Bryan v. Koch Brief Amicus Curiae

    IN THE

j&qiratt? (Unurt nf %  Imtefr
1976 Term

No. 74-6257 
TROY LEON GREGG,

vs. Petitioner,
THE STATE OF GEORGIA,

Respondent.

No. 75-5394 
JERRY LANE JUREK,

vs. Petitioner,
THE STATE OF TEXAS,

Respondent.

No. 75-5491
JAMES TYRONE WOODSON and LUBY WAXTON,

vs. Petitioners,
THE STATE OF NORTH CAROLINA,

Respondent.

No. 75-5706
CHARLES WILLIAM PROFFITT,

vs. Petitioner,
THE STATE OF FLORIDA,

Respondent.

No. 75-5844
STANISLAUS ROBERTS,

vs. Petitioner,
THE STATE OF LOUISIANA,

Respondent.

On Writs of Certiorari to the Supreme Court of Georgia, 
the Texas Court of Criminal Appeals, and the Supreme 

Courts of North Carolina, F lorida, and Louisiana, 
Respectively

MOTION FOR LEAVE TO FILE BRIEF OF 
AMICUS CURIAE AND BRIEF OF AMNESTY 

INTERNATIONAL AS AMICUS CURIAE

Arthur M. Michaelson 
Attorney for Amicus Curiae 

Amnesty International 
Mark K. Benenson 555 Madison Avenue

Of Counsel New York, N.Y. 10022
Nigel S. Rodley 
Eileen Lach

On the Brief



TABLE OF CONTENTS

PAGE

Table of Authorities .................................................  ii

Motion for Leave to File Brief of Amicus Curiae . . .  2

Interest of the Amicus Curiae........................... . 2

Brief of Amicus Curiae....... .....................................  5

A rgument :
I.—In the absence of authoritative legislative 

guidance, the Court, in deciding the death 
penalty question, makes a moral decision 
which can determine a standard of the hu­
mane governance of society if founded on the 
sanctity of the right to l i f e .......................... 6

II.—The Court has a unique opportunity to fulfill 
a dual role (a) in following the lead of other 
humane nations in abolishing the death pen­
alty and (b) in serving as a leader to other 
nations which have not yet abolished the 
death penalty .................................................  9

III.—The United Nations Charter, interpreted 
through the Universal Declaration of Human 
Rights and the Covenant on Civil and Po­
litical Rights, promotes the humane gov­
ernance of society and thus, the abolition of
the death penalty in the United States . . . .  13

Conclusion ............................................................................. 18

A ppendix  .................................................................................  A -l



11

TABLE OF AUTHORITIES

Cases :
A. F. of L. v. American Sash and Door Co., 335 

U.S. 538 (1949) ...................................................  10
Bacardi Corp. v. Domenech, 311 U.S. 150 (1940) 14
Brown v. Board of Education, 349 U.S. 294 (1955) 6
Commonwealth v. O’Neal, No. 3502 (Mass. Sup.

Jud. Ct., Dec. 22, 1975) ....................................  9
Hurd v. Hodge, 334 U.S. 24 (1948) ........................ 13
Kennedy v. Mendosa-Mar tines, 372 U.S. 159 (1963) 17
Oyama v. California, 332 U.S. 649 (1948) ...........  13,14
Poivell v. Alabama, 287 U.S. 45 (1932) ................  6
Shelley v. Kramer, 334 U.S. 1 (1948) ................  6
The Paquette Habana, 175 U.S. 677 (1900) .........  9
Trop v. Dulles, 356 U.S. 86 (1958) ........................ 10
Wyatt v. Stickney, 344 F. Supp. 387 (M.D. Ala.

1972) ...................................................................  17

U nited N ations D ocum ents:

Charter of the United Nations, June 26, 1945, 59 
Stat. 1031 (1945), T.S. No. 993 (effective Oct.
24, 1945) ....................................................13,14,15,17

Const. U.N. Food and Agricultural Organization 
(FAO), Oct. 16, 1945, 12 U.S.T. 980, T.I.A.S.
No. 4803 ............................................................  7

Covenant on Economic, Social and Cultural 
Rights, the Covenant on Civil and Political 
Rights, and the Optional Protocol, G.A. Res.
2200, 21 GAOR Supp. 16, at 48, U.N. Doc. 
A/6316 (1966) ...................................................  15,16

G.A. Res. 103, U.N. Doc. A/64/Add. 1 at 200 
(1946) ........................................      14

G.A. Res. 2857, 26 GAOR Supp. 21, at 94, U.N.
Doc. A/8421 (1971) ..............................................  17

PAGE



1X1

I.C.J. Stat. Art. 3 8 .................................................  15
Universal Declaration of Human Bights, G.A. Res.

217, U.N. Doc. A/810 at 71 (1948) ....................  15>17
Vienna Convention on the Law of treaties, May 

22, 1969 [1972], U.N. Doc. A/CONF. 39/26 
(1969) .................................................................. lb ' 11

The World Food Conference Declaration on the 
Eradication of Hunger and Malnutrition, U.N.
Doc. SEC/E. 75 II. A. 3, 1 (1974) ....................  7

PAGE

U nited N ations R eports :
United Nations, Economic and Social Council, 

Commission on Human Rights (E/CN. 4/1111) 
(February 1, 1973) ............................... ...........

United Nations, Economic and Social Council, Re­
port of the Secretary-General, Capital Punish- 
ment (E/5242) (February 23, 1973) ......... 7,10,11,17

United Nations, Economic _ and Social Council, 
Commission on Human Rights (E/CN. 4/1159) 
(January 24, 1975) .............................................. ■*-'

United Nations, Economic and Social Council, Re­
port of the Secretary-General, Capital Punish­
ment (E/5616) (February 12, 1975) ................  9, 11

United Nations, Economic and Social Council, Re­
port of the Secretary-General Addendum, Capi­
tal Punishment (E/5615/Add. 1) (April 18,
1975) .................................................................... 11

United Nations, Economic and Social Council, Re­
port of the Social Committee,_ Social Develop­
ment Questions (E/5664) (April 25, 1975)..........  L

Yearbook on Human Rights, U.N. Sales No. E. 48.
XIV. l  _ E. 74. XIV. 1 .......................................

