University of Minnesota

David Weissbrodt, Joan Fitzpatrick, and Frank Newman
, International Human Rights—Law, Policy, and Process (3d ed. 2001).

Supplement to Chapter 13: Domestic Remedies for Human Rights Violations within the U.S. (November 2003)

Section G (4)(a) (at 740-43):  U.S. Supreme Court [Judicial Interpretation of Treaties and Customary International Law]

 As the coursebook noted, in 1989 the United State Supreme Court held 5 to 4 that the death penalty for a crime committed at age 16 or 17 did not constitute unconstitutional cruel and unusual punishment. (Stanford v. Kentucky, 492 U.S. 361, 380 (1989).) In so doing, the majority (Chief Justice Rehnquist and Justices Scalia, White, O’Connor, and Kennedy) rejected the relevance of international law and experience while the minority (Justices Brennan, Marshall, Blackmun, and Stevens) rested their contrary opinion about interpretation of the Eighth Amendment, in part, on the overwhelming international disapproval of such uses of capital punishment. (See David Weissbrodt, Joan Fitzpatrick & Frank Newman, International Human Rights—Law, Policy, and Process 742 (3d ed. 2001).)

 On October 7, 2002, the United States Supreme Court denied certiorari in the case of Stanford v. Parker, 266 F.3d 442 (6th Cir. 2001) cert. denied 71 USLW 3236 (S.Ct. 2002) in which the court had once again been asked to rule that the execution of juvenile offenders under the age of 18 constitutes cruel and unusual punishment. 

 “The practice of executing such offenders is a relic of the past and is inconsistent with evolving standards of decency in a civilized society,” wrote Justice John Paul Stevens, joined by Justices David H. Souter, Ruth Bader Ginsburg, and Stephen Breyer in dissent against the Court’s decision to deny Stanford a writ of habeas corpus. (Linda Greenhouse, Justices Deny Inmate Appeal In Execution Of Juveniles, N.Y.Times, January 28, 2003.)

 On June 20, 2002, the United States Supreme Court decided an analogous death penalty case that raised again the issue of the relevance of international law. In Atkins v. Virginia, 536 U.S. 304 (2002), the Court, 6 to 3, Justice Stevens in an opinion that was joined by Justices O’Connor, Kennedy, Souter, Ginsburg, and Breyer held that executions of mentally retarded defendants constituted unconstitutional cruel and unusual punishment. In so doing, the Court overruled a contrary opinion, Penry v. Lynaugh, 492 U.S. 302 (1989), that was decided on the same day as Stanford v. Kentucky. For the Court in Atkins, the different result was due to what they saw as a “dramatic shift in the state legislative landscape [regarding execution of the retarded] in the 13 years since Penry had been decided, resulting in what the majority saw as “a national consensus” against such executions. (536 U.S. 304, 316.)

 The Atkins majority found additional support for its conclusion in the overwhelming disapproval of executions of the mentally retarded within the world community as documented in an amicus curiae brief submitted by the European Union. (536 US. 304, 316, n.21) The three dissenters in Atkins (Chief Justice Rehnquist and Justices Scalia and Thomas) in an opinion by the Chief Justice, however, vigorously disagreed with the reliance on international law. Such a suggestion, said Rehnquist, “finds little support in our precedents and, in my view, is antithetical to considerations of federalism . . . .” (536 U.S. 304, 322.) Further, according to the dissenting opinion, “I fail to see . . . how the views of other countries . . . provide any support for the Court’s ultimate determination.” (Id. at 325.)

On August 28, 2002, the Supreme Court, 6 to 3, denied a stay of execution of a man who was 17 years old at the time of the crime. (Patterson v. Cockrell, 537 U.S. 847 (2002).) Dissenting, Justice Stevens said that the issue of executing juveniles should be revisited because of “the apparent consensus that exists among the states and in the international community against the execution of a capital sentence imposed on a juvenile offender.” [i]

 International opposition to the death penalty in the U.S. also arises in other contexts.

 In The LaGrand Case (Germany v. United States), 2002 I.C.J. 104 (June 27, 2001), the International Court of Justice held, 14 to 1, that the U.S. had breached its obligations to Germany and two German nationals under the Vienna Convention on Consular Relations by failing to give the German nationals notice of their right to access to the German Consul for assistance in an Arizona capital punishment murder case. In addition, the court determined, 14 to 1, that the U.S. had also breached its obligations under the Convention by refusing to allow review of the convictions on the ground of failure to give notice of consular rights to the defendants.  Further the court held, 13 to 2, that the U.S. had violated the court’s Article 41 provisional order to stay the execution that had been issued on the morning of the scheduled execution. (See ABA Int’l L. News, Winter 2002, at 21.) 

