consensus exists prohibiting capital punishment of juveniles, and whether such consensus, if it does exists, reflects a sense of legal obligation requisite for the finding of customary law.200 The Solicitor General suggests that the Court is likely to “benefit from the reasoned decisions of lower courts,” emphasizing that the Supreme Court of Nevada did not even address the customary international law issue.201 In addition, the Brief argues that given the Executive Branch’s primary responsibility for conducting foreign relations, the courts should defer to the Executive Branch regarding whether a rule of customary international law is presently binding on the United States.202 Finally, the Solicitor General indicates that even if a customary norm against the imposition of the juvenile death penalty does exist, the United States is exempt from its terms as a “persistent objector.”203
The Solicitor General superficially addresses the issue of jus cogens, asserting for the second time that the Domingues case does not present the appropriate vehicle for addressing the far-reaching contention that the juvenile death penalty violates a jus cogens norm.204 The Solicitor General contends that neither the record nor the Supreme Court of Nevada’s decision illuminate whether a jus cogens norm has developed against the juvenile death penalty.205 Thus, the Solicitor General recommended that the U.S. Supreme Court deny Michael Domingues’ petition for writ of certiorari.206 The Supreme [*PG1199]Court, apparently persuaded by this argument, denied the Domingues petition on November 1, 1999.207
In light of the many powerful, compelling arguments made in Domingues’ petition, the U.S. Supreme Court should have granted certiorari to provide guidance in the field of international law.208 While the Solicitor General’s arguments are clear and concise they lack sufficient substance to adequately counter the weighty human rights violations alleged by the Petitioner. A major flaw in the government’s position, set forth by the Solicitor General, was its failure to recognize the legal limits of the treaty reservation process.209 Although the Solicitor General referenced the Vienna Convention as the source of law establishing reservations as an accepted feature of treaty law, he failed to adequately address the fact that the Convention also prohibits reservations that conflict with a treaty’s object and purpose.210 The Solicitor General clearly overlooked Article 19 of the Vienna Convention which provides: “[a] State may . . . formulate a reservation unless . . . the reservation is incompatible with the object and purpose of the treaty.”211 Given the ICCPR’s fundamental purpose of recognizing the “inherent dignity and equal and inalienable rights of all members of the human family,” there is a strong argument that a reservation to any of these inalienable rights—such as the right to be free from the juvenile death penalty—violates the treaty’s object and purpose.212
Even acknowledging that reservations to substantive provisions in human rights treaties are not universally deemed unacceptable, the language of the ICCPR provides extremely persuasive evidence that the drafters considered Article 6(5) fundamental to the object and purpose of the treaty as a whole.213 In choosing to make Article 6(5) [*PG1200]one of a small number of nonderogable provisions, the drafters emphasized its importance to the treaty.214 The Third Restatement of Foreign Relations specifically states that a country may not reserve against a provision from which reservation is prohibited.215 What is the nonderogation provision if not an express prohibition against reservation?
It is difficult to comprehend the Solicitor General’s contention that the drafters could have prohibited reservation to Article 6(5) explicitly rather than “obliquely” through the use of the nonderogation clause.216 The statement: “no derogation shall be made from Article 6 . . .” appears perfectly direct and concise—it does not seem in any way oblique.217 Moreover, there is no practical difference between stating “no reservations to Article 6” and “no derogation from Article 6.”218 In all likelihood, the drafters reasonably assumed that the nonderogation clause served the same purpose as alternative language prohibiting a reservation to Article 6. Furthermore, while the Solicitor General is correct in noting that certain other important rights were not made nonderogable, this fact only bolsters the conclusion that Article 6(5) was of paramount importance—among a host of other critical rights, the drafters chose to designate Article 6(5) as nonderogable, furthering the position that the provision prohibiting the juvenile death penalty is central to the object and purpose of the ICCPR.219
The Human Rights Committee (“the Committee”), the committee created to monitor compliance with the ICCPR, supports the conclusion that the nonderogation of Article 6(5) was of critical importance.220 Not only did the Committee explicitly state that countries may not reserve the right to execute children without violating the object and purpose of the treaty, but in 1995 it issued a report confirming that the United States’ reservation to Article 6(5) was invalid.221 According to scholar Nguyen Quoc Dinh, when a human [*PG1201]rights treaty creates a control body, such as the Committee, that body should be entitled to determine the legality of reservations.222 In enacting the ICCPR all signatories, including the United States, agreed to permit the Committee to monitor compliance with the treaty’s terms.223 Such acquiecense would have been meaningless and misleading had the United States merely intended to ignore Committee conclusions and act contrary to their recommendations.
