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Is Capital Punishment in the United States
Illegal Under International Law?

In an effort to persuade the United States to abandon the death penalty, currently a criminal punishment in 38 states, lawyers and human rights activists have argued that the practice is, at least in some cases, illegal under international law. These arguments usually focus on the executions of two types of offenders: Those who were under the age of 18 at the time of their crime, and foreign nationals.

Since the United States Supreme Court reinstated the death penalty in 1976, states have executed 21 men who were under 18 when they committed their crime. This practice is prohibited by the 1966 International Covenant on Civil and Political Rights (ICCPR), which the United States ratified in 1992, with a reservation.

The ICCPR states in Article 6 that a “sentence of death shall not be imposed for crimes committed by persons below eighteen years of age.” The United States’ reservation to Article 6 states that it reserves the right “to impose capital punishment on any person (other than a pregnant woman) duly convicted…including such punishment for crimes committed by persons below eighteen years of age.” In the view of the U.N. Human Rights Committee, the United States' reservation is incompatible with the object and purpose of the treaty, is invalid, and should be withdrawn. For more information on reservations to treaties and their validity, see the resources provided by the American Society of International Law.

Two other international treaties, to which the United States is not party, also ban the execution of juvenile offenders. The American Convention on Human Rights ratified by 25 countries, states that "capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age." The U.N. Convention on the Rights of the Child, states in Article 37(a) that “neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age." U.S. presidents signed both of these treaties but they were not ratified.

Because a ban on executing underage offenders is widely recognized internationally, some scholars argue that it constitutes a norm of customary international law, and therefore supersedes specific laws and treaties.

Foreign Nationals

In February, 2003, the International Court of Justice ordered a stay of execution for three Mexican nationals on death row in the United States, who said that they were not given access to their consulates when they were arrested. This was the third time in recent years that a foreign country, via the ICJ, tried to halt the execution of its citizens in the United States by invoking the 1963 Vienna Convention on Consular Relations. By ratifying this convention in 1969, the United States bound itself to inform, without delay, any detained foreign national of his or her right to seek consular assistance.

Virginia executed Angel Francisco Breard of Paraguay in 1998 after finding him guilty of rape and murder; Arizona executed Walter LaGrand of Germany in 1999 after finding him guilty of murder. In both cases, the International Court of Justice had ordered the pending executions halted because the U.S. had violated the Vienna treaty.

Article VI of the U.S. Constitution states that “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.” Some legal scholars interpret this to mean that treaties ratified by the United States are binding throughout the United States. But a spokesman for Texas Governor Ricky Perry, discussing the two Mexicans held on death row, told the Associated Press: "According to our reading of the law and the treaty, there is no authority for the federal government or this World Court to prohibit Texas from exercising the laws passed by our legislature."
  • Roger G. Hood, The Death Penalty: A World-Wide Perspective, 2nd ed., (Oxford, UK: Clarendon Press; New York: Oxford University Press, 1996).
  • William Schabas, The Abolition of the Death Penalty in International Law, 2d ed., (New York: Cambridge University Press, 1997).
  • William Schabas, The Death Penalty As Cruel Treatment and Torture: Capital Punishment Challenged in the World's Courts (Boston: Northeastern University Press, 1996).

Written March 13, 2003; Last updated May 15, 2007.

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