 More recently, Mexico unsuccessfully objected to a Texas execution of a Mexican national who had not been given notice of his consular rights. In response, Mexican President Fox cancelled a scheduled meeting with President Bush at the latter’s Texas ranch. (See, e.g., Ginger Thompson, An Execution in Texas Strains Ties with Mexico and Others, New York Times, Aug. 16, 2002 at A6; Editorial, Texas Executes a Foreigner, New York Times, Aug. 17, 2002 at A10.)

Mexico is attempting to use other means to prevent the execution of its nationals by the U.S. Mexico brought proceedings against the United States because of alleged violations of Articles 5 and 36 of the Vienna Convention on Consular Relations with respect to 54 Mexican nationals sentenced to death in the U.S. [ii]  Mexico argued that its nationals were not given proper notice and opportunity to ask for assistance from the Mexican Embassy and Consulates. The 54 cases it cited involved Mexican nationals on death row who were never informed of their rights to consular assistance, and Mexico argued that these failures to inform consular officers demonstrated the systemic nature of U.S. violation of its Article 36. [iii]  In responding to the Mexican application, the ICJ requested the U.S. to “take all measures necessary” to ensure that three Mexican nationals on death row are not executed before the ICJ hears the case and rules on the alleged U.S. violations of the Geneva Convention. [iv]  Texas has reportedly decided to ignore the ICJ, [v] but none of the relevant Mexican nationals have yet been executed.

 In addition, other countries have refused to provide evidence to the United States for use in criminal prosecutions that seek the death penalty, even those allegedly relating to the September 11, 2001 attacks. (E.g., Ginger Thompson, An Execution in Texas Strains Ties with Mexico and Others, supra; Stacy Humes-Schulz, Phillipp Jaklin, and Hugh Wiliamson, German stance on al-Qaeda suspect strains US relations, Financial Times, Sept. 17, 2002 at A1.)

Section H (at 744-56): Acting on International Law Domestically

 The course book notes that the U.S. Supreme Court in Zadvydas v. Davis, 533 U.S. 678 (2001) held that in light of constitutional concerns a federal statute did not authorize indefinite detention of aliens who could not be returned to the aliens’ country of origin. (See David Weissbrodt, Joan Fitzpatrick & Frank Newman, International Human Rights—Law, Policy, and Process, 755 (3d ed. 2001).) The decision was not based on international law barring arbitrary detentions although a full exposition of such international law was presented to the Court. (Brief of Amici Curiae Human Rights Watch, Human Rights Advocates, Center for Constitutional Rights, Jesuit Refugee Service, International Human Rights Clinic at Boalt Hall, U.C. Berkeley, Center for Human Rights and Justice, International Human Rights Law Group, World Organization Against Torture USA and the Extradition and Human Rights Committee of the American Branch of the International Law Ass’n, Zadvydas v. Davis, 2000 WL 1890982 (U.S. Sup. Ct. Dec. 26, 2000); Brief of Amicus Curiae Lawyers Comm. for Human Rights, Zadvydas v. Davis, 2000 WL 1881913 (U.S. Sup. Ct. Dec. 26, 2000).)

Use of International and Foreign Law in U.S. Courts 

The U.S. Supreme Court has recently cited and relied, in part, on foreign and international law in deciding U.S. constitutional issues. 

Lawrence v. Texas, 123 S.Ct. 2472 (2003):

Lawrence and Garner were convicted in Texas of engaging in homosexual conduct. After losing their appeal in the Texas Court of Appeals, the U.S. Supreme Court accepted the case reconsider its prior decision in Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841 (1986), and held that the Texas statute making it a crime for two persons of the same sex to engage in sexual conduct was unconstitutional when applied to consensual acts of sodomy carried out in the privacy of their own home. Justice O'Connor concurred in the judgment and Justices Scalia, Rehnquist, and Thomas dissented. 

