A Proposed Analytical Framework
Lynn Loschin*
2 U.C. Davis J. Int'l L. & Pol'y 148 (1996)
III. A Proposed Analytic Model - May a State Object?
Historically, international law requires two elements for a practice to become a rule of customary law. First, the practice must have long-term, widespread compliance by many states.(1) Second, states must believe that conformance with the practice is not merely desired, but mandatory and required by international law.(2) This mental state is called opinio juris. Once a practice meets these two requirements, it is considered binding on all states.(3)
However, the trend toward positivist preferences for the formation of international law has changed the way international law is formed. Instead of developing custom through practice over decades or centuries, modern international bodies develop and adopt multilateral conventions on topics of international concern. This is particularly true in the realm of human rights. Since 1945, there have been no less than twenty-four human rights conventions sponsored by the United Nations,(4) in addition to various regional instruments.(5) These multilateral agreements strive to codify preëxisting norms or create a set of new rules, addressing either general principles or specific areas of human rights. However, the availability of reservations and understandings has undercut the goal of creating truly universal law. A state may ratify a convention with so many reservations and understandings that it becomes virtually meaningless in respect to that state,(6) or the state may choose not to ratify it at all. Therefore, despite the proliferation of multilateral conventions, custom retains an important role in the creation of international human rights law. A rule that has gained the status of a customary norm is binding on all states, even those that are not parties to the relevant conventions.
This Article analyzes one element of customary international law--the concept of the persistent objector. The persistent objector doctrine allows a nation that objects to an emerging customary norm to refuse to be bound by that norm even after the norm attains the status of customary international law.(7) Consider this doctrine in the human rights context: May a state opt out of an emerging norm of human rights law by objecting to it during its formative stage? To provide a background, Section I.A briefly defines the concept of customary law and the nature of consent as a key principle behind the creation of international law. Section I.B discusses the persistent objector doctrine, and examines what consensus international courts and scholars have reached about the doctrine. As an example of an emerging norm of customary law, Section II examines the status of the juvenile death penalty and the possible application of the persistent objector doctrine. Section III proposes a model for deciding whether the persistent objector doctrine should apply in specific instances. To provide an example of how the model might work, Section IV applies the model to the emerging norm of the juvenile death penalty and a possible objector state, the United States.
It is somewhat surprising that this doctrine, although widely presumed valid,(16) has rarely been invoked by states.(17) If not used in practice, is it still relevant? Professor Stein argues that states will invoke the persistent objector doctrine more frequently in the future because of the rapid formulation of modern customary international law.(18) While the classical process of international lawmaking was retrospective, evolving slowly based on what states had done in the past, the modern process is prospective: multilateral conventions are written with a view as to what states should do now and in the future.(19) Professor Stein argues that opinio juris is no longer a consciousness that develops over time, but a conviction that attaches instantly to a rule perceived as sufficiently important.(20)
As the multilateral treaty process increasingly becomes viewed as authoritative, the continuing confusion and blurring between treaty and custom will become more pronounced.(21) In the past, states argued that a custom did not really exist as a way of absolving themselves from following a rule of international law. However, this may become more difficult in the future when the existence of the custom is supported by a multilateral convention with 160 states as parties. Therefore, states will seek a way to acknowledge that although a rule exists, that rule does not apply to them. The persistent objector doctrine may be called upon to serve this purpose.(22) Presuming that Professor Stein is correct, the practical application of the doctrine will become increasingly important to international courts and policy makers. However, the rare invocation of persistent objector status has thus far not provided the international courts with many opportunities to define, limit, or modify the doctrine.
Only two International Court of Justice decisions discuss the doctrine in its rulings. The first was the Asylum case (Colom. v. Peru),(23) which arose after Colombias Lima embassy granted political asylum to a Peruvian national.(24) Peru suffered several rebellions in 1948, culminating in a military coup.(25) The military government sought to arrest one of the leaders of an opposition political party, Victor Haya de la Torre, on charges of military rebellion.(26) Haya de la Torre requested refuge in Colombias embassy, and Colombia granted him asylum as a political refugee.(27) Colombia asked the new military government of Peru to allow Haya de la Torre safe passage out of the country.(28)
The issue before the International Court was whether Colombia, the state granting asylum, was competent to define the offense for which Haya de la Torre sought refuge as "political."(29) The government of Peru claimed that Colombias grant of asylum was in violation of a 1911 extradition treaty and customary law.(30) Reaching a diplomatic impasse, the parties submitted the dispute to the International Court of Justice.(31)
The Court found for Peru on this issue, holding that Colombia had not established the existence of a custom permitting the state granting diplomatic asylum to define unilaterally the offense as "political."(32) For various reasons, the treaties cited by both sides in support of their respective arguments did not apply.(33) The court alluded to the persistent objector doctrine while discussing a treaty Colombia cited in support of its argument. The International Court stated that Peru had not only failed to ratify the treaty in question, it had specifically repudiated the asylum provisions. Therefore, Peru was not bound by the treaty provisions, even if they had attained the status of custom.(34)
In the Anglo-Norweigan Fisheries case (U.K. v. Nor.),(35) the International Court applied the persistent objector doctrine in the context of territorial fishing zones. The King of Norway, in a 1935 proclamation, established a fisheries zone in the Arctic Circle region off the northern coast of Norway.(36) Foreign ships were not permitted to fish in the area, and a number of British ships were seized for violating the zone.(37) The United Kingdom asserted that the zone claimed by Norway was in excess of the standards established by international law, which limited territorial waters to ten miles in similarly situated geographic areas.(38) The Court held that Norway was not bound by the rule, since it had continuously opposed any attempt to apply the rule to the Norwegian coastline.(39) The Court presumed the existence of the persistent objector doctrine without discussion.
