No. 98-8327
In the Supreme Court of the United States
MICHAEL DOMINGUES, PETITIONER
v.
STATE OF NEVADA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF NEVADA
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE
SETH P. WAXMAN
Solicitor General
Counsel of Record
JAMES K. ROBINSON
Assistant Attorney General
EDWIN S. KNEEDLER
MICHAEL R. DREEBEN
Deputy Solicitors General
PAUL R.Q. WOLFSON
Assistant to the Solicitor
General
JOEL M. GERSHOWITZ
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether a State of the United States is prohibited from imposing capital
punishment on an offender who committed the capital offense when he was
16 years old because such punishment would violate Article 6(5) of the International
Covenant on Civil and Political Rights, customary international law, or
a jus cogens peremptory norm of international law.
In the Supreme Court of the United States
No. 98-8327
MICHAEL DOMINGUES, PETITIONER
v.
STATE OF NEVADA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF NEVADA
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE
This brief is submitted in response to the Court's order inviting the Solicitor
General to express the views of the United States.
STATEMENT
1. The text of the International Covenant on Civil and Political Rights
(ICCPR) was adopted by the General Assembly of the United Nations on December
16, 1966. See ICCPR, Dec. 19, 1966, 999 U.N.T.S. 171, 6 I.L.M. 368. Article
6(5) of the ICCPR provides that "[s]entence of death shall not be imposed
for crimes committed by persons below eighteen years of age and shall not
be carried out on pregnant women." 999 U.N.T.S. at 175, 6 I.L.M. at
370.
President Carter signed the ICCPR on behalf of the United States on October
5, 1977. On February 23, 1978, the President submitted the ICCPR to the
Senate for its advice and consent, along with several proposed conditions.
See Four Treaties Pertaining to Human Rights, Feb. 23, 1978, S. Exec. Docs.
C, D, E, and F, 95th Cong., 2d Sess. III-IV, XI-XV (1978) (S. Exec. Docs.).
Those conditions included a proposed reservation to Article 6(5) of the
ICCPR, stating that "[t]he United States reserves the right to impose
capital punishment on any person duly convicted under existing or future
laws permitting the imposition of capital punishment." Id. at XII.
The President's proposed conditions also included a declaration that the
substantive provisions of the ICCPR are not self-executing. See id. at VI.
The Senate Foreign Relations Committee held hearings on the ICCPR in 1979,
but it did not make a recommendation at that time to the full Senate. See
S. Exec. Rep. No. 23, 102d Cong., 2d Sess. 2 (1992).
On August 8, 1991, President Bush urged the Senate Foreign Relations Committee
to renew its consideration of the ICCPR with a view toward giving its advice
and consent to ratification. See S. Exec. Rep. No. 23, supra, at 2. President
Bush also proposed a set of reservations, understandings, and declarations
similar to those proposed by President Carter, including the following reservation
to Article 6(5):
The United States reserves the right, subject to its Constitutional constraints,
to impose capital punishment on any person (other than a pregnant woman)
duly convicted under existing or future laws permitting the imposition of
capital punishment, including such punishment for crimes committed by persons
below eighteen years of age.
Id. at 11. President Bush also proposed a declaration that "the provisions
of Articles 1 through 27 of the Covenant are not self-executing." Id.
at 9.
The Senate gave its advice and consent to ratification of the ICCPR on April
2, 1992. 138 Cong. Rec. 8070-8071 (1992). In its resolution of ratification,
the Senate adopted verbatim the entire package of conditions proposed by
President Bush, including the reservation to Article 6(5) and the declaration
that the ICCPR is not self-executing. Ibid. On June 8, 1992, the United
States deposited its instrument of ratification, along with the package
of conditions including the reservation to Article 6(5), with the United
Nations. See Multilateral Treaties Deposited With the Secretary-General:
Status as at 31 Dec. 1995, at 122, 130, U.N. Doc. ST/LEG/SER.E/14 (1996).