M iscellaneous :
Ancel, The Death Penalty in European Countries 

(Council of Europe 1962) ...................................
Bowers, Executions in America (1974) ................



IV

PAGE

Cahn, The Moral Decision (1955) ........................ 6
Camus, Reflections on the Guillotine, R esistance, 

R ebellion and D eath 131 (Mod. Lib. 1960) . . . .  8

Darrow, The Negative of Dehate Resolved: that 
Capital Punishment is a Wise Public Policy 
(1924) ..................................................................  8

Falk, The Role of Domestic Courts in the Inter­
national Legal Order (1964) .............................  6

Goodrich, Hambro and Simons, Charter of the
United Nations (3rd Ed. 1969) .......................... 13

Kakoullis, The Myths of Capital Punishment 
(Center for Responsible Psychology, Brooklyn 
College, C.U.N.Y.) Report No. 13, 1974 ............. 9

Koestler, Reflections on Hanging (Victor Gollancz 
Ltd. 1956) ...............................   8

McDougal, The Law School of the Future: from 
Legal Realism to Policy Science in the World 
Community, 56 Yale L. J. 1345 (1947) . .............  6

Peaslee, Constitutions of Nations (The Hague, M. 
Nijhoff 1956) .....................................................  12

Schwelb, Human Rights and the International 
Community, the Roots and Growth of Human 
Rights, 1948-1963 (1964) ................................... 16

Sohn, Editorial Comment, 62 A.J.I.L. 909 (1968) 15



IN THE

B>ujjr?mp (tart at % Hmtrft Btutm
1 9 7 6  Term

No. 74-6257
T roy- L eon Gregg,

Petitioner,
vs.

T he  S tate of Georgia,
Respondent.

No. 75-5394
J erry L ane. J urek ,

Petitioner,
vs.

T h e  S tate of T exas,
Respondent.

No. 75-5491
J ames T yrone W oodson and  L uby W axton,

Petitioners,
vs.

T he  S tate of N orth Carolina,

No. 75-5706

Respondent.

C harles W illiam P roffitt,
Petitioner,

vs.
T h e  S tate of F lorida,

No. 75-5844

Respondent.

S tanislaus R oberts,
Petitioner,

vs.
T he  S tate of L ouisiana,

Respondent.
■o



2

Osr W rits op Certiorari to the  S upreme Court 
of Georgia, the  T exas Court of Criminal 

A ppeals, and the  S upreme Courts of 
N orth Carolina, F lorida, and 

L ouisiana, R espectively

MOTION FOR LEAVE TO FILE BRIEF OF 
AMICUS CURIAE AND BRIEF OF AMNESTY 

INTERNATIONAL AS AMICUS CURIAE

M otion for Leave to File Brief

Annesty International, by its attorney, Arthur M. Michael- 
son, moves for leave to file a brief Amicus Curiae in sup­
port of petitioners.

Interest o f the Amicus Curiae

The Amicus Curiae, Amnesty International, is a non­
partisan private international humanitarian organization 
which works to secure for all persons the right freely to 
hold and express their convictions as guaranteed in the 
United Nations Universal Declaration of Human Rights.

Article 1 of Amnesty International’s Statute (copy at­
tached as Appendix A), as amended September 8, 1974, 
reads in pertinent p a rt:

Considering that every person has the right 
freely to hold and to express his convictions and 
the obligation to extend a like freedom to others, the 
objects of A mnesty I nternational shall be to secure 
throughout the world the observance of the provi­



3

sions of the Universal Declaration of Human Rights, 
by:

* # #

(c) opposing by all appropriate means the 
imposition and infliction of death penalties and 
torture or other cruel, inhuman or degrading 
treatment or punishment of prisoners or other 
detained or restricted persons whether or not 
they have used or advocated violence.

Amnesty International was founded in London in 1961 
and now has national sections in over thirty countries, 
including the United States, with approximately 50,000 
individual members in some sixty countries.

Amnesty International has formal consultative status 
with the United Nations, UNESCO, the Organization of 
American States, the Council of Europe, the Interameri- 
can Commission of Human Rights, and in regard to 
refugees, the Organization of African Unity. Many mem­
bers of these organizations (e.g. the United Nations, 
UNESCO, the Council of Europe and the Organization of 
American States) have abolished the death penalty de jure; 
others have de facto stopped executions. I t also is the world­
wide experience of Amnesty International that the death 
penalty is applied in a highly discriminatory fashion against 
ethnic and religious minorities, against political prisoners, 
against the disadvantaged.

Amnesty International does not approve of and would
not defend any violent crime. However, it cannot regard 
the death penalty other than as an anachronism and an act 
of cold blood beneath the dignity of a modern state.



4

Amnesty International frequently appeals to govern­
ments not to impose, or to commute, sentences of death 
upon “ political” criminals. It believes that if the death 
penalty were abolished in the United States, other nations 
would be greatly influenced to follow in the same course.

Accordingly, Amnesty International moves for leave to 
file the following brief as amicus curiae.

Respectfully submitted,

A rthur  M. M ichaelson 
Attorney for Amicus Curiae 

Amnesty International 
555 Madison Avenue 

New York, N. Y. 10022

Mark K. B enenson

Of Counsel

N igel S. R od-ley 
E ileen  L aoh

On the Brief



IN THE

Bupnmx (Ernxt at %  MnlUb
1976 Term

-------------------o-------------------
No. 74-6257 

TROY LEON GREGG,

VS.
Petitioner,

THE STATE OF GEORGIA,
Respondent.

No. 75-5394
JERRY LANE JUREK, 

vs.
Petitioner,

THE STATE OF TEXAS,
Respondent.

No. 75-5491
JAMES TYRONE WOODSON and LUBY WAXTON,

Petitioners,
vs.

THE STATE OF NORTH CAROLINA, i

Respondent.

No. 75-5706
CHARLES WILLIAM PROFFITT,

vs.
Petitioner,

THE STATE OF FLORIDA,
Respondent.

No. 75-5844
STANISLAUS ROBERTS,

vs.
Petitioner,

THE STATE OF LOUISIANA,
Respondent.

On Writs of Certiorari to the Supreme Court of Georgia, 
the Texas Court of Criminal Appeals, and the Supreme 

Courts of North Carolina, F lorida, and Louisiana, 
Respectively

-------- -----------o-—--------------- -
BRIEF OF AMNESTY INTERNATIONAL AS 

AMICUS CURIAE



6

A R G U M E N T

I .

