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RESOLUTION
Nº 3/87 CASE
9647 UNITED
STATES September
22, 1987 TABLE
OF CONTENTS I.
INTRODUCTION (paras. 1-20) A.
Summary of the facts and the Petitioners' complaint B.
Proceedings before the Commission II. THE FACTS
(paras. 21-33) A.
James Terry Roach B.
Jay Pinkerton III. SUBMISSIONS OF
THE PARTIES (paras. 34-37) A.
The Petitioners B.
The Government IV. ADMISSIBILITY
(paras. 38-42) A.
The U.S. Supreme Court and the death penalty B.
The juvenile justice system in the United States V.
OPINION OF THE COMMISSION (paras. 43-63) A.
Point at issue B.
The international obligation of the U.S. under the American
Declaration C.
The Petitioners' argument D.
General principles applicable to the present case VI. Conclusion
(paras. 64-65)
I.
INTRODUCTION A.
Summary of the facts and the
Petitioners' complaint 1. The Petitioners
are James Terry Roach and Jay Pinkerton who were sentenced to death and
executed in the United States for crimes which they were adjudged to
have committed, and which they perpetrated before their eighteenth
birthdays. 2. The Petitioners
are represented by David Weissbrodt and Mary McClymont. The American
Civil Liberties Union and the International Human Rights Law Group have
co-sponsored the complaint. Amnesty International also filed a petition
with the Commission alleging that the imminent execution of James Terry
Roach, while lawful in the United States, is a violation of
international law. Eighteen organizations have communicated to the
Commission their support of the complaint. 3. James Terry
Roach was convicted of the rape and murder of a fourteen year old girl
and the murder of her seventeen year old boyfriend. Roach committed
these crimes at the age of seventeen and was sentenced to death in the
General Session Court, Richland County, South Carolina on 16 December
1977. Roach petitioned the United States Supreme Court for a writ of
certiorari on three separate occasions. All petitions were denied. Roach
also exhausted all appeals to the state and federal courts, and on 10
January 1986 he was executed. 4. Jay Pinkerton
was convicted of murder and attempted rape which he committed at the age
of seventeen. The death sentence was appealed to the Texas Supreme Court
which affirmed the trial court's decision. The United States Supreme
Court denied Pinkerton's writ of certiorari on 7 October 1985. Pinkerton
was executed on 15 May 1986. 5. On 23 February
1987, the U.S. Supreme Court announced that it would decide in its next
term the case of Thompson v. Oklahoma, thereby, for the first time,
taking up the issue of the execution of juvenile offenders. The
constitutional issue presented is whether the execution of a juvenile
offender violates the U.S. Constitution's prohibition on cruel and
unusual punishment. 6. In their
complaint to the Commission, the petitioners allege that the United
States has violated Article I (right to life), Article VII (special
protection of children), and Article XXVI (prohibition against cruel,
infamous or unusual punishment) of the American Declaration of the
Rights and Duties of Man by executing persons for crimes committed
before their eighteenth birthday. The Petitioners allege a violation of
their right to life guaranteed under the American Declaration, as
informed by customary international law, which prohibits the execution
of persons who committed crimes under the age of eighteen. B. Proceedings
before the Commission 7. The petition on
behalf of James Terry Roach was filed with the Commission on 4 December
1985 and registered as Case Nº 9647 (United States). Jay Pinkerton's
petition was registered with the Commission on 8 May 1986 following the
setting of the date for his execution. 8. In both the
case of Roach and of Pinkerton, the Commission cabled the United States
Secretary of State, George P. Shultz, and the respective Governor of the
Petitioner's state, requesting a stay of execution pending the
Commission's examination and decision of Case Nº 9647. The Commission
stated in each telegram that its request for information did not
prejudge the admissibility of the case in accordance with Article 34 of
the Commission's Regulations. 9. Petitioner
Roach had sought provisional relief measures under Article 29 of the
Commission's Regulations. On 12 December l985, the Chairman of the
Commission cabled Secretary of State, George P. Shultz, and South
Carolina Governor, Richard W. Riley, requesting a stay of execution
pending the Commission's examination of the case. The Chairman stated
that granting such a stay of execution would "be in the spirit of
major human rights instruments and the universal trend favorable to the
abolition of the death penalty." The Commission also requested that
the U.S. Government provide information concerning the Petitioner's
complaint. 10.
On 23 December 1985 the Executive Secretary of the Commission
cabled the United States Government with additional information relating
to the date of Roach's execution scheduled for 10 January l986 and
stressed the necessity of receiving a response by that date. The
Commission also reiterated its previous request to stay the execution of
the Petitioner. Another cable was sent to the Secretary of State with a
stay of execution request on 6 January 1986. 11.
On 9 January 1986 the U.S. State Department replied. It stated
that: "Under the circumstances, with respect to the Commission's
request that the execution be stayed pending consideration of the case,
the United States is constrained to reply that the matter is now in the
hands of authorities for the State of South Carolina and, under the U.
S. federal system, there are no domestic legal grounds for executive
intervention in the implementation of the sentence." 12.
On 9 January 1986 the Secretary General of the Organization of
American States cabled an appeal to the Governor of South Carolina to
"follow the current tendency of almost all the countries in this
hemisphere and to stay the execution." 13.
On 9 January 1986, Governor Riley of South Carolina responded to
the cables requesting a stay of execution by informing the Executive
Secretary of his decision not to intervene in the case of James Terry
Roach. The Governor stated that he had reviewed the case thoroughly and
believed that the case had been "fairly litigated at the trial
level and that all of his appeals in the courts have been given full and
fair consideration." As a result, he found "no reason to
intervene in the judicial process or to grant a request for
clemency." 14.
On 20 February 1986, the lawyers for the Petitioners filed a
brief on Case 9647 with the Commission, setting forth their legal
arguments pertaining to the case. 15.
On 8 April 1986, the Petitioners requested that additional
information compiled by Amnesty International on comparative national
laws which proscribe the execution of persons under the age of eighteen
around the world be incorporated by reference into the Petitioners'
brief. 16.
On 26 March 1986, the United States requested an extension of
time until 28 August 1986 in order to respond fully to the issues raised
by the Petitioners. The Commission at its 67th Session granted the U.S.
Government an extension until 1 July 1986 in order to have a draft
decision on the case before its next regular session. 17.
On 9 May 1986, after having been informed by the Petitioners that
Jay Pinkerton was to be executed on 15 May 1986, the Commission cabled
the Secretary of State and Governor Mark White of Texas requesting a
stay of execution in the case of Jay Pinkerton pending the Commission's
examination and decision on Case 9647. 18.
The U.S. Government responded on 14 May 1986. It stated that, as
in the case of James Terry Roach, "the United States considers that
U.S. domestic standards with respect to application of the death penalty
are fully consistent with the principles stated in the
Declaration," and given the U.S. federal system "there are no
domestic legal grounds (...) for executive intervention in the
implementation of Mr. Pinkerton's sentence." The Governor of Texas
did not respond to the Commission's request for a stay of execution. 19.
On 15 July 1986, the U.S. Government submitted its brief in
response to petitioners' brief. C. The final
decision 20.
This final decision was drawn up by the Commission in accordance
with Article 53 of the Regulations of the Inter-American Commission on
Human Rights. The text of this final decision was adopted by the
Commission on 27 March 1987. The following members were present: Gilda
Russomano, President Marco
Tulio Bruni Celli Oliver
H. Jackman Elsa
Kelly Luis
Adolfo Siles This
final decision is now transmitted to the parties. Bruce
McColm, a U.S. national, chose not to participate in this decision,
pursuant to Article 19 of the Commission's Regulations. Marco
Gerardo Monroy Cabra was not present at the Commission on that date. II.
THE FACTS 21.
The facts of the present case are not in dispute between the
parties. 22.
In the present case, the Petitioners allege that the United
States has denied them the internationally protected right to life by
condemning them to death and executing them for crimes committed while
under the age of eighteen. The issue presented is: Does the absence of a
federal prohibition on the execution of juveniles offenders within U.S.
domestic law violate the human rights standards applicable to the United
States under the inter-American system? A. James Terry
Roach 23.
Petitioner Roach was seventeen years old when he committed the
rape and the murder of a fourteen year old girl and the murder of her
seventeen year old boyfriend. Evidence revealed that Roach was
borderline mentally retarded, with an I.Q. of between 75 and 80 and that
he apparently suffered from Huntington's Chorea, an incurable brain
disease. The psychological and medical evidence presented at the April
l980 postconviction proceedings suggest Roach actually functioned at the
mental age of twelve when the offense was committed. Roach had two
codefendants. One was another youth of 16 who turned state's evidence
and received life imprisonment. The other was J.C. Shaw, a twenty-two
year old adult, who received the death sentence on 11 January 1985.
Evidence showed Roach had been under the adult's influence when the
offenses were committed. 24.
Jurisdiction of the juvenile court in South Carolina is limited
to those under seventeen years of age. Therefore, Roach was sentenced to
death in adult criminal court in pursuance of South Carolina's death
penalty statute which follows the Georgia statute upheld by the Supreme
Court in Gregg v. Georgia, 428 U.S. 153 (1976). The South
Carolina death penalty statute provides for a bifurcated trial which
first considers the guilt or innocence of the defendant, and then upon
conviction, a separate sentencing proceeding is conducted to determine
whether the defendant is to be sentenced to life imprisonment or death.
Roach pleaded guilty to the charges. At the sentencing hearing, the
judge heard additional mitigating and aggravating evidence. At least one
aggravating circumstance must be found beyond a reasonable doubt before
the death sentence may be imposed. South Carolina law has seven
statutory aggravating circumstances and nine statutory mitigating
circumstances. Among the mitigating factors is that, "The defendant
was below the age of l8 at the time of the crime." S.C. Code,
16-3-20 (C)(b)(9). 25.
In considering the mitigating factors in the Roach case, the
sentencing judge found that Roach had been under the domination of an
adult during the commission of the crime. The judge also found that
Roach's capacity to conform his conduct to the requirements of the law
was substantially impaired, and that he was under the influence of
extreme mental or emotional disturbance as he and his codefendants were
"shooting up" drugs and drinking beer before the offense.