2. After a jury trial in the Eighth Judicial District Court of Nevada, Clark
County, petitioner was convicted of first-degree murder, first-degree murder
with use of a deadly weapon, burglary, and robbery with use of a deadly
weapon. Petitioner was sentenced to death pursuant to Nev. Rev. Stat. §
176.025 (1997). See Pet. App. A1-A2. The Supreme Court of the State of Nevada
affirmed the conviction and sentence on direct appeal, 917 P.2d 1364, and
this Court denied certiorari, 519 U.S. 968 (1996).
Petitioner then moved in the state trial court for correction of an illegal
sentence. Petitioner argued that, because he was 16 years old at the time
he committed his offenses, his execution would violate Article 6(5) of the
ICCPR and customary international law. The state trial court denied petitioner's
motion, and petitioner appealed. Pet. App. A3. On appeal, petitioner again
argued that his execution would violate both the ICCPR and customary international
law; he did not specifically claim, however, that his execution would violate
a jus cogens norm of international law. See Pet. Opening Br. 15-17, Domingues
v. Nevada, Case No. 29896 (June 16, 1997).
The Supreme Court of Nevada affirmed the trial court's decision. Pet. App.
A1-A4. The court concluded that the Senate's express reservation to Article
6(5) of the ICCPR "negates [petitioner's] claim that he was illegally
sentenced." Id. at A3.1 The court did not specifically address petitioner's
claim based on customary international law.
DISCUSSION
Petitioner contends that his death sentence for murder must be set aside
because he was 16 years old when he committed the offense. Petitioner has
not argued that the Constitution prohibits the capital punishment of a 16-year-old
offender. Cf. Stanford v. Kentucky, 492 U.S. 361 (1989) (rejecting Eighth
Amendment challenge to imposition of capital punishment against 16-year-old
offender). Rather, petitioner makes three claims based on sources of international
law. First, he contends that his sentence violates Article 6(5) of the ICCPR,
which prohibits the imposition of capital punishment on an offender who
was under 18 years old at the time of his crime. Second, he argues that
a rule of customary international law bars the death penalty for 16-year-old
offenders, and that principle preempts the application of Nevada's death
penalty statute to his case. Third, he contends that the prohibition under
customary international law against the death penalty for 16-year-old offenders
has risen to the level of a jus cogens or peremptory norm, from which no
derogation is permitted under international law. In our view, petitioner
has identified no issue of law that merits this Court's review in this case,
nor any basis for relief from the judgment of the Nevada Supreme Court.
1. Petitioner first contends that his death sentence contravenes Article
6(5) of the ICCPR. As we have explained (pp. 2-3, supra), when the Senate
gave its advice and consent to ratification of the ICCPR, it entered a reservation
to Article 6(5), reserving the right of the United States to impose capital
punishment for crimes committed by persons less then 18 years of age. Petitioner
maintains, however, that the Senate's reservation is invalid as a matter
of both United States constitutional law and international treaty law, that
the United States is bound by all of Article 6(5), including the prohibition
against capital punishment for 16-year-old offenders, and that the domestic
courts of the United States must therefore apply Article 6(5) to invalidate
his death sentence. Those contentions are incorrect.
a. Petitioner first argues (Pet. 5-6, 20-23) that the Senate's reservation
to Article 6(5) is invalid under the United States Constitution because,
under separation of powers principles, the Senate may not give its selective
consent to treaty provisions negotiated by the President. Petitioner argues
that a Senate reservation to part of a treaty that the President submits
to the Senate for its advice and consent is akin to a presidential line-item
veto of congressional legislation, which this Court held unconstitutional
in Clinton v. City of New York, 524 U.S. 417 (1998). That argument is flawed
for several reasons.
First, the separation of powers claim advanced by petitioner is not presented
in this case. Petitioner overlooks that the reservation to Article 6(5)
did not originate in the Senate. Rather, that reservation was submitted
to the Senate by the President as part of the President's request for the
Senate's advice and consent to the ICCPR, and was adopted by the Senate
without change. See pp. 1-2, supra. Accordingly, the Senate in no sense
vetoed or modified any part of the treaty submitted to it by the President
for advice and consent. Rather, it gave its consent to the treaty in the
precise form submitted to it by the President.