I n  the aSisence o f specific constitu tional d irec tion , the 
C ourt, in  decid ing  the death  penalty  question , m akes 
a m ora l decision  w hich can d e te rm in e  a s tan d ard  o f the 
h u m an e  governance o f society if  fo u n d ed  on  th e  sanctity  
o f th e  rig h t to  life .

The issue of the death penalty presents the court with 
a question devoid of specific constitutional direction. 
There is no explicit language by which the Court is to be 
governed, but rather it must interpret the Eighth and 
Fourteenth Amendments. Judicial interpretation which 
results in law is a process of value realization, a reflection 
of standards of and for the community.1 Consequently, in 
an area such as the issue of the death penalty, the Court 
is left to determine an aspect of the humane evolution of 
society.2

The abolition of the death penalty is a useful standard 
of development for a nation which historically has pro­
nounced and demonstrated its concern for human rights 
law. It is also a valid indicator by which a society may 
measure its humanity. The acceptance or rejection of the

1 For a brief summaries and views of law as a value-realizing 
process see Cahn, The Moral Decision (1955); McDougal, The Law 
School of the Future; from Legal Realism to Policy Science in the 
World Community, 56 YALE L.J. 1345, 1345-50 (1947). A similar 
perspective concerning internationally significant issues and their rela­
tion to domestic courts can be found in R. Falk, The Role of 
Domestic Courts in the International Legal Order (1964).

2 The Court has assumed this task in many notable decisions, e.g. 
Powell v. Alabama, 287 U.S. 45 (1932); Shelley v. Kraemer, 334 
U.S. 1 (1948); Brown v. Board of Education, 247 U.S. 483 (1954).



7

humane standard is a moral question which concerns both 
the sanctity of life and the humane governance of a nation.3

The dignity of human life and the right to life have 
had a history of legal recognition.4 Other extended rights 
have been predicated on the basic right to life, tending to 
show the inalienability of the right.5

The possibility of mistake accentuates a realization of

3 The Secretary-General of the United Nations noted:
The debate on the death penalty continues to revolve around 

two main questions of its morality and its usefulness. The moral 
issue is the right of any society to put any person to death, i.e. 
to deny him his basic human rights to live. The question of the 
utility of capital punishment turns essentially on its efficiency 
in preventing crime.

He also observed:
In some respects it is surprising that these [moral and utili­

tarian] issues of principle are not yet settled . ..
United Nations, Economic and Social Council, Report of the 
Secretary-General, Capital Punishment (E/5242) 4 and 3 (February 
23, 1973). Also reprinted in United Nations, 31 Int’l Rev. Crim. 
Pol’y 91, 92 (1974) [hereinafter Secretary-General’s Report 1973],

4 See Point III infra, concerning the provisions and acceptance of 
the United Nations Charter, the International Bill of Human Rights 
and the Vienna Convention on the Law of Treaties.

5 Note, for example, the predicative assumptions of The World 
Food Conference Declaration on the Eradication of Hunger and 
Malnutrition, U.N. Doc. SEC/E. 75 II.A.3, 1 (1974) meeting under 
the authorization of Const. U.N. Food and Agricultural Organ­
ization (FAO), Oct. 16, 1945, 12 U.S.T. 980, T.I.A.S. No. 4803:

Recognizing that:
The grave food crisis that is afflicting the peoples of the devel­

oping countries where most of the world’s hungry and ill- 
nourished live and where more than two-thirds of the world’s 
population produce about one third of the world’s food . . 
is not only fraught with grave economic and social implications, 
but also acutely jeopardizes the most fundamental principles and 
values associated with the right to life and human dignity as 
enshrined in the Universal Declaration of Human Rights.



8

the sanctity of life which no temporal process is empowered 
to abridge. Camus points out this basic concept:6

A classic treatise of French law, in order to 
excuse the death penalty for not involving degrees, 
states this: “ Human justice has not the slightest 
desire to assure such a proportion. Why? Because 
it knows it is frail.” Must we, therefore, conclude 
that such frailty authorizes us to pronounce an abso­
lute judgment and that, uncertain of ever achieving 
pure justice, society must rush headlong, through 
the greatest risks, toward supreme injustice?. . . . 
Compassion does not exclude punishment, but it 
suspends the final condemnation. Compassion 
loathes the definitive, irreparable measure that does 
an injustice to mankind as a whole . . .

The limitation on the power of and potential for abuse 
by the state follows from the recognition of the sacredness 
of life free from the ultimate interference of a state-imposed 
death penalty. A society is entitled to choose the means 
by which it protects its citizens. However, the means 
selected under a system of humane governance should be 
limited to methods which positively deter criminal be­
havior. It is not clear that the death penalty fulfills that—

6 A. Camus, Reflections on the Guillotine, in Resistance, 
Rebellion and Death 131, 165-66 (Mod. Lib. 1960). See A. 
Koestler, Reflections on Hanging (Victor Gollancz, Ltd. 1956). 
See also C. Darrow, The Negative of Debate Resolved: That 
Capital Punishment is a Wise Public Policy, 41 (1924).



9

or any—utilitarian purpose.7 Human rights law, from 
Magna Carta onward, serves to limit the abuse of indi­
viduals by the national power. The conception of a society 
under a humane system of government has evolved since 
that time, through legal decisions which shape human rights 
standards. In the absence of specific constitutional im­
peratives, the Court in this group of cases decides a pro­
found question of humane societal governance and stand­
ards of human rights. A cognizance of the right to life is 
fundamental to the decision.

I I .

T he C ourt has a u n iq u e  o p p o rtu n ity  to fu lfill a dual 
ro le  (a )  in  fo llow ing the  lead o f o th e r hum ane nations 
in abolish ing  th e  death  penalty  and  (b )  in serving as a 
leader to o th e r na tions w hich have not yet abolished the 
dea th  penalty.

