International Law, U.S. Sovereignty, and the Death Penalty
Rothenberg, Laurence E., Georgetown Journal of International Law
The use of the death penalty in the United States has lately become a subject of diplomacy, international activism, and litigation in international forums. The European Union routinely protests executions and presented the U.S. government with a demarche on the subject in 2000. (1) U.S. and international non-governmental organizations have made appeals to international law and international public opinion to claim that the United States is both morally and legally obligated to end the practice. (2) Furthermore, Paraguay, Germany, and Mexico have sued the United States in the International Court of Justice (ICJ, or World Court) to prevent execution of their citizens on death rows in U.S. states. (3)
This Article does not seek to provide an exhaustive treatment of international law on the death penalty but, rather, examines the relationship between U.S. and international law on the subject. The Article argues that the sovereignty of the United States (4) regarding a significant aspect of its criminal justice system is threatened on three levels--first, by unsupportable claims that international law prohibits the death penalty; second, by the insinuation of international and foreign law into U.S. judicial decision-making regarding certain aspects of death penalty administration; and, third, by intrusion on U.S. sovereign authority to determine the operation of its criminal justice system by an international tribunal, the World Court.
Part II of this Article therefore examines international treaties to show that most multilateral human rights instruments do not prohibit the death penalty, and those that do are not binding on the United States. Likewise, it shows that no rule of customary international law (CIL) against the death penalty exists, and if such a norm does exist, it does not apply to the United States or, most importantly, directly in U.S. courts. Part III examines international and foreign law issues in U.S. jurisprudence raised by the execution of juveniles, the execution of the mentally handicapped, and the so-called "death row phenomenon." Part 1V critically reviews recent litigation in the ICJ regarding the Vienna Convention on Consular Relations (5) and demonstrates that the Convention does not require the overturning of convictions and death sentences in the United States. Part V, in conclusion, analyzes the dangers of selective reliance on international and foreign law in determining U.S. criminal law. A proper understanding of these issues is crucial to maintaining American sovereignty over decisions involving the punishment and deterrence of crime on American soil.
II. THE DEATH PENALTY IN INTERNATIONAL LAW AND AMERICAN LAW
A. The Death Penalty in International and Regional Human Rights Instruments
Certain international and regional human rights instruments specifically commit signatories to end the use of the death penalty: the Sixth Protocol (6) of the European Convention on Human Rights (7) (European Convention), the Protocol (8) to the American Convention on Human Rights (9) (American Convention), and the Second Optional Protocol (10) to the International Covenant on Civil and Political Rights (11) (ICCPR). Though the United States is a party to the ICCPR (with reservations), it is not a party to any of the protocols or to the European or American Conventions. As a matter of treaty law, then, the death penalty is not prohibited in the United States.
In addition to the specific instruments noted above, however, the Universal Declaration of Human Rights (12) (Universal Declaration) protects the "right to life," which could be cited for the proposition that the death penalty is prohibited as the violation of the right to life by a state. Article 3 of the Universal Declaration states, "Everyone has the right to life, liberty, and security of person." (13) Neither that article nor any other article of the Declaration refers to the death penalty, however. …