Second, the Senate has the constitutional authority to reserve its consent
to part of a treaty negotiated by the President. The Constitution provides
that the President "shall have Power, by and with the Advice and Consent
of the Senate, to make Treaties, provided two thirds of the Senators present
concur." U.S. Const. Art. II, § 2, Cl. 2. The President "make[s]"
a treaty after the Senate has provided its advice and consent, not before
that advice and consent process, when the treaty is negotiated. If the President
objects to reservations imposed by the Senate as a condition to its consent
to a treaty that the President has negotiated, then the President need not
accept the Senate's partial consent to the treaty. The President may decline
to deposit an instrument of ratification to the treaty and thereby decline
to "make" the treaty. See Restatement (Third) of the Law of the
Foreign Relations of the United States § 303 cmt. d (1987) (Restatement);
see also id. § 303 rep. note 3 (noting President Taft's refusal to
make arbitration treaties after Senate demanded unwelcome reservations).
If, however, the President agrees to the Senate's reservations and "make[s]"
the treaty after the Senate has attached reservations to its consent (as
was the case with the ICCPR, see pp. 2-3, supra), then those reservations
become part of the treaty insofar as the treaty is to be applied in United
States courts. Id. § 314.
Unlike the Presidential line-item veto invalidated in Clinton v. City of
New York, supra, the Senate's practice of attaching reservations to its
consent to treaties also has an extensive historical pedigree, dating to
at least the Jay Treaty of 1794 between the United States and Great Britain.
See Treaty of Amity, Commerce, and Navigation, Nov. 19, 1794, 8 Stat. 116.
Moreover, although this Court has never squarely decided whether the Senate
may attach reservations to its consent to a treaty, the Court has noted
that practice on several occasions without indicating any disapproval or
questioning of its validity.2 Accordingly, the United States' reservation
to Article 6(5) of the ICCPR is valid as a matter of United States constitutional
law.
b. Petitioner also argues that, even if the Senate's reservation to Article
6(5) is valid as matter of United States constitutional law, it is not valid
as a matter of the international law of treaties, and so the United States
must be deemed to have accepted all of Article 6(5) without reservation,
including the prohibition against capital punishment for offenders under
18 years of age. Petitioner does not challenge generally the authority of
the United States under international law to reserve ratification to parts
of treaties. Indeed, reservation is a well-established feature of treaty
law and practice by which a state may decline to accept certain provisions
of a treaty. See Vienna Convention on the Law of Treaties (Vienna Convention),
May 23, 1969, art. 2(1)(d), 1155 U.N.T.S. 332, 333, 8 I.L.M. 679, 681;3
see also Restatement § 313. Rather, petitioner argues that the reservation
to Article 6(5) is invalid because the ICCPR elsewhere makes Article 6(5)
nonderogable in times of emergency (Pet. 23-24), and because the reservation
is alleged to be incompatible with the object and purpose of the ICCPR (Pet.
25-26).
Even if there were merit to those arguments as a matter of international
treaty law, that would not mean that Article 6(5) should be enforced by
a domestic court in the face of the United States' reservation. A reservation
in which the President and the Senate have concurred is controlling as a
matter of domestic law, and prevents the provision of the treaty to which
the reservation was taken from being part of the "Treat[y] made * *
* under the authority of the United States" that would bind the States
under the Supremacy Clause. U.S. Const. Art. VI, Cl. 2. The President, with
the concurrence of the Senate, has the constitutional authority to "make"
treaties, and the courts have no authority to add provisions to treaties
that were not adopted by the other Branches. See The Amiable Isabella, 19
U.S. (Wheat.) 1, 71 (1821). If other nations are dissatisfied with the reservations
attached by the United States to its ratification of a treaty, they may
present a diplomatic protest or may decline to recognize themselves as being
in treaty relations with the United States, but that is a matter between
states and not for judicial resolution. Accordingly, where the United States
has ratified a treaty subject to a reservation exempting it from a particular
provision of the treaty, the courts may not give effect to the provision
to which reservation is made on the ground that the reservation violates
international law. Cf. Head Money Cases, 112 U.S. 580, 598-599 (1884) (if
Congress enacts a statute that is inconsistent with a prior treaty, courts
must give effect to the statute rather than the treaty).