The Court has long been sensitive to the imperatives 
“ of this country’s status and membership in the community 
of nations” .8 Within the context of its deliberations on

7 United Nations, Economic, and Social Council, Report of 
the Secretary-General, Capital Punishment (E/5616) 4 (February 
12, 1975) [hereinafter Secretary-General’s Report 1975] states:

In the past the United Nations has considered most of the 
problems involved in capital punishment. The focus in the UN 
reports on capital punishment of 1962 and 1967 was on the 
deterrent effect of the death penalty. The conclusion of these 
reports was that no significant differences between the rates of 
capital offenses could be found before and after the abolition 
of the death penalty in abolitionist countries. They also indicated 
that in general, no significant differences could be found in 
the rates of capital offences in countries with capital punishment 
and those in countries without it.

Commonwealth v. O’Neal, No. 3502 (Mass. Sup. Jud. Ct., Dec. 22, 
1975). See Bowers, Executions in America 160 (1974); Kako- 
ullis, The Myths of Capital Punishment (Center for Responsible 
Psychology, Brooklyn College, C.U.N.Y.) Report No. 13, 1974.

8 The Paquette Habana, 175 U.S. 677, 700 (1900).



1 0

other international issues, it has been mindful of the prac­
tices of other nations.9 In fact, there is precedent for the 
Court to survey international practices and policy in form­
ing judgments as to the cruelty of punishments.10

The practices and policies of the Western European 
nations, the group of nations with which the United States 
readily identifies in its juridico-cultural heritage, provide 
guidance in their commitment to humane standards in the 
abolition of capital punishment.11 This is particularly 
significant in a violent world where, as the United Nations 
has noted:

As new forms of terror and violence evolve in 
society, the tendency to revert to the death penalty 
as the main deterrent is conspicuously increased.12

The overwhelming majority of European nations have 
abolished the death penalty de jure or de facto for “ ordi­

0 See, e.g. A.F. of L. v. American Sash and Door Co., 335 U.S. 
538, 548 (1949), in which the Court considered collective bargain­
ing, “in the light of the experience of countries advanced in industrial 
democracy, such as Great Britain and Sweden”.

10 Trap v. Dulles, 356 U.S. 86, 103 (1958) which concerns 
whether loss of citizenship due to military desertion is crued and un­
usual punishment.

11 The following discussion of Western European de jure and de 
facto abolition is limited to those situations similar to the facts of the 
cases presently before the Court. We do not consider herein the use 
of the death penalty for acts of terrorism, treason, state assassination 
or political acts related to the security of the state in times of war or 
extreme national turbulence. The Secretary-General’s Report 1973 
refers to the excluded class as “political” offenses. The remainder 
constitute “ordinary” crimes. Secretary-General’s Report 1973, 9, 
94.

12 Secretary-General’s Report 1973, 4, 92.



1 1

nary crimes” 13 as a minimum.14 Legislation in Europe 
within the past ten years has displayed an increasing trend 
toward total abolition of the death penalty.15 Several

13 See note 11, supra.

14 A total of twenty-two nations have abolished capital punish­
ment since 1863. Those in Western Europe are: Austria, de jure 
in 1945; Belgium, de facto; Denmark, de jure in 1930 for ordinary 
crimes; Finland, de jure in 1949; Federal Republic of Germany, 
de jure in 1949; Iceland, de jure in 1928; Italy, de jure in 1944 for 
ordinary crimes; Luxembourg, de facto with no executions for at 
least 40 years; Netherlands, de jure in 1870 for ordinary crimes; 
Norway, de jure in 1905 for ordinary crimes; Portugal, de jure in 
1867 for ordinary crimes; Sweden, de jure in 1921; United Kingdom, 
de jure in 1969 for ordinary crimes. For a definition of “ordinary”, 
see note 11, supra. Secretary-General’s Report 1975, Tables 1 and 2.

For a history of Western European abolition of capital punish­
ment, see M. Ancel, The Death Penalty In European Coun­
tries (Council of Europe 1962).

15 In 1973 Denmark, which since 1930 had retained the death 
penalty only in time of war, amended the Military Criminal Code 
to limit the scope of criminal offenses for which the death penalty 
could be imposed. United Nations, Economic and Social 
Council, Report of the Secretary-General Addendum, Capital Pun­
ishment (E/5616/Add. 1) 1-2 (April 18, 1975).

In 1921 Sweden abolished de jure the death penalty in times of 
peace. From July 1, 1973 it extended the abolition to wartime as 
well, thus becoming the tenth nation to completely abolish the death 
penalty. Secretary-General’s Report 1975, 7.

The United Kingdom abolished the death penalty for an experi­
mental period by the Death Penalty Act of 1965, and made the 
action permanent by affirmative resolutions of both Houses of Par­
liament in 1969. A capital offense under the Dockyards Protection 
Act of 1792 was repealed by the Criminal Damage Act of 1971. 
These reforms occurred despite a considerable upsurge in terrorism. 
Ibid.

In February 1968, Austria abolished the death penalty for the 
execptional crimes to which it could still be applied. Secretary- 
General’s Report 1973, 10.

On June 1, 1972, Finland abolished the death penalty during 
wartime, the only time it had previously been allowed. Ibid.



12

European nations have, in fact, incorporated the abolition 
of the death penalty into their national constitutions.10 
This state of affairs has led the United Nations Counsel on 
Economics and Social Affairs to observe tha t:

. . .  in the period 1969-1973 further progress has 
been made in some countries by abolishing capital 
punishment either totally or for ordinary crimes, or 
by suspending it, or by restricting the number of 
capital offences . . .1T

The overwhelming abolition of the death penalty in 
Western Europe provides the Court with a sound model 
for a decision holding capital punishment unconstitutional. 
The example of other societies which have adopted this as­
pect of a commitment to humane standards urges such a 
decision and supports its moral rightness.

The Court in the present case has a second unique op­
portunity to affect the leadership capacity of the United 
States in global affairs. All but 22 countries 16 17 18 currently 
allow for the death penalty. If the United States, pre­
eminent in physical power among the nations, joined the 
ranks of those humane states which have abolished capital 
punishment, it could not fail to positively influence a re­
consideration of the death penalty among its remaining 
adherents.

16 For example, Austria, West Germany, Italy and Portugal. For 
the texts of these and other constitutional abolition provisions, see 
A. Peaslee, Constitutions of Nations (The Hague, M. Nijhoff 
1956).

17 United Nations Economic and Social Council, Report 
of the Social Committee, Social Development Questions, (E/5664) 
6 (April 25, 1975).