Further evidence of the incompatibility of the U.S. reservation to the ICCPR may be found in opinions issued by the Inter-American Court on Human Rights.224 The Inter-American Court issued an advisory opinion concerning Guatemala’s reservation to the ACHR stating specifically, “a reservation which was designed to enable the State to suspend any of the non-derogable fundamental rights must be deemed to be incompatible with the object and purpose of the Convention and, consequently, not permitted by it.”225 The Inter-American Court explained that implicit in their opinion was the view that requiring reservations to be compatible with a treaty’s object and purpose is of greater importance to human rights treaties, where reciprocity provides no protection for the individual against a reserving state.226
Despite the many explicit manifestations that the reservation to Article 6(5) violates the object and purpose of the ICCPR, the Solicitor General fails to substantively address the issue. He merely notes “[e]ven if there were merit to [the arguments that the reservation is ineffective for violating the treaty’s object and purpose] . . . that would not mean that Article 6(5) should be enforced by a domestic court in the face of the United States’ reservation.”227 Essentially, the Solicitor General suggests that regardless of the legality of the reservation, it should be controlling as a matter of domestic law.228 Such strict deference to the Executive Branch on this issue defies logic. One can envision an extension of the Solicitor General’s argument that con[*PG1202]dones even more atrocious human rights violations, as long as the President and Senate concur to reserve such provisions in an international human rights treaty. Moreover, the Solicitor General’s contention seems to fly in the face of the American system of checks and balances, ignoring the unlikelihood that the Executive Branch will perceive its own violations.229 Similarly, by claiming that courts lack authority to add provisions that were not adopted by other branches, he also ignores the fact that the Court is not called upon to add the juvenile death penalty provision to the ICCPR.230 Indeed, the provision is well embedded and, as previously noted, quite central to the existing treaty.231 The Court is merely asked to examine the legality of a U.S. reservation negating an existing provision, an issue well within the Court’s province.232 The fundamental constitutional law principle that “[i]t is emphatically the province and duty of the judicial department to say what the law is,” allows for judicial interpretation in this context, and is conspicuously ignored by the Solicitor General.233
As an additional defense of the U.S. reservation, the Solicitor General notes that other nations are in a position to protest the reservation to Article 6(5) by declining to recognize themselves as being in treaty relations with the United States.234 His reliance on this form of protest fails to acknowledge the unique character of human rights treaties, rendering such a suggestion highly impractical.235 As previously noted, international human rights treaties are distinct from traditional multilateral treaties because they are not created to accomplish the reciprocal exchange of rights for mutual benefit.236 Parties to human rights treaties do not confer benefits onto one another, but instead onto their own citizens, making it perfectly illogical to suggest that a country protest the U.S. reservation by making its own reservations.237 If conforming countries suddenly were to start executing their own juvenile offenders, not only is this unlikely to influence U.S. [*PG1203]behavior, it clearly is contrary to the intent of the ICCPR.238 Similarly, if protesting countries were to declare the treaty not in effect between themselves and the United States, the only measurable result would be a dramatic decline in the treaty’s overall applicability.239 Although this strategy may achieve results where parties to a traditional multilateral treaty are conferring benefits onto each other and thus have significant bargaining power, it probably would be ineffective in coercing U.S. compliance, because the United States does not stand to lose any tangible benefit. Thus, the Solicitor General’s suggestion that other nations decline to recognize themselves as being in treaty relations with the United States is fundamentally ill-suited in the context of international human rights agreements.240
If the reservation is invalid, recognized sources of international law—including legal scholarship, case law and state practice—require that the United States be bound by the treaty as a whole, including Article 6(5).241 As noted by Judge R. St. John MacDonald of the European Court of Human Rights, “[t]o exclude the application of an obligation by reason of an invalid reservation is in effect to give full force and effect to the reservation.”242 A reservation found invalid under international law has no independent validity and the separate states of the United States are bound by the Supremacy Clause to enforce the provisions of the treaty in its entirety.243 Consequently, U.S. states currently are bound by the ICCPR as a whole, which prohibits the execution of juvenile offenders.