Another mitigating factor was that Roach had no significant history of
prior criminal activity involving the use of violence against another.
Roach's mental retardation, anti-social personality disorder, and the
fact that he was below the age of 18 at the time of the crime, were also
considered by the judge in Roach's sentencing. Roach v. Martin,
757 F.2d 1463, 1468-69 (1985). 26.
Nevertheless, the sentencing judge also found beyond a reasonable
doubt three statutory aggravating circumstances: murder committed while
in the commission of rape, murder committed while in the commission of
kidnapping, and murder committed while in the commission of robbery.
S.C. Code 16-3-20 (C)(a)(1)(a), (c), (e). The judge found the evidence
in the case warranted the imposition of the death penalty after weighing
both mitigating and aggravating circumstances. 27.
This sentence was upheld on direct appeal by the South Carolina
Supreme Court. State v. Shaw (and Roach), 255 S.E. 2d 799,
(1979).[1]
South Carolina law provides for a mandatory review in the
imposition of the death penalty. Roach was later denied post conviction
relief by the state trial court and the appeal of this was denied by the
State Supreme Court of South Carolina. Roach v. State, Memo Op. Nº
81-MO-197 (S.C. July 17, 1981). 28.
Petitioner also sought review of his case from the United States
Supreme Court. He challenged as unconstitutional, among other issues,
the imposition of the death penalty as being grossly disproportionate
and offensive to contemporary standards of decency due to, among other
factors, his age when the crime was committed. However, the Supreme
Court denied the writ of certiorari. Roach v. State, 444 U.S.
1026, reh'g denied 444 U.S. 1104 (1980). He again raised the same
issue of his age, as being one factor which resulted in the
unconstitutionality of the imposition of the death penalty, in another
petition for certiorari. This was denied on 25 January 1982. Roach v.
South Carolina, 455 U.S. 927 (1982). 29.
Roach brought a petition for a writ of habeas corpus in the U.S.
District Court of South Carolina. This request was also denied. Roach
v. Martin, Civil Action Nº 81-1907-14 (May 11, 1984). He appealed
this denial, raising again the issue of his age as being a factor
prohibiting the imposition of the death penalty. The U.S. Court of
Appeals for the Fourth Circuit affirmed the district courts denial of
the writ. Roach v. Martin, 757 F.2d 1463 (4th Cir.
1983). His final appeal to the United States Supreme Court was denied on
7 October 1985, and the petition for rehearing was denied on 2 December
1985. See, Roach v. Aiken, Nº 85-6155 (A-531). Petitioner Roach
was executed in Columbia, South Carolina on 10 January 1986. B. Jay
Pinkerton 30.
Petitioner Pinkerton was found guilty of murder in the course of
burglary with the intent to commit rape. The crime was committed when he
was seventeen years old. Petitioner at seventeen was also beyond the age
limit of the jurisdiction of Texas juvenile courts (age 17) and was
tried as an adult. He was sentenced to death in accordance with the
Texas capital punishment statute which had been upheld by the Supreme
Court. Jurek v. Texas, 428 U.S. 262 (1976). 31.
The Texas death penalty statute currently provides for the
imposition of the death sentence only for capital murders. A capital
murder is the intentional or knowing killing of a person accompanied by
one of five listed aggravating factors. These factors focus on the
identity of the victim and the dangerousness of the actor's conduct.
Pinkerton was convicted of intentionally committing murder in the course
of committing burglary which is one of the statutory aggravating factors
defining capital murder. Tex. Code Crim. Proc. Ann., art. 19.03 (a)(2). 32.
Conviction of capital murder results in either a mandatory death
sentence or life imprisonment. The jury at the sentencing hearing must
find beyond a reasonable doubt that (1) the actor killed intentionally
or knowingly; (2) he will probably commit other crimes of violence if
not executed; and (3) the killing was unreasonable in response to the
provocation, if any, of the deceased. To warrant the death sentence all
twelve jury members must answer each of these issues affirmatively. The
Supreme Court of the United States upheld this Texas statute in Jurek
v. Texas, 428 U.S. 262 (1976), finding that the second question is
interpreted to allow the defendant to bring to the jury's attention
whatever mitigating circumstances he may be able to show. Id. at 272.
Therefore, although the statute does not specify age, this may be taken
into consideration at the sentencing hearing. Texas law prohibits the
imposition of the death penalty on anyone younger than seventeen when
the capital felony was committed. Texas C.C.P., 8.07(e). 33.
Pinkerton's statutorily provided review was taken to the Court of
Criminal Appeals where his conviction and sentence were affirmed.
Subsequent federal and state appeals were denied. The United States
Supreme Court denied certiorari on 7 October 1985. Pinkerton v.
McCotter, 88 L.Ed. 2d 158 (1985). Jay Pinkerton was executed by the
State of Texas on 15 May 1986. III.
SUBMISSIONS OF THE PARTIES A. The
Petitioners 34.
The Petitioners allege that the imposition of the death penalty
on James Terry Roach and Jay Pinkerton by United States courts for
crimes committed before their eighteenth birthday violated the American
Declaration of the Rights and Duties of Man. Specifically, Petitioners
allege violations of Article I (right to life), Article VII (special
protection of children), and Article XXVI (cruel, infamous or unusual
punishment) of the American Declaration as informed by customary
international law which prohibits the imposition of the death penalty
for crimes committed by juveniles under eighteen. 35.
The Petitioners state that the United States is subject to the
jurisdiction of the Commission as a member State of the Organization of
American States and is obligated, therefore, to observe the enumerated
rights in the American Declaration. 36.
The Petitioners' case meets the admissibility requirements of
Article 37 of the Commission's Regulations as the Petitioners have
exhausted all domestic remedies. United States courts, both federal and
state, have failed to address Petitioners' claims that the imposition of
the death penalty on juvenile offenders is constitutionally prohibited. 37.
The Petitioners' complaint may be summarized as follows: (a)
Imposition of the death penalty on juveniles violates the
American Declaration as informed by customary international law. (b)
The United States is legally bound by the American Declaration of
the Rights and Duties of Man. The American Declaration should be
interpreted according to the canons of the Vienna Convention on the Law
of Treaties because the Convention represents a world-wide consensus on
how international instruments should be construed. (c)
Articles 31 and 32 of the Vienna Convention set out the principal
interpretative norms for treaties and other international instruments.
According to Article 31 of the Vienna Convention, the terms of the
American Declaration should be interpreted in accordance with their
ordinary meaning and in light of the object and purpose of the
instrument. Construing Articles I, VII and XXVI together and in
accordance with their ordinary meaning, and in light of the object and
purpose of the Declaration, these articles should be interpreted to
prohibit the execution of persons who committed offenses under the age
of 18. (d)
The U.S. Government is incorrect in asserting that the rights in
the Declaration "must be interpreted in terms of the intentions of
the member states at the time of the adoption of the Declaration, not in
terms of changing norms of customary international law." This rigid
and static approach to the interpretation of the Declaration is in
conflict with the terms of the Declaration, the norms of the Vienna
Convention, the normal approach which international bodies take to human
rights instruments, the practice of the Commission, and the practice of
the United States in its own domestic cases. The preamble to the
American Declaration states, "The international protection of the
rights of man should be the principal guide of an evolving
American law...." (Emphasis added). (e)
In construing the terms of the American Declaration in light of
its object and purpose, the Commission should pay particular attention
to Article XXVI which forbids "cruel, infamous or unusual
punishment." This is broader than the United States constitutional
prohibition against cruel and unusual punishment. Juveniles are
recognized as lacking in maturity and are most susceptible to various
influences and psychological pressure. Killing a young person who has
not had the chance to mature to adulthood is the "ultimate cruel
punishment," therefore, Article XXVI should be interpreted as a
prohibition against the execution of juveniles. Then, on its ordinary
meaning and in light of the object and purpose of these articles, the
United States is violating the American Declaration by executing
juveniles. (f)
Article 31 of the Vienna Convention also looks to "relevant
rules of international law" to help interpret treaties. Therefore,
the Commission should take into account the customary international law
norm prohibiting the execution of juvenile offenders. This prohibition
has obtained the status of customary international law. Pursuant to
Article 38(1)(b) of the Statute of the International Court of Justice,
"international custom, as evidence of a general practice accepted
as law" is one of the sources of international law. Treaties are
clearly evidence of State practice, especially if accompanied by opinio
juris, or claims in the treaty or the travaux préparatoires
indicating that a treaty provision is a restatement of pre-existing
customary laws. (g)
The major human rights instruments such as the American
Convention on Human Rights (Article 4(5)), the International Covenant on
Civil and Political Rights (Article 6(5)), and the Fourth Geneva
Convention prohibit the imposition of the death penalty on persons under
eighteen years of age. Article
4(5) of the American Convention reads: "Capital punishment shall
not be imposed upon persons who, at the time the crime was committed,
were under 18 years of age or over 70 years of age; nor shall it be
applied to pregnant women." The fourth Geneva Convention states in
Article 68, in relevant part: In
any case, the death penalty may not be pronounced on a protected person
who was under eighteen years of age at the time of the offence. As
of January 1º, 1986 there are 162 states parties to this Convention,
including the United States. This Convention applies to periods of
international armed conflict and Article 68 forbids the execution of
civilians and military personnel no longer in combat, who committed
offenses prior to the age of 18. If nearly all the nations of the world,
including the United States, have agreed to such a norm for periods of
international armed conflict, the norm protecting juvenile offenders
from execution ought to apply with even greater force for periods of
peace. (h)
In addition, approximately two-thirds of the nations of the world
have either abolished the death penalty or have prohibited it for
juveniles by adhering to these human rights instruments. Whereas the
European "Convention for the Protection of Human Rights and
Fundamental Freedoms" (1950), in Article 2 allowed the death
penalty, an evolving abolitionist philosophy is reflected in Protocol Nº
6 which states "the death penalty shall be abolished. No one shall
be condemned to such penalty or executed." Petitioners
point out that the travaux préparatoires of these Conventions
demonstrate that these prohibitions against juvenile executions are in
fact codifications of customary international law as can be derived from
the debates during the drafting of the provisions of these Conventions. (i)
As further evidence of State practice, in terms of actually
carrying out the death sentence, Petitioners submit evidence, compiled
by Amnesty International, to the effect that since 1979, although 80
nations of the world have executed over 11,000 persons, only six persons
who committed offenses under 18 were executed by four nations, including
the United States. In
the United States, the laws of various jurisdictions which permit the
use of the death penalty nonetheless recognize the uniqueness of
juvenile offenders and at least 21 states set a minimum age for
imposition of the death penalty. Therefore, although the data is
incomplete, available information shows that national laws, as well as
the practice of states not to execute minors, further demonstrate the
existence of a customary law norm prohibiting execution of offenders who
committed capital crimes as juveniles. (j)
The Commission should not rely on the travaux préparatoires
of the American Declaration as the U.S. Government argues. The United
States relies for support on the deletion of language pertaining to
capital punishment from the Inter American Juridical Committee's draft.