18 See note 14, supra.



13

T he U nited  N ations C harter, in te rp re te d  th ro u g h  the  
U niversal D eclara tion  o f H um an R ights and  th e  Covenant 
on Civil and  P o litica l R ights, p rom otes th e  h um ane gov­
ernance  o f  society and  thus , th e  abo litio n  o f the  death  
penalty  in  th e  U nited  States.

Chronologically, the Court’s recognition of the rele­
vance of international legal considerations to domestic 
adjudications19 followed the creation of the United Nations 
Organization and United States adherence to the Charter. 
The Court has noted that under Articles 55C and 56 of 
the Charter “ we have pledged ourselves to cooperate with 
the United Nations to promote universal respect for, and 
observance of, human rights and fundamental freedoms 
for all without distinction as to race, sex, language or 
religion.’’20 The “ good faith” clause of the Charter,

19 Hurd v. Hodge, 334 U.S. 24, 34-35 (1948).
20 Oyama v. California, 332 U.S. 633, 649 (1948) (Black, 

concurring). Article 55 of the Charter of the United Nations, 
June 26, 1945, 59 Stat. 1031 (1945), T.S. No. 993 (effective Oct. 
24, 1945), reads in relevant part:

With a view to the creation of conditions of stability and 
well-being which are necessary for peaceful and friendly rela­
tions among nations based on respect for the principle of equal 
rights and self-determination of peoples, the United Nations 
shall promote: ❖  * ❖

c. universal respect for, and observance of, human rights 
and fundamental freedoms for all without distinction as to 
race, sex, language, or religion.

Article 56 reads:
All Members pledge themselves to take joint and separate 

action in cooperation with the Organization for the achieve­
ment of purposes set forth in Article 55.

The records of the San Francisco meetings on the drafting of the 
Charter illustrate that the framers attached importance to the words 
“separate action”. The qualifying words “in cooperation” were 
intended to prevent direct United Nations intervention in domestic 
affairs rather than to limit the obligation of member nations to 
observe human rights. See Goodrich, Hambro and Simons, 
Charter of the United Nations, 380-82 (3rd ed. 1969).

I I I .



14

Article 2,21 lias been applied in practice by the Court in 
invalidating an Alien Land Law which prohibited land 
ownership by Japanese.22 * * 2 Although unmentioned by the 
Court, its decision was consistent with an act of the Gen­
eral Assembly in which that body had voted in a 1946 
Resolution on Persecution and Discrimination, to call “ on 
the Governments . . .  to conform both to the letter and 
to the spirit of the Charter. ’,2a

Alternative methods exist to read general provisions 
in terms of more specific human rights to be protected 
under the United Nations Charter. A right to individual 
freedom from capital punishment may be interpreted 
through a principle of construction similar to that articu­
lated by the Court in Bacardi Corp. v. Domenech, 311 U.S. 
150, 163 (1940) :

According to the accepted canon, we should con­
strue the treaty liberally to give effect to the pur­
pose which animates it. Even where a provision of 
a treaty fairly admits of two constructions, one 
restricting, the other enlarging, rights which may 
be claimed under it, the more liberal interpretation 
is to be preferred.

21 U.N. Charter art. 2, para. 2:
All members, in order to ensure to all of them the rights and 

benefits resulting from membership, shall fulfill in good faith 
the obligations assumed by them in accordance with the present 
Charter.

22 Oyama v. California, 332 U.S. at 673 (Murphy, concur­
ring) :

The Alien Land Law stands as a barrier to the fulfillment of
that national pledge [to the United Nations Charter], Its in­
consistency with the Charter, which has been duly ratified and 
adopted by the United States, is but one more reason why the 
statute must be condemned.

2S G.A. Res. 103, U.N. Doc. A /64/Add. 1 at 200 (1946).



15

In the alternative, the rights sought to be protected by 
the United Nations Charter may be established with a 
reading of:

(a) any subsequent agreement between the par­
ties regarding the interpretation of the treaty or 
the applications of its provisions;

(b) any subsequent practice in the application 
of the treaty which establishes the agreement of the 
parties regarding its interpretation;

(c) any relevant rules of international law ap­
plicable in the relations between the parties.24

Within the human rights context, the International Bill 
of Human Rights25 constitutes a. subsequent agreement 
which reflects the general principles of law recognized by 
the overwhelming majority of nations and international 
customs of general practice. Indeed, it is commonly ac­
cepted that the Universal Declaration of Human Rights 
has become a part of international customary law and, in 
that sense, can be construed as an interpretation of the 
United Nations Charter.20 Given that general interpre- 24 25

24 Vienna Convention on the Law of Treaties, May 22, 1969 
[1972], U.N. Doc. A/Conf. 39/26 (1969), Art. 31(3) (a)-(c).

25 The International Bill of Human Rights comprises four docu­
ments: the Universal Declaration of Human Rights, G.A. Res 217, 
U.N. Doc. A/810 at 71 (1948), and the Covenant on Economic, 
Social and Cultural Rights, the Covenant on Civil and Political 
Rights, and the Optional Protocol, G.A. Res. 2200, 21 GAOR Supp. 
16, at 48, U.N. Doc. A/6316 (1966).

201.C.J. Stat. Art. 38.
Evidence that the Universal Declaration of Human Rights has 

secured the status of international customary law is reflected generally 
in the country by country reporting series of the United Nations, 
Yearbook on Human Rights, U.N. Sales No. E. 48. XIV. l.-E. 74. 
XIV. 1. (covering 1948-1971). See the Editorial Comment by Louis 
B. Sohn, 62 A.J.I.L. 909 (1968), which reviews the accepted status 
of the Universal Declaration of Human Rights:



16

tation, support for more specific rights, like the freedom, 
from capital punishment, can be established.

Two particular constituent elements of this customary 
law of the Universal Declaration of Human Rights are 
relevant to the issue of the death penalty, Article 3:

Everyone has the right to life, liberty and the 
security of person.

and Article 5:
no one shall be subjected to torture or to cruel, 
inhuman or degrading treatment or punishment.

