LDFA-13_3990.pdf

    No. 86-6169

IN THE

Supreme Court of tfje ©mteb States
October Term, 1986

William Wayne Thompson,
Petitioner,

vs.

The State of Oklahoma,
Respondent.

On Writ Of Certiorari To The Court Of Criminal 
Appeals Of The State Of Oklahoma

BRIEF FOR AMICUS CURIAE 
INTERNATIONAL HUMAN RIGHTS LAW GROUP IN 

SUPPORT OF PETITIONER

Dinah Shelton 
University of Santa Clara 

School of Law 
Santa Clara, CA 20037

Larry Garber* 
Robert H. Kapp 
International Human 

Rights Law Group 
733 15th Street NW 
Suite 1000
Washington, DC 20005 
(202) 639-8016

*Counsel o f Record

Attorneys for Amicus Curiae 
International Human Rights Law Group

PRESS OF BYRON S. ADAMS. WASHINGTON. D.C. (202) 347-8203



TABLE OF CONTENTS

Page
TABLE OF AUTHORITIES iv
INTEREST OF AMICUS 1
STATEMENT OF THE CASE 2
SUMMARY OF ARGUMENT 3
ARGUMENT c

I. CUSTOMARY INTERNATIONAL LAW
WHICH FORMS PART OF THE LAW OF 
THE UNITED STATES PROHIBITS 
THE EXECUTION OF JUVENILE 
OFFENDERS 6
A. Customary International

Law Is Part Of The Law Of 
The United States 7

B. Human Rights Treaties And
The Practice Of Nations 
Establishes The 
Prohibition Against 
Capital Punishment Of 
Juvenile Offenders As A 
Norm Of Customary 
International Law 13
1. Human Rights Treaties 13

a. The Fourth Geneva 
Convention 
Relative to the 
Protection of 
Civilians in Time 
of War 19

1



Page

b. The International 
Covenant on Civil 
and Political
Rights 20

c. The American 
Convention on
Human Rights 22

2. National Laws and
Practice 24

C. The United States Does Not 
Qualify As A Persistent 
Objector To The 
International Norm 
Prohibiting The Execution 
Of Juvenile Offenders 28
1. Article 68, para. 4 of

the Fourth Geneva 
Convention 32

2. Article 6(5) of the 
International Covenant 35

3. Article 4(5) of the
American Convention 39

4. Article 19(2)(b) of
the Proposed Draft 
Convention on the 
Rights of the Child 42

II. UNDER TREATIES IT HAS SIGNED 
BUT NOT RATIFIED, THE UNITED 
STATES HAS LEGAL OBLIGATIONS 
WHICH ARE BREACHED WHEN 
JUVENILES ARE EXECUTED 45

-  i  i  -



Page

III. EVEN IF THE COURT HOLDS THAT 
THE STATES ARE NOT BOUND BY 
THE CUSTOMARY NORM 
PROHIBITING THE EXECUTION OF 
JUVENILE OFFENDERS, THE 
INTERPRETATION OF THE EIGHTH 
AMENDMENT SHOULD BE INFORMED 
BY THAT NORM 4B

CONCLUSION 50



TABLE OF AUTHORITIES
Cases Paqe(s)
Coker v. Georqia,
433 U.S. 584 (1976).......... 48
Enmund v. Florida,
458 U.S. 782 (1982)........ . . 49
Filartiqa v. Pena-Ifala,
630 F .2d 876 (2d Cir. 1980)... 8, 9, 11
The Nereide,
13 U.S. (9 Cranch.) 388 (1815) 8
The Pacruete Habana,
175 U.S. 677 ( 1900).......... 4, 8, 9,

11, 46
Trop v. Dulles,
356 U.S. 86 (1958)........... 48
U.S. v. La Jeune Euqenie,
26 F.Cas. 833, 846 (C.C.D. Mass. 
1822) (No. 15,551)........... 9, 10, 

13
U.S. v,. Smith,
18 U.S. (5 Wheat.) 153 (1820). 9
Ware v. Hylton,
3 U.S. (3 Dali.) 198 (1796). . . 9

Treaties and Other 
International Documents
American Convention on Human 
Rights, O.A.S. Official 
Records, OEA/Ser. K/XVI 1.1, 
Doc. 65, Rev. 1, Con 1 (1970). 14, 17, 

18, 22, 
39, 45

I V



Page(s)
Comment by Mr. Ginnane in 19th 
Mtg, Committee III, May 19, 
1949, Final Report of the 
Diplomatic Conference of 
Geneva, Federal Political 
Department, Berne, n.d.,
Vol. II, § A at 673 .......... 33
Comment by Mr. McCahon in 47th 
Mtg, Committee III, July 14, 
1949, Final Report of the 
Diplomatic Conference of 
Geneva, Federal Political 
Department, Berne, n.d.,
Vol. II, § A at 789 .......... 34
Draft Convention for the 
Protection of Civilian Persons 
in Time of War, Final Report 
of the Diplomatic Conference 
of Geneva of 1949, Federal 
Political Department, Berne, 
n.d., Vol. I ................... 19, 20

E.C.S. Res. 1984/50, U.N.
ESCOC Supp. (No. 1), U.N.
DOC. E/1984/84 (1984)........ 23

G .A . Res. 35/172, U.N. GAOR 
Supp. (No. 48), U.N. Doc. 
A/35/48 ( 1980)................ 22, 36

V



Geneva Convention Relative to 
the Protection of Civilian 
Persons in Time of War,
Aug. 12, 1949, 6 U.S.T. 3516,
T. I.A.S. No. 3365 § 75
U. N.T.S. 287 .................
Handbook of Existing Rules 
Pertaining to Human Rights 
in the Inter-American System, 
OEA/Ser. L/V/II, 65, Doc. 6, 
July 1, 1985 ..................
Inter-American Commission on 
Human Rights, Resolution 3/87, 
Case No. 9647 (Roach and 
Pinkerton v. United States), 
OEA Ser. L/V/II 69, Doc. 17 
(March 27, 1987)..............
International Covenant on 
Civil and Political Rights, 
Annex to G.A. Res. 2200, 21 
U.N. GAOR Res. Supp. (No. 16) 
at 53, U.N. Doc. A/6316 (1966)
Multilateral Treaties 
Deposited with the Secretary 
General of the U.N., U.N. Doc. 
ST/LEG/SER. E/3 (1985).......
North Sea Continental Shelf 
Cases (Fed.Rep.Ger. v. Den., 
Fed.Rep.Ger. v. Neth.), 1969 
I.C.J. 42.....................