When the issue of U.S. legal obligations under the ICCPR is combined with the strength of the Petitioner’s customary international law claim, the argument in favor of granting certiorari is even more compelling.244 The norm against the juvenile death penalty [*PG1204]clearly fulfills the three specific components that contribute to the development of customary international law: (1) the custom is reflected in the practice of nations (2) a sense of legal obligation, or opinio juris, has attached, and (3) the United States is not exempt as a “persistent objector” to the norm.245 Although it often is difficult to quantify at what point a general practice evolves into a customary norm, international consensus against the juvenile death penalty is easily perceived.
For instance, this first element of the customary international law doctrine easily is established by the fact that the United States has the dubious distinction of being one of only six countries still imposing the juvenile death penalty, and is moreover, the world leader in juvenile executions.246 The fact that five other countries engage in this reprehensible practice is insufficient to destroy the norm; as the Third Restatement notes, “a practice can be general even if it is not universally followed.”247 Similarly, as the Paquete case demonstrated, custom can evolve into law despite occasions when the custom is not adhered to.248 In August 1999, the U.N. Special Rapporteur on Extrajudicial, Summary or Arbitrary executions confirmed that this consensus indeed had evolved, noting that governments which continue to use the death penalty against minors “are particularly called upon to bring their domestic legislation into conformity with international legal standards.”249
Similarly, an agreement among a large number of parties can indicate the existence of consensus, giving rise to a new customary rule of law binding even on non-party states.250 The ICCPR, CRC, ACHR and Fourth Geneva Convention all have provisions specifically prohibiting the execution of children for crimes committed before the age of eighteen.251 In particular, the ICCPR and the CRC have received [*PG1205]near universal endorsement, with 144 and 191 signatories respectively, providing an especially strong indication of international consensus against the juvenile death penalty.252 Moreover, these treaties are not merely mild expressions of human rights law; the ICCPR in particular is considered the most important human rights treaty in existence.253 The U.S. State Department praised it as “the most complete and authoritative articulation of international human rights law that has emerged in the years following World War II.”254 The authority of this treaty not only makes U.S. refusal to abide by its terms more embarrassing, but likewise makes the consensus more obvious. When such a complete articulation of human rights is produced it can be assumed to represent an international consensus.
Others indications of international consensus include United Nation resolutions such as Safeguard 3 and Resolution 1999/4.255 Safeguard 3, of the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, was adopted by the U.N. Economic and Social council in 1984.256 The Safeguard notes, “[p]ersons below 18 years of age at the time of the commission of the crime shall not be sentenced to death. . . .”257 Similarly, the U.N. Sub-Commission on the Promotion and Protection of Human Rights adopted Resolution 1999/4 in August 1999, condemning “unequivocally the imposition and execution of the death penalty on those aged under 18 at the time of the commission of the offence.”258 Resolution 1999/4 draws attention specifically to the United States’ isolated position on the juvenile death penalty, noting that in 1998 the United States was the only country known to have executed a juvenile offender.259 [*PG1206]United Nations’ resolutions are recognized both by the Third Restatement and by U.S. case law as contributing to the formation of customary norms.260 The volume and weight of these many indicators proclaims the truth about the practice of the juvenile death penalty: from all angles, all across the world, the execution of juvenile offenders is being prohibited, leaving the United States as the most flagrant transgressor of this prohibition.