The original Article I reads as follows: Every
person has the right to life, including the fetus ("los que están
por nacer") and the terminally ill, the insane, and mentally
retarded. Capital
punishment shall only be applied in cases in which pre-existing law has
established it for exceptionally grave crimes. The
original second sentence of Article I concerning capital punishment was
dropped in the subsequent and final drafts. Like the capital punishment
language, the latter half of the first sentence was also deleted in
subsequent and final drafts. The present version of Article I reads: Every
human being has the right to life, liberty and the security of his
person. The
deletion of the capital punishment language can no more be interpreted
to infer that the drafters necessarily meant to authorize widely its use
than can the deletion of the clause in the first sentence be interpreted
to mean that the insane, terminally ill, or mentally retarded were no
longer afforded the right to life. Instead, the deletion of the capital
punishment language could be read to mean that the drafters were simply
unable or unwilling to delineate each and every instance when capital
punishment would be prohibited as they did not want to authorize it
necessarily in every context. (k)
Finally, there is a limit on any State's ability to regulate a
matter, such as capital punishment, if the result will violate
international law. Domestic legislation of member states cannot validate
conflict with international obligations; a state cannot invoke its
contrary domestic law as justification for its failure to abide by an
agreement. The United States argument that at the time of the drafting
of the Declaration the death penalty was widely practiced and could not
generally be considered cruel or unusual is irrelevant. Petitioners
argue that "[H]uman rights instruments. . . are drafted to improve
the human rights situation and not certainly to reconfirm any alleged
right of nature to continue violating human rights." (l)
The petitioners request that the Commission find that the United
States has violated the American Declaration, as interpreted in the
light of customary international law, by having executed Petitioners
Roach and Pinkerton for offenses they committed while under the age of
eighteen. Petitioners also request the Commission to recommend that a
moratorium be imposed on the execution of other juvenile offenders in
the United States. B. The
Government 38.
The U.S. Government considers that the absence of a prohibition
on the execution of juvenile offenders within United States domestic law
is not inconsistent with human rights standards applicable to the United
States. The Commission must look to the American Declaration for the
relevant standards as the United States is not a party to the American
Convention. The argument may be summarized as follows: (a)
The American Declaration is silent on the issue of capital
punishment as Article I simply states, "Every human being has the
right to life, liberty and the security of his person." From the
drafting history of the Declaration, there is evidence that Article I
was not meant to affect the legislative discretion of the American
states with respect to capital punishment. A Declaration that does not
expressly limit the circumstances under which the death penalty may be
imposed may not be interpreted as foreclosing the reasonable discretion
of the American states to determine for themselves the minimum age at
which imposition of the death penalty is appropriate. (b)
The drafters considered and declined to adopt any specific
standards on the issue of capital punishment. The reference to capital
punishment prohibiting it except for exceptional crimes was deleted in
the final draft. The debate surrounding Article I demonstrates that a
standard on capital punishment could not be devised due to the diversity
of State legislation in the hemisphere. Therefore, the States are able
to legislate within their own discretion on the issue of capital
punishment. (c)
Only Article I is at issue because if no standard on capital
punishment was incorporated into the American Declaration, then a
prohibition against the execution of juveniles could not be
"silently subsumed" within the other rights. Article VII on
the special protection and care of women and children was not
contemplated to extend to juveniles convicted of serious crimes. There
is no official record of the drafters' intentions but the use of the
word "children" was not meant to refer to juveniles nearing
their eighteenth year. There
is also no official record of the drafters' intentions with regard to
the prohibition against "cruel, infamous or unusual
punishment" of Article XXVI. However, at the time of the drafting
the death penalty was widely practiced and therefore, could not be
considered cruel or unusual. None
of the three articles of the Declaration cited by petitioners addresses
the death penalty or establishes any particular age of majority. The
U.S. Government believes that the Declaration is deliberately silent on
the issue of capital punishment. Therefore, there purposely is no
limitation on the legislative prerogative of the American States
regarding the imposition of the death sentence. (d)
The Vienna Convention should not be relied on to interpret the
American Declaration as the Declaration is not a treaty and it is not
binding on the United States. The U.S. Government does not agree with
the Commission's holding in Case Nº 2141 (United States) that the
Declaration acquired binding force with the adoption of the revised OAS
Charter. Res. 23/81, OAS/Ser. L/V/II.52, Doc. 48. Mar. 6, 1981. The
Declaration was not drafted with the intent to create legal obligations,
therefore the Commission should take special care "where the
intentions of the drafters are manifest with respect to any particular
article," not to overturn that meaning. Even
assuming the Vienna Convention could be applied to the Declaration, the
Petitioners have not shown the "clear meaning" of Articles I,
VII, or XXVI. Each is "ambiguous" with respect to the
prohibition of the death penalty on juveniles. Therefore, recourse to
the travaux préparatoires is necessary. (e)
The petitioners request that the Commission look to the American
Convention and other international instruments to "interpret"
the Declaration as encompassing the standard of Article 4(5). This
requires the Commission to go far beyond its interpretative powers.
Specific standards in the American Convention, such as the prohibition
against the execution of those who committed crimes under eighteen years
of age, are binding only on those parties to the Convention. These
standards were not accepted by the United States. (f)
The three human rights instruments mentioned by petitioners are
irrelevant to the Commission's consideration of the case. The United
States is not a party to the International Covenant nor the American
Convention, and standards cannot be imposed by
"interpretation" on a State which is not a party. See, Case Nº
2141 (United States). In addition, the United States delegate at the
drafting of the American Convention pointed out that the United States
had problems with Article 4(5)'s arbitrary age limit of 18 conflicting
with its federal structure. (g)
Petitioners are also incorrect in stating that Article 4(5) of
the American Convention is declaratory of customary international law.
The age of majority for purposes of imposing the death penalty is not a
matter of uniform state practice. Some countries desired a specific age
limit while others wanted reference only to "minors" or
"juveniles" during the drafting of the International
Covenant's Article 6(5), demonstrating that they were not codifying an
already existing binding norm. Instead, this was a specific standard
intended to create uniformity where none existed. At
the same time, there is no evidence of opinio juris. Even the
states which have enacted prohibitions against the execution of those
who committed crimes before their eighteenth birthday did not do so out
of any sense of legal obligation. Since the American Convention and the
International Covenant have been enacted, any changes in state
legislation cannot be viewed as evidence of a generally applicable
customary rule of law. "Relevant rules of law" must exist
apart from any conventional or treaty standards. "Simply because
states in the U.S. or other nations have chosen eighteen as the age of
majority does not impose an obligation that other states must choose the
exact same age." (h)
The U.S. Government does not acknowledge the existence of a
customary international law norm which prohibits the execution of
juveniles. To establish a norm of customary law there must be
"extensive and virtually uniform" state practice and second,
evidence of a belief that this practice is rendered obligatory by the
existence of a rule of law requiring it. The rule must be recognized as
a legal obligation based on the custom or practice of states. In this
case, there is neither the uniformity of state practice, nor the
required opinio juris to regard the standard as a binding norm of
customary international law. (i)
The U.S. Government further maintains that it has dissented from
such a standard. It abstained from participating in the debate and vote
on the draft International Covenant, and submitted it to the U.S. Senate
with reservations. The United States also opposed Article 4(5) of the
American Convention, and when president Carter signed the American
Convention he proposed the Senate advice and consent to ratification of
the treaty be accompanied by a reservation stating that "United
States adherence to Article 4 is subject to the Constitution and other
law of the United States". Four Treaties Pertaining to Human
Rights, Message from the President of the United States, S. Doc. Nº
Exec. C, D, E, 8F, at xii, 95th Cong., 2d Sess (1978). The
U.S. Government concludes its brief by stating that "There is no
basis in international law for applying to the United States a standard
taken from treaties to which it is not a party and which it has
indicated it will not accept when it becomes a treaty." (j)
The U.S. Government requests the Commission to hold that the
recent executions are not inconsistent with the American Declaration. IV.
ADMISSIBILITY 39.
In denying Roach's and Pinkerton's appeals for a writ of
certiorari, the U.S. Supreme Court deliberately decided not to review
the issue of the constitutionality of the execution of juvenile
offenders. As pointed out in Petitioners' brief, Justice Brennan in his
dissent stated that the Roach case afforded "an opportunity to
address the important question whether an accused may...be sentenced to
death for a capital offense he committed while a juvenile." Since
the U.S. Supreme Court chose not to address the question the Commission
finds that the Petitioners had no further domestic remedies to exhaust. 40.
In spite of the fact that the U.S. Supreme Court has not
addressed the issue of the constitutionality of applying the death
penalty to juvenile offenders, it has established certain trial and
sentencing standards for state death penalty cases. A review of the
evolution of these Supreme Court standards is relevant here. A. The United
States Supreme Court and the death penalty 41.
In the United States, since the 19th century the courts have
moved away from mandatory death sentences, as such a system fails to
take into account the individual and his circumstances. However, by 1972
the United States Supreme Court found that the courts had moved so far
from a mandatory system that unlimited discretion had been given to the
judge or jury to decide who received the death penalty. In Furman v.