Page(s)

14, 16, 
19, 32

17

27, 41

14, 16, 
18, 20,
31, 35 
45
17

15

vi



Paqe(s)
Norwegian Fisheries Case 
(U.K. v. Nor.), 1951 I.C.J.
116 (Judgment of December 18). 28, 29
Protocol 6, European 
Convention on Human Rights, 
1983 EUTOp. T.S. NO. 114, 22 
I.L.M. 539 (1983)............ 14, 18
Report of the Seventh United 
Nations Congress on the 
Prevention of Crime and the 
Treatment of Offenders, U.N. 
Doc. A/CONF. 121/22 (1985).... 23
Report of the Working Group 
on a Draft Convention on the 
Rights of the Child, 42 UN 
ESCOC Commission of Human 
Rights (Agenda Item 13), U.N. 
Doc. E/CN 4/1986/39 (1986).... 31, 42 

43
Statute of the International 
Court of Justice, T.S. No. 993, 
59 Stat. 1055, 1060 (1945).... 11
27th Plenary Mtg, Final Report 
of the Diplomatic Conference 
of Geneva, Federal Political 
Department, Berne, n.d.,
Vol. II, § B at 431.......... 34
Vienna Convention on the Law 
of Treaties, U.N. Doc. A/CONF. 
39/27 (1969), 8 I.L.M. 679 
(1969)........................ 5, 13, 

45, 48

- v i l  -



Paqe(s)
Legislative Materials
International Human Rights 
Treaties: Hearings Before the
Committee on Foreign 
Relations, 96th Cong.,
1st Sess. (1979).............. 38
Department of State Letter of 
Submittal to the President,
S.Exec. Doc. L., 92nd Cong.,
1st Sess . (1971).............. 46

Miscellaneous
Akehurst, Custom as a Source 
of International Law, 47 Brit.
Y.B. Int'l. L. 1 (1974)......  12
American Bar Association
Report No. 117A (approved
August, 1983)................. 26
American Law Institute, Model 
Penal Code § 210.6(l)(d)
(Proposed Official Draft,
1962).........................  26
American Law Institute, Model 
Penal Code § 210.6, Comment,
1331 Official Draft and
Revised Comments (1980)......  26

- viii -



American Law Institute, 
Restatement (Revised) of the 
Foreign Relations Law of the 
United States, 2 A.L.I. Tent. 
Draft. No. 6 (April 12, 1985)
Amnesty International, The 
Death Penalty List of 
Abolitionist and Retentionist 
Countries, Amnesty 
International Document ACT 
05/19/85 (June 1985)........
Anzilotti, Cours de droit 
international (Gidel, 
trans. 1929).................
Bite, The United States and 
International Human Rights 
Treaties: A Summary of 
Provisions and Status in the 
Ratification Process, Foreign 
Affairs and National Defense 
Division, Congressional 
Research Service Report 
No. 83-175 F ( 1983).........
Brownlie, Principles in 
International Law ( 1979)....

46, 47, 
48

Page(s)

25

46

35, 36, 
41
29

I X



Paqe(s)
Buerganthal and Norris, 
Observations and Proposed 
Amendments to the Draft of the 
Inter-American Convention on 
Protection of Human Rights, 
Human Rights: The
Inter-American System, Vol. 2, 
Booklet 13 (1982)............. 40
Christenson, Using Human 
Rights Law to Inform Due 
Process and Equal Protection 
Analysis, 52 U. Cin. L. Rev. 3 
(1983)........................ 7
D ‘Amato, The Concept of Custom 
in International Law (1971)... 12
Department of State Bulletin, 
January 16, 1977 .............. 36
Dickenson, The Law of Nations 
as Part of the National Law of 
the United States (pts. 1 and 
2), 101 U. Pa. L. Rev. 26 
(1952)........................ 8, 9
Hartman, "Unusual" Punishment: 
The Domestic Effects of 
International Norms 
Restricting Application of the 
Death Penalty, 52 U. Cin. L. 
Rev. 655 (1983)............... 7, 12, 

21, 22, 
24, 25, 
28, 30,
35

x



International Law Commission,
Report to the General 
Assembly, 2 Ybk. Int'1. L.
Comm' n 172 ( 1966)............. 46
Internetional Review of the 
Red Cross No. 247
(July/Aug. 1985).............. 16
Interpretation of Treaties,
75 A. J. Int'1. L. 147 (1981). 46
McNair, The Law of Treaties 
(1961)........................  46
Schacter, Nature and Process 
of Legal Development in 
International Society,
Structure and Process of 
International Law ( 1983)....  28 , 29
Stein, The Approach of the 
Different Drummer: The 
Principle of Persistent 
Objector in International Law,
26 Harv. Int'1. L. J. 457
(1985)........................  28
Streib, Minimum Statutory Ages 
for the Death Penalty 
(Unpublished Memorandum,
October 1, 1985).............. 26
Wofke, Custom in Present 
International Law (1964)....  12

Page(s)

xi



INTEREST OF AMICUS
The International Human Rights 

Law Group (Law Group) is a non-profit 
public interest organization incorporated 
in the District of Columbia. Its goals 
include the development and promotion of 
legal norms of international human 
rights. To that end, the Law Group has 
represented individuals and
organizations, on a pro bono basis, 
before United States and international 
tribunals.

With respect to the issue of the 
execution of juvenile offenders in the 
United States, the Law Group has 
testified in opposition to such practice 
before Congress and has co-sponsored a 
petition challenging the practice before 
the Inter-American Commission on Human 
Rights. The Commission, in a decision 
issued March 27, 1987, determined that
the United States is violating Article I



(right to life) and Article II (right to 
equality before law) of the American 
Declaration of Human Rights by permitting 
the death penalty to be applied to 
juvenile offenders.

The Law Group respectfully 
submits and intends to demonstrate to 
this Court that relevant customary 
international human rights law, binding 
on the United States, prohibits the 
execution of juvenile offenders.

STATEMENT OF THE CASE
The petitioner, William Wayne 

Thompson, was convicted of first-degree 
murder and sentenced to death by an 
Oklahoma jury in 1983. Thompson was 
fifteen years of age when he, his older 
brother and two men killed his 
ex-brother-in-law in an unusually brutal 
fashion. Under Oklahoma's juvenile 
offender system, Thompson was certified

2



to stand trial as an adult. Each 
defendant was tried separately and each 
was convicted and sentenced to death.

