Academic journal article Albany Law Review

Briefly Resuscitating the Great Writ: The International Court of Justice and the U.S. Death Penalty

Academic journal article Albany Law Review

Briefly Resuscitating the Great Writ: The International Court of Justice and the U.S. Death Penalty

Article excerpt


A single judgment of a non-U.S. court, the International Court of Justice (ICJ) in The Hague, tackled troubling aspects of the post-conviction death penalty process in the United States. The ICJ decision, Avena, (1) had altered U.S. death penalty jurisprudence beyond what even the U.S. Supreme Court seemed willing to do. (2) The ICJ, the principal judicial organ of the United Nations that sits thousands of miles from the U.S. coast, took direct aim at procedural hurdles in the U.S. system that have denied meaningful review of arguably meritorious claims. In addition to exposing flaws, the ICJ's judgment in Avena required the United States to take corrective measures. The reach of Avena ran from state trial courts to the U.S. Supreme Court, from the office of state governors to the office of the U.S. President.

Avena had the potential for making an impact greater than Atkins v. Virginia (3) and Roper v. Simmons, (4) recent U.S. Supreme Court cases involving the death penalty which have captured considerable attention for their citation to foreign precedent. My remarks address this observation. They also raise concerns about whether the promise of Avena can be fully realized given fairly entrenched principles of U.S. habeas jurisprudence. In fact, on the eve of the publication of these remarks, the U.S. Supreme Court issued its ruling about domestic implementation of Avena. The effect of the ruling is briefly addressed in a postscript to this paper.


As this symposium focuses on the citation to foreign precedent in U.S. jurisprudence, at the outset, I would like to provide some thoughts on the topic in general and then briefly address how the ICJ fits into the discussion. Judges, government officials, and academics seem preoccupied, nearly obsessed, with the role of international law or foreign law in the U.S. system. The debate de jour is whether U.S. courts are authorized to cite to foreign court decisions or foreign opinion to give meaning to the U.S. Constitution. A well-demarcated line has been drawn. On the one hand are those who believe U.S. courts should not consider foreign law in interpreting the Constitution. (5) On the other hand are those who recognize that foreign decisions may provide useful insight into certain aspects of the Constitution. (6)

With the line drawn, the sides seem to be talking past each other. The dialogue is reminiscent of the endless discussion on whether, in interpreting the Constitution, the Court can look beyond the founders' original intention. (7) The "foreign" aspect has added a touch of xenophobia as U.S. judges who look beyond U.S. borders are accused of "impos[ing] foreign moods, fads, or fashions on Americans." (8)

Even participants in the fury have suggested that the matter has the makings of a tempest in the teapot. Justice Stephen Breyer reasonably asks about the harm in "opening your eyes to things that are going on elsewhere" and using that information "for what it's worth." (9) Further, while looking at foreign precedent may be "dramatic ... it isn't really the important issue." (10) Indeed, amid the big fuss, and perhaps lost in the sea of over-reaction and hype, is that foreign law and international law are finding their way into U.S. jurisprudence in a meaningful manner because they are central to resolution of specific disputes before U.S. courts.

The decision of one non-U.S. tribunal in particular, the ICJ in The Hague, has affected a controversial area of U.S law with substantial constitutional implications, the death penalty. Invoking the ICJ into the debate on foreign precedent may seem odd. First, the ICJ is not a "foreign" court that applies foreign law; it is the principal judicial organ of the United Nations that, among other responsibilities, resolves disputes between states consistent with the ICJ Statute. (11) Some of those who have raised questions about the use of foreign law to interpret the Constitution, however, also object to the "[e]levated [u]se of [i]nternational [s]ources. …

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