The opinion addressed Chief Justice Burger’s statement in Bowers that anti-sodomy laws were based on the history of western civilization and traditional Judeo-Christian standards of morality. The Lawrence court noted that Bowers “did not take account of other authorities pointing in the opposite direction.” [vi]  The Court pointed to the United Kingdom, which had decriminalized sodomy in 1967 based on a 1957 Commission’s report. More to the point, the Court pointed out that five years before Bowers, the European Court of Human Rights decided a case directly counter to reasoning in Bowers that traditional values and the history of western civilization provided a sound basis for anti-sodomy laws. In Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. (1981), the European Court of Human Rights had decided that such a claim “was insubstantial in our Western civilization.” [vii]  The Supreme Court majority opinion continued, “to the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere.” [viii]  It concluded that, “[t]here has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.” [ix]

Grutter v. Bollinger, 123 S.Ct. 2325 (2003):

After being denied admission to the University of Michigan Law School, Grutter, a white student, sued on the basis that she had been discriminated against on the basis of her race. The case challenged the validity of the school’s affirmative action program in admissions.  The Court found that the law school’s program did not violate the Fourteenth Amendment guarantee of equal protection and that diversity was a sufficiently compelling interest that permitted the use of race in admissions programs of the type used by the law school.

Justice Ginsburg’s concurring opinion notes, “[t]he Court's observation that race-conscious programs must have a logical end point, accords with the international understanding . . . of affirmative action. The International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the United States in 1994 . . . instructs [that affirmative action measures] shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.” [x]  Justice Ginsburg also cited Article 1(4) of the Convention on the Elimination of All Forms of Discrimination against Women, which limits special measures to the length of time required to achieve the goal of de facto equality.

Gratz v. Bollinger, 123 S.Ct. 2411 (2003):

Gratz involved a challenge to the affirmative action program for the undergraduates at the University of Michigan. The Supreme Court found that the program was not narrowly tailored to the compelling interest in diversity and therefore violated the Fourteenth Amendment’s guarantee of equal protection.

In her dissenting opinion, Justice Ginsburg referred to her use of international law in Grutter.  In distinguishing between invidious and remedial discrimination, she states that “[c]ontemporary human rights documents draw just this line; they distinguish between policies of oppression and measures designed to accelerate de facto equality.” [xi]

Recent State Juvenile Execution Cases

Roper v. Simmons
, 112 S.W.3d 397 (Mo. 2003), cert. granted, --- S.Ct. ----, 72 U.S.L.W. 3310 (U.S. Jan 26, 2004) (No. 03-633):

In August 2003, the Supreme Court of Missouri became the first state court in the U.S. to acknowledge that principles of international law were relevant in the application of the U.S. juvenile death penalty for youthful offenders whose crimes were committed at the age of 16 or 17.

 Christopher Simmons was convicted of first-degree murder committed at the age of 17. On direct appeal the Missouri Supreme Court affirmed his conviction and the imposition of the death penalty and also denied any post-conviction relief. In his second post-conviction appeal to the Missouri Supreme Court, Simmons argued that based on the U.S. Supreme Court’s finding in Atkins of a national consensus barring the execution of the mentally retarded, a similar national consensus had emerged against the execution of youthful offenders who had committed their crimes at the age of 16 or 17.

 The Missouri Court found that in the 14 years since Stanford v. Kentucky, and in light of the reasoning in Atkins, a national consensus had emerged that prohibited the execution of youthful offenders who had been 16 or 17 at the time of their crime.

 In its reasoning, the Missouri Court first outlined the Supreme Court’s standard for determining whether a national consensus existed against the juvenile death penalty and the execution of the mentally retarded. In Thompson v. Oklahoma, 487 U.S. 815 (1988), the U.S. Supreme Court determined that the Eighth Amendment categorically prohibited the execution of youthful offenders who were 15 years old or younger at the time of their crimes. The Missouri court outlined the Thompson analysis:

 “To determine current standards of decency, Thompson examined: (a) relevant legislative enactments, and (b) evidence of how juries viewed the propriety of execution of the mentally retarded. It also considered (c) the views of respected national and international organizations.” (emphasis added) [xii]

“[S]tating that it had previously recognized the relevance of the views of the international community in determining whether a punishment is cruel and unusual, the Court [in Thompson] also considered the sentencing practices of European and other countries, stating: Although the death penalty has not been entirely abolished in the United Kingdom or New Zealand (it has been abolished in Australia, except in the State of New South Wales, where it is available for treason and piracy), in neither of those countries may a juvenile be executed. The death penalty has been abolished in West Germany, France, Portugal, The Netherlands, and all of the Scandinavian countries, and is available only for exceptional crimes such as treason in Canada, Italy, Spain, and Switzerland. Juvenile executions are also prohibited in the Soviet Union.” [xiii]

The Missouri Court then went on to apply the principles set out by the U.S. Supreme Court acknowledging the relevance of international principles in its decision.