Thompson's conviction was upheld 
by the Oklahoma Court of Criminal Appeals 
on August 29, 1986. That Court rejected
petitioner's argument that execution of 
Thompson for a crime he committed at the 
age of fifteen would be unconstitutional 
cruel and unusual punishment in violation 
of the Eighth and Fourteenth Amendments. 
The Court stated that "once a minor is 
certified to stand trial as an adult, he 
may also, without violating the 
Constitution,' be punished as an adult." 
Thompson v. Oklahoma, 724 P . 2d 780 (Okl. 
Cr. 1986).

SUMMARY OF ARGUMENT
Under the Supremacy Clause of 

the Constitution (Article VI, Section 2), 
the states of the union are obliged to

3



includingrespect international law, 
customary international law. The Paguete 
Habana, 175 U.S. 677 (1900).

The prohibition against
executing individuals for crimes 
committed prior to their eighteenth 
birthday has developed into a norm of 
customary international law. Compelling 
eivdence of the existence of this norm is 
found in the explicit provisions of three 
major human rights treaties, prohibiting 
execution of juvenile offenders, as well 
as in the practices of a large group of 
nations with diverse political, social 
and cultural traditions. The United 
States in large measure supported the 
development of this norm and certainly 
does not qualify as a "persistent 
objector" to it.

Given the existence of this 
international law norm, amicus submits 
that under Article VI of the United

4



States Constitution, Oklahoma is 
precluded from executing petitioner for a 
crime committed prior to his eighteenth 
birthday.

Amicus also submits that 
execution of the petitioner would violate 
United States treaty obligations. The 
United States has signed, but not 
ratified, treaties which prohibit the 
execution of juvenile offenders. Having 
signed these treaties, under the Vienna 
Convention on the Law of Treaties and 
under customary international law, the 
United States is bound not to defeat 
their object and purpose pending 
ratification. Since execution is 
irreversible, such an act would defeat 
the object and purposes of the signed 
human rights treaties in the sense 
proscribed by the Vienna Convention.

Even if the Court does not find 
that a binding norm of international law

5



exists, the almost universal
international abhorrence to the 
imposition of the death penalty on those 
who were under the age of eighteen at the 
time of theri offenses should be 
considered in interpreting the Eighth 
Amendment.

For all of these reasons, amicus 
submits that the decision of the Oklahoma 
Court of Criminal Appeals should be 
reversed.

ARGUMENT
I _ CUSTOMARY____ INTERNATIONAL LAW

WHICH FORMS PART OF THE LAW OF
THE UNITED STATES PROHIBITS THE
EXECUTION OF JUVENILE OFFENDERS
There are ’two general approaches 

to the application of international law 
before United States courts. The first 
approach looks to international law and 
the development of international norms to 
inform various provisions of the United 
States Constitution, including the Eighth

6



Amendment. 1/ The second approach, which 
is advanced in this brief, holds that the 
prohibition against execution of juvenile 
offenders is a norm of customary 
international law bindrng on the United 
States. As such, under Article VI of the 
United States Constitution, the several
states are bound not to execute
individuals for crimes committed prior to 
their eighteenth birthday.

A. Customary International Law 
Is Part Of The Law Of The 
United States.

That international law is part
of United States law, applicable to

1/ See 
Human

generally 
hts Law to

Christenson, 
Inform Due

Using
Process

and Egual Protection Analysis, 52 U. Cin.
L . Rev. 3 (1983); see also Hartman,
"Unusual" Punishment: The Domestic
Effects of International Norms
Restricting Application of the Death
Penalty, 52 U. Cin. L. Rev. 
The brief submitted amicus 
Amnesty International 
argument as it relates 
case.

655 (1983).
curiae by 

develops this 
to the instant

7



disputes among individuals as well as
between individuals and the state, has
long been recognized. See The Nereide,
13 U.S. (9 Cranch.) 388, 422 (1815) and
The Paguete tiabana, 175 U.S. €77
(1900). 2/ In fact, as the Second
Circuit noted in Filartiga v. Pena-Irala,
630 F .2d 876 (2d Cir. 1980),

[t]he law of nations forms an 
integral part of the common law, 
and a review of the history
surrounding the adoption of the 
Constitution demonstrates that 
it became part of the common law 
of the United States upon the 
adoption of the Constitution. 3/
Treaties are expressly made part

of United States law by Article VI of the
Constitution; customary international law
has always been understood and applied as

2/ See generally Dickenson, The Law of
Nations as Part of the National Law_of
the United States, (pts. 1 and 2), 101 U.
Pa. L. Rev. 26, 792 (1952).
3/ Filartiga v. Pena-Irala, 630 F.2d 
876, 885 (2d Cir. 1980).

8



the law of the Republic, a principle
recognized by the Court in The Paguete
Habana, supra. 4 /

It is clear that not only
international law as it existed in 1789
may be applied by United States courts.
The evolving nature of international law
was recognized in United States v. Smith,
18 U.S. (5 Wheat.) 153 (1820) and in
Ware v. Hylton, 3 U.S. (3 Dali.) 198
(1796). 5/ As Justice Story put it in
the case of La Jeune Eugenie:

It does not follow . . . that
because a principle cannot be 
found settled by the consent and 
practice of nations at one time, 
it is to be concluded, that at 
no subsequent period the 
principle can be considered as

4/ See also Dickenson, supra n.l.
5/ Filartiga v. Pena-Irala, 630 F.2d at 
887.

9



incorporated into the public 
code of nations. 6/

This principle is especially significant 
in a case such as this, involving a norm 
which has developed over the last forty 
years.

While ascertaining customary
international law presents problems
different from those of finding domestic
law, those practical difficulties in no
way affect the binding force of customary
international law. In the famous words
of Mr. Justice Gray,

[ i ]nternational law- is part of 
our law, and must be ascertained 
and administered by the courts 
of justice of appropriate 
jurisdiction as often as 
questions of right depending 
upon it are duly presented for 
their determination. For this 
purpose, where there is no 
treaty and no controlling

6/ U.S. v. La Jeune Eugenie, 26 F. Cas. 
833, 846 (C. C. D. Mass. 1822) 
(No. 15,551) (holding that an 
international norm forbidding slavery 
exists).

10



executive or legislative act or 
judicial decision, resort must 
be had to the customs and usages 
of civilized nations, and, as 
evidence of these, to the works 
of jurists and commentators who 
by years of labor, research, and 
experience have made themselves 
particularly well acquainted 
with the subjects of which they 
treat.