Georgia, 408 U.S. 238 (1972), the Court held that such unguided
discretion created arbitrary and capricious imposition of the death
penalty in violation of the Eighth Amendment's prohibition against cruel
and unusual punishment. While the Furman decision did not hold
that the death penalty, per se, violates the Eighth Amendment,
it, in effect, suspended executions and made federal and state death
penalty statutes inoperative until new laws were drafted which would
comply with the Constitution in light of Furman v. Georgia. The
execution of Gary Gilmore on January 17, 1977 was the first execution
since June 2, 1967. In the decade since Gilmore there have been more
than 60 executions. In the decade 1976-1986 over 3,000 people have been
sentenced to death in the United States. Between 1963 and 1985 the U.S.
did not execute a criminal who was under the age of 18 at the time of
the crime. Since then three have been executed. After
Furman many states enacted new death penalty statutes. In 1976,
the Court began to examine the post-Furman statutes and in Gregg
v. Georgia, 428 U.S. 153 (1976), it addresses the question avoided
in Furman, namely, is the imposition of the death penalty per
se unconstitutional? The Court in Gregg stated that it was
not unconstitutional, and began to set out guidelines for imposition of
the death penalty. a) The U.S.
Supreme Court held in Gregg v. Georgia that the Eighth Amendment,
which has been interpreted in a flexible manner to accord with
"evolving standards of decency," prohibits the death penalty
if it is grossly disproportionate to the crime or if it is imposed
arbitrarily or capriciously. The Court, however, upheld the Georgia
statute in Gregg because it was carefully drafted to ensure that
the sentencing authority was given adequate information and guidance.
The Georgia statute provides for a bifurcated trial in which the jury
first determines the defendant's guilt or innocence. At the sentencing
hearing, the jury then considers any mitigating and/or aggravating
circumstances in the case. Before the death penalty could be imposed the
jury had to find that one or more statutory aggravating factors existed
beyond a reasonable doubt and that such factors were not outweighed by
mitigating factors. b) In two
companion cases, the Court upheld the death penalty statutes of Florida
and Texas which provide that the judge or the jury is given specific and
detailed guidance to assist them in deciding whether to impose the death
sentence or life imprisonment. Proffit v. Florida, 428 U.S. 242 (1976);
Jurek v. Texas, 428 U.S. 262 (1976). Each statute guides and focuses the
sentencing authority's objective consideration of the particular
circumstances of the offense and the offender. c) The standards
necessary to guide the jury or judge in sentencing have focused on the
nature and circumstances of the crime and the character and record of
the defendant. Aggravating circumstances may include such issues as
whether the murder was committed by a convict or if the murder was
atrocious or heinous. Special attention has been given by the Supreme
Court to the mitigating factors. In Lockett v. Ohio, 438 U.S. 586
(1978), the Court struck down the Ohio death penalty statute which only
specified three factors to be considered in the mitigation of the
defendant's sentence. The Court found that the Eighth and Fourteenth
Amendments require that the sentencer, "not be precluded from
considering as a mitigating factor, any aspect of the defendant's record
or character and any of the circumstances of the offense...." Id.
at 604. In that case, the sentencing judge had been precluded by the
Ohio statute from considering as mitigating factors: the defendant's
lack of a prior criminal record; the fact that she was twenty-one; her
lack of specific intent to cause death; and her relatively minor part in
the crime. d) In Eddings
v. Oklahoma, 455 U.S. 104 (1982), the Court added that the states
must consider the background and mental and emotional development of the
defendant as mitigating factors. The defendant in Eddings had committed
a murder at the age of sixteen. The Court had granted the writ of
certiorari on the question of whether, in the light of contemporary
standards, the Eighth Amendment forbids the execution of a defendant who
was under eighteen at the time of the offense. The Court, however,
declined to address that issue. It decided the case instead in light of Lockett
v. Ohio, vacating the death sentence because it had been imposed
without the type of individualized consideration of mitigating factors
required by the Constitution. The Court's reversal of the death sentence
evidences the importance the Court attaches to mitigating evidence in
determining fair and just sentencing. The trial judge had refused to
take into account the defendant's unhappy childhood and unique emotional
disturbances. The Court's consideration of the mitigating evidence in
the case emphasized the defendant's youth, his "serious emotional
problems," his severe lack of the "care, concern and paternal
attention that children deserve," and his "neglectful,
sometimes even violent, family background." B. The juvenile
justice system in the United States 42.
The U.S. criminal justice system, since the beginning of the
twentieth century, has treated children differently than adults.
Reformers in the U.S. wished to abolish the harsh adult procedures and
sentences applied to children who had committed crimes. The belief was
that children should be treated and rehabilitated and therefore should
not be subjected to the "harshness" and "rigidity"
of the adult criminal law. (See, In re Gault, 387 U.S. 1, 15-16 (1967).)
a) Every state in
the United States has juvenile courts. The maximum age over which a
juvenile court has jurisdiction is set by the state legislature. The age
limits vary for juvenile jurisdiction, but most states set the limit
between sixteen and eighteen. The focus in juvenile court is on the
child's condition, not his guilt. Therefore, the purpose of a separate
juvenile justice system is to rehabilitate children and to make social
services available to help them. Punishment in juvenile court is not
stressed; the maximum sentence which can be imposed is institutional
confinement until the child reaches twenty-one years of age. b) Sometimes a
juvenile court may have jurisdiction but it may waive its right to hear
a case. The case is then brought before an adult criminal court. In some
states the prosecutor may have the discretion of choosing which court to
file in, but in most states the juvenile judge has the discretion of
deciding whether to transfer a case or not. In some cases the juvenile
may benefit from being transferred to criminal court. He is entitled to
all the constitutional protections of an adult, such as the right to a
jury trial and perhaps the ability to post bond if the jurisdiction
provides such measures. Juries may be more sympathetic to a youth in
criminal court. Nevertheless, because transfer to criminal court
subjects the accused juvenile to adult punishments, the transfer process
has been recognized as a critically important stage in juvenile court
proceedings. (See, Kent v. United States, 383 U.S. 541 (1966).) c) There is little
statutory guidance as to which children should be transferred for trial
in adult criminal court. The juvenile court judge is given a great deal
of discretion in determining who stays within the family court's
jurisdiction. Since Kent, many states have adopted objective criteria by
statute to be used in waiving juvenile jurisdiction. The two most common
criteria used are the age of the youth and the nature of the offense. d) Many states set
a minimum age at which a child cannot be transferred out of juvenile
court jurisdiction. The exact age limit varies from state to state, from
l3 years of age in Mississippi to l6 years in California. e) The nature of
the alleged offense and the accused's prior history of criminal activity
are also often used at a transfer hearing. For extremely serious crimes
such as murder, rape and aggravated assault, states will rarely retain
juvenile court jurisdiction. Such crimes are often used as objective
criteria to determine that the child is not amenable to treatment within
the juvenile system. Some states allow only for discretionary transfer
if the juvenile is accused of a felony (e.g., Colorado). Other states
such as Pennsylvania and Massachusetts have mandatory transfer
provisions which are triggered if a child over fourteen years has
allegedly committed murder. f) Some U.S.
states have no death penalty laws in force, others prohibit the death
penalty for juveniles. Fourteen states as of l985, specifically mention
age as a mitigating factor in their death penalty statutes. Indiana,
however, allows for the transfer of a l0 year old in certain cases to
adult criminal court. Indiana does not specify age as a mitigating
factor in its death penalty statute, but it may be considered under
"any other circumstances appropriate for consideration." Ind.
Code Ann. 35-50-2-9. Therefore, in Indiana it is possible that a ten
year old could receive the death penalty and be executed. V. OPINION OF
THE COMMISSION A. Point at
issue 43.
The question presented by the petitioners in the present case is
whether the absence of a federal prohibition within U.S. domestic law on
the execution of persons who committed serious crimes under the age of
18 is inconsistent with human rights standards applicable to the United
States under the inter-American system. Crimes
in the United States fall under either state or federal jurisdiction. A
defendant may be tried in federal court if he is charged with the
commission of a crime under federal law, or he may appeal to a federal
court from a state court under certain circumstances. A great deal of
autonomy has been left to the states in prescribing the appropriate
punishment for criminal conduct. However, all punishment must be in
conformity with the United States Constitution as interpreted by the
Supreme Court. B.
The international obligation of the United States under the
American Declaration 44.
The American Declaration is silent on the issue of capital
punishment. Article I of the American Declaration reads as follows: Every
human being has the right to life, liberty and the security of his
person. 45.
The American Convention on Human Rights, on the other hand,
refers specifically to capital punishment in five of its provisions.
Article 4 of the American Convention, which protects the right to life,
reads as follows: Article
4. Right to Life 1.
Every person has the right to have his life respected. This right
shall be protected by law and, in general, from the moment of
conception. No one shall be arbitrarily deprived of his life. 2.
In countries that have not abolished the death penalty, it may be
imposed only for the most serious crimes and pursuant to a final
judgment rendered by a competent court and in accordance with a law
establishing such punishment, enacted prior to the commission of the
crime. The application of such punishment shall not be extended to
crimes to which it does not presently apply. 3.
The death penalty shall not be reestablished in states that have
abolished it. 4.
In no case shall capital punishment be inflicted for political
offenses or related common crimes. 5.
Capital punishment shall not be imposed upon persons who, at the
time the crime was committed, were under 18 years of age or over 70
years of age; nor shall it be applied to pregnant women. 6.
Every person condemned to death shall have the right to apply for
amnesty, pardon, or commutation of sentence, which may be granted in all
cases. Capital punishment shall not be imposed while such a petition is
pending decision by the competent authority. 46.
The international obligation of the United States of America, as
a member of the Organization of American States (OAS), under the
jurisdiction of the Inter-American Commission on Human Rights is
governed by the Charter of the OAS (Bogotá, 1948), as amended by the
Protocol of Buenos Aires on 27 February 1967, ratified by the United
States on 23 April 1968. 47.