Although consensus may be adequately perceived through observations of general practice within the international community, it is slightly more difficult to establish the second element necessary for the creation of customary law: opinio juris.261 This is because it can be difficult to distinguish between habitual practices that are regarded as binding “legal obligations” and those that result simply from courtesy or diplomatic protocol.262 Typically, in the human rights field, practices that are made legally binding are deemed such because of a shared sense of moral reprehensiveness of the practice.263 Most likely, therefore, the prohibition against the juvenile death penalty is rooted in a deep sense of moral condemnation for the practice, based on many of the previously discussed notions—the backgrounds of juvenile offenders, their relative culpability and the justifications for capital punishment.264 It may be argued that opinio juris is thus implicated by the shared sense of moral condemnation that has compelled most countries to create laws and treaties prohibiting the juvenile death penalty.265
The establishment of opinio juris does not require explicit evidence.266 Instead, a sense of legal obligation may be inferred by acts or omissions.267 In this instance, a sense of legal obligation may be inferred from the fact that the majority of countries have ceased to perform juvenile executions, coupled by the fact that multiple provisions of human rights treaties unequivocally forbid the practice.268 These [*PG1207]treaties can be assumed to reflect the intentions of the drafters—the countries of the world—that the treaty provisions universally be applied as binding international law.269 In choosing to include the juvenile death penalty provision, therefore, the drafters recognized the existence of a legal obligation to refrain from executing juveniles.270 Significantly, evidence within the preparatory work of the ICCPR, conclusively indicates that the drafters considered Article 6 to be merely a codification of existing customary law.271
Accepting the establishment of the first two elements of customary international law (state practice and opinion juris) the only remaining question concerns the assertion that a country who has persistently objected to a norm is not bound by its terms.272 Despite the Solicitor General’s suggestion, the United States cannot hide behind the claim of “persistent objector.”273 Although the United States’ refusal to ratify the ACHR and CRC and its reservations to the ICCPR could suggest the United States has acted as an objector, such an argument ignores the underlying requirements of persistent objection in international law.274 In order to qualify as a persistent objector, a nation must protest a norm during the process of its creation, thus making the United States’ 1992 reservation to the ICCPR meaningless under persistent objector analysis.275 At the time of the negotiation, drafting and opening for signature of the ICCPR and the ACHR, not only did the United States fail to protest, but U.S. policy at the time actually indicated support for prohibiting the juvenile death penalty.276 During this critical time period, the United States had discontinued its use of the death penalty on juvenile offenders.277 The United States only resurrected the juvenile death penalty after it had signed the ICCPR, although before it had ratified the treaty.278 Once a country signs a treaty, however, it implicitly agrees that it will follow the terms of the treaty and not pass laws that contradict treaty provisions—despite the [*PG1208]fact that the treaty technically is not the law of the land until ratified.279 Given the apparent acquiescence evidenced by national practice, and lacking any contrary evidence of documented protest, international law prohibits the United States from labeling itself a persistent objector.280
Reinforcing this conclusion, the United States actually supported the U.N. General Assembly resolution recognizing Article 6 as expressing a “minimum standard” for all member states.281 Similarly, during the drafting of the ACHR, not only did the United States fail to object to the prohibition of the death penalty for juvenile offenders, but rather the United States argued that setting a specific age limit went against the trend of abolishing the death penalty altogether.282 These statements indicate that, far from protesting the norm, the United States adhered to the norm’s standards.