The Pacruete Habana, 175 U.S. at 700. See 
also Filartiga v. Pena-Irala, supra. 
Further, the role of custom as a source 
of international law is expressly 
recognized in Article 38 of the Statute 
of the International Court of Justice, 
T.S. No. 993, 59 Stat. 1055, 1060 
(ratified July 28, 1945).

Two primary criteria are used to 
determine whether a principle has 
attained the status of a rule of 
customary international law. First, 
there must be evidence of State practice 
to show that the norm has been generally

11



adopted by nations. 7/ Second, the State 
practice should be accompanied by opinio 
juris or evidence that the norm has been 
accepted as giving rise to an 
international law obligation. 8/ Courts 
will look to treaties, national laws, the 
practice of international organizations
and secondary materials as evidence of
the existence of a customary norm of
international law. For example, in
Filartiga, supra, Judge Kaufman relied on 
treaty provisions, resolutions of public 
international bodies and opinions of 
prominent scholars to discover the norm

7/ See Hartman, supra, note 1, at 666, 
668, and sources cited therein, including 
Akehurst, Custom as a Source of
International Law, 47 Brit. Y. B. Int' 1 
L. 1, 53 ( 1974) at 18, 53; A. D'Amato, 
The Concept of Custom in International 
Law 87-92 ( 1971) .
8/ See Hartman, supra, note 1 at 671; 
Akehurst, id. at 31-35, 53; K. Wolfke,
Custom in Present International Law 
(1964).

12



See also theprohibiting torture, 
extensive discussion of the sources 
establishing a customary norm prohibiting
the slave trade found in La Jeune
Eugenie, supra.

B. Treaties And
The Practice Of Nations
Establishes The Prohibition
Aaainst Capital Punishment
nf Juvenile Offenders As A
Norm Of Customary
International Law.

1. Human Rights Treaties 
Human rights treaties provide

the most 
customary 
question 
offenders.

authoritative source of 
international law on the 
of execution of juvenile 
The Vienna Convention on the

Law of Treaties 9/ recognizes in Article 
38 that a treaty may become "binding upon

9/ U.N. Doc. A/CONF. 39/27 (1969), 63 
A.J.I.L. 875 (1969) entered into force 
January 27, 1980, transmitted to the 
Senate for advice and consent on November 
21, 1971, but not yet ratified.

13



a third State as a customary rule of 
international law, recognized as such.
At least three major human rights 
treaties explicitly prohibit the 
imposition of the death penalty on 
juvenile offenders. 10/ An additional 
instrument, Protocol No. 6 to the 
European Convention on Human Rights, 
ratified by five nations and signed by 
all but six of the twenty-one Member 
States of the Council of Europe,

10/ American Convention on Human Rights, 
oTa .S. Official Records, OEA/Ser. K/XVI 
1.1, Doc. 65 Rev. 1 Con. 1 ( 1970) at Art. 
4(5); International Covenant on Civil and 
Political Rights, Art. 6(5), Annex to 
G A Res. 2200, 21 U.N. GAOR Res. Supp. 
(No. 16), at 53, U.N. Doc. A/6316 (1966); 
Geneva Convention Relative to the 
Protection of Civilian Persons in Time of 
War, Aug. 12, 1949, Art. 68, 6 U.S.T. 
3516, T.I.A.S. No. 3365 § 75 U.N.T.S. 
287 .

14



abolishes the death penalty entirely for 
crimes during peacetime. 11/

The human rights treaties 
exempting juvenile offenders from 
execution have been accepted and ratified 
by nations throughout the world as 
delineating international legal
obligations. 12/ Their provisions
proscribing the death penalty for

11/ Opened for signature April 23, 1983, 
entered into force March 1, 1985, 1983 
Europ. T.S. No. 114, reprinted in 22 
I.L.M. 539 (1983).
12/ The greater the number of parties to 
such international human rights treaties 
the greater the inference that these 
instruments have become customary 
international law. As the International 
Court of Justice stated in the North Sea 
Cases: "With respect to the other 
elements usually regarded as necessary 
before a ..conventional rule can be 
considered to have become a general rule 
of international law, it might be 
that . . .  a very widespread and 
representative participation in the 
convention might suffice of 
itself . . . ." North Sea Continental 
Shelf Cases, 1969 I.C.J. 42.

15



juvenile offenders are clear and 
unambiguous.

The Geneva Convention Relative 
to the Protection of Civilian Persons in 
Time of War has been ratified by 161 
nations. 13/ It provides in pertinent 
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 offense.

Article 6(5) of the International 
Covenant on Civil and Political Rights, 
which has been ratified by eighty-six 
nations of the world, including most of

13/ 247 International Review of the Red 
Cross 257 (July/Aug. 1985). This is the 
number of parties as of December 31, 
1984 .

16



Western Europe and Canada, and signed by
another seven, 14/ reads:

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 prohibition against the execution of
juvenile offenders in the American
Convention on Human Rights, which has
been ratified by nineteen American States
and signed by an additional three, I V  is
found at Article 4(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 or age; nor shall 
it be applied to pregnant women.

14/ Multilateral Treaties Deposited with 
the Secretary General of the U.N. at 124, 
U.N. Doc. ST/LEG/SER. E/3 (1985). This 
is the number of ratifications as of 
December 31, 1984.
15/ Handbook of Existing Rules Pertaining 
to Human Rights in the Inter-American 
System, OEA/Ser. L/V/II, 65, Doc. 6, 
July 1, 1985, at 63.

17



Under both the International 
Covenant on Civil and Political Rights 
(Article 4(2)), and the American 
Convention on Human Rights, (Article 
27(2)) the prohibition against imposition 
of the death penalty on jjuvenile 
offenders admits of no derogation. 16/ 

Unquestionably, these treaty prohibitions 
provide important and authoritative 
evidence of the customary norm against 
the execution of juvenile offenders. 
Records of the debates surrounding the 
development of the conventions and other 
indications of opinio iuris found in the
travaux_____preparatoires of these
conventions demonstrate that their 
prohibitions against these executions are

16/ Likewise, under Article 3 of Protocol 
No. 6 to the European Convention on Human 
Rights, supra note 10, no derogation from 
the Protocol is allowed nor may 
reservations in respect of the Protocol 
be made under its Article 4.