“We also find of note that the views of the international community have consistently grown in opposition to the death penalty for juveniles. Article 37(a) of the United Nations Convention on the Rights of the Child and several other international treaties and agreements expressly prohibit the practice. According to Amnesty International, officially sanctioned executions of juveniles have occurred in only two other countries in the world in the last few years, Iran and The Republic of the Congo (DRC). Amnesty International, Juveniles:  The Death Penalty Gives up on Juvenile Offenders (July 28, 2003), at  Of the last seven juvenile offender executions, five occurred in the United States.” [xiv]

In January 2004 the U.S. Supreme Court granted certiorari to consider once again whether the execution of juvenile offenders who were 16 or 17 at the time of their offenses constitutes "cruel or unusual punishments" under the Eighth Amendment of the U.S. Constitution. Roper v. Simmons, 112 S.W.3d 397 (Mo. 2003), cert. granted, --- S.Ct. --- -, 72 U.S.L.W. 3310 (U.S. Jan 26, 2004) (No. 03- 633).

Brennan v. State
, 754 So.2d 1 (Fla.1999):

The Supreme Court of Florida ruled that the death penalty was unconstitutional when applied to persons who committed their crime when they were below the age of 17. The decision did not rely on the emergence of a national consensus but rather on the fact that the juvenile death penalty was almost never applied.  The Court stated that “the relevant fact we must confront is that death almost never is imposed on defendants of Allen's age . . . We cannot countenance a rule that would result in some young juveniles being executed while the vast majority of others are not, even where the crimes are similar.” [xv]

The concurring opinion by Justice Arnstead notes that “[t]here is also a value to us adhering to this line we have ourselves drawn, rather than turning to international human rights treaties or international or national trends, all of which, of course, draw a clear line between children and adults as a fundamental human rights dividing line for permitting executions. While the U.S. Supreme Court has suggested we may look to the standards in place elsewhere, we as a mature society have already made a clear and valid choice, and we need only stand by it.” [xvi]

Adams v. State, 2003 WL 22026043, Ala.Crim.App., Aug 29, 2003 (not yet released for publication):

The Court upheld the death sentence of a juvenile who was 17 at the time of his crime. The Court stated “[t]he Alabama Supreme Court and the United States Supreme Court has upheld sentencing 16- and 17-year-olds to death. Neither does sentencing a 17-year-old to death violate international law. [Adams refers] specifically [to] the International Covenant on Civil and Political Rights, which was ratified by the United States in 1992. This identical issue was addressed by the Alabama Supreme Court in Ex parte Pressley, 770 So.2d 143 at 148-49 (Ala.2000). After a thorough discussion of the merits of the issue, the Supreme Court rejected this claim. In light of the Supreme Court's holding in Pressley, we see no reason to revisit this issue.” [xvii]

McGilberry v. State, 843 So.2d 21 (Miss.2003):

[W]e have previously recognized that imposition of the death penalty on a sixteen or seventeen year old presents no per se case of cruel and unusual punishment, and that age is only a factor to be considered in mitigation.” [xviii] (citing Foster v. State, 639 So.2d 1263, 1296 (Miss.1994)

The Inter-American Commission on Human Rights and U.S. State Court Juvenile Execution Cases

Domingues v. Nevada, Case 12.285, Report No. 62/02, Inter-Am. C.H.R. (2002): [xix]

 In May 2001, the Inter-American Commission on Human Rights received a petition on behalf of Michael Domingues, whose case was the subject of the appeal discussed in the Coursebook. [xx]  Domingues had been sentenced to death by the State of Nevada for two murders committed at the age of sixteen. The petition was filed after the November 1999 refusal of the U.S. Supreme Court to review a ruling by the Nevada Supreme Court, which had refused to invalidate the execution of juveniles who had committed their crimes at the age of 16.

 The Commission concluded in October 2002 that the U.S. had violated a jus cogens norm against the execution of juveniles who were 16 at the time of their crime. The Commission noted that in a 1987 case, Roach and Pinkerton v. United States,the United States recognized that a jus cogens norm prohibiting the execution of juvenile existed, but that insufficient international consensus existed as to the age of majority, a position with which the Commission ultimately concurred. [xxi]  

 Examining the period following Roach and Pinkerton, the Commission considered the adoption of the United Nations Convention on the Rights of the Child, in particular, Article 37(a), which provides that “No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.” [xxii]  The treaty has been signed by the United States and ratified by all members of the General Assembly except the United States and Somalia. The Commission also noted that “other international and regional human rights treaties that regulate the implementation of the death penalty have likewise witnessed an increase in states parties thereto since 1987.” [xxiii]

The Commission concluded that “the evidence canvassed . . . clearly illustrates that by persisting in the practice of executing offenders under age 18, the U.S. stands alone amongst the traditional developed world nations and those of the inter-American system, and has also become increasingly isolated within the entire global community. The overwhelming evidence of global state practice . . . displays a consistency and generality amongst world states indicating that the world community considers the execution of offenders aged below 18 years at the time of their offence to be inconsistent with prevailing standards of decency.” [xxiv]

In addition, several of the Justices in speeches have noted this trend:

All of these quotes are from Javier H. Rubinstein, International law’s new importance in the U.S., Nat’l L. J., Sept. 15, 2003, at 16.