In any event, petitioner's challenges to the validity of the reservation
fall wide of the mark. Petitioner argues that the reservation to Article
6(5) is invalid under the law of treaties because it is contrary to the
"object and purpose" of the ICCPR. See Vienna Convention, art.
19(c); Restatement § 313(1)(c). Of the 149 states that are parties
to the ICCPR, 11 have objected to the United States' reservation to Article
6(5), and nine of the 11 have objected on the ground that the reservation
violated the ICCPR's object and purpose. See Multilateral Treaties Deposited
with the Secretary-General: Status as at 31 Dec. 1994, U.N. Doc. ST/LG/SER.E/13
(1995). Not one of the states that lodged an objection stated that, because
of the United States' reservation, it does not recognize the ICCPR as being
in force between itself and the United States. State practice therefore
supports the conclusion that the United States' reservation to Article 6(5)
is valid as a matter of treaty law. See Vienna Convention, art. 20(4)(b)
(objection by a contracting state to another state's reservation to part
of a treaty does not prevent the treaty from entering into force unless
such an intention "is definitely expressed by the objecting State").4
Petitioner also argues that, because the ICCPR makes Article 6(5) nonderogable
in times of emergency, see ICCPR art. 4(2), Article 6(5) must be so fundamental
to the treaty that no reservation may be taken to it. There is no necessary
correlation under the ICCPR, however, between the nonderogability of a right
and its importance or centrality to the treaty. Several rights of profound
importance, such as the right against arbitrary arrest and detention (protected
by Article 9(1)) and the right to be informed of the nature of criminal
charges brought against one (protected by Article 14(3)(a)), are not made
nonderogable under the ICCPR. If the parties to the Covenant had intended
to prohibit reservations to Article 6(5), they could have so provided explicitly,
as authorized by Article 19(b) of the Vienna Convention, rather than doing
so obliquely (as petitioner argues) by making the article nonderogable in
times of national emergency. Accordingly, as a matter of treaty law, the
United States' reservation to Article 6(5) is valid and effective.
c. Petitioner also contends (Pet. 27-32) that the Senate's declaration that
the ICCPR is not self-executing is invalid, and that individuals may invoke
Article 6(5) defensively in a U.S. criminal proceeding, even though Congress
has not enacted any legislation to implement Article 6(5).5 Because, as
we have explained, the United States is not bound by Article 6(5)'s prohibition
against capital punishment for juvenile offenders, this case does not present
an occasion for the Court to determine whether, or to what extent, provisions
of the ICCPR may be enforced by a court at the request of a private party
in the absence of implementing federal legislation. For the same reason,
this case presents no occasion for the Court to decide whether domestic
courts are bound by a declaration by the Senate in its resolution of ratification
that a treaty is not self-executing, or whether a determination that a treaty
is not self-executing includes a determination that a treaty provision may
not be invoked as a defense to a criminal proceeding.
2. Petitioner also contends (Pet. 11-17) that customary international law
prohibits Nevada from imposing capital punishment on one who was 16 years
old at the time of his offense. This case, however, does not present an
appropriate vehicle for this Court's review of that issue. In addition,
petitioner's claim cannot in any event proceed past the threshold, in light
of actions by the United States Government in international fora objecting
to the asserted rule of customary international law on which petitioner
relies.
a. Customary international law has been defined as "international law
result[ing] from a general and consistent practice of states followed by
them from a sense of legal obligation." Restatement § 102(2).
In a case involving customary international law, this Court stated:
International law is part of our law, and must be ascertained and administered
by the courts of justice of appropriate jurisdiction, as often as questions
of right depending upon it are duly presented for their determination. For
this purpose, where there is no treaty, and no controlling executive or
legislative act or judicial decision, resort must be had to the customs
and usages of civilized nations; and as evidence of these, to the works
of jurists and commentators, who by years of labor, research and experience,
have made themselves peculiarly well acquainted with the subjects of which
they treat.
The Paquete Habana, 175 U.S. 677, 700 (1900).