The United States is a member State of the Organization of
American States, but is not a State party to the American Convention on
Human Rights, and, therefore, cannot be found to be in violation of
Article 4(5) of the Convention, since as the Commission stated in Case
2141 (United States), para. 31: "it would be impossible to impose
upon the United States Government or that of any other State member of
the OAS, by means of 'interpretation,' an international obligation based
upon a treaty that such State has not duly accepted or ratified."[2]
48.
As a consequence of articles 3 j, 16, 51 e, 112 and 150 of the
Charter, the provisions of other instruments of the OAS on human rights
acquired binding force.[3].
Those instruments, approved with the vote of the U.S. Government, are
the following: -
American Declaration of the Rights and Duties of Man (Bogotá, 1948) -
Statute and Regulations of the IACHR 49.
The Statute provides that, for the purpose of such instruments,
the IACHR is the organ of the OAS entrusted with the competence to
promote the observance of and respect for human rights. For the purpose
of the Statute, human rights are understood to be the rights set forth
in the American Declaration in relation to States not parties to the
American Convention on Human Rights (San José, 1969). C. The
Petitioners' argument 50.
The central violation denounced in the petition concerns a
violation of the right to life, Article I of the Declaration, which
states: "Every human being has the right to life..." Since the
Declaration is silent on the issue of capital punishment, Petitioners,
in connection with Article I, seek an affirmative response to the
question: Is there a norm of customary international law which prohibits
the imposition of the death penalty on persons who committed capital
crimes before completing eighteen years of age? 51.
The elements of a norm of customary international law are the
following:[4]
a) a concordant
practice by a number of states with reference to a type of situation
falling within the domain of international relations; b) a continuation
or repetition of the practice over a considerable period of time; c) a conception
that the practice is required by or consistent with prevailing
international law; and d) general
acquiescence in the practice by other states. 52.
The evidence of a customary rule of international law requires
evidence of widespread state practice. Article 38 of the Statute of the
International Court of Justice (I.C.J.) defines "international
custom, as evidence of a general practice accepted as law." The
customary rule, however, does not bind States which protest the norm. In
the Fisheries Case (United Kingdom v. Norway) the I.C.J. found that
although the ...ten-mile
rule has been adopted by certain States both in their national law and
in their treaties and conventions, and although certain arbitral
decisions have applied it as between these States, other States have
adopted a different limit. Consequently, the ten-mile rule has not
acquired the authority of a general rule of law.[5]
How
many states need to engage in the state practice for it to acquire the
authority of a customary norm has never been definitively established,
but it is clear that while a universal practice is not necessary, the
practice must be common and widespread. 53.
The U.S. Government, in December 1977, transmitted the American
Convention on Human Rights, inter alia, to the U.S. Senate for
advice and consent to ratification subject to specified reservations. As
regards the issue in question, the U.S. Government proposed reservations
to Articles 4 and 5 which were presented as follows: Article
4 deals with the right to life generally, and includes provisions on
capital punishment. Many of the provisions of Article 4 are not in
accord with United States law and policy, or deal with matters in which
the law is unsettled. The Senate may wish to enter a reservation as
follows: "United States adherence to Article 4 is subject to the
Constitution and other law of the United States." [Article
[5)], [p]aragraph 5 requires that minors subject to criminal proceedings
are to be separated from adults and brought before specialized tribunals
as speedily as possible. (...) With respect to paragraph (5), the law
reserves the right to try minors as adults in certain cases and there is
no present intent to revise these laws. The following statement is
recommended: "The
United States (...) with respect to paragraph (5), reserves the right in
appropriate cases to subject minors to procedures and penalties
applicable to adults."[6]
54.
Since the United States has protested the norm, it would not be
applicable to the United States should it be held to exist. For a norm
of customary international law to be binding on a State which has
protested the norm, it must have acquired the status of jus cogens.[7]
Petitioners do not argue that a rule prohibiting the execution of
juvenile offenders has acquired the authority of jus cogens, a
peremptory norm of international law from which no derogation is
permitted. The Commission, however, is not a judicial body and is not
limited to considering only the submissions presented by the parties to
a dispute. D. General
principles applicable to the present case 55.
The concept of jus cogens is derived from ancient law
concepts of a "superior order" of legal norms, which the laws
of man or nations may not contravene. The norms of jus cogens
have been described by publicists as comprising "international
public policy." They are "rules which have been accepted,
either expressly by treaty or tacitly by custom, as being necessary to
protect the public interest of the society of States or to maintain the
standards of public morality recognized by them."[8]
According
to Ian Brownlie, the major distinguishing feature of rules of jus
cogens is their "relative indelibility." Brownlie suggests
certain examples of jus cogens such as: "the prohibition of
aggressive war, the law of genocide, the principle of racial
non-discrimination, crimes against humanity, and the rules prohibiting
trade in slaves and piracy."[9]
Since
the acceptance of norms of jus cogens is still subject to some
debate in some sectors, it might be argued that the International Court
of Justice did not consider the prohibition against genocide, for
example, to be a norm of jus cogens. It has been argued,[10]
however, that the World Court has made "indirect references"
to the concept of jus cogens, without actually calling it such by
name, in the advisory opinion on the Reservations to the Genocide
Convention case, in which the Court stated: ...that
the principles underlying the Convention are principles which are
recognized by civilized nations as binding on States, even without any
conventional obligation. The
rule prohibiting genocide would be binding on States not parties to the
Genocide Convention, even if derived only from customary international
law, without having acquired the status of jus cogens, but it
achieves the status of jus cogens precisely because it is the
kind of rule that it would shock the conscience of mankind and the
standards of public morality for a State to protest. The
International Court of Justice, in a later case, categorized the
prohibition of genocide as an obligation erga omnes. Whereas the
ICJ does not make reference to the concept jus cogens, it has
been suggested[11][
hat the examples given of obligations erga omnes are examples of
what the ICJ would consider to be norms of jus cogens. The
following distinction between obligations of a State vis-à-vis the
international community (erga omnes) and vis-à-vis another State
is taken from the judgment in the Barcelona Traction case: In
these circumstances it is logical that the Court should first address
itself to what was originally presented as the subject-matter of the
third preliminary objection: namely the question of the right of Belgium
to exercise diplomatic protection of Belgian shareholders in a company
which is a juristic entity incorporated in Canada, the measures
complained of having been taken in relation not to any Belgian national
but to the company itself. When
a State admits into its territory foreign investments or foreign
nationals, whether natural or juristic persons, it is bound to extend to
them the protection of the law and assumes obligations concerning the
treatment to be afforded them. These obligations, however, are neither
absolute nor unqualified. In particular, an essential distinction should
be drawn between the obligations of a State towards the international
community as a whole, and those arising vis-à-vis another State in the
field of diplomatic protection. By their very nature the former are the
concern of all States. In view of the importance of the rights involved,
all States can be held to have a legal interest in their protection;
they are obligations erga omnes. Such
obligations derive, for example, in contemporary international law, from
the outlawing of acts of aggression, and of genocide, as also from the
principles and rules concerning the basic rights of the human person,
including protection from slavery and racial discrimination. Some of the
corresponding rights of protection have entered into the body of general
international law (Reservations to the Convention on the Prevention
and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J.
Reports 1951, p. 23); others are conferred by international instruments
of a universal or quasi-universal character. Obligations
the performance of which is the subject of diplomatic protection are not
of the same category.[12] As
to whether "the principles and rules concerning the basic rights of
the human person" is intended to mean that all codified human
rights provisions contained in international treaties are embraced by
the concept of jus cogens is an issue that is both controversial
and beyond the scope of the matter presented for the Commission to
decide. 56.
The Commission finds that in the member States of the OAS there
is recognized a norm of jus cogens which prohibits the State
execution of children. This norm is accepted by all the States of the
inter-American system, including the United States. The response of the
U.S. Government to the petition in this case affirms that "[A]ll
states, moreover, have juvenile justice systems; none permits its
juvenile courts to impose the death penalty."[13]
57.
The Commission finds that this case arises, not because of doubt
concerning the existence of an international norm as to the prohibition
of the execution of children but because the United States disputes the
allegation that there exists consensus as regards the age of majority.
Specifically, what needs to be examined is the United States law and
practice, as adopted by different states, to transfer adolescents
charged with heinous crimes to adult criminal courts where they are
tried and may be sentenced as adults.[14][
58.
Since the federal Government of the United States has not
preempted this issue, under the U.S. constitutional system the
individual states are free to exercise their discretion as to whether or
not to allow capital punishment in their states and to determine the
minimum age at which a juvenile may be transferred to an adult criminal
court where the death penalty may be imposed. Thirteen states and the
U.S. capital have abolished the death penalty entirely.[15].
As regards the other states which have enacted death penalty statutes
since the Furman decision, these states have adopted death penalty
statutes which either l) prohibit the execution of persons who committed
capital crimes under the age of eighteen, or 2) allow for juveniles to
be transferred to adult criminal courts where they may be sentenced to
the death penalty. It is the discretion and practice of this second
group of states which has become the subject of our analysis. Whereas
approximately ten retentionist states have now enacted legislation
barring the execution of under-18 offenders, a hodge-podge of
legislation characterizes the other states which allow transfer of
juvenile offenders to adult courts from age 17 to as young as age 10,
and some states have no specific minimum age. The Indiana state statute
(supra) which allows a ten year old to be judged before an adult
criminal court and potentially sentenced to death shocks this
Commission. 59.
The juvenile justice system was established in the United States
at the turn of the century as a result of reformist efforts to mitigate
the harshness of the adult criminal justice system. Under common law,
children under the age of seven were conclusively presumed to have no
criminal capacity and for children from age seven to fourteen, the
presumption was rebuttable and the child could be convicted of a crime
and executed.[16] By a long series of statutory changes this age has
been steadily increased, and the age of criminal incapacity is now set
at 14 in most states. Consequently a child below the statutory age may
be prosecuted by an adult criminal court but would not be adjudged
responsible for a crime, the child would be adjudged a juvenile
delinquent. 60.