The right to life specified by Article 3 of the Universal 
Declaration of Human Rights is reaffirmed by Article 6 of 
the International Covenant on Civil and Political Rights* 27 
which provides that “ Every human being has the inherent 
right to life. This right shall be protected by law. . . . ”

The Charter of the United Nations, the Universal Declara­
tion of Human Rights and the other unanimously adopted 
declarations of the United Nations have established a legislative 
framework for the protection of human rights throughout the 
world. The Montreal Statement of the Assembly for Human 
Rights, of March 27, 1968, expressed the general consensus of 
international experts that the “Charter of the United Nations, 
the constitutional document of the world community, creates 
binding obligations for Members of the United Nations with 
respect to human rights”; and that the “Universal Declaration of 
Human Rights constitutes an authoritative interpretation of the 
Charter of the highest order, and has over the years become a 
part of customary international law.” Similarly, the intergov­
ernmental Proclamation of Teheran, of May 13, 1968, empha­
sized that the “Universal Declaration of Human Rights states a 
common understanding of the peoples of the world concerning 
the inalienable and inviolable rights of all members of the human 
family and constitutes an obligation for the members of the 
international community.”

See also E. Schwelb, Human R ights and the International 
Community, The Roots and Growth of Human Rights, 1948- 
1963 (1964).

27 While the Covenant does not outlaw the use of capital punish­
ment, it demands restrictions. Furthermore, Article 6 indicates what 
the trend ought to be. Article 6, paragraph 6 provides that:

Nothing in this Article shall be invoked to delay or prevent 
the abolition of capital punishment by any States Party to the 
present Covenant.



17

The United Nations has considered these Articles as 
standards by which the legitimacy of capital punishment 
is to be measured..28 Taken as standards, the Articles 
strongly suggest that the freedom from capital punishment 
is a right supported under “ subsequent”29 interpretation 
of the United Nations Charter. It is a right which may 
legitimately be recognized and protected by nations which, 
like the United States, have pledged to take action con­
sistent with the thrust of the United Nations Charter which 
states as essential to a felicitous future for our species, 
“ universal respect for, and observance of, human rights.”30

28 United Nations. Economic and Social Council. Commis­
sion on Human Rights (E/CN. 4/1111) 7 (February 1, 1973); 
United Nations, Economic and Social Council, Commission on 
Human Rights (E/CN. 4/1159) 10 (January 24, 1975); Secretary- 
General’s Report 1973, Annex II, 101.

29 Vienna Convention on the Law of Treaties, May 22, 1969 
[1972], U.N. Doc. A/CONF. 39/26 (1969), Article 31 (3) (a)-
(c).

30 Note 20, supra.
Although the resolutions of the General Assembly do not carry 

the obligations of agreements or customary practice flowing from 
the United Nations Charter, they provide a source of evidence on 
general customary law and the resolutions of important international 
legal issues. The Court in the past has consulted the work product 
of United Nations resolutions, e.g., Kennedy v. Mendoza-Martinez, 
372 U.S. 159, 161 n. 16 (1963).

Resolutions of the United Nations have “the intention . . .  to 
promote abolition” of the death penalty. Secretary-General’s Re­
port 1973, 20, 99. The linkage to Article 3 of the Universal 
Declaration of Human Rights is clear:

[I]n order fully to guarantee the right to life, provided for in 
Article 3 of the Universal Declaration of Human Rights, the 
main objective to be pursued is that of progressively restricting 
the number of offences for which capital punishment may be 
imposed with a view to the desirability of abolishing this punish­
ment in all countries.

G.A. Res. 2857, 26 GAOR Supp. 21, at 94, U.N. Doc. A/8421 
(1971).

See also Wyatt v. Stickney, 344 F.Supp. 387, 390 n. 6 (M.D. 
Ala. 1972) where the Court’s “decision with regard to habilitation 
is supported not only by applicable legal authority, but also by a 
resolution adopted on December 27, 1971, by the General Assembly 
of the United Nations”.



18

CONCLUSION

The death  penalty  shou ld  be abolished .

Respectfully submitted,

A rthur  M. M ichael,son 
Attorneyfor Amicus Curiae 

Amnesty International 
555 Madison Avenue 

New York, 1ST. Y. 10022

M ark K. B enenson

Of Counsel

N igel S. R odley 
E ileen  L ach

On the Brief



A -l

APPEND IX

S ta tu te  o f A m nesty In te rn a tio n a l

As amended by the seventh International Council meeting 
in Aslcov, Denmark, 8 September 1974

Objects

1. Considering that every person has the right freely to 
hold and to express his convictions and the obligation to 
extend a like freedom to others, the objects of A mnesty 
I nternational shall be to secure throughout the world the 
observance of the provisions of the Universal Declaration 
of Human Rights, by:

(a) irrespective of political consideration work­
ing towards the release of and providing assistance 
to persons who in violation of the aforesaid provi­
sions are imprisoned, detained, restricted or other­
wise subjected to physical coercion or restriction by 
reason of their political, religious or other conscien­
tiously held beliefs or by reason of their ethnic ori­
gin, colour or language, provided that they have not 
used or advocated’violence (hereinafter referred to 
as ‘Prisoners of Conscience’).

(b) opposing by all appropriate means the deten­
tion of any Prisoners of Conscience or any political 
prisoners without trial within a reasonable time or 
any trial procedures relating to such prisoners that 
do not conform to recognized norms to ensure a fair 
trial.

(c) opposing by all appropriate means the im­
position and infliction of death penalties and torture 
or other cruel, inhuman or degrading treatment or 
punishment of prisoners or other detained or re­
stricted persons whether or not they have used or 
advocated violence.