With little guidance from the international courts, many questions about the persistent objector doctrine remain open. Issues such as who may claim the status and under what circumstances(40) have not been litigated internationally. The form of the objection, how consistent it must be, and to what types of customary law it applies, all remain open questions.
II. The Juvenile Death Penalty - An Example of Emerging Custom
This Section discusses an emerging norm of customary international law and a possible persistent objector, the United States. Significant support exists for the view that sentencing juvenile offenders to death violates customary international law. This is an example of a norm where Professor Steins suggestion seems applicable: at some point, the states that object will no longer claim the norm does not exist, but rather seek to demonstrate that it does not apply to them via the persistent objector doctrine.(41) Evidence of custom can originate from a number of sources, including multilateral treaties. A treaty that many states have bound themselves to follow can offer evidence of state practice and shed light on what constitutes international custom.(42) Three multilateral treaties speak directly to the issue of the juvenile death penalty.(43) The first of these has been ratified by the United States. Article 6(5) of the International Covenant on Civil and Political Rights (ICCPR) specifically prohibits the death penalty for persons under eighteen years of age at the time of the offense.(44) One hundred fifteen countries have ratified the ICCPR, and only two states, Ireland and the United States, have taken reservations to this Article.(45) The Convention on the Rights of the Child(46) contains similar language.(47) More than 120 states have ratified the convention, and Myanmar took the only reservation to the death penalty clause.(48) The American Convention on Human Rights,(49) ratified by 24 American nations, contains a similar clause, with one country objecting to the prohibition against executing juveniles.(50)
Numerous other documents also illustrate broad international opposition to imposing the death penalty on juveniles. The Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War(51) and both of its protocols(52) contain prohibitions on the execution of juvenile offenders, as do numerous regional conventions.(53) Additionally, the United Nations Economic and Social Council has called upon states to end the execution of juveniles.(54) With the exception of the Fourth Geneva Convention (which applies only during wartime), none of these instruments is directly applicable to the United States.(55) However, the large number of states that have ratified provisions prohibiting the execution of juveniles serves as strong evidence of international opinion about the practice.
State practice also provides evidence of international custom. At least 72 countries that retain the death penalty have laws setting a minimum age of eighteen for capital prosecutions.(56) Of the reported executions of juveniles from 1981 to 1991, four were carried out in the United States, one in Barbados, one each in Nigeria and Bangladesh, three in Pakistan, and an unknown number in Iran and Iraq.(57) Therefore, only seven countries are known to have executed juvenile offenders, and Barbados has since changed its minimum age to eighteen.(58) This combination of domestic legislation among countries retaining the death penalty and the elimination of juvenile executions by most states also supports the claim that executing juvenile offenders is contrary to customary international law.(59)
The vast majority of states do not execute juveniles in practice and a large number of states adhere to multilateral conventions that prohibit execution of juveniles, both of which satisfy the first element of customary international law--widespread compliance. However, a second element, opinio juris, must be met before the prohibition can be declared customary law. States must believe they are legally obligated to act in the prescribed manner. Professor Hartman notes that opinio juris is the most difficult aspect of creating customary human rights law.(60) In other contexts, state actions are accompanied by statements of officials that interpret the states obligations under international law, thus providing evidence of opinio juris.(61) The death penalty, and most human rights topics, are different, since domestic legislatures do not generally consider international obligations when formulating such domestic policies. Professor Hartman suggests that a modified form of opinio juris must be recognized, accepting that the source of most states disinclination to execute juvenile offenders is their shared moral reprehension of the practice.(62) Although this seems to resemble natural law, the type of analysis required is essentially objectivistic.(63) In order to consider opinio juris established with regard to a human rights norm, one must look at the international stage from an historical perspective to determine if a shared moral consciousness exists.(64) With regard to the death penalty for juveniles, such a moral consciousness does exist, and quite possibly existed prior to the drafting of the ICCPR in 1957.(65)
Based on Professor Hartmans formulation, the requirement of opinio juris is met. Taken together with widespread state practice, there is strong evidence that executing juveniles is prohibited by customary international law.(66) In deciding a case against the United States, the Inter-American Commission on Human Rights held that the prohibition was actually a preëmptory norm, and that the United States was bound without its consent.(67)
However, the statement of the Inter-American Commission had little effect.(68) The United States has legally permitted juvenile offenders to receive a sentence of death throughout most of its history, although the sentence is rarely imposed and implemented.(69) Today, 24 states permit the execution of juveniles by statute, with a varying minimum age.(70) The United States Supreme Court did not have occasion to rule on the issue of juveniles and the death penalty until relatively recently, for two reasons. First, the incorporation of the Eighth Amendment into the Fourteenth Amendment, thereby making "cruel and unusual punishment" applicable to the several states, did not occur until 1962.(71) Second, the use of the death penalty generally declined in the 1960s,(72) followed by a moratorium from 1972 to 1977.(73)
Three major cases comprise current United States jurisprudence on the death penalty for juvenile offenders. In Eddings v. Oklahoma,(74) the Supreme Court was asked to decide whether imposing the death penalty on a sixteen-year-old was unconstitutional under the Eighth Amendment. The Court reversed the death sentence because the trial court failed to consider mitigating evidence during sentencing, and therefore did not rule on the Eighth Amendment issue.(75) In Thompson v. Oklahoma,(76) decided with Eddings, the Court held that executing a person who was fifteen years old when the crime was committed would violate the Eighth Amendment. In its holding, the Court considered American societys evolving standards of decency.(77) However, the Court reached this decision by a plurality.(78) Therefore, the question of whether the death penalty is per se impermissible for persons fifteen and under at the time of the crime remains unresolved. The most recent decision on the constitutionality of the death penalty for juveniles was a pair of cases decided together, Stanford v. Kentucky and Wilkins v. Missouri.(79) Both cases involved defendants who were seventeen years old at the time of their crimes, and the Supreme Court was asked to rule on the constitutionality of their sentences under the Eighth Amendment. Writing for a plurality,(80) Justice Scalia analyzed the issue on the basis of historical and modern consensus, reaching the conclusion that the death penalty for sixteen or seventeen-year-olds was neither cruel nor unusual.(81) Addressing the international law issues raised by the appellants in a footnote, Justice Scalia stated that only American conceptions of decency were dispositive when interpreting the Eighth Amendment.(82) In contrast, prior to Stanford, the Supreme Court used international standards as part of their evaluation of Eighth Amendment issues.(83) In Stanford, the Court did not address whether its earlier decision in The Paquete Habana,(84) holding that international law is federal common law, was still valid.
