Singing Loudly

International law matters to the decision of the Supreme Court in Roper, because of the respected opinions. While Justice Scalia rejected international opinion in Stanford, it appears to have been revived in importance by the court in recent mental retardation cases. There were essential three ways the court could use international law in their opinion for Roper. The court could have struck down the juvenile death penalty based on Eight Amendment grounds by analogizing to the holding in Atkins and using international law as a signal to respected opinions against the juvenile death penalty. Another way would be to have struck down the juvenile death penalty based on violations to international law from executing juvenile offenders. Finally, the court could have simply ignored international law. It seemed, from the oral arguments, that the Supreme Court was interested in the United States international law obligations. Of course, this came to fruition with the decision. In the oral arguments Seth P. Waxman, a former U.S. Solicitor General, arguing on behalf of Missouri death row inmate Christopher Simmons, urged the Court to act based on a “worldwide consensus” against the death penalty for juveniles. Kennedy later asked Missouri State Solicitor, James R. Layton: “There seems to be a very substantial demonstration that world opinion is against us…[d]oes that have a bearing on what’s ‘unusual’ punishment?”

International law has long held a place in American jurisprudence. In death penalty cases the Supreme Court will cite to international opinion to support a consensus required by Trop. Misunderstandings still persist concerning the application of international law to United States law. International standards, particularly in regards to the juvenile death penalty, are ignored or misinterpreted by United States courts. In Thompson, the Supreme Court chose not to bring the United States position on the juvenile death penalty in complete line with prevailing international standards. As mentioned, Justice Scalia, in Stanford, dismissed international obligations and opinions altogether. In Stanford, Scalia expressly rejected the argument that international opinion should be a significant and influential factor when considering the Eighth Amendment. Justice Brennan wrote a vigorous dissent that cited the ICCPR, the ACHR, and the Geneva Convention as illustrations of treaties America has bound itself to.

The United States has long been a player in the international law field. The types of international law include treaties that America has signed and ratified, customary law, and jus cogens norms. As early as 1900, the United States Supreme Court gave credence to customary law in The Paquete Habana case . However, US domestic courts will typically discuss international law but rarely apply it. In 1997 the U.N. Special Rapporteur expressed concerns, commenting on the lack of awareness of international obligations by United States officials and members of the state and federal judiciary. International law is an area of growing interest that the court has been willing to accept. It seems that the court will only become more interested in understanding and applying the United States international obligations.

The United States have signed four major international human rights treaties which prohibit the executions of juvenile offenders. The Supremacy Clause gives the United States federal government the authority to sign these and make them the law over the individual states. The United States ratified the International Covenant of Civil and Political Rights in 1992 with a reservation that declared the treaty non self-executing and not applicable as far as Article 6(5). This reservation, however, is invalid according to the Vienna Convention which governs treaty interpretation. Article 19(c) states that any reservation which is “incompatible with the object and purpose of the treaty” is invalid. The United States Department of State has recognized the Vienna Convention as the authoritative guide to treaty interpretation. If the reservation is invalid it would sever the invalid reservation. The UN Commissioner on Human Rights has expressed the opinion that the reservation is severed and the U.S. is bound. The European Court of Human Rights has held that invalid reservations to multilateral treaties are severed from the ratification.

Other international treaties prohibit the execution of juvenile offenders. The American Convention on Human Rights prohibits capital punishment to be imposed on persons who are under eighteen years of age at the time of the offense. The Fourth Geneva Convention also prohibits the death penalty. While this applies to the laws of war it seems that if 164 nations believe the juvenile death penalty should be outlawed even in times of war, this further strengthens the argument of a universal abhorrence of the practice. The UN Convention on the Rights of the Child prohibits capital punishment to be imposed on an offender who was under eighteen. Numerous other international treaties ban the juvenile death penalty.

The United States typically will issue a reservation when they sign onto a treaty that contains articles banning the death penalty in any context. This suggestion that America has opted out of following international law falls short because of both customary law and jus cogens norms. Customary law is a general practice accepted by law that every state must follow unless they have been a persistent objector. Jus cogens goes a bit further as it allows no derogation. The two are strands of the same arguments, the customary international law, the jus cogens arguments, and the treaty law arguments against the juvenile death penalty are neither mutually exclusive nor co-extensive. There are four requirements for customary law to apply, there must be uniformity, consistency, duration, and opinion juris.

Customary international law arguably applies to American law because it meets the four elements required and has been incorporated into federal law. Uniformity is easily met because almost every nation in the world prohibits the juvenile death penalty, and most nations have ratified one or more of the treaties prohibiting it. It is a consistent rule because it is virtually uniform and four major international treaties contain such a prohibition. The duration has not been very long, however, in the Paquete Habana the Supreme Court said duration is met if it has “ripened into a rule of international usage.” Finally, opinion juris is the conviction felt by states that a certain form of conducted is required by international law. Customary law is incorporated into federal law unless America is a persistent objector. Despite a reservation to Article 6 of the ICCPR it could be argued that America is not a persistent objector. A counter argument would be that the US has acted inconsistency with the prohibition against the juvenile death penalty. However, continuing to execute juveniles only means that the US violates its duties under customary law.

If America is able to successfully claim the persistent objector exception to customary law, it could not do the same if jus cogens norms apply to the juvenile death penalty. Jus cogens has been defined as a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. The four requirements for jus cogens are arguably met as it is easily a norm of general international law that is accepted by the states as a whole. All that this requires is that a large majority accepts the practice, even if a small number of states refuse to do so. The prohibition is immune from derogation as the international treaties do not allow derogations or reservations on the juvenile death penalty. Finally, there is not an emerging norm that contradicts the current norm. America was actually a shrinking minority of states that allow the practice.

Related Posts
Roper 2: Domestic Cases informing Roper
Roper Part 1: Introduction: Significance of Domestic and International Law Jurisprudence
International Law and the Supreme Court
Not Suprised
Off the Boat and Swimming with Mermaids
The Slap Dance
A Pie in their Faces