Domestic Remedies within the United States

Natasha Fain, Human Rights Within the United States: The Erosion of Confidence, 21 Berkeley J. Int’L. 607 (2003);

Judge Edward D. Re, The Universal Declaration of Human Rights: Effective Remedies and the Domestic Courts, 33 Cal. W. Int’l L. J. 137 (2003);

Penny J. White, Legal, Political, and Ethical Hurdles to Applying International Human Rights Law in the State Courts of the United States (And Arguments for Scaling Them), 71 U. Cin. L. Rev. 937 (2003).

Death Penalty

Tiffany A. Mann, The Supreme Court Exempts Another Class from the Death Penalty: Mentally Retarded Offenders—Atkins v. Virginia, 4 Loy. J. Pub. Int. L. 77 (2003);

Evan J. Mandery, Federal Jurisprudence, State Autonomy: Federalism and the Death Penalty, 66 Alb. L. Rev. 809 (2003);

Priya Nash, Case Concerning Avena and Other Mexican Nationals (Mexico v. United States), No. 128 (I.C.J. Feb. 5, 2003), 15 Cap. Def. J. 553 (2003);

Lyndsay Sloan, Evolving Standards of Decency:  The Evolution of a National Consensus Granting the Mentally Retarded Sanctuary, 31 Cap. U. L. Rev. 351 (2003);

Victor Streib, The Juvenile Death Penalty Today: Death Sentences And Executions For Juvenile Crimes, January 1, 1973 - September 30, 2003, available at <> (last visited November 11, 2003);

Robin M. A. Weeks, Comparing Children to the Mentally Retarded: How the Decisions in Atkins v. Virginia Will Affect the Execution of Juvenile Offenders, 17 BYU J. Pub. L. 451 (2003).

[i]  In the 2002 cases, Chief Justice Rehnquist and Justices Scalia and Stevens maintained their 1989 positions whereas Justices O’Connor and Kennedy shifted sides on the mentally retarded death penalty question, but did not on the juvenile issue (at least on the procedural question of staying the execution in Patterson). In July 2001, Justice O’Connor publicly noted her concern about the legitimacy of the death penalty because of inferior legal representation of capital defendants and because of the possibility that DNA testing would reveal innocent defendants being convicted of capital crimes. (E.g., O’Connor Questions Death Penalty, (speech at Minnesota Women Lawyers’ Association).)

[ii] Press Release, International Court of Justice, Avena and Other Mexican Nationals (Mexico v. United States of America), (July 25, 2003) available at: <> (last visited November 28, 2003).

[iii] Bruce Zagaris, Mexico Sues U.S. in ICJ over Consular Rights in Death Penalty Cases, 19 Int’l Enforcement L. Rep. 102, (March 2003).

[iv] Bruce Zagaris, ICJ Grants Provisional Remedies for Mexicans on U.S. Death Row, 19 Int’l Enforcement L. Rep. (April 2003).

[v] ICJ orders U.S. to take “all measures necessary” to prevent state executions of three Mexican citizens. 9 Int’l L. Update, February 2003. 

[vi] Lawrence at 2481.

[vii] Id.

[viii] Id. at 2483.

[ix] Id.

[x] Grutter v. Bollinger at 2347.

[xi] Gratz v. Bollinger at 2445.

[xii] Simmons at 401.

[xiii] Id. at 402 (citing Thompson at 830‑31).

[xiv] Id. at 410.

[xv] Brennan v. State at 6.

[xvi] Id. at 14.

[xvii] Adams v. State at 60.

[xviii] McGilberry v. State at 32.

[xix] Available at <> (last visited November 10, 2003).

[xx] Coursebook at 692-94.

[xxi] Domingues v. Nevada at para. 18.

[xxii] Id. at para. 57.

[xxiii] Id. at para. 63.

[xxiv] Id. at para. 84.

Home || Treaties || Search || Links