The comparison of international customary law and United States law leads to only one conclusion. The United States does not follow the customary norm that prohibits the execution of juvenile offenders. Therefore, the question arises whether the United States may claim the status of a persistent objector,(85) or whether the United States is simply a violator of the norm.
III. A Proposed Analytic Model - May a State Object?
What should be the result in instances such as the juvenile death penalty and the United States? On one side of the scale is the importance of consent as a basis for international law. On the other side are the gravity and importance of the norm that the objector is violating. Is there a way to balance these concerns? The following is a proposed analytic model to apply when deciding whether an objecting state should be bound by a norm of customary human rights law.
The virtue of this analytical framework is that while it creates a high standard for validating the claim of the persistent objector, it permits evenhanded analysis and the opportunity for an objector to opt out of the norm in limited cases. The first two steps create a high hurdle to clear. Persistent objector status cannot be applied to any rule that is either peremptory or covered by any agreement or document to which the state is a party.(100) Thus, a state cannot claim persistent objector status to many basic or fundamental human rights, as these are either peremptory or covered by treaty.
The third and fourth steps allow the court or another body to apply a context-sensitive and cautious test that balances the norm against the objection. Is an objective balance between the norm and the objection possible? Evaluating the norms importance carries with it the problem that human rights norms are judged by culture, personal morality, religion, and other social factors, which are by nature subjective. This framework attempts to narrow the scope of this evaluation by directing the factfinder to consider reasonably objective factors, such as the history of the norms emergence and its effects. It is weighted toward making norms that affect many people in many circumstances more important than relatively narrow norms. The framework also attempts to evaluate the objection on essentially objective standards, including form and other factors that are capable of documentation and objective consideration.
As with any balancing test, a danger exists that the criteria will be applied unfairly, or in a manner that defeats the object of creating predictable standards. However, international human rights law implicates consequences that are potentially too important to validate the application of a rigid standard. Therefore, the value of allowing the factfinder enough flexibility to make a context-sensitive judgment is worth the risk in this instance.
Finally, if the balancing factors tip against permitting the objection, the factfinder should evaluate all previous considerations against the consent-based nature of the international legal system. Does the norms importance outweigh the importance of obtaining the states consent to be bound by it? The proponent of the norm must satisfy this criterion before determining that the state should be bound by that norm. Indeed, if the analysis proceeds this far, it is likely that the state has met its burden and should be exempted from the norm.
Why, human rights advocates may ask, should the persistent objector doctrine be applied at all to rules of customary human rights law? To a human rights advocate, a state's denial of human rights norms which are sufficiently universal to attain the status of customary law seems far more important than the more mundane situations to which the International Court of Justice has applied the doctrine in the past.(101) The answer to this question lies within the nature of the international legal system, the fifth factor in the proposed framework. For better or worse, the current system is based on the consent of the participating nations. The concept of applying international law to domestic affairs, including human rights, is still very new. Considering the international community's long term agenda of promoting universal human rights, encouraging participation at this early stage is better than excluding nations that do not meet the currently accepted standards. Refusing to allow a state to opt out of a norm while the norm is still emerging could ultimately delay the implementation of certain human rights, rather than promote their cause. If sanctions or other punitive measures are adopted, the state could become increasingly isolated from the very outside influences that might encourage positive change from within.(102)
A declaration of illegality under the international legal system may also cause the state to entrench its position, declare the righteousness of its practice, and resist change even more strongly. On the other hand, setting a high threshold and requiring the adoption of a loud, consistent, public position on the issue(103) may spark an internal debate inside the objector state. Such a debate among either the public or the decision-makers could eventually lead to change and conformity with the international rule. It should also be noted that just because the norm is not binding on the objector state, this does not mean that other states (and international bodies, individuals, corporations and non-governmental organizations) should not continue to apply pressure to bring the objector state into conformity with the international norm.