In The Paquete Habana, the Court was articulating a rule of decision in
a subject area-the adjudication of prizes-in which federal courts traditionally
devised rules of decision in a common law manner. The Court had no occasion
to determine the circumstances in which customary international law alone
might, in an area within the usual purview of the States (here, criminal
punishment), preempt a state statute that is not otherwise subject to attack
as conflicting with the responsibilities of the National Government or a
source of federal law (such as a federal statute or constitutional provision,
or a rule of federal common law emanating from the constitutional structure
of the Nation). Nor has the Court had occasion to consider that question
since The Paquete Habana was decided.6 Such a claim raises numerous issues
of considerable difficulty and complexity, with potentially far-reaching
significance.7
This case does not present an appropriate vehicle for the Court to address
those issues, for several reasons. First, the record compiled in the lower
courts contains no probative materials concerning the development of customary
international law in this area. Cf. Restatement § 113 cmt. c &
rep. note 1 (noting that courts have adopted practice of receiving evidence
on questions of international law). Thus, there is no record to which this
Court might refer to determine whether state practice (at least outside
the United States) has reached a consensus that capital punishment should
not be imposed on 16-year-old offenders, and (perhaps more important) whether
such a consensus, if it exists, reflects a sense of legal obligation (opinio
juris) on the part of states that international law prohibits capital punishment
for 16-year-old offenders, rather than a mere convergence of state practice
on the subject. "It is often difficult to determine when that transformation
[from mere customary state practice to legal obligation] has taken place."
Restatement § 102 cmt. c. In view of the significance of reaching a
conclusion that customary international law preempts application of a state
statute, this Court should not reach such a conclusion without a record
that fully supports the proposition relied on by a party that seeks to establish
that customary international law preempts state law.
Second, perhaps reflecting the fact that the record has not been developed
on this point, the Nevada Supreme Court did not discuss customary international
law at all in the opinion below. Nor has any other state supreme court or
federal court of appeals addressed the precise issues presented by the petition.
On issues of such potentially far-reaching significance, this Court would
benefit from the reasoned decisions of lower courts, and should not address
those questions in the first instance.
b. In addition, in light of actions taken by the political Branches of the
United States Government objecting to the asserted rule of customary international
law relied on by petitioner, petitioner's claim does not warrant this Court's
review. Given that the Executive Branch has primary responsibility for conducting
the foreign relations of the United States, the 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 in its relations with other
Nations, just as they give great weight to the Executive Branch's interpretation
of a treaty. Cf. El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 119 S.
Ct. 662, 671 (1999); Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S.
176, 184-185 (1982).
The United States has in the past taken the position in international fora
that customary international law does not prohibit the execution of 16-year-old
offenders.8 The United States has also persistently objected to the development
and application of such a principle. The latter point is dispositive here
of petitioner's claim based on customary international law, for "[c]ustomary
international law, like international law defined by treaties and other
international agreements, rests on the consent of states. A state that persistently
objects to a norm of customary international law that other states accept
is not bound by that norm, * * * just as a state that is not party to an
international agreement is not bound by the terms of that agreement."
Siderman de Blake v. Argentina, 965 F.2d 699, 715 (9th Cir. 1992), cert.
denied, 507 U.S. 1017 (1993); accord Restatement § 102 cmt. d ("[I]n
principle a state that indicates its dissent from a practice while the law
is still in the process of development is not bound by that rule even after
it matures.").
In 1986 the United States Government stated in a case before the Inter-American
Commission on Human Rights that it objected to the application of any rule
of customary international law that would proscribe the application of capital
punishment to persons who were under 18 at the time of their offenses.9
In addition, as discussed above, the United States formally entered a reservation
to Article 6(5) of the ICCPR on that precise question, and that reservation
remains in force. Nor (with one narrow exception not applicable here) has
the United States heretofore accepted other obligations under international
instruments that would preclude the imposition of capital punishment on
16-year-old offenders.10 The United States' persistent objections to the
asserted norm of customary international law relied on by petitioner refutes
his contention that that norm now operates within the United States to prevent
the State of Nevada from applying its capital punishment statute to petitioner.
3. Finally, petitioner contends (Pet. 18-20) that his execution is prohibited
by a jus cogens norm of international law. A jus cogens norm, also known
as a "peremptory norm," has been described as "a norm accepted
and recognized by the international community of States as a whole as a
norm from which no derogation is permitted." Vienna Convention, art.