18



in fact codifications of customary
international law.

a. The_______Fourth______ Geneva
Convention Relative to the
Protection of Civilians in
Time of War

The Fourth Geneva Convention, 
signed in 1949, marked the initial stages 
of development for the customary 
international norm prohibiting the 
execution of juvenile offenders. This 
Convention has its origins in the Draft 
Convention for the Protection of Civilian 
Persons in Time of War, approved by the 
XVIIth International Red Cross Conference 
in August of 1948. 17/ Article 59 of 
this draft read: "The death penalty may
not be pronounced against a protected

17/ Final Record of the Diplomatic 
Conference of Geneva of 1949, Federal 
Political Department, Berne, n.d., Vol. 
I, at 113.

19



person under eighteen years for any
offense whatsoever." 18/

The Geneva Conventions, of
course, apply principally to periods of
international armed conflict and Article 
68 forbids the execution of both 
civilians and military personnel no 
longer in combat who committed offenses 
prior to the age of eighteen. If nearly 
all the nations of the world, including 
the United States, have agreed to such a 
norm in periods of international armed 
conflict, the norm protecting juvenile 
offenders from execution ought to apply 
with even'greater force during peacetime.

b . The International Covenant 
on Civil and Political 
Rights

During the debates surrounding
the adoption of Article 6 of the

18/ Id. at 123.

20



International Covenant, there was no 
opposition to the view that permitting 
executions of juvenile offenders was 
contrary to human rights principles. 19/ 
The travaux reveal that the drafters of 
Article 6 believed that the prohibition 
against juvenile executions represented a 
consensus of nations. 20/

Significantly, the travaux make 
clear that the Article 6(5) prohibition 
was no more than the codification of an 
already existing binding norm. 2_1/ The 
U.N. General Assembly resolution which 
recognized that Article 6 of the 
International Covenant constitutes a 
"minimum standard" for all Member States,

19/ Hartman, supra note 1, at 671-72.
20/ Id. at 672 and n.64, and citations 
noted therein.
21/ Id.

21



not only ratifying states, 22/ also 
evidences State practice supporting the 
position that the prohibition against 
juvenile executions is customary
international law.

c . The American Convention on 
Human Rights

The draft proposal of Article 
4(5) was patterned after the 
International Covenant's prohibition on 
execution of juvenile offenders. 23/ 
Drafters of the 'Convention settled upon 
this formula, recognizing that total 
abolition of the death penalty was not 
possible in the context of the Convention.

22/ Id. at 681 n . 94; G . A . Res. 35/172, U7N. GAOR Supp. (No. 48) at 19 5, U.N. 
Doc. A/35/48 (1980). Although the United 
States did not participate in the Article 
6 debates, it did support this General 
Assembly Resolution.
23/ Hartman, supra note 1, at 672-73 
n.66, and sources cited therein.

22



Hence, the American Convention, 
the International Covenant on Civil and 
Political Rights, and the Fourth Geneva 
Convention, with their accompanying 
statements regarding pre-existing 
customary law, 24/ provide strong 
evidence that there exists a high degree 
of consensus among a large number of

24/ Other evidence that a customary law 
norm exists includes the action of the 
U.N. Economic and Social Council (ECOSOC) 
which adopted, pursuant to a resolution, 
safeguards relating to the death penalty, 
one of which was a prohibition against 
the execution of persons who committed 
crimes below the age of 18 years. E.C.S. 
Res. 1984/50, U.N. ESCOR Supp. (No. 1), 
at 33, U.N. Doc. E/1984/84 (1984).

Moreover, in September of 1985, the 
Seventh U.N. Congress on the Prevention 
of Crime and Treatment of Offenders 
adopted Resolution No. 15, endorsing the 
ECOSOC safeguards and urging all states 
retaining the death penalty to implement 
them. The U.S. also consented to this 
resolution. Report of the Seventh United 
Nations Congress on the Prevention of 
Crime and the Treatment of Offenders (26 
August to 6 September 1985) at 86-87, 
U.N. Doc. A/CONF.121/22 (1985).

23



nations that executions of juvenile 
offenders are forbidden.

2. National Laws and Practice
Further evidence of State 

practice appears in the national laws of 
over eighty nations, including almost all 
Western European countries, which have 
either abolished the death penalty or 
forbidden it for certain offenses and for 
certain offenders, including juveniles. 
Significantly, these nations range widely 
in political, religious and cultural 
tradition. 25/

Recent data compiled by Amnesty 
International reveals that twenty-eight 
countries have completely abolished the 
death penalty while eighteen additional 
countries provide for the death penalty 
only for exceptional crimes, such as

25/ Hartman, supra note 1, at 666, and 
n . 44.

24



crimes under military law, or for crimes
committed under exceptional
circumstances, such as wartime. 26/
Other studies show that , among the
countries for which data was reported,
forty-one of the retentionist countries 
had statutory provisions exempting 
juveniles from the death penalty, five of 
the listed countries being Member States 
of the OAS. 27/

Even in the United States, laws 
in various jurisdictions which retain the 
death penalty nonetheless recognize that

26/ Amnesty International Document ACT 
05/19/85, The Death Penalty List of 
Abolitionist and Retentionist Countries 
(June 1985) .
27/ Hartman, supra note 1, at 666 n.44. 
The data used by this scholar was 
compiled based on information from the 
State Department, the United Nations and 
Amnesty International. The author 
acknowledges that data is often 
incomplete and not always perfectly 
accurate. Id. at 667.

25



special considerations apply to juvenile 
offenders with at least twenty-one states 
setting a minimum age for imposition of 
the death penalty. 28/ This practice is 
underscored by the declarations of 
various prestigious United States legal 
bodies, including the American Law 
Institute and the American Bar 
Association, which have publicly opposed 
execution of persons who committed crimes 
under the age of eighteen. 29/

28/ V. Streib, Minimum Statutory Ages for 
the Death Penalty (October 1, 1985) 
(unpublished memorandum). Nine require 
that the minimum age be at least 18 
(including the recent addition of New 
Jersey, Indiana and Maryland). Twelve 
additional jurisdictions without a 
minimum age requirement expressly provide 
for age as one of the mitigating factors 
in imposing the death sentence. Id.
29/ American Law Institute Model Penal 
Code § 210.6(l)(d) (Proposed Official 
Draft, 1962); § 210.6, Comment, 1331 
Official Draft and Revised Comments 
(1980); American Bar Association Report 
No. 117A, approved August 1983.