IV. Applying the Model--The Juvenile Death Penalty and the United States
To test the proposed framework, let us return to the impasse between international custom and the United States with regard to the juvenile death penalty. Each step of the analytic framework will be considered in turn. The threshold question in Step 1 is whether the United States has bound itself to an international instrument that prohibits the execution of juveniles. By virtue of its reservation to the ICCPR,(104) the answer is probably "no." The United States has not ratified any other relevant treaty, save the Fourth Geneva Convention,(105) which applies only during war and is therefore too narrow in scope. Because the answer is no, the analysis proceeds to the next step.
Next, one must attempt to determine whether the norm has attained the status of jus cogens, a peremptory norm of international law, binding upon all states.(106) Although there is some disagreement,(107) the answer is once again likely to be negative. While most scholars would tend to agree that the juvenile death penalty prohibition is either emerging or established, few would agree that it is peremptory.(108) Therefore, the analysis moves on to the next step.
At this stage, the factfinder must use the available empirical evidence to evaluate the norms history and nature. The evidence suggests that this norm has been emerging for a relatively long period of time, at least 40 years.(109) It has not arisen suddenly as a result of a new multilateral treaty, or out of the sight of the objector. The nature of the norm is somewhat more difficult to establish. Professor Hartman suggests the norm arose as a result of moral sensitivity to the diminished responsibility and the rehabilitative potential of juveniles.(110) The frequency with which the principle has been repeated in numerous multilateral and regional conventions also suggests that the world considers the norm important. In summary, it may reasonably be asserted that the norm has emerged over a long period of time and is of considerable importance to the vast majority of states that abide by it.
The next step requires examining the nature of the objection to the norm. Has the objection been clear and consistent, since silence is presumed acquiescence? Most of the United States objection on the international stage has taken the form of silence. With the exception of the ratification of the Fourth Geneva Convention(111) provision prohibiting execution of juveniles during wartime, the United States has failed to ratify conventions that call for the abolition of the death penalty generally, and juveniles in particular.(112) However, the only clear objection is the reservation to the relevant provision of the ICCPR.(113) Moreover, the United States has acquiesced in the drafting of anti-death penalty provisions in some of these same conventions, including the American Convention.(114) In other cases, it has declined to participate in the drafting process at all, as was the case with the ICCPR.(115)
Additionally, the signals from the domestic arena have been mixed during the formation of the norm. A slight majority of American states, including those with no death penalty statutes,(116) do not permit the execution of juveniles. The Supreme Court has not been especially helpful either, failing to decide the issue until 1989, then ruling with a bare majority that the death penalty for sixteen- and seventeen-year-olds was not unconstitutional.(117) The consistency is also questionable--the U.S. State Department denied on at least one occasion that the reservation to the death penalty clause of the ICCPR was designed to avoid implementation difficulties, not to preserve the right to execute children.(118)
At this point, the norm must be balanced against the objection. The norm is a widespread practice that has emerged over several decades, and is sufficiently important to be prominently included in numerous multilateral conventions. Its practice is nearly universal, and is not only recognized by governments, but considered important by many ordinary citizens.(119) On the other side of the scale, the objection has been inconsistent, mostly taking the form of silence and acquiescence as the norm developed on the international scene.(120) Passive failure to bring domestic law into conformity is not sufficient, particularly when the objecting state has had multiple opportunities to discuss the issue and make principled objections.(121) Therefore, the balancing test would be dispositive and the analysis would, at this point, deny the United States persistent objector status.
As noted at the outset, the persistent objector doctrine has rarely been applied in practice in international law. However, situations may arise in the future where a state claims that it is a persistent objector to an established norm of customary international human rights law. This Article suggests a possible model for the application of the persistent objector doctrine in the human rights context. As demonstrated by the example of the juvenile death penalty and the United States, the objector to a human rights norm has a difficult argument to make to attain objector status. Such difficulty is by design, since the occasion when a state may opt out of a human rights norm should be rare.
There may be an appropriate occasion to allow a state out of the system, and this framework provides one possible method of analysis. Allowing one state to avoid the constraints of customary law is likely to be preferable to alternatives, such as declaring that the custom does not exist, and binds no states at all, or threatening the consent-based structure of the international legal system. Yet, the standard must be rigorous. If the world community truly aspires to achieve the universal application of uniform standards, states cannot opt out on a mere whim and claim that they are abiding by international law. A delicate balance must be struck in order to further the long-term goal of fostering human rights while not sacrificing short-term compliance with established law.
* J.D. Candidate 1997, University of California at Davis, School of Law. The author would like to thank Professor Glennon and the members of the Fall 1995 International Human Rights Seminar for their input and the thought-provoking discussions that led to this article.
1. Ian Brownlie, Principles of Public International Law 6-7 (2d ed. 1973). The elements of this part of custom are duration, uniformity and consistency of the practice, and generality of the practice.
2. Id. at 7-8. Brownlie disputes the assertions of some scholars that opinio juris is not necessary for a practice to attain the status of customary international law, citing International Court of Justice opinions. See, e.g., North Sea Continental Shelf (F.R.G. v. Den., F.R.G. v. Neth.) 1969 I.C.J. 3 (Feb.20) (requiring party asserting custom to show opinio juris exists).
3. See, e.g., North Sea Continental Shelf, 1969 I.C.J. at 38 (stating that customary law has equal force for all members of international community).