53; see also Restatement § 102 rep. note 6. The precise nature and
scope of the concept of jus cogens remains uncertain in international law.11
For present purposes, however, the important point about jus cogens as that
concept has been developed by some courts and commentators-which distinguishes
it fundamentally from customary international law as discussed above (pp.
14-18, supra)-is that the binding nature of a jus cogens norm does not depend
on the consent of a state. See Siderman, 965 F.2d at 715.
In order to hold that there is a jus cogens principle that preempts the
application of Nevada's death penalty statute to petitioner, the Court would
have to decide that the asserted legal prohibition against capital punishment
for 16-year-old offenders has similar force under international law to the
prohibitions that are commonly cited as jus cogens, such as those against
slavery and genocide; that this Court should recognize such a jus cogens
norm that is binding on the United States in the international community,
despite the United States' persistent objection to the asseted legal obligation
up to this point in international fora; and that domestic courts must give
effect to that norm to preempt the application of a state criminal statute,
notwithstanding the contrary intentions of the political Branches (including
the reservation to a treaty to which the United States is a party).
Such contentions, if accepted by this Court, would obviously have profound
significance. For the reasons we have given above in discussing petitioner's
claim based on customary international law, we submit this case does not
present an appropriate vehicle for addressing those far-reaching contentions.
Neither the record nor the decision below illuminates in any way the question
whether a jus cogens norm against capital punishment for 16-year-old offenders
has developed. Nor is there any conflict among lower courts on the question;
indeed, we are not aware of any lower court decision that has addressed
the question. In addition, there is no other source of decisional law (such
as decisions of the International Court of Justice) that this Court might
find helpful in resolving the question whether the execution of a 16-year-old
offender violates a jus cogens norm. Given the considerable uncertainty
as to how it might be ascertained whether a principle of international law
has attained the status of jus cogens, see Restatement § 102 rep. note
6; id. § 702 rep. note 11, we submit that this case does not present
an appropriate occasion for the Court to make such a determination in the
first instance.
Moreover, the suggestion that the courts, by declaring that the asserted
jus cogens norm exists and applies here, should in effect override the judgment
of the political Branches that the United States should not be bound by
an international legal prohibition against the execution of 16-year-old
offenders plainly raises serious separation of powers concerns. In other
contexts touching on foreign relations and international law, the courts
have declined to substitute their judgment for that of the political Branches;
for example, the courts have not applied the provisions of a treaty that
have been abrogated by an Act of Congress (see The Head Money Cases, supra)
or rules of customary international law that have been rejected by the controlling
acts of the political Branches (see Restatement § 115 rep. note 3).
Similarly, we submit, there is no occasion for this Court to consider recognizing
and giving preemptive force to the purported jus cogens norm relied on by
petitioner, in light of the absence of decisional authority regarding the
existence of such a peremptory norm and the persistent objection by the
United States, through the political Branches, to a prohibition against
the execution of 16-year-old offenders including in a formal treaty reservation.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
JAMES K. ROBINSON
Assistant Attorney General
EDWIN S. KNEEDLER
MICHAEL R. DREEBEN
Deputy Solicitors General
PAUL R.Q. WOLFSON
Assistant to the Solicitor
General
JOEL M. GERSHOWITZ
Attorney
OCTOBER 1999
1 The court also took note of the fact that, at the time of ratification,
the Senate declared the ICCPR to be non-self-executing. Pet. App. A2. The
court, however, did not rely on that declaration in rejecting petitioner's
claim.
2 See James v. Dravo Contracting Co., 302 U.S. 134, 148 (1937) (noting that
"it is familiar practice for the Senate to accompany [its consent to
treaties] with reservations"); see also Barclays Bank PLC v. Franchise
Tax Bd., 512 U.S. 298, 326-327 (1994) (noting that the Senate had given
its consent to a tax treaty with the United Kingdom subject to a reservation);
Container Corp. v. Franchise Tax Bd., 463 U.S. 159, 196 (1983) (noting that
the Senate had attached a reservation to consent to a proposed tax treaty);
see also United States v. Stuart, 489 U.S. 353, 374-375 (1989) (Scalia,
J., concurring in the judgment) ("the Senate * * * may, in the form
of a resolution, give its consent [to a treaty] on the basis of conditions");
Power Auth. v. FPC, 247 F.2d 538, 541 (D.C. Cir.) ("Unquestionably
the Senate may condition its consent to a treaty upon a variation of its
terms."), vacated as moot, 355 U.S. 64 (1957).