26



Thus, the practice of nations, 
when considered along with widely 
ratified human rights treaties, evidences 
an abhorrence of the imposition of the 
death penalty upon juvenile offenders 
which rises to the level of a customary 
norm of international law. 30/

30/ In a recent decision in a case 
involving the issue of the execution of 
juvenile offenders the United States 
Inter-American Commission on Human Rights 
concluded that the United States was 
violating its international legal 
obligations by permitting the execution 
of juvenile offenders. IACHR Resolution 
3/87, case No. 9647 (Roach & Pinkerton v. 
United States), OEA Ser. L/V/II 69, Doc. 
17, paras. 64-65 (March 27, 1987). The
Commission concluded that the execution 
of "children1' is prohibited by 
international law. I_d. at para. 56. 
However, it also stated, in dicta, that
"there does not now exist a norm of
customary international law establishing 
eighteen to be the minimum age for
imposition of the death penalty." Id- 
para. 60. Amicus submits that the 
execution of Thompson, who was fifteen at 
the time he committed the crime for which 
he was sentenced to death, would violate 
the principle found by the Commission.

27



c. The United States Does Not 
Qualify As A Persistent
Obj ector________ To________ The
International ___________Norm
Prohibiting The Execution 
Of Juvenile Offenders.

A State may prevent itself from 
becoming bound by a rule of customary 
international law if: (A) the State
mounts an explicit and disciplined
opposition to the coalescing norm; 31/ 
and (B) the State has maintained
consistent opposition since the rule's 
formation. 32/ The United States,
however, has never affirmatively nor 
openly opposed the formation of the

31/ Hartman, supra note 1 at 686 n.113; 
Schacter, "Nature and Process of Legal 
Development in International Society," in 
Structure and Process of International 
Law, 745, 779 (1983); Stein, The Approach 
of the Different Drummer: The Principle
of Persistent Objector in International 
Law, 26 Harv. Int'1. L. J. 457, 479
(1985) .
32/ Norwegian Fisheries Case, (U.K. v. 
Nor.), 1951 I.C.J. 116, 131 (Judgment of
December 18); Akehurst, supra note 7.

28



customary international norm prohibiting 
the execution of juvenile offenders and 
is, therefore, bound by that rule.

To qualify as a persistent 
objector to a customary international 
norm, a State must show that the rule in 
question has never applied to it because 
of its "open dissent during the formation
of_____the_____rule prior to its
crystallization." 33/ The International 
Court of Justice has ruled that a State 
which unequivocally and consistently 
manifested a refusal to accept a rule 
from the moment of creation would qualify 
as a persistent objector. 34/ One

33/ Schacter, supra note 31, at 779
(emphasis added).
34/ Brownlie, Principles in Public
International Law 11 (1979), citing
Norwegian Fisheries Case, supra note 32, 
at 131 (emphasis added), in which the 
Court ruled that Norway would qualify as

[Footnote continued]

29



scholar described the criteria for
persistent objection as follows:

Passive failure to bring 
domestic law into conformity 
with established international 
standards should not be accepted 
as adequate protest . . . .  A 
dissenting state, to release 
itself from the binding force of 
a developing customary rule of 
international law, has an 
obligation to mount explicit and 
principled opposition to the 
coalescing norm, or it will find 
itself authoritatively bound to 
the international standard. 35/
There is no evidence pointing to

an unequivocal manifestation of United
States' opposition to the customary
international norm prohibiting the
execution of juveniles.

34/ [Footnote continued]
a persistent objector to the rule 
prohibiting the enclosure of bays by 
baselines exceeding ten miles in length 
because the government had always opposed 
the rule.
35/ Hartman, supra note 1, at 686 n.113 
(emphasis added).

30



The formation of the norm
prohibiting the execution of juvenile 
offenders commenced with the Fourth
Geneva Convention and has been recognized 
in the International Covenant on Civil 
and Political Rights, the American 
Convention on Human Rights, the recent 
proposed draft of the Convention on the 
Rights of the Child, the Beijing Rules on
the Minimum Standards for the
Administration of Juvenile Justice, and
the practice of nations. The United
States voiced no opposition to the rule
prohibiting the imposition of the death 
penalty on juvenile offenders during the 
drafting stages of four of the five 
international instruments identified 
above. The few equivocal statements made 
by United States’ officials do not rise 
to the level of explicit and consistent 
protest to the formation of the customary

31



international rule against the execution
of juvenile offenders.

1. Article 68, para. 4 of the 
Fourth Geneva Convention

The United States signed and
ratified the Fourth Geneva Convention
without asserting any opposition to
Article 68, para. 4 . 36/ The only
statement made by the United States
regarding Article 68, para. 4 of the
final version came during a Committee 
meeting at the Diplomatic Conferences in 
Geneva. The United States delegate stated

36/ The United States attached an 
unrelated reservation to Article 68(2) 
which read:

The United States reserves the 
right to impose the death 
penalty in accordance with 
provisions of Article 68, 
paragraph 2, without regard to 
whether offenses referred to 
therein are punishable by death 
under the law of the occupied 
territory at the time the 
occupation begins.

32



the abolition of the death 
penalty in the case of protected 
persons under 18 years of age 
was a matter which called for 
very careful consideration 
before such a sweeping provision 
was adopted. 37/
This statement, however, does 

not constitute an unequivocal and 
principled statement of opposition. The 
United States never made any reservation 
whatsoever to this paragraph of the 
Convention. Moreover, after Article 68, 
para. 1, was sent back to the Drafting 
Committee for revision, United States 
delegate McCahon expressed support for 
the prohibition on the grounds that "the 
test reduced the number of cases in which

37/ Comment by Mr. Ginnane, in 19th Mtg 
of Committee III, May 19, 1949, in Final 
Report of the Diplomatic Conference of 
Geneva of 1949, Federal Political 
Department, Berne, n.d. Vol. II, § A, at 
673 .

33



the death penalty could be imposed." 38/ 
During the remainder of the conference, 
the United States delegation focused on 
paragraph 2 of Article 68, but never 
again mentioned the provision prohibiting 
the execution of those under eighteen at 
the time of their offense. On August 3, 
1949, Article 68 as a whole was adopted 
by thirty-three votes to five, with five 
abstentions. 39/ Thus, in the earliest 
stages of its formation, the United 
States failed to mount any unequivocal 
opposition to the rule excluding juvenile 
offenders from punishment by death.

38/ Comment by Mr. McCahon in 4 7th Mtg, 
Committee III, July 14, 1949, id., at
789 .
39/ 27th Plenary Mtg, id., Vol. II, § B, 
at 431.