4. Richard Lillich & Hurst Hannum, International Human Rights: Problems of Law, Policy and Practice 185-87 (3d ed. 1995).
5. See, e.g., European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 312 U.N.T.S. 221 (entered into force Sept. 3, 1953); American Convention on Human Rights, Nov. 22, 1969, 9 I.L.M. 673 (1970) (entered into force July 18, 1969) [hereafter American Convention]; African Charter on Human and Peoples Rights, June 27, 1981, 21 I.L.M. 59 (1981) (entered into force Oct. 21, 1986).
6. For an example of reservations and understandings that make ratification nearly meaningless, see the United States ratification of the International Covenant on Civil and Political Rights, opened for signature Dec. 19, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976, adopted by the United States Sept. 8, 1992) [hereafter ICCPR]. The United States ratified the treaty as non-self-executing, with the understanding that its provisions were to be interpreted in accordance with present and future United States domestic law. Essentially, in its ratified form, the treaty binds the United States to follow its domestic law, as interpreted by the United States currently and in the future.
7. Brownlie, supra note 1, at 10.
8. See Jonathan I. Charney, Universal International Law, 87 Am. J. Intl L. 529, 532 (1993) (discussing theories of state obligations to abide by international law).
10. Id. at 536; see also Restatement (Third) of Foreign Relations Law 102(1) ("A rule of international law is one that has been accepted as such by the international community of states")
11. Charney, supra note 8, at 537.
12. Mark E. Villiger, Customary International Law and Treaties 16 (1985)
13. Brownlie, supra note 1, at 10.
14. Charney, supra note 8, at 539 n. 44. This part of the doctrine is problematic since the acquiescent state is not truly manifesting intent to consent to the rule. Perhaps for whatever reason, the state was unaware the practice was in the nascent stage and nearing the point where it would become customary law. However, this seems less likely to be an issue in the instance of human rights norms, the subject of frequent discussion in many international fora, than, for example, in the case of a relatively obscure rule regarding maritime law.
15. Villiger, supra note 12, at 16.
16. See, e.g., Propser Weil, Towards Relative Normativity in International Law? 77 Am. J. Int'l L. 413 (1983); Brownlie, supra note 1, at; Michael Akehurst, Custom as a Source of International Law, 47 Brit. Y.B. Int'l L. 1 (1974). But see Anthony D'Amato, The Concept of Custom in International Law 187-89, 233-34, 261 (1971) (essentially rejecting doctrine except in case of special customs, because international law is not founded on specific consent of states). The debate between D'Amato and Akehurst has become complex and contentious, to say the least. For present purposes, the majority view accepting the rule will be applied. See also, supra note 8, 538-42 (rejecting doctrine as well as consent-based theory for cusotmary international lawmaking).
The 1985 revision of the Restatement was the first time the persistent objector doctrine was included. Restatement (Second) of foreign Relations Law 102 cmt. d (Tentative Draft No. 6, April 12, 1985). Several commentators attribute this to the waning influence of the Western nations in the creation of international law and the desire for an escape route from undesirable norms. See Jonathan I. Charney, The Persistent Objector Rule and the Development of Customary International Law, 56 Brit. Y.B. Int'l L. 1, 4 (1985); see also Ted Stein, The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law, 26 Harv. Int'l L.J. 457, 475 (1985). Professor Stein suggests that the Reporters' willingness to take the concept seriously depends on "whose ox is being gored . . . the principle of the persistent objector becomes an enormously attractive means of protecting the ox."
17. Stein, supra note 16, at 459; see also Restatement (Third) Foreign Relations Law 102 cmt. d (noting that persistent objector doctrine has rarely been applied).
18. Stein, supra note 16, at 463; see also J. Brock McClane, How Late in the Emergence of a Norm of Customary International Law May a Persistent Objector Object? 13 ILSA J. Intl L. 1, 4 (1989) (discussing more effective communication between governments to support concept that international law is now forming more quickly than in pre-World War II era).
19. Stein, supra note 16, at 464-65.
22. Id.; see also McClane, supra note 151, at 6 (suggesting that role of persistent objector will be enhanced in years to come).
23. 1950 I.C.J. 266 (June 13).
35. 1951 I.C.J. 116 (Dec. 18).
40. For example, may a new state claim persistent objector status if the norm emerged before its statehood? The Restatements answer is "no." See Restatement (Third) Foreign Relations Law 102 cmt. d (1982). Contra Villiger, supra note 12, at 16.
41. Stein, supra note 16, at 466.
42. DAmato, supra note ?, at 104.
43. Multilateral treaties or declarations with nonspecific language, e.g. Article 3 of the Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810, at 71 (1948) [hereafter Universal Declaration] ("Everyone has the right to life") shall not be considered here.
45. William A. Schabas, The Abolition of the Death Penalty in International Law 306 (1993). Ratifications and reservations are as of February 1, 1993. The Irish reservation was pending further legislation to give full effect to the treaty. The United States reservation explicitly reserved the right to impose capital punishment on any person, regardless of age (excepting pregnant women). At least one commentator suggests a persuasive argument could be made that the United States reservation is incompatible with the object and purpose of the treaty. See Ved P. Nanda, The United States Reservation to the Ban on the Death Penalty for Juvenile Offenders: An Appraisal Under the International Covenant on Civil and Political Rights, 42 DePaul L. Rev. 1311, 1331-32 (1993).