It is significant that the Solicitor General’s brief barely addresses the substance of these customary international law arguments, instead relying on the distinction between the current debate and the use of customary international law in the Paquete case.283 The Brief accurately points out that in this context the Court would need to find, not only that customary international law controls, but that it overrides specific state statutes enacted to legalize the death penalty.284 This fact, however, in no way indicates that such a finding is impossible.285 State law must yield when it is inconsistent with international law. Moreover, the Solicitor General’s assertions regarding deficiencies in the lower court’s record and redundant separation of powers arguments appear to be attempts to avoid addressing the substance of the customary international law argument.286 The repeated suggestion that “courts should defer to the position of the Executive Branch as to whether a rule of customary international law is presently binding on the United States. . . .” again ignores the fact that the [*PG1209]issue is a legal question, clearly within the province of the courts.287 Indeed, deferring to the Executive Branch as the Solicitor General recommends is more likely to violate the separation of powers given that the Executive Branch is unlikely to adequately perceive its own violations of international law.288 Common law has shown that the judiciary is indeed the proper branch to decide when a norm has evolved into customary international law, just as it did in Paquete and Filartiga.289
Moreover, while the Solicitor General suggests that the Court delay review until a more complete record has been developed, he neglects to perceive the circularity of this recommendation.290 Given the documented pattern of state courts’ lack of awareness of U.S. international obligations, such a record is unlikely to ever develop and state courts will continue to look for federal guidance before addressing this issue.291 In addition, relying on state courts to decide novel issues of international law, creates a major risk that international law will not be applied uniformly.292 As recognized by the Human Rights Committee, the absence of formal mechanisms for the implementation of treaty rights in the United States may lead to an unsatisfactory application of the human rights treaties throughout the country.293 This most certainly undermines the recognized need for uniformity and federal supremacy in the interpretation of international law.294 Phillip Jessup, former judge and noted international law scholar, cautioned that, given this need for uniformity, rules of international law should not be left to divergent and perhaps parochial state interpretations.295 Until the U.S. Supreme Court addresses the pressing issue of the juvenile death penalty within the context of international law, it remains likely that such an absence of uniformity will continue to exist. It is also problematic that lower courts, like the Supreme Court of Nevada, will continue to avoid addressing the complicated international law [*PG1210]arguments in juvenile death penalty cases until they receive guidance on the issue.296 As Justice Rose of the Supreme Court of Nevada noted in her dissent to Domingues: “A federal court that deals with federal law on a daily basis might be better equipped to address these issues. . . .”297 In order to promote consistency and uniformity and to provide the guidance sought by lower courts, particularly in light of the extreme gravity of the issues involved, the U.S. Supreme Court should have granted certiorari to Michael Domingues.
While the Domingues Petition highlights a number of persuasive, ripe legal issues that should be addressed by the U.S. Supreme Court, the Petition also has flaws.298 To the extent that the Petition attempted to set forth all potentially relevant arguments on Domingues’ behalf, it was successful. The next petitioner, however, may be better served by eliminating certain weaker arguments in order to emphasize the most compelling grounds for review. Most significantly, Domingues’ legislative argument—which criticizes the Senate’s ratification process—is unpersuasive in comparison to his allegations focusing on the object and purpose of the ICCPR.299
By asserting an unconvincing argument regarding the ratification process, the Petitioner opened the door to forceful rebuttal from the Solicitor General, which likely captured the Court’s attention in considering the opposing perspectives.300 The Solicitor General summarily attacked the Petition’s assertion that the ICCPR ratification was invalid.301 His observation that the reservation to Article 6(5) did not originate in the Senate, but rather was submitted to the Senate by the President himself and adopted by the Senate verbatim, persuasively confronts the Petitioner’s contention that the Senate unconstitutionally omitted or modified any part of the treaty.302 Moreover, as the Brief notes, the Senate has the constitutional authority to reserve its consent to part of a treaty negotiated by the President: the Constitu[*PG1211]tion provides that the President “shall have Power by and with the Advice and consent of the Senate, to make Treaties. . . .”303 Thus, the President enters into a treaty only after the Senate has provided its feedback—if the President objects to the reservations imposed by the Senate, then he need not accept the Senate’s “advice.”304 The Brief convincingly distinguishes the ICCPR ratification process from the line-item veto found unconstitutional in Clinton, noting in particular that the Senate’s practice of attaching reservations to its consent to treaties has extensive historical pedigree, dating back to the Jay Treaty of 1794.305