3 Although the United States has not ratified the Vienna Convention, it
is generally considered to be consistent with current treaty law and practice
as recognized in the United States. See Restatement Pt. III, introd. note
at 144-145.
4 Moreover, to be contrary to the "object and purpose" of a treaty,
a reservation must be incompatible with the agreement as a whole. The United
States' reservation to Article 6(5) is not contrary to the overall object
and purpose of the ICCPR. The ICCPR guarantees a panoply of civil and political
rights including, among others, the right to self-determination, the right
to equal protection of the law, the right to be free from slavery, the right
not to be subjected to torture, the right to a fair trial, freedom of religion,
and freedom of assembly. The United States accepted the vast majority of
the rights safeguarded by the ICCPR. The fact that the United States entered
a reservation to Article 6(5), which concerns only one feature of the system
of human rights protected by the ICCPR, does not suggest that the United
States rejected the treaty's overall object and purpose.
5 Since early in our history, the courts have distinguished between "self-executing"
and "non-self-executing" treaties. As a general matter, if a treaty
is self-executing, then it requires no legislation to make its provisions
operative, and those provisions may be enforced by domestic courts in at
least some circumstances. If a treaty is non-self-executing, then it may
be enforced in domestic courts only to the extent that its provisions are
implemented by statute. See United States v. Alvarez-Machain, 504 U.S. 655,
667 (1992); Cook v. United States, 288 U.S. 102, 119 (1933); Whitney v.
Robertson, 124 U.S. 190, 194 (1888); Foster v. Neilson, 27 U.S. (2 Pet.)
253, 314 (1829).
6 Although petitioner argues that this Court has decided that customary
international law is federal law that preempts contrary state law, see Pet.
11 n.6, 12, the decisions on which he relies do not reach that far. In Banco
National de Cuba v. Sabbatino, 376 U.S. 398, 425-426 (1964), the Court held
that the scope of the act of state doctrine must be determined as a matter
of federal law in light of the Constitution's entrustment of foreign relations
to the national government, but the Court also observed that the act of
state doctrine is not compelled by international law, see id. at 427. In
Zschernig v. Miller, 389 U.S. 429 (1968), the Court held invalid a state
statute regulating the disposition of intestate property to foreign nations
on the ground that its application would interfere with the national government's
exclusive conduct of foreign relations; see also Clark v. Allen, 331 U.S.
503, 516-517 (1947) (rejecting similar claim of preemption on facts of that
case). Missouri v. Holland, 252 U.S. 416 (1920), upheld a treaty against
a Tenth Amendment challenge, and Kansas v. Colorado, 206 U.S. 46, 95-98
(1907), recognized the applicability of a form of federal common law, borrowing
principles of international law where appropriate, to resolve water disputes
between States of the Union.
7 For example, to determine whether the application of Nevada's death penalty
statute to a 16-year-old offender is preempted by customary international
law, the Court would likely have to decide whether the legal principle relied
on by petitioner has developed with sufficient clarity and obtained sufficient
consensus internationally to become a rule of customary international law;
whether customary international law, when invoked in domestic courts, is
properly understood as federal common law that preempts state law through
the Supremacy Clause, U.S. Const. Art. VI, Cl. 2; and whether domestic courts
should apply a principle of customary international law to preempt state
law when the President and the Senate have entered a reservation to a treaty
provision that addresses the same subject, or whether that reservation constitutes
a "controlling act" under The Paquete Habana, supra, preventing
the application in domestic courts of the rule of customary intentional
law invoked by petitioner.
8 When the United States Government was called upon by the Inter-American
Commission on Human Rights to defend the legality of capital punishment
for offenders under 18 years old, it argued that no norm of customary international
law had developed barring the execution of offenders under 18 years old.