The Commission is convinced by the U.S. Government's argument
that there does not now exist a norm of customary international law
establishing 18 to be the minimum age for imposition of the death
penalty. Nonetheless, in light of the increasing numbers of States which
are ratifying the American Convention on Human Rights and the United
Nations Covenant on Civil and Political Rights, and modifying their
domestic legislation in conformity with these instruments, the norm is
emerging. As mentioned above, thirteen states and the U.S. capital have
abolished the death penalty entirely and nine retentionist states[17]
have abolished it for offenders under the age of 18. 61.
The Commission, however, does not find the age question
dispositive of the issue before it, which is whether the absence of a
federal prohibition within U.S. domestic law on the execution of
juveniles, who committed serious crimes under the age of 18, is in
violation of the American Declaration. 62.
The Commission finds that the diversity of state practice in the
U.S.--reflected in the fact that some states have abolished the death
penalty, while others allow a potential threshold limit of applicability
as low as 10 years of age--results in very different sentences for the
commission of the same crime. The deprivation by the State of an
offender's life should not be made subject to the fortuitous element of
where the crime took place. Under the present system of laws in the
United States, a hypothetical sixteen year old who commits a capital
offense in Virginia may potentially be subject to the death penalty,
whereas if the same individual commits the same offense on the other
side of the Memorial Bridge, in Washington, D.C., where the death
penalty has been abolished for adults as well as for juveniles, the
sentence will not be death. 63.
For the federal Government of the United States to leave the
issue of the application of the death penalty to juveniles to the
discretion of state officials results in a patchwork scheme of
legislation which makes the severity of the punishment dependent, not,
primarily, on the nature of the crime committed, but on the location
where it was committed. Ceding to state legislatures the determination
of whether a juvenile may be executed is not of the same category as
granting states the discretion to determine the age of majority for
purposes of purchasing alcoholic beverages or consenting to matrimony.
The failure of the federal government to preempt the states as regards
this most fundamental right--the right to life--results in a pattern of
legislative arbitrariness throughout the United States which results in
the arbitrary deprivation of life and inequality before the law,
contrary to Articles I and II of the American Declaration of the Rights
and Duties of Man, respectively. CONCLUSION
64.
The Commission concludes, by 5 votes to 1, that the United States
Government violated Article I (right to life) of the American
Declaration of the Rights and Duties of Man in executing James Terry
Roach and Jay Pinkerton. 65.
The Commission concludes, by 5 votes to 1 that the United States
Government violated Article II (right to equality before the law) of the
American Declaration of the Rights and Duties of Man in executing James
Terry Roach and Jay Pinkerton. DISSENTING
OPINION OF DR. MARCO GERARDO MONROY CABRA, MEMBER
OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS Before
explaining the reasons for my dissenting opinion, I must first make some
general observations. In this Case Nº 9647, there is no discussion as
regards the facts that are accepted by the United States Government, and
which are that James Terry Roach and Jay Pinkerton were sentenced to
death and executed in the United States for crimes for which they were
tried and which they committed before the age of 18. However, since the
United States is not a State Party to the American Convention on Human
Rights, Article 20 of the Statute of the Inter-American Commission on
Human Rights, approved through Resolution Nº 447, applies. That
resolution, which was adopted by the OAS General Assembly on October 31,
1979, establishes the following as falling within the competence of the
Commission: "b) to examine communications submitted to it and any
other available information, to address the government of any member
state not a Party to the Convention for information deemed pertinent by
this Commission, and to make recommendations to it, when it finds this
appropriate, in order to bring about more effective observance of
fundamental human rights". With regard to the principle of human
rights that should be applied: "2. For the purposes of the present
Statute, human rights are understood to be: (a) The rights set forth in
the American Convention on Human Rights, in relation to the States
parties thereto; (b) The rights set forth in the American Declaration
of the Rights and Duties of Man, in relation to the other member
states." This means that since the United States is not a State
Party to the American Convention, the question of whether or not a human
rights violation has occurred with respect to the petitioners must be
examined in the light of the American Declaration of the Rights and
Duties of Man. I should also note that this case was processed in
accordance with Chapter III "Petitions concerning States that are
not Parties to the American Convention on Human Rights" (Art. 48
through 50) of the current Regulations of the Inter-American Commission
on Human Rights, approved by the Commission at its meeting on April 8,
1980 during the 49th regular session. The
task therefore is to determine whether the sentences handed down by the
United States courts violated articles l and 2 of the American
Declaration of the Rights and Duties of Man by imposing the death
penalty on persons who committed capital crimes while under 18 years of
age. To interpret the 1948 American Declaration of the Rights and Duties
of Man, the Inter-American Commission on Human Rights referred, in its
majority decision, to customary international law and to jus cogens.
I must therefore refer to these aspects. It
must, however, be made clear that the aim is not to use this case to
determine generally whether or not U.S. laws on the death penalty
violate customary international law, since the Commission is not
empowered to issue advisory opinions; rather it must only interpret the
American Declaration of the Rights and Duties of Man, for which it can
refer to general international law. The Commission has said that in this
case "the only point at issue is whether the absence of a federal
prohibition within U.S. domestic law on the execution of juveniles who
committed serious crimes under the age of 18 is inconsistent with human
rights standards applicable to the United States under the
inter-American system"?. In my view, this is not the problem. The
case consists of examining whether or not the human rights of
petitioners James Terry Roach and Jay Pinkerton were violated, under the
terms of the 1948 American Declaration of the Rights and Duties of Man.
This is an individual case that was processed by the Commission
according to the Regulations in effect for States not Parties to the
American Convention on Human Rights, and therefore, there is no reason
to address the matter of compatibility between U.S. federal or state
legislation and general international law. This aspect does not lie
within the sphere of competence of the Commission, which could not make
general observations and recommendations when ruling on a case,
especially since it does not have judicial functions. In
light of the foregoing, I wish to explain the legal reasons that
influenced my decision not to join in the Commission's majority
decision: 1.
THE US APPLICATION OF THE DEATH PENALTY TO JUVENILES DOES NOT
VIOLATE THE AMERICAN DECLARATION OF THE RIGHTS AND DUTIES OF MAN Article
l of the American Declaration of the Rights and Duties of Man approved
by the IX International Conference of American States held in Bogota
from March 30 through May 2, 1948, and included in the Final Act of the
Conference states: "Every human being has the right to life,
liberty and the security of his person." This article makes no
reference, either explicitly or implicitly, to prohibition of the death
penalty with respect to minors. The draft of the Inter-American
Juridical Committee included the following as Article l: "Every
person has the right to life. This right extends to the right to life of
incurables, imbeciles and the insane. Capital
punishment may only be applied in cases in which it has been prescribed
by pre-existing law for crimes of exceptional gravity." After
discussion, the IX Conference decided to omit any reference to the death
penalty and to change the wording proposed by the Inter-American
Juridical Committee. Article 1, therefore, was drafted in its present
form, making no reference to the death penalty. A close look at the
preparatory work leads to the unmistakable conclusion that the States
participating in the IX International Conference of American States in
Bogota in 1948 did not wish to preclude the death penalty since,
otherwise, they would have agreed on its prohibition and, consequently,
approve the text by the Inter-American Juridical Committee, which
confined its application to crimes of exceptional gravity. An
interpretation of Article 1 in the light of its current meaning, while
taking into account the preparatory work recorded in the Proceedings of
the Conference, the specific deletion of the provision concerning the
death penalty would allow one to conclude that the American Declaration
of the Rights and Duties of Man did not regulate the matter of the death
penalty, and of course, far less did it include any provision on the
general or specific proscription of its application in the case of
juveniles. One might therefore conclude, with regard to this first
aspect, that if the American Declaration of the Rights and Duties of Man
remained silent on the death penalty and did not approve the draft that
included it, the United States can establish the death penalty without
violating Article l or any other standard in the aforecited American
Declaration of the Rights and Duties of Man. 2.
IN THIS CASE, IT IS NOT POSSIBLE TO APPLY TREATIES NOT IN EFFECT
FOR THE UNITED STATES The
United States is a member of the Organization of American States (OAS)
since it ratified the OAS Charter amended by the 1967 Protocol of Buenos
Aires when it deposited the instrument of ratification on April 23,
1968. As the Charter establishes, the Inter-American Commission on Human
Rights is an organ of the OAS. The United States is bound by the Statute
and the Regulations of the Inter-American Commission on Human Rights.
The United States is also bound by the American Declaration of the
Rights and Duties of Man, which as has been seen, does not prohibit the
death penalty and remains silent on this matter. But the United States
has not ratified the 1969 American Convention on Human Rights,
"Pact of San José, Costa Rica", and therefore, is not bound
by Article 4.5, which states: "Capital punishment shall not be
imposed upon persons who, at the time the crime was committed, were
under 18 years of age or over 70 years of age; nor shall it be applied
to pregnant women." In
December of 1977, the United States Government sent the American
Convention on Human Rights to the Senate for its approval and subsequent
ratification. At the same time, it suggested making certain
"reservations". With regard to Articles 4 and 5, it proposed
the following reservations. "Article 4 deals with the right to life
generally, and includes provisions on capital punishment. Many of the
provisions of Article 4 are not in accord with United States law and
policy, or deal with matters in which the law is still unsettled. The
Senate may wish to enter a reservation as follows: 'United States
adherence to Article 4 is subject to the Constitution and other law of
the United States.'" Article
5, "[P]aragraph (5) requires that minors subject to criminal
proceedings are to be separated from adults and brought before
specialized tribunals as speedily as possible." "With respect
to paragraph 5, the law reserves the right to try minors as adults in
certain cases and there is no present intent to revise these laws. The
following statement is recommended: 'The United States... with respect
to paragraph 5, reserves the right in appropriate cases to subject
minors to procedures and penalties applicable to adults'" (United
States State Department, publication 8961, General Foreign Policy Series
310, November 1978). This means that articles 4 and 5 cannot be applied
to the United States, since it has stated specifically that even if it
ratified the Convention, it would make reservations on those provisions.
Treaties
do not engender obligations for third states without their consent. The
United States Government is therefore not obliged to comply with the
provisions of Article 4.5 of the American Convention on Human Rights.