34



2 . Article 6(5) of 
International Covenant

the

The United States took no 
position on the substance of the death 
penalty limitations in Article 6(5) of 
the International Covenant because it 
declined to participate in the crucial 
1957 Third Committee debates regarding 
the drafting of Article 6 of the 
International Covenant. 40/
Nevertheless, the United States 
representative eventually voted in favor 
of adoption of the International Covenant 
in 1966 without expressing concern over 
Article 6(5). 4_1/ The United States 
subsequently sponsored a United Nations

40/ Hartman, supra note 1, at 684.
41/ V. Bite, The United States and 
International Human Rights Treaties: A
Summary of Provisions and Status in the 
Ratification Process, Foreign Affairs and 
National Defense Division, Congressional 
Research Service Report No. 83-175 F at 
17 (1983).

35



General Assembly Resolution that
recognized Article 6 of the International
Covenant as expressing a "minimum
standard" for all states. 42/

The International Covenant was
signed by President Carter on October 5,
1977, and still no opposition was raised
to Article 6(5). 43/ President Carter
then submitted the International Covenant
to the Senate in 1978. 4_4/ At that time
the President transmitted a memorandum
from the State Department proposing a
number of reservations and understandings
including the statement:

The United States reserves the 
right to impose capital 
punishment on any person duly 
convicted under existing or

42/ G .A . Res. 35/172, U.N. GAOR Supp. 
(No. 48) at 195, U.N. Doc. A/35/48 
(1980).
43/ V. Bite, supra note 47, at 17.
44/ Department of State Bulletin, 
January 16, 1977 at 106.

36



future laws permitting the
imposition of capital punishment.
This proposed reservation is 

insufficient as an objection to the 
international customary rule prohibiting 
the execution of juvenile offenders for 
three reasons. First, the reservation 
has never been presented to the 
international community. Because the 
Senate has yet to act on the President's 
recommendations, the proposed reservation 
by former President Carter has an 
ambiguous status as merely a proposal for 
consideration. Second, the proposed 
reservation was suggested twelve years 
after the International Covenant was 
adopted by the General Assembly, and so 
fails to satisfy the requirement that the 
opposition be manifested during the early 
days of the rule's formation. Third, the 
wording of the reservation does not meet 
the test of an explicit and principled

37



manifestation of refusal to follow the 
international norm.

Furthermore, the State
Department specifically denied that the
proposed reservation applied "to juvenile
offenders or pregnant women. The State
Department explained to a Senate hearing
that the purpose of the reservation to
Article 6(5) of the International Covenant

is to avoid the assumption of an 
international obligation to meet 
certain standards which the 
United States domestic law does 
not currently meet. Its purpose 
was certainly not the
preservation of any right to 
execute children or pregnant 
women, something never done in 
the United States. 45/

45/ International Human Rights Treaties: 
Hearings before the Committee on Foreign 
Relations; 96th Cong., 1st Sess. ct. 1,
55 (1979). Response by the State
Department to the "Critique of 
Reservations to International Human
Rights Covenants" by the Lawyers 
Committee for International Human 
Rights. This statement is now inaccurate 
since three juvenile offenders have been 
executed in this country in recent years.

38



This denial by the State Department 
clearly undercuts any claim that the 
United States has persistently objected 
to the customary norm prohibiting the 
execution of persons younger than 
eighteen at the time of the offense.

3. Article 4(5)____ of the
American Convention

United States representatives to 
the 1969 San Jose Conference apparently 
acquiesced in the drafting of Article 4 
of the American Convention, as no
evidence exists to prove otherwise.
Based on its comments in the travaux
preparatoires, the United States'
delegation does not 'appear to have
opposed per se the notion that the
execution of juvenile offenders should be 
prohibited. Rather the delegation seems 
to have been more concerned that setting 
specific age limits on the imposition of 
the death penalty did not adequately take

39



into account the "already apparent" trend 
towards gradual abolition of the death 
penalty. The United States delegation 
stated at the time of the drafting of the 
convention:

The proscription of capital 
punishment within arbitrary age 
limits presents various
difficulties in law, and fails 
to take account of the general 
trend, already apparent, for the 
gradual abolition of the death 
penalty . . . .  For this reason 
we believe the text will be 
stronger and more effective if 
this paragraph is deleted. 46/
President Carter signed the

American Convention on June 1, 1977, with
no comment regarding the provision
prohibiting the execution of juvenile

46/ 2 Buergenthal and Norris
"Observations and Proposed Amendments to 
the Draft of the Inter-American 
Convention on Protection of Human
Rights," Human______ Rights :_______ The
Inter-American System, Booklet 13, at 152 
(1982) (emphasis added).

40



offenders. 47/ The reservation proposed 
by the State Department to Article 4(5) 
of the American Convention, similar to 
the proposed reservation to Article 6(5) 
of the International Covenant, is 
insufficient to support a contention that 
there has been a pattern of persistent 
objection to this customary international 
norm. 48/

47/ V. Bite, supra note 41, at 77.
48/ The Inter-American Commission in its 
decision in Case No. 9647, supra note 32, 
states that "since the United States has 
protested the norm, it would not be 
applicable to the United States should it 
be held to exist." Id. at para. 54. The 
only evidence of a United States protest 
of the norm is the proposed reservation 
transmitted to the Senate when the 
American Convention was submitted for 
ratification. However, as stated above, 
this internal transmission by the 
Executive Branch to the Legislative 
Branch simply cannot qualify as evidence 
of a persistent objection to a norm 
sufficient to release the United States 
from an obligation to comply with the 
norm.

41



4. Article 19(2)(b) of the 
Proposed Draft Convention 
on the Rights of the Child

Article 19(2)(b) of the proposed
Convention on the Rights of the Child,
formulated by an informal working party,
reads:

Capital punishment or life 
imprisonment without possibility 
of release is not imposed for 
crimes committed by persons 
below eighteen years of age. 49/
The United States representative

placed on record a reservation to the age
limit, but this reservation was made in
March of 1986. 50/ It came too late to
release the United States from the
binding effect of the customary norm

49/ Report of the Working Group on a 
Draft Convention on the Rights of the 
Child, 42 UN ESCOC Commission on Human 
Rights (Agenda Item 13) U.N. Doc. E/CN. 
4/1986/39 (1986) .
50/ Id. at 24 .

42



prohibiting the imposition of the death 
penalty on juvenile offenders.

In addition, the reservation was 
not sufficiently explicit to relieve the 
United States of its international legal 
obligations. The United States
representative voiced disagreement with 
the proposal to adopt eighteen as the age 
limit, as previously accepted in various 
international instruments. 51/ She did 
not disagree with the general proposition 
that the death penalty should be 
abolished in the case of juvenile 
offenders. Furthermore, the United 
States representative specifically stated 
that she would not insist on any changes 
and block consensus on Article 
19(2)(b). 52/ These statements hardly

51/ Id. 
52/ Id.