The Petitioner’s contention that the juvenile death penalty violates jus cogens similarly rests on ambiguous legal ground because the juvenile death penalty is arguably distinguishable from other norms that have attained the status of jus cogens.306 In certain respects, this argument may be quite forceful—if the practice does indeed violate a jus cogens norm, there is no possible justification for U.S. actions—however, it is possible to articulate and organize this argument better than it was framed in the Domingues Petition.307 Jus cogens has been described as, “those rules which derive from principles that the legal conscience of mankind deems absolutely essential to coexistence in the international community.”308 This statement is obviously powerful and extreme, as are the acts identified by the Restatement as violations of jus cogens: genocide, slavery, murder, torture, prolonged arbitrary detention, systematic racial discrimination, and consistent patterns of gross violations of internationally recognized human rights.309 These practices arguably are distinguishable from the practice of the juvenile death penalty. There is a strong argument that juvenile offenders eligible for the death penalty cannot necessarily be labeled “innocents” in the same sense as victims of genocide or torture. It may be extremely difficult to convince a factfinder—privy to the sordid details of a brutal crime perpetrated by a juvenile defendant—that the juve[*PG1212]nile death penalty truly is equivalent to the norms specified in the Third Restatement or implicated by U.S. common law.310
On the other hand, while imposing punishment for a severe crime is distinct from acts of genocide, there are nonetheless forceful arguments supporting its inclusion as a jus cogens norm. For one, there is significant data to sustain the conclusion that the administration of the death penalty reflects a pervasive pattern of “systematic racial discrimination.”311 This century, seventy-five percent of all juvenile offenders executed were African American.312 The U.N.’s Special Rapporteur made similar observations following his 1997 visit to the United States, decrying the evident racial bias in the use of the death penalty.313 Similarly, the U.S. Justice Department’s review of the federal death penalty, released in September 2000, indicated numerous racial disparities.314 In particular, the report noted that eighty percent of the cases submitted by federal prosecutors for death penalty review involved racial minority defendants.315 These facts lend support to an argument that the juvenile death penalty represents not a new category of jus cogens, but instead a violation of the existing jus cogens norms prohibiting systematic racial discrimination.316 A similar argument exists with respect to the final jus cogens norm noted by the Restatement: gross violations of internationally recognized human rights.317 As previously noted, many countries prohibit the juvenile death penalty on human rights grounds and the continuance of its use in the United States currently may be, or certainly may become, a gross violation of these internationally recognized human rights standards.
A number of scholars and several human rights organizations agree with the notion that the juvenile death penalty violates jus co[*PG1213]gens.318 Although the United States is not a party to the ACHR (because it has not yet ratified the treaty), as a member of Organization of American States (OAS), the United States is subject to the recommendations of the Inter-American Commission on Human Rights.319 In 1987, the Commission found the United States in violation of jus cogens for the execution of two juvenile offenders, James Roach and Jay Pinkerton, both 17 at the time of their offenses.320 Although opinions of the Inter-American Commission are not binding, the recommendation nonetheless represents an interpretation by an authorized body of independent experts of an international agreement to which the United States is a party.321 Therefore, while there are distinct uncertainties surrounding the advancement of a jus cogens argument, it is nonetheless worthy of assertion as an additional basis on which to allege the illegality of the juvenile death penalty. A future petitioner, however, should specifically tailor the argument to emphasize either the inherent racial discrimination or gross violations of human rights norms implicated by the juvenile death penalty.