A-2

Appendix

Methods

2. In order to achieve the aforesaid objects, A mnesty 
I nternational shall:

(a) at all times maintain an overall balance be­
tween its activities in relation to countries adhering 
to the different world political ideologies and group­
ings;

(b) promote as appears appropriate the adop­
tion of constitutions, conventions, treaties and other 
measures which guarantee the rights contained in 
the provisions referred to in article 1 hereof;

(c) support and publicize the activities of and 
cooperate with international organizations and 
agencies which work for the implementation of the 
aforesaid provisions;

(d) take all necessary steps to establish an effec­
tive organization of national sections, affiliated 
groups and individual members;

(e) secure the adoption by groups of members or 
supporters of individual Prisoners of Conscience or 
entrust to such groups other tasks in support of the 
objects set out in article 1;

(f) provide financial and other relief to Prisoners 
of Conscience and their dependents and to persons 
who have lately been Prisoners of Conscience or who 
might reasonably be expected to become Prisoners 
of Conscience if they were to return to their own 
countries and to the dependants of such persons;

(g) work for the improvement of conditions for 
Prisoners of Conscience and political prisoners;

(lx) provide legal aid, where necessary and pos­
sible to Prisoners of Conscience and to persons who,



A-3

if convicted, might reasonably be considered likely 
to become Prisoners of Conscience and, where desir­
able, send observers to attend the trial of such per­
sons;

(i) publicize the cases of Prisoners of Conscience 
or persons who have otherwise been subjected to dis­
abilities in violation of the aforesaid provisions;

(j) send investigators, where appropriate, to in­
vestigate allegations that the rights of individuals 
under the aforesaid provisions have been violated 
or threatened;

(k) make representations to international organi­
zations and to governments whenever it appears that 
an individual is a Prisoner of Conscience or has 
otherwise been subjected to disabilities in violation 
of the aforesaid provisions;

(l) promote and support the granting of general 
amnesties of which the beneficiaries will include 
Prisoners of Conscience;

(m) adopt any other appropriate methods for the 
securing of its objects.

Organization

3. A mnesty I nternational shall consist of na tiona l 
sections, affiliated groups, ind iv idual m em bers and  corpo­
ra te  m em bers.

4. The directive au th o rity  for the conduct of the affairs 
of A mnesty I nternational is vested  in the International 
Council.

5. Between meetings of the International Council, the 
International Executive Committee shall be responsible for

Appendix



A-4

the conduct of the affairs of A mnesty I nternational and 
for the implementation of the decisions of the International 
Council.

6. The day to day affairs of A mnesty I nternational 
shall be conducted by the International Secretariat headed 
by a Secretary General under the direction of the Inter­
national Executive Committee.

7. The office of the International Secretariat shall be in 
London or such other place as the International Council 
may determine.

N ational S ections

8. A national section of A mnesty I nternational may 
be established in any country, state or territory with the 
consent of the International Executive Committee. In order 
to be recognized as such, a national section shall (a) consist 
of not less than two groups or 10 members, (b) pay such 
annual fee as may be determined by the International 
Council, (c) be registered as such with the International 
Secretariat on the decision of the International Executive 
Committee. National sections shall take no action on mat­
ters that do not fall within the stated objects of A mnesty 
I nternational. The International Secretariat shall main­
tain a register of national sections.

9. Groups of not less than three members or supporters 
wishing to adopt Prisoners of Conscience may, on payment 
of an annual fee determined by the International Council, 
become affiliated to A mnesty I nternational or a national 
section thereof. Airy dispute as to whether a group should 
be or remain affiliated shall be decided by the International 
Executive Committee. An affiliated group shall accept for

Appendix



A-5

adoption such prisoners as may from time to time be al­
lotted to it by the International Secretariat, arid shall adopt 
no others as long as it remains affiliated to A mnesty I nter­
national. No group shall be allotted a Prisoner of Con­
science detained in its own country. The International 
Secretariat shall maintain a register of affiliated groups. 
Groups shall take no action on matters that do not fall 
within the stated objects of A mnesty I nternational.

Appendix

I ndividual Membership

10. Individuals residing in countries where there is no 
national section may, on payment to the International Sec­
retariat of an annual subscription fee determined by the 
International Executive Committee, become members of 
A mnesty I nternational. In countries where a national 
section exists, individuals may become members of 
A mnesty I nternational, with the consent of the national 
section. The International Secretariat shall maintain a 
register of such members.

Corporate Membership

11. Organizations may, at the discretion of the Inter­
national Executive Committee and on payment of an annual 
subscription fee determined by the International Executive 
Committee, become corporate members of A mnesty I nter­
national. The International Secretariat shall maintain a 
register of corporate members.

I nternational Council

12. The International Council shall consist of the mem­
bers of the International Executive Committee and of 
representatives of national sections and shall meet at inter­



A-6

vals of approximately one year but in any event of not 
more than two years on a date fixed by the International 
Executive Committee. Only representatives of national sec­
tions and members of the International Executive Commit­
tee elected by the International Council shall have the right 
to vote on the International Council.

13. National sections may appoint representatives as 
follows:

2 - 9 groups — 1 representative
10 - 49 groups — 2 representatives 
50- 99 groups — 3 representatives 

100 -199 groups — 4 representatives 
200 - 399 groups — 5 representatives 

400 groups or over — 6 representatives

National sections consisting primarily of individual mem­
bers rather than groups may in alternative appoint repre­
sentatives as folows:

50- 499 — 1 representative 
500 - 2499 — 2 representatives 

2500 and over — 3 representatives

Only sections having paid in full their fees as assessed by 
the International Council for the previous financial year 
shall vote at the International Council. This requirement 
may be waived in whole or in part by the International 
Executive Committee.

14. Representatives of groups not forming part of a 
national section may with the permission of the Secretary 
General attend a meeting of the International Council as 
observers and may speak thereat but shall not be entitled 
to vote.

Appendix



A-7

15. A national section unable to participate in an Inter­
national Council may appoint a proxy or proxies to vote 
on its behalf and a national section represented by a lesser 
number of persons than its entitlement under article 13 
hereof may authorize its representative or representatives 
to cast votes up to its maximum entitlement under article 
13 hereof.

16. Notice of the number of representatives proposing 
to attend an International Council, and of the appointment 
of proxies, shall be given to the International Secretariat 
not later than one month before the meeting of the Inter­
national Council. This requirement may be waived by the 
International Executive Committee.

17. A quorum shall consist of the representatives or 
proxies of not less than one quarter of the national sections 
entitled to be represented.

18. The Chairman of the International Executive Com­
mittee, or such other person as the International Executive 
Committee may appoint, shall open the proceedings of the 
International Council, which shall elect a chairman. There­
after the elected Chairman, or such other person as he may 
appoint, shall preside at the International Council.

19. Except as otherwise provided in this statute, the 
International Council shall make its decisions by a simple 
majority of the votes cast. In case of an equality of votes 
the Chairman of the International Executive Committee 
shall have a casting vote.

20. The International Council shall be convened by the 
International Secretariat by notice to all national sections 
and affiliated groups not later than 90 days before the date 
thereof.