46. Nov. 20, 1989, 28 I.L.M. 1448 (1989) (entered into force Nov. 28, 1989) [hereafter Childrens Convention].
47. Id. art. 37(1). Article 37 states: "Neither capital punishment nor life imprisonment shall be imposed for offences committed by persons below eighteen years of age."
48. Schabas, supra note 45, at 317. Germany and Portugal took objections, considering Myanmars reservation inconsistent with the object and purpose of the treaty.
49. Nov. 22, 1969, 9 I.L.M. 673 (1970) (entered into force July 18, 1978) [hereafter American Convention].
50. Schabas, supra note 45, at 327-28. Barbados is the lone objector.
51. Opened for signature Aug.12, 1949, 75 U.N.T.S. 287 (entered into force Oct. 21, 1950) [hereafter Fourth Geneva Convention].
52. Geneva Protocol I Additional to the Geneva Conventions of August 12, 1949, art. 77, para. 5, 16 I.L.M. 1391 (1977); Geneva Protocol II Additional to the Geneva Conventions of August 12, 1949, art. 6, 16 I.L.M. 1446 (1977).
53. Sixth Optional Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty, opened for signature Apr. 28, 1983, 22 I.L.M. 538 (1963) (entered into force Mar. 1, 1985) [hereafter Sixth Protocol to the European Convention] (abolishing death penalty except in wartime; ratified by 20 of 28 parties to European Convention as a whole).
54. E.S.C. Res. 1984/50, art. 3, Safeguards Guaranteeing the Rights of those Facing the Death Penalty (1984), reprinted in Schabas, supra note 45, at 319.
55. Although the United States has not ratified either treaty, it has signed both of them. The American Convention, supra note 5, was signed by President Carter in 1977, and President Clinton signed the Childrens Convention, supra note 46, in 1994. This raises the issue of whether, under customary international law, the United States is bound not to take any action which contravenes the object and purpose of the treaty while it is in the ratification process. See Vienna Convention on the Law of Treaties, May 23, 1969, art. 18, U.N. Doc. A/CONF. 39/27, entered into force Jan. 27, 1980, (transmitted to Senate for advice and consent, but not ratified) [hereafter Vienna Convention]. The Vienna Convention is often considered customary law on treaties which reads: "A State is obliged to refrain from acts which would defeat the object and purpose of the treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification . . . ." Query as to whether this is sufficient to bind the United States internationally.
56. Amnesty International, USA: The Death Penalty: Open Letter to The President 8 n.10 (Jan. 1994). Death penalty retentionist states which prohibit execution of juveniles under domestic law include Syria, Paraguay, and Libya.
57. Amnesty International, USA: The Death Penalty and Juvenile Offenders 78-79 (Oct. 1991) [hereafter USA: The Death Penalty].
59. See Lisa Kline Arnett, Comment, Death at an Early Age: International Law Arguments Against the Death Penalty for Juveniles, 57 U. Cin. L. Rev. 245, 255 (1988) (citing international public opinion and activism in a number of American cases involving juvenile offenders). But see Lauren B. Kallins, The Juvenile Death Penalty: Is the United States in Contravention of International Law?, 17 Md. J. Intl L. & Trade 77, 95 (1993) (stating that number of states needed to create a rule varies according to amount of conflicting practice). Kallins suggests that since the United States is a leader in establishing human rights norms, the 72 countries which have written the prohibition against executing juveniles into domestic law may not be sufficient to establish custom. See also Akehurst, supra note 16, at 18 (discussing formation of custom).
60. Joan F. Hartman, "Unusual" Punishment: The Domestic Effects of International Norms Restricting the Application of the Death Penalty, 52 U. Cin. L. Rev. 655, 670-71 (1983).
65. Id. at 678; see also Nanda, supra note 45, at 1334 (citing Professor Hartman and agreeing that opinio juris is present). But see Kallins, supra note 59, at 97. Kallins dismisses Professor Hartmans suggestions as "obscure theories of natural law and positivism . . . ." However, she discusses opinio juris only with regard to the United States; that is, the United States has not demonstrated the requisite mental element. The United States has obviously not formed any opinio juris, since it does not conform to the norm. Instead, the analysis should be focused on why the states that follow the norm do so.
66. See, e.g., Hartman, supra note 60, at 679; Arnett, supra note 59, at 265. See also Nanda, supra note 45, at 328 ("strong evidence the norm is emerging").
67. See Res. No. 3/87, Case 9647 (United States), Annual Report of the Inter-American Commission on Human Rights, 1986-1987, OEA/Ser. L/VII.71, Doc. 9, rev. 1 (1987), cited in Donald T. Fox, Inter-American Commission on Human Rights Finds United States in Violation, 82 Am. J. Intl L. 601 (1988). This case has been criticized for the poor legal analysis by the Commission. For example, its contradictory statements that a minimum age of eighteen for imposing the death penalty was an emerging norm, yet a jus cogens norm prohibiting juvenile execution existed among the states of the OAS. Query whether a jus cogens norm can be regional, in light of the Vienna Convention. See supra note 55, Art. 53 (stating that a jus cogens norm is "accepted by the international community as a whole"). The United States argued that the death penalty was not prohibited under the American Declaration of the Rights and Duties of Man or customary international law, or in the alternative, that it had dissented and was therefore not bound. See generally Fox, supra; David Weissbrodt, Execution of Juvenile Offenders Violates International Human Rights Law, 3 Am. U.J. Intl L. & Poly 339 (1988).