See Memorandum of the United States to the Inter-Am. Comm'n on Human Rights
in Case 9647 (James Terry Roach and Jay Pinkerton) 14-17 (July 15, 1986);
In re Roach, Case 9647, ¶ 38(g)-(h) (Inter.-Am. C.H.R. 1987) (summarizing
position of United States). We have lodged with the Clerk copies of the
United States' submissions in the Roach and Pinkerton case as well as the
decision of the Inter-American Commission on Human Rights in that case.
9 See Memorandum of the United States to the Inter-Am. Comm'n on Human Rights
in Case 9647, supra, at 17-19. The Inter-American Commission on Human Rights
agreed with the United States in that case that a "customary rule *
* * does not bind States which protest the norm," In re Roach, supra,
¶ 52, and stated that, "[s]ince the United States has protested
the norm, it would not be applicable to the United States should it be held
to exist," id. ¶ 54. The Commission also agreed with the United
States that there did not at that time exist a norm of customary international
law establishing 18 to be the minimum age for the death penalty, although
it suggested that such a norm was "emerging," id. ¶ 60. The
Commission stated that a binding jus cogens principle of international law
had developed prohibiting the execution of children, but it noted that the
existence of such a principle did not resolve the case before it, because
of the absence of uniform practice concerning the appropriate age of majority.
See id. ¶¶ 55-60.
10 The American Convention on Human Rights proscribes (among other things)
the death penalty for 16- and 17-year-old offenders. See American Convention
on Human Rights, Nov. 22, 1969, art. 4(5), 1144 U.N.T.S. 123, 125, 9 I.L.M.
673, 676. The United States has not, however, become a party to the American
Convention. Furthermore, at the final drafting conference of the American
Convention, the United States urged the deletion of the prohibition on execution
of those under 18 years old. See United States: Report of the Delegation
to the Inter-American Specialized Conference on Human Rights, 9 I.L.M. 710
(Apr. 22, 1970). In 1978, President Carter proposed that the Senate consider
a reservation to American Convention's provisions regarding capital punishment
in the event of an eventual ratification. S. Exec. Docs., supra, at XVII,
XVIII.
The Convention on the Rights of the Child also contains a prohibition against
the death penalty for persons who were under 18 at the time of their offenses.
See Convention on the Rights of the Child, Nov. 20, 1989, art. 37(a), G.A.
Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49 at 167, U.N. Doc. A/44/49,
28 I.L.M. 1448, 1470. The United States has not at this point ratified the
Convention on the Rights of the Child. Further, in the course of the negotiation
of that Convention, the United States stated that it would agree to the
adoption by consensus of the provision against capital punishment for juvenile
offenders only on the condition that the United States retained the right
to enter a reservation to the provision, should it decide to ratify the
Convention. See Commission on Human Rights, Report of the Working Group
on a Draft Convention on the Rights of the Child, 45th Sess., 2 Mar. 1989,
at 101, U.N. Doc. E/CN.4/1989/48.
The United States has ratified the Fourth Geneva Convention, which prohibits
imposition of the death penalty against a national of another country held
during time of war who was under 18 when he committed the offense. See Geneva
Convention Relative to the Protection of Civilian Persons in Time of War,
Aug. 12, 1949, art. 68, 6 U.S.T. 3516, 3560, 75 U.N.T.S. 286, 330. That
exception to the United States' policy of opposing treaty provisions and
the application of a rule of customary international law barring capital
punishment for offenders under 18 years of age does not vitiate the United
States' status as a persistent objector. The Fourth Geneva Convention addresses
only the specific case of foreign nationals held during time of war, and
does not address the imposition of capital punishment by a country on one
of its own citizens, such as petitioner.
11 The very few decisions in United States courts that have addressed the
concept of jus cogens norms have described them as "universal and fundamental
rights" that include "principles and rules concerning the basic
rights of the human person." See, e.g., Siderman, 965 F.2d at 715.
It has been suggested that jus cogens norms include prohibitions against
slavery and genocide. See id. at 716-717; Restatement § 702 rep. note
11.