Appendix



A-8

21. The Chairman of the International Executive Com­
mittee shall at the request of the Committee or of not less 
than one-third of the national sections call an extraordinary 
meeting of the International Council by giving not less 
than 21 days notice in writing to all national sections.

22. The International Council shall elect a Treasurer, 
who shall be a member of the International Executive 
Committee.

23. The International Council may appoint one or more 
Honorary Presidents of A mnesty I nternational to hold 
office for a period not exceeding three years.

24. The International Council shall from time to time, 
and not less than once in five years, call an International 
Assembly consisting of all members of A mnesty I nterna­
tional, of national sections and of affiliated groups. Such 
an Assembly shall be for the purposes of information, dis­
cussion and consultation and shall not have the power to 
adopt any decisions.

25. The agenda for meetings of the International Coun­
cil shall be prepared by the International Secretariat under 
the direction of the Chairman of the International Execu­
tive Committee.

I nternational E xecutive Committee

26. (a) The International Executive Committee shall 
consist of the Treasurer, one representative of the staff of 
the International Secretariat and seven regular members, 
who shall be members of A mnesty I nternational, or of a 
national section, or of an affiliated group, elected by the 
International Council by proportional representation by 
the method of the single transferable vote in accordance

Appendix



A-9

with the regulations published by the Electoral Reform 
Society. Not more than one member of any national sec­
tion or affiliated group may be elected as a regular member 
to the Committee, and once one member of any national 
section or affiliated group has received sufficient votes to 
be elected, any votes cast for other members of that national 
section or affiliated group shall be disregarded.

(b) Members of the permanent staff, paid and unpaid, 
shall have the right to elect one representative among the 
staff who has completed not less than two years’ service 
to be a voting member of the International Executive 
Committee. Such member shall hold office for one year and 
shall be eligible for re-election. The method of voting shall 
be subject to approval by the International Executive 
Committee on the proposal of the staff members.

27. The International Executive Committee shall meet 
not less than twice a year at a place to be decided by itself.

28. Members of the International Executive Committee, 
other than the representative of the staff, shall hold office 
for a period of two years and shall be eligible for re-elec­
tion. Except in the case of elections to fill vacancies result­
ing from unexpired terms of office, the members of the 
Committee, other than the representative of the staff, shall 
be subject to election in equal proportions on alternate 
years.

29. The Committee may co-opt not more than four addi­
tional members who shall hold office for a period of one 
year; they shall be eligible to be re-co-opted. Co-opted 
Members shall not have the right to vote.

30. In the event of a vacancy occurring on the Commit­
tee, it may co-opt a further member to fill the vacancy until

Appendix



A-10

the next meeting of the International Council, which shall 
elect such members as are necessary to replace retiring- 
members and to fill the vacancy.

31. If a member of the Committee is unable to attend a 
meeting, he may appoint an alternate.

32. The Committee shall each year appoint one of its 
members to act as Chairman.

33. The Chairman may, and at the request of the ma­
jority of the Committee shall, summon meetings of the Com­
mittee.

34. A quorum shall consist of not less than three mem­
bers of the Committee or their alternates.

35. The agenda for meetings of the Committee shall 
be prepared by the International Secretariat under the 
direction of the Chairman.

36. The Committee may make regulations for the con­
duct of the affairs of A mnesty I nternational, and for the 
procedure to be folowed at the International Council.

I nternational S ecretariat

37. The International Executive Committee may ap­
point a Secretary General who shall be responsible under 
its direction for the conduct of the affairs of A mnesty I n ­
ternational and for the implementation of the decisions of 
the International Council.

38. The Secretary General may, after consultation with 
the Chairman of the International Executive Committee, 
and subject to confirmation by that Committee, appoint 
such executive and professional staff as appear to him to be

Appendix



A -ll

necessary for tlie proper conduct of the affairs of A mnesty 
I nternational, and may appoint such other staff as appear 
to him to be necessary.

39. In the case of the absence or illness of the Secretary 
General, or of a vacancy in the post of Secretary General, 
the Chairman of the International Executive Committee 
shall, after consultation with the members of that Commit­
tee, appoint an acting Secretary General to act until the 
next meeting of the Committee.

40. The Secretary General or Acting Secretary Gen­
eral, and such members of the International Secretariat 
as may appear to the Chairman of the International Ex­
ecutive Committee to be necessary shall attend meetings 
of the International Council and of the International Ex­
ecutive Committee and may speak thereat but shall not be 
entitled to vote.

T ermination oe Membership

41. Membership of or affiliation to A mnesty I nterna­
tional may be terminated at any time by resignation in 
writing.

42. The International Council may, upon the proposal 
of the International Executive Committee or of a national 
section, by a three-fourths majority of the votes cast de­
prive a national section, an affiliated group or a member 
of membership of A mnesty I nternational if in its opinion 
that national section, affiliated group or member does not 
act within the spirit of the objects and methods set out in 
articles 1 and 2 or does not observe any of the provisions 
of this statute. Before taking such action, all national sec­
tions shall be informed and the Secretary General shall 
also inform the national section, affiliated group or member

Appendix



A-12

of the grounds on which it is proposed to deprive it or him 
of membership, and such national section, affiliated group 
or member shall be provided with an apportunity of pre­
senting its or his case to the International Council.

43. A national section, affiliated group or member who 
fails to pay the annual fee fixed in accordance with this 
statute within six months after the close of the financial 
year shall cease to be affiliated to A mnesty I nternational 
unless the International Executive Committee decides other­
wise.

F inance

44. An auditor appointed by the International Council 
shall annually audit the accounts of A mnesty I nterna­
tional, which shall be prepared by the International Secre­
tariat and presented to the International Executive Com­
mittee and the International Council.

A mendments oe S tatute

45. The statute may be amended by the International 
Council by a majority of not less than two-thirds of the 
votes cast. Amendments may be submitted by the Inter­
national Executive Committee or by a national section. 
Proposed amendments shall be submitted to the Interna- 
national Secreariat not less than two months before the 
International Council meets, and presentation to the Inter­
national Council shall be supported in writing by at least 
five national sections. Proposed amendments shall be com­
municated by the International Secretariat to all national 
sections and to members of the International Executive 
Committee.

Appendix