68. The two juvenile inmates who brought the actions were both executed. James Terry Roach, seventeen at the time of his crime, was electrocuted by South Carolina in January, 1986. USA Death Penalty, supra note 57, at 71. Jay Pinkerton, also seventeen at the time of his crime, was executed by Texas in May, 1986. Id. at 72.
69. For a historical summary, see USA Death Penalty, supra note 57, at 61-62. Of 15,000 documented executions, 286 were juveniles (as of 1991).
71. Robinson v. California, 370 U.S. 660 (1962).
72. USA Death Penalty, supra note 57, at 63.
73. See Furman v. Georgia, 408 U.S. 238 (1972) (holding that death penalty statutes as then drafted were unconstitutional); see also Gregg v. Georgia, 428 U.S. 153 (1976) (holding that death penalty is not unconstitutional per se and allowing state death penalty statute to stand).
78. Four Justices agreed that the death penalty for juveniles would be cruel and unusual in all circumstances: Justices Stevens, Marshall, Brennan, and Blackmun. Justice OConnor concurred in the result on the grounds that the Oklahoma statute did not set any minimum age, and did not meet the standard of careful consideration required in death penalty matters. Id. at 858. Justices Scalia, Rehnquist and White dissented. Id. at 859-87.
80. Joining Justice Scalia were Justices Rehnquist, White, and Kennedy. Justice OConnor, as in Thompson, concurred, agreeing with Scalia that no national consensus against executing sixteen or seventeen-year-olds existed. However, she felt proportionality analysis between the defendants blameworthiness and the punishment was necessary in juvenile death penalty cases. Id. at 380-82. Justices Brennan, Marshall, Blackmun and Stevens dissented, unequivocally stating that the death penalty was unconstitutional for anyone under eighteen.
82. Id. at 370 n.1. But see Nanda, supra note 45, at 1337-38 (noting that Justice Scalia provided no authority for his assertion that only American standards could inform interpretation of Eighth Amendment).
83. See Enmund v. Florida, 458 U.S. 782, 796 (1982) (noting international consensus as one basis for reversing death sentence for defendant who did not intend to kill victim); Coker v. Georgia, 433 U.S. 584, 596 (1977) (noting that only three major countries still imposed death for rape in its decision holding death penalty for rape unconstitutional); see also Weissbrodt, supra note 67, at 362 (discussing use of international law to inform Eighth Amendment analysis).
84. 175 U.S. 677 (1900); see also Filartiga v. Pena-Irala, 630 F.2d 876 (2nd Cir. 1980) (applying customary human rights law to determine whether jurisdiction existed under Alien Tort Claims Act).
85. In the case before the Inter-American Human Rights Commission, see supra note 67, the United States did attempt to claim persistent objector status on the juvenile death penalty. The Commission stated that the United States was not bound since it had "protested" the norm, and could only be bound if the norm had the status of jus cogens. However, it did not undertake any analysis of the persistent objector doctrine. Considering the muddled nature and subsequent criticism of the Commissions opinion, the use of this opinion as precedent is unlikely. See, e.g., Weissbrodt, supra note 67, at 365-66 (characterizing Commissions conclusions as contradictory and confusing),
86. Universal Declaration, supra note 43. Articles 4 (slavery), 5 (cruel, inhuman, and degrading treatment), 7 (equality before the law), and 9 (arbitrary arrest, detention and exile), mirror some of the provisions the Restatement (Third) Foreign Relations Law 702 (1987) considers customary human rights law. Assuming these are indeed customary, any nation who was present for the adoption of the Universal Declaration of Human Rights could not claim persistent objector status as to any of these provisions.
87. See Brownlie, supra note 1, at 499-502 (discussing character of jus cogens norms).
88. See Vienna Convention, art. 53, supra note 55 (noting that jus cogens norm can only be modified by subsequent jus cogens norm).
89. See McClane, supra note 18, at 25 (asserting that absence of persistent objectors is necessary condition for norm to attain jus cogens status). Therefore, a norm cannot become peremptory unless everyone agrees. This assertion seems questionable, particularly in the human rights realm. Query if South Africa, by virtue of its long term objection to apartheid, succeeded in keeping the prohibition of apartheid from becoming a peremptory norm as he suggests, id. at 25, n.75. Can one rogue state prevent a norm from becoming one "accepted and recognized by the international community of States as a whole" as defined in the Vienna Convention? Supra note 55, Art. 53. It would seem equally valid to claim that the near unanimous condemnation
of South Africa helped to create the peremptory norm prohibiting apartheid. As to whether South Africa was a persistent objector to the norm prohibiting racial discrimination. See Oscar Schacter, International Law in Theory and Practice, 178 Recueil Des Cours 119 (pt. V 1982) (arguing that South Africa was not persistent objector since it had consented to observing fundamental freedoms for all without distinction based on race in article 55 of U.N. Charter); see also Charney, supra note 8, at 541 (arguing that willingness to allow persistent objection to jus cogens norm undercuts already questionable reasoning behind persistent objector doctrine).
90. See Restatement (Third) Foreign Relations Law 702 cmt. n (identifying following peremptory norms of human rights law: prohibition of genocide, slavery, murder or disappearance, torture, prolonged arbitrary detention, prolonged racial discrimination, consistent pattern of gross violations of human rights).