Also, the United States has not ratified the International Covenant on
Civil and Political Rights, adopted and opened for signature,
ratification and accession by the United Nations General Assembly on
December 16, 1966 in its resolution 2200 A (XXI), and which entered into
effect on March 23, 1976. Under these conditions, the United States is
not obliged to comply with the provisions of Article 6.5 of that
Covenant, which states: "Sentence 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." The
United States is only bound by the Fourth Geneva Convention, which
states in its Article 68: "In any case, the death penalty may not
be pronounced on a protected person who was under eighteen years of age
at the time of the offence." However, this treaty applies only in
international conflicts, and therefore, cannot be applied for the
execution of juveniles in the United States in times of normalcy and in
the absence of an international conflict. IN
CONCLUSION - Neither the American Convention on Human Rights (Article 4
[5]), nor the International Covenant on Civil and Political Rights (Art
6 [5]), nor the Fourth Geneva Convention (Art. 68) is applicable to the
pronouncement of the death penalty with respect to minors under 18 in
the United States. 3.
THERE IS NO EXISTING RULE IN CUSTOMARY INTERNATIONAL LAW
PROHIBITING THE IMPOSITION OF THE DEATH PENALTY WITH RESPECT TO
JUVENILES Article
38 of the Statute of the International Court of Justice lists as a
source of international law: "(b) international custom, as evidence
of a general practice accepted as law". Max Sorensen states the
following (Manual of Public International Law, St. Martin's Press, New
York, 1968, page 130): "This formula has been criticized often
because it reverses the logical order of events; in practice, in order
to prove the existence of a customary rule, it is necessary to show that
there exists a 'general practice' which conforms to the rule and which
is 'accepted as law'. Custom is the direct product of the necessities of
international life. It arises when states acquire the habit of adopting,
with respect to a given situation, and whenever that situation recurs, a
given attitude to which legal significance is attributed." Ch.
Rousseau, Professor of international law (Derecho Internacional Público
Profundizado, La Ley, Buenos Aires, 1966, pages 96-97) lists three
characteristics of custom: "a) It is above all the expression of a
common practice, resulting from precedents, in other words, from the
repetition of conclusive acts; b) Second, custom presents itself as an
obligatory practice, that is to say, it must be accepted as law, as
corresponding to a legal need. In the absence of this psychological
element, there would be no customary rule but rather a purely nonbinding
custom or practice of international courtesy; c) Finally, international
custom is a practice that evolves". A
generalized and uniform practice does not suffice; of vital importance
is the opinio juris. In the judgment on the North Sea Continental
Shelf Case, the International Court of Justice said the following on the
requirement of the subjective element and opinio juris: "Not
only must the acts concerned amount to a settled practice, but they must
also be such, or be carried out in such a way, as to be evidence of a
belief that this practice is rendered obligatory by the existence of a
rule of law requiring it. The need for such a belief, i.e., the
existence of a subjective element, is implicit in the very notion of the
opinio juris sive necessitatis. The States concerned must
therefore feel that they are conforming to what amounts to a legal
obligation. The frequency, or even habitual character of the acts is not
in itself enough. There are many international acts, e.g., in the field
of ceremonial and protocol, which are performed almost invariably, but
which are motivated only by considerations of courtesy, convenience or
tradition, and not by any sense of legal duty." (I.C.J. Reports,
1969, page 44). According to Professor of international law, Eduardo Jiménez
de Arechaga, (El Derecho Internacional Contemporáneo, Publishers:
Tecnos, Madrid, 1980, pages 19 et seq), customary law, which finds its
expression in treaties, can operate in three different ways: the text of
the treaty can simply declare a customary rule that existed previously;
it can give concrete expression to a rule that is developing in statu
nascendi; or, the provision of a treaty can convert de lege
ferenda to a subsequent state practice after a process of
consolidation whereupon it converts to custom. In other cases, the
custom can derive from the consensus of states in adopting United
Nations General Assembly resolutions, as in the case of the 1970
Declaration on Principles of International Law concerning Friendly
Relations and Cooperation among States in accordance with the Charter of
the United Nations, or the 1963 Declaration of Legal Principles
Governing the Activities of States in the Exploration and Use of Outer
Space, or Resolution 1514 on the Granting of Independence to Colonial
Countries and Peoples, etc. According
to Sorensen (op cit. p. 133), it is not possible to speak of a custom as
general if its observance is confined to a particular group of states.
This means that an essential requirement concerning custom is that it
should derive from the community of States as a whole. Sorensen notes
that: "A custom cannot be transformed into a rule of law if it
encounters opposition of a proportion of the states comprising the
international community or, as the case may be, the region or group
within which it is in operation. For in such a case the requisite is not
forthcoming" (op cit p. 135). This implies that the opposition of a
number of states thwarts the formation of a general customary rule. The
application of the foregoing principles to Case 9647 shows, in my view,
the nonexistence of a general rule of customary law prohibiting the
application of the death penalty on persons who committed capital crimes
under 18 years of age. This conclusion is drawn from the following
analysis: The
fact that prohibition of the death penalty with respect to juveniles
under 18 years of age appears in the American Convention on Human Rights
(Article 4.5), in the International Covenant on Civilian and Political
Rights (Article 6.5) and in the Fourth Geneva Convention (Art. 68) does
not mean that these treaties have declared an existing custom or have
crystallized or reflected a custom. The only thing that can be accepted
is the generating effect de lege ferenda, which can lead to the
development of the custom if state practice in the matter is
consolidated. With regard to the prohibition of the death penalty, there
is no uniformity in the laws of states, since some allow it and others
prohibit it; further, some prohibit the death penalty in the case of
minors, and others accept it or remain silent on the subject. It is
possible that with time, the practice of States will lead to the
emergence of the custom in the instant case, but at present, it is not
an international custom. The
practice and the laws of states with regard to the death penalty in
general and in relation to minors show variations and discrepancies.
Ultimately, one sees a lack of continuity, and contrary to the
Commission's mistaken view, it is not possible to find standard and
constant application of it practiced with the intent of producing legal
effects. There is no proof to the effect that all states worldwide feel
bound by an obligatory rule of customary law prohibiting the death
penalty with respect to juveniles under 18 years of age given the fact
that the laws of the states are not even uniform as regards the age at
which an individual is punishable. In
fact, there is no evidence of opinio juris, that is to say,
demonstration of state practice that has led to non application of the
death penalty with respect to minors under 18 years of age, or that this
has been a practice for a long time. Moreover,
one must bear in mind that not only has the United States not given its
consent to the development of the so-called custom; but rather it has
not been proven that uniformity exists, not even with respect to the
abolition of the death penalty. In the matter of the Barcelona Traction
case, the International Court of Justice said that "a body of rules
could only have developed with the consent of the parties concerned. The
difficulties encountered have been reflected in the evolution of the law
on the subject." (I.C.J. Reports, 1970, page 48, par. 89). Nor can
one speak in terms of local American custom, since the American
Convention on Human Rights has only been ratified by 19 of the 32 states
in the Americas, an indication that there is no standard practice in the
Americas regarding the prohibition of the death penalty, and even less
so with regard to juveniles. The International Covenant on Civil and
Political Rights has not yet been ratified by all states worldwide, and
the Fourth Geneva Convention (art. 68), which has received 162
ratifications, only applies to international armed conflicts, and
consequently, cannot be considered to be a demonstration of a custom in
time of peace. IN
CONCLUSION - It was not proven that a widespread and uniform practice
exists on the part of states, or the opinio juris or conviction
that that practice has become obligatory because of the existence of a
norm prohibiting the death penalty with respect to minors under 18 years
of age. This custom does not derive from state practice, or from the
provisions of public treaties that have not been ratified by all states.
One cannot therefore consider that there is consensus on this matter. 4.
PROHIBITION OF THE DEATH PENALTY WITH RESPECT TO MINORS UNDER 18
YEARS OF AGE IS NOT A NORM OF JUS COGENS Article
53 of the Vienna Convention on the Law of Treaties defines jus cogens
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." In
its reference to reservations on genocide (May 28, 1951), the I.C.J.
said that "the principles underlying the Convention are principles
which are recognized by civilized nations as binding on States, even
without any conventional obligation." The Shucking opinion in 1934
relies on ius cogens (C.D.L. Report, 80). The
following appeared as examples of jus cogens at the Vienna
Conference on the Law of Treaties: a) Treaty concerning a case of the
illegitimate use of force in violation of the principles of the Charter;
b) Treaty concerning the perpetration of any other criminal act in
international law; and c) Treaty to prohibit the perpetration or
tolerance of such acts as the slave trade, piracy and genocide in the
suppression of which every State is obliged to cooperate. While human
rights standards constitute principles of jus cogens, as we have
said in our publication on human rights (Los Derechos Humanos,
Marco Gerardo Monroy Cabra, Edit. Temis, 1980), the prohibition of the
death penalty with respect to juveniles under 18 years of age is not in
the nature of a norm of jus cogens. Indeed, it has not been
proven that uniformity exists, since not all states prohibit the death
penalty and not all States prohibit the pronouncement of it with respect
to minors under 18 years of age. While there is undoubtedly a tendency
towards abolishing the death penalty, it cannot be said that the
prohibition of the death penalty for minors under 18 years of age is a
norm that has been accepted by the international community as a whole,
and consequently, a norm of jus cogens has not been created. The
prohibition of the death penalty with respect to minors under 18 years
of age cannot be compared with the cases cited at the Vienna Conference,
such as the prohibition of piracy or slavery or the white slave trade or
racial discrimination or the prohibition of genocide, since in all these
cases, all states prohibit them. Such is not the case here. The death
penalty is still recognized by a considerable number of States. One
cannot speak in terms of the existence of a norm of jus cogens in
effect for the OAS member States since the American Convention on Human
Rights, which prohibits the execution of minors under 18 years of age,
has only been ratified by 19 States. Also, there are reservations on the
matter of the death penalty and it is not a norm that has been accepted
by the 32 American states, and far less by all states worldwide. By
virtue of this fact, it is therefore not a general imperative norm. One
need hardly point out that there can be no " American jus cogens"
or "Africani jus cogens", etc. Rather, one must be in
the presence of an imperative norm that has gained acceptance in the
international community "as a whole", as the Vienna Convention
on the Law of Treaties states in its Article 53. Not
even in the United States is there a rule setting age 18 as the minimum
age for imposition of the death penalty, and to date, the Supreme Court
of Justice has not declared such application unconstitutional. The
punishable age is not uniform among states since some set it at age 16,
others at 17, and others at 18. This means that there is no standard
legislation among states as regards the minimum punishable age or the
minimum age for imposition of the death penalty. IN
CONCLUSION - It cannot be inferred from either the practice of states,
or from international jurisprudence, or from doctrine, or from the laws
of the states that a norm of jus cogens prohibiting the imposition of
the death penalty with respect to minors under 18 years of age has come
into existence. While human rights standards are of jus cogens,
specifically the prohibition of the death penalty and its application to
minors under 18 years of age do not constitute an imperative norm of
general international law since it has not been accepted by all states
that make up the international legal community. 5.