Finally, future petitioners will be the lucky beneficiaries of passing time, which in the case of the juvenile death penalty, may be an influential factor. As time passes and the custom against the juvenile death penalty continues to gain momentum and recognition, not only will this strengthen the Petitioner’s customary international law argument, but it will open the door for renewed constitutional challenges. Inherent in any discussion of customary norms is the fact that these “customs” reflect an evolving standard of decency, thus returning the death penalty discussion to the constitutional issues raised in Thompson and Stanford.322 Although the constitutionality of the juvenile death penalty already has been addressed by the Court, the very standard chosen by which to gauge cruel and unusual punishment—evolving standards of decency—demands that the issue be reconsidered to reflect changes as the world “evolves.”323 By virtue of the terminology, the Court clearly recognized that the standard by which a practice is evaluated should grow in order to reflect changes in soci[*PG1214]ety’s perceptions and attitudes.324 Indeed, the Stanford Court only reached the conclusion it did after considering whether a “modern societal consensus” forbidding the juvenile death penalty existed.325 There is a strong argument that what might not have existed as a modern consensus in 1989, has evolved into such today. As noted in Weems, “[t]ime works changes, brings into existence new conditions and purpose. . . .”326 Although there remains the hurdle presented by the Stanford decision—that “American standards of decency are dispositive”—changing compositions within the Court and an increasingly international world, increase the possibility that evolving standards of decency may be interpreted in a broader sense.327 As U.S. Supreme Court Justice Breyer recently noted in consideration of a death penalty case, “[the Supreme Court] has long considered as relevant and informative the way in which foreign courts have applied standards roughly comparable to our own. . . .”328
Similarly, as we move ahead in time, it is possible that state courts will become increasingly aware of their obligations under international law and a record evidencing the conflict of the juvenile death penalty with international law will evolve. Although as early as the Paquete case, Justice Gray noted: “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction . . .” this clearly is not always the case today.329 Nonetheless, the failure of the state courts to uphold international law appears to be receiving greater attention.330 In 1998, on the fiftieth anniversary of the U.N. Universal Declaration of Human Rights, President Clinton felt compelled to note: “It shall be the policy and practice of the Government of the United States, being committed to the protection and promotion of human rights and fundamental freedoms, fully to respect and implement its obligations under the international human rights treaties to which it is a party, including the [*PG1215]ICCPR. . . .”331 International legal scholars and commentators have observed the necessity and importance of enforcing international law obligations in all courts of this country.332 Recently, Justice O’Connor emphasized this fact noting, “domestic courts should faithfully recognize the obligations imposed by international law.”333
In addition, an increasing need to ensure that international obligations are upheld may arise from the costs sure to accrue from persistent U.S. violations of this international standard. Costs to the United States will include loss of leadership and prestige, endangerment of U.S. citizens abroad, disrespect for international law and a lost opportunity to be part of a fundamental change in the status of human rights at the start of the twenty-first century.334 Similarly, as emphasized by German Justice Minister Herta Daeubler-Gmelin, the United States may be forced to recognize that “respecting international laws cannot be a one-way street.”335 The United States depends on international cooperation and, therefore, the costs of continued human rights violations may soon become too great to bear. As the stakes become higher, there will be increasing pressure for state courts to observe these international obligations. This pressure may produce the more thorough record that the Solicitor General favors prior to granting certiorari.336
It has been said that, “the quality and future of society and the degree to which human dignity values are fulfilled may be measured by the protection . . . accorded young members of the population.”337 Despite paying lipservice to the idea that children are entitled to special protection and care, the U.S. government has significantly failed [*PG1216]to ensure that the legal rights of children are respected. The United States has declined to ratify two key human rights treaties and has reserved against an essential provision in the ICCPR, one of the most important human rights treaties currently in existence. The United States similarly refuses to acknowledge indications that customary international law and jus cogens prohibit the juvenile death penalty.
Nowhere is the United States in such clear and direct conflict with international law as with the execution of juvenile offenders. The international community has adopted minimum standards to govern the conduct of states based on the precept that human rights are an international responsibility, not simply an internal matter. Legally, the United States cannot continue to resist these international standards and the judiciary is the proper branch to demand U.S. adherence. Despite contrary claims, the United States is bound by the ICCPR in its entirety, and is similarly bound by customary international law, to prohibit the practice of executing juvenile offenders. Currently, the United States remains stubbornly committed to its position on this issue. With hope, however, the next Petitioner can benefit from information in the Solicitor General’s brief and use this knowledge to persuade the Court that the time has come to demand U.S. compliance.