91. See supra notes 16 to 22 and accompanying text (discussing Professor Steins theory about modern formulation of customary law) . A norm that emerged through the classical route would have a stronger case than one which emerged through the modern route for being binding on a nonconsenting state.
92. See David A. Colson, How Persistent Must the Persistent Objector Be? 61 Wash. L. Rev. 957, 958-59 (1986) (suggesting numerous settings for objectors to state their position: reservations and declarations taken upon becoming party to international agreements, statements at time of signing acts of diplomatic conferences, statements explaining votes at international conferences, diplomatic communications between governments such as protest notes, in negotiating context, and within domestic law- making setting).
93. But see id. at 962 (noting that diplomats purposefully try to soften statements of disagreement). Nonetheless, it is submitted that in matters of human rights, clarity should be preferred so that other states are fully informed and aware of the objectors position. A state should not be permitted to finesse its way out of a human rights norm. Bombastic displays are certainly not required, but the intent to object and the substance of the objection should be clear.
94. Restatement (Third) Foreign Relations Law 102 cmt. d. But see Villiger, supra note 12, at 16 (arguing that new states must have option to object to customary rule). Because there is not clear consensus here, this model supports the more restrictive rule not permitting a new state to object to a customary human rights norm.
95. McClane, supra note 18, at 22 (noting that state that fails to object to norm during emergence may not object once established).
96. See Colson, supra note 92, at 959 (suggesting that legislation often contains clear cut statements on international issues).
98. See McClane, supra note 18, at 15 (suggesting sliding scale model for when states may object to emerging norms).
99. See Schacter, supra note 89, at 38-39. Professor Schacter has suggested the use of a balancing test to determine if the persistent objector doctrine should apply in other contexts, recommending consideration of the following factors: the circumstances of the adoption of the new principle, the reasons for its importance to the majority of states, the grounds for dissent, and the relative position of the dissenting states.
100. It is not suggested that this idea be taken to extremes. E.g., the fact that the United States voted in favor of the Universal Declaration, supra note 43, which says that "everyone has the right to life, liberty, and security of person" should not be sufficient to defeat a claim of persistent objection to the death penalty. The document or resolution should specifically address the issue at hand - the state should know what they are voting on and have the opportunity to raise the issue and object.
101. See Anglo-Norweigan Fisheries (U.K. v. Nor.) 1951 I.C.J. 116 (Dec.18) (applying persistent objector doctrine to Norways refusal to accept international custom of drawing boundaries across bays in prescribed manner).
102. See Charney, supra note 8, at 539-40 (noting that most states, like United States in instance of territorial sea zone, and South Africa in case of apartheid, eventually conformed with international custom).
103. Admittedly, this would have little effect in totalitarian regimes, where the people may have little access to outside media and are denied the opportunity, for the most part, to hear what their government is saying internationally. However, in cases such as the juvenile death penalty in the United States, requiring a "louder" public position internationally might have the desired effect of promoting internal debate.
104. See Schabas, supra note 45, at 306. The United States took a specific reservation to the death penalty clause.
105. Fourth Geneva Convention, supra note 51.
106. Vienna Convention, Art. 53, supra note 55.
107. See supra note 67 and accompanying text discussing juvenile death penalty cases before the Inter-American Human Rights Commission.
108. See, e.g.,Arnett, supra note 59, at 265; Hartman, supra note 60, at 679; see also Nanda, supra note 45, at 328; Weissbrodt, supra note 67.
109. See Hartman, supra note 60, at 672 (suggesting that when ICCPR was drafted in 1957, norm was already binding and merely being codified).
111. Fourth Geneva Convention, supra note 51.
112. Most notably the Childrens Convention, supra note 46, and the American Convention, supra note 5.
114. See Hartman, supra note 60, at 685 (discussing United States participation in drafting these instruments); see also Weissbrodt, supra note 67, at 369.
115. See Hartman, supra note 60,at 684.
116. Whether states which do not have a death penalty at all should be considered in deciding the consensus regarding the death penalty for juveniles was a contentious issue in Stanford v. Kentucky, 492 U.S. 361 (1989). The plurality did not include the non-death penalty states in its analysis, id. at 371, while the dissent considered all of the states, id. at 384. Justice Scalia referred to the dissents analysis as "[d]iscerning a national consensus that wagering on cockfights is inhumane by counting within that consensus those States that bar all wagering." Id. at 371. One supposes a possible rejoinder to Justice Scalia is that the states that have no death penalty are commenting on the morality or wisdom of the death penalty as a whole, including by necessity in
that large circle the smaller circle of the juvenile death penalty. However, the states in his example are commenting on two separate circles - commenting on wagering is not necessarily commenting on the morality of cockfighting.
117. Stanford v. Kentucky, 492 U.S. 361 (1989).
118. Hartman, supra note 60, at 685 (citing Testimony of Roberts B. Owen, State Department Legal Adviser, at International Human Rights Treaties: Hearings Before the Comm. on Foreign Relations, 96th Cong., 1st Sess. 1, at 24-32 (1979)).
119. See e.g., Arnett, supra note 59, at 255 (discussing international grassroots activism relating to American juvenile death penalty cases).
120. See supra notes 109-16 and accompanying text (discussing form of United States objection).
121. Hartman, supra note 60, at 686.
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