THERE HAS BEEN NO VIOLATION OF ARTICLE 2 OF THE AMERICAN
DECLARATION OF THE RIGHTS AND DUTIES OF MAN Article
2 of the American Declaration of the Rights and Duties of Man states:
"All persons are equal before the law and have the rights and
duties established in this Declaration, without distinction as to race,
sex, language, creed or any other factor." I
do not consider the imposition of the death penalty with respect to
minors under 18 years of age to constitute a violation of Article 2 of
the American Declaration of the Rights and Duties of Man, because there
is no federal law in the United States establishing such a prohibition
and the laws of the States are not uniform in this matter. We are not
discussing here the arbitrary deprivation of life because there is no
federal law in the United States setting the death penalty for minors
under 18 years of age; neither is there any prohibition in conventional
international law applicable to the United States, nor in customary
international either, as previously demonstrated. 6.
INTERPRETATION OF THE AMERICAN DECLARATION OF THE RIGHTS AND
DUTIES OF MAN DONE BY THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS The
Commission used the Vienna Convention on the Law of Treaties in order to
interpret the American Declaration of the Rights and Duties of Man,
which is a mistake since the Declaration is not a public treaty, not
having gone through the necessary stages for the adoption,
authentication, manifestation of consent to abide by the treaty, entry
into force, registry and publication of any international treaty. Also,
in interpreting the Declaration, the Commission did not attribute any
value to the preparatory work leading upt to the American Declaration of
the Rights and Duties of Man contained in the Proceedings of the IX
International Conference of American States held in Bogota in 1948. If
this background had been taken into account, it would have concluded
that there was a consensus to delete any reference to the death penalty
from Article 1 in view of the differences that existed among the States
on this matter. The
Commission interpreted Article XXVI of the Declaration prohibiting the
imposition of "cruel, infamous or unusual punishment," as
though this provision prohibited the execution of minors, when this
conclusion cannot be drawn from the background and discussions
concerning the American Declaration of the Rights and Duties of Man
recorded in the Proceedings of the IX International Conference of
American States in Bogota. Furthermore, given the fact that some
American states applied the death penalty in 1948, it cannot be said
that at that time it was considered cruel, infamous or unusual
punishment. To
interpret the 1948 American Declaration of the Rights and Duties of Man,
the Commission resorted to an analysis of customary international law,
but it has already been ascertained that the petitioners have not proven
that such a custom exists. The
American Declaration of the Rights and Duties of Man cannot be
interpreted in the light of the provisions of the American Convention on
Human Rights, the International Covenant on Civil and Political Rights
and other treaties on human rights because these treaties are subsequent
to the aforecited Declaration and are only binding for States Parties to
them. The
erroneous interpretation of the 1948 American Declaration of the Rights
and Duties of Man led the Commission to conclude that the Declaration
prohibits the death penalty with respect to minors under 18 years of age
when this conclusion cannot be drawn from either the letter or spirit of
the Declaration. In
interpreting the American Declaration of the Rights and Duties of Man
issued in 1948, the Commission could hardly use the practice of states
as it stands in 1987, customary international law in effect today, the
current notion of jus cogens, when the truth is that when drafting that
Declaration, the States were not in agreement on prohibiting the death
penalty as is apparent from the fact that the pertinent reference was
deleted from the Inter-American Juridical Committee's draft. The only
point that the Commission should have studied was whether the rights of
James Terry Roach and Jay Pinkerton had been disregarded, under the
terms of the American Declaration of the Rights and Duties of Man. It
was not relevant to analyze whether or not the absence of a federal law
in the United States establishing that prohibition of the death penalty
with respect to minors violated customary international law, because the
Commission is not an international tribunal, or whether U.S. legislation
is in conflict with with jus cogens, because this was not
requested by the petitioners and is beyond the purview of the
Commission. In this case, it could only apply the American Declaration
of the Rights and Duties of Man because it is the sole international
human rights instrument that is binding on the United States. But
even if one were to accept that the Commission could resort to customary
international law or to jus cogens to interpret the Declaration, one
cannot conclude that the United States violated articles 1 and 2 of that
Declaration or any norm of general customary international law, since no
violation in this regard has been proven in this case. 7.
CONCLUSIONS The
following conclusions can be drawn from the foregoing: a) the imposition
of the death penalty by state courts in the United States with respect
to minors under 18 years of age does not violate articles 1 and 2 of the
American Declaration of the Rights and Duties of Man; b) the imposition
of the death penalty with respect to minors under 18 years of age does
not violate customary international law since there is no custom in this
matter, and c) the prohibition of the death penalty with respect to
minors under 18 years of age is not a norm of jus cogens since it
has not been accepted by the international community as a whole. In
accordance with the foregoing, the Inter-American Commission on Human
Rights should have exonerated the United States from the charges levied
against it by the petitioners. It
is thus that I substantiate my dissenting vote as regards the decision
adopted by the Inter-American Commission on Human Rights. (signed)
MARCO GERARDO MONROY CABRA Member
of the Inter-American Commission on Human Rights The
United States requested reconsideration of Case Nº 9647. During the 71st
period of sessions the Commission received the request for
reconsideration, which it granted, and by a majority vote, decided not
to modify its decision. In a separate publication, the Commission will
present the text of the U.S. Government's request for reconsideration,
the observations of the petitioners, the reasons of the Commission for
not modifying its decision, and the separate opinion of Dr. Monroy
Cabra. Ambassador Elsa D. Kelly did not participate at this meeting. Mr.
Bruce McColm, pursuant to Article 19 of the Commission's Regulations,
did not participate in this matter.
[1]
First capital case reviewed under the current death penalty
statutes. [2]
Case 2141 (United States) Res. 23/81 of 6 March 1981
OAS/Ser.L/V/II.52, doc. 48, para. 16 (1981) in 1980-1981 Annual
Report of the Inter-American Commission on Human Rights
OEA/Ser.L/V/II.54, doc. 9, rev. 1 (16 October 1981) at 25 et seq.,
and also in OAS, Inter-American Commission on Human Rights, Ten
Years of Activities, 1971-1981 (1982) at 186 et seq. [3]
See, Thomas Buergenthal "The Revised OAS Charter and the
Protection of Human Rights," 69 AJIL 828 (1975) and Case 2141
(supra). [4]
See, Yearbook of the International Law Commission, 1950, II, 26,
para. 11. [5]
Fisheries Case, (UK/Norway) Judgment of December 18, 1951: I.C.J.
Reports 1951, p. 116 at 131. [6]
U.S. Department of State Publication 8961, General Foreign Policy
Series 310, Letters of Transmittal and Submittal, with suggested
reservations, understandings, and declarations (November 1978). [7]
Theconcept of jus cogens is included in Article 53 of the
Vienna Convention on the Law of Treaties which states: "A
treaty is void if, at the time of its conclusion, it conflicts with
a peremptory norm of general international law. For the purposes of
the present Convention, a peremptory norm of general international
law is 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." [8]
See, Sir Ian Sinclair: The Vienna Convention on the Law of Treaties,
Manchester U. Press, (1973) at 208. [9]
See, Ian Brownlie: Principles of Public International Law, Clarendon
Press, Oxford (1979) at 513. [10]
See, Sinclair, op. cit, (supra) at 210. [11]
Sinclair makes this argument, op. cit. at 212. [12]
Barcelona Traction, Light and Power Company, Ltd., Judgment, I.C.J.:
Reports 1970, at 32. [13]
Case 9647: Response of the U.S. Government dated July 15, 1986, at
2. [14]
The Commission is not unaware of the serious problems posed by
juvenile crime in the United States. According to FBI statistics,
1,311 juveniles were arrested for murder in the U.S. in 1985 which
represents almost 10% of all homicide arrests. Most of those
arrested were 16 or 17 years of age. (See, Newsweek:
"Children who kill" November 24, 1986). Officials at the
National Center for Juvenile Justice in Pittsburgh have reported
that from 1978-1983 the fastest growing areas in juvenile crime were
among younger age groups (i.e. 10 to 13 year olds) which are being
referred to juvenile courts at rates of increase up to 38% for 12
year olds. (See, Peter Applebome: "Juvenile Crime: The
Offenders are Younger and the Offenses More Serious" New
York Times, February 3, 1987). None of the juvenile offenders
currently on death row committed the crime for which s/he was
sentenced to death under the age of 15. (See, Tom Seligson:
"Are They Too Young to Die?" The Washington Post
Magazine, October 19, 1986). [15]
These include: Alaska, the District of Columbia, Hawaii, Iowa,
Kansas, Maine, Massachusetts, Michigan, Minnesota, New York, North
Dakota, Rhode Island, West Virginia and Wisconsin. [16]
The execution of juvenile offenders is not a new phenomenon. During
the first thirty years of the juvenile justice system in the United
States (1900-1930) seventy-seven persons were executed for crimes
committed while under the age of eighteen. See, Victor L. Streib:
"Death Penalty for Children: The American Experience with
Capital Punishment for Crimes Committed while Under Age
Eighteen" 36 Oklahoma Law Review 613 (1983). [17]
These states are: California, Colorado, Connecticut, Illinois,
Nebraska, New Jersey, New Mexico, Ohio, and Tennessee.
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