43



qualify as "unequivocal" and "explicit" 
statements of opposition. While the 
United States reservation may operate in 
regards to this particular international 
instrument, it cannot operate in regards 
to the customary international norm.

As has been demonstrated, the
United States does not qualify as a
persistent objector to the international
norm prohibiting the imposition of the
death penalty for crimes committed by

»children below the age of eighteen and, 
consequently, is bound by it. The United 
States failed to oppose this customary 
norm during its early days of formation 
and there has been no consistent United 
States opposition to this norm since it 
was established.

44



UNDER TREATIES IT HAS SIGNED BUT
NOT RATIFIED, THE UNITED STATES
HAS LEGAL OBLIGATIONS WHICH ARE
BREACHED WHEN JUVENILES ARE
EXECUTED
As discussed above, the United

States has signed the International
Covenant and the American Convention,
both of which forbid the execution of
juvenile offenders. Amicus submits that
as a result of having signed these
treaties, the United States incurred
legal obligations which are violated when
juvenile offenders are executed.

Article 18 of the Vienna
Convention on the Law of Treaties (the
"Vienna Convention") 53/ provides that:

[a] state is obliged to refrain 
from acts which would defeat the 
object and purpose of a treaty 
when:

53/ U.N. Doc. A/CONF. 39/27 (1969), 
reprinted at 8 I.L.M. 679 (1969), 
transmitted to the Senate for advice and 
consent to ratification on Nov. 21, 1971, 
but not yet ratified.

45



a. it has signed the 
treaty. . .subject to 
ratification. . .until it shall 
have made its intention clear 
not to become a party to the 
treaty.

The United States has accepted the Vienna 
Convention as "the authoritative guide to 
current treaty law and practice," 54/ and 
customary international law is to the 
same effect. 55/

The Restatement (Revised) of the 
Foreign Relations Law of the United 
States incorporates Article 18 of the 
Vienna Convention into § 312(3). As an

54/ Letter of Submittal to the President,
S. Exec. Doc. L., 92nd Cong., 1st Sess. 1 
(1971). See also Interpretation of 
Treaties, 75 A.J. Int'l.Law 147 (1981).
55/ International Law Commission, Report 
to the General Assembly ( 1966), 2 Ybk. 
Int'l. L. Comm'n. 172, 202. See also 
McNair, The Law of Treaties (1961) at 
199; Anzilotti, Courts de droit 
international (Gidel trans. (1929)) at 
372. Customary law is binding on the 
United States. The Paguete Habana, 
supra.

46



example of an act which would "defeat the 
object and purpose" of a treaty, the 
Restatement discusses a test of a new 
nuclear weapon in contravention of a 
provision prohibiting such tests in a 
signed but unratified treaty. The 
effects of such a test, which would 
release significant radioactivity into 
the atmosphere, would be irreversible, 
since the atmospheric contamination could 
not be called back. 5_6/ Since the injury 
is irreversible, the Restatement 
concludes, such an act would defeat the 
object and purpose of the treaty in the 
sense forbidden by the Vienna Convention 
and customary international law.

Similarly, a life taken by 
execution is irretrievable. Each time

56/ Restatement (Revised) of the Foreign 
Relations Law of the United States, 2 
A.L.I. Tent. Draft No. 6, § 312, Comment
i (1985).

47



the United States permits the execution 
of a juvenile offender, the purpose and 
object of the signed but unratified human 
rights treaties are defeated in the sense 
proscribed by the Vienna Convention and 
the Restatement. Thus, legal obligations 
binding on the United States are breached.

III. EVEN IF THE COURT HOLDS THAT THE
STATES ARE NOT BOUND BY THE
CUSTOMARY NORM PROHIBITING THE
EXECUTION OF JUVENILE OFFENDERS,
THE INTERPRETATION OF THE EIGHTH
AMENDMENT SHOULD BE INFORMED BY
THAT NORN
In interpreting the Eighth

Amendment's prohibition against "cruel 
and unusual punishment", the Court has 
taken account of "the climate of 
international opinion concerning the 
acceptability of a particular
punishment." Coker v. Georgia, 433 U.S.
584 (1976). The Court considered
international practice in Trop v. Dulles, 
356 U.S. 86 (1958), in holding that loss

48



of nationality was an excessive, and 
therefore unconstitutional, sanction for 
desertion from the armed forces. Id- 
102. In Coker, supra, the death penalty 
for rape was held to be 
unconstitutionally excessive punishment; 
the Court noted United Nations documents 
indicating that only three out of sixty 
nations surveyed retained capital 
punishment in rape cases. Id., at 597, 
n.10. Recently, the Court again referred 
explicitly to "international opinion" in 
determining that the death sentence
violated the Eighth Amendment when
imposed on an offender who had not 
intended to kill his victim. Enmund v. 
Florida, 458 U.S. 782, 796 (1982).

There exists a well-developed, 
unequivocal customary international norm 
prohibiting the execution of juvenile 
offenders. Whatever the Court’s
conclusion regarding the binding nature

49



of that norm on the several states.
amicus submits that, at a minimum, the 
Court should take account of that norm in 
giving meaning to the Eighth Amendment’s 
prohibition against cruel and unusual 
punishment.

CONCLUSION

The practice of executing 
juvenile offenders is one that has 
clearly been rejected by the majority of 
the nations of the world. The 
multilateral treaties discussed herein, 
the travaux preparatoire related to those 
treaties, the domestic laws of numerous 
nations, the writings of experts and the 
resolutions of the United Nations all 
evidence a newly emerged norm of 
customary international law that is 
binding on the United States and on the 
several states under the Supremacy Clause 
of the Constitution.

50



Even if the Court does not find 
that such a binding norm exists, the 
Court should consider the almost 
universal international abhorrence to the 
execution of juvenile offenders in 
construing the Eighth Amendment's 
prohibition against cruel and unusual 
punishment in this case.

For all of these reasons, amicus 
respectfully urges this Court to reverse 
the decision of the Oklahoma Court of 
Criminal Appeals below.

Respectfully 
submitted,

DINAH SHELTON 
University of Santa 

Clara School of Law 
Santa Clara, CA 20037

ROBERT H. KAPP 
*LARRY GARBER 
International Human 
Rights Law Group 

733 15th Street NW 
Suite 1000 
Washington, DC 

20005
(202) 639-8016
‘Counsel of Record

51