"Moments after convicted killer Pedro Medina was strapped into Florida's electric chair
and 2,000 volts of electricity surged into his body [...], flames leapt from the inmate's head,
filling the death chamber with smoke and horrifying two dozen witnesses. 'They're burning him
alive,' witness Michael Minerva muttered [...]".(1) In reference to this over-kill,
which had already
happened before in Florida, the state attorney general declared with repugnant sarcasm: "People
who wish to commit murder, they better not do it in the state of Florida because we may have a
problem with our electric chair."(2)
Beyond its episodic dimension, these over-kill events(3) symbolize how
the death penalty
policies implemented in the U.S. represent gross human rights violations against capital
inmates. The magnitude of these violations is such that the American Bar Association's
(hereinafter A.B.A.) House of Delegates has recently passed a resolution calling for a
moratorium on death penalty executions "until courts across the country can ensure that such
cases are 'administered fairly and impartially, in accordance with due process,' and with
minimum risk of executing innocent people."(4) Such resolution, named Recommendation Nº107(5),
is accompanied by a comprehensive report that, while not representing official A.B.A. policies, is
"provided to support the Recommendation".(6) This report concludes that "[t]hese two recently
enacted laws [by Congress, in 1996(7)], together with other federal and state actions [...],
resulted in a situation in which fundamental due process is now systematically lacking in capital
The death penalty debate is loaded with strong emotional and ideological connotations.
While its practice is not banned by international law, it cannot be denied that currently, an
abolitionist trend prevails in the international scenario,(8) before which the U.S. appears as
regrettable exception. Within this context, the current U.S. death penalty policies have manifold
human rights implications. In this paper we will focus on some of those which directly relate to
the rights to an effective domestic remedy and to access to justice, ruled bythe
Covenant of Civil and Political Rights (hereinafter ICCPR) Arts. 2(3)º, 14(1)º and 14(5)º inter
alia. Our analysis is solely made from the perspective of international law, thus we do not deal
with the domestic implications of such policies, either of constitutional or legal nature.(9)
not analyze the legal underpinnings of the allegations about such policies having a significant
content of racial discrimination(10), nor the so-called death row phenomena(11), nor with the
illegality involved in the capital conviction and execution of minors and mentally-ill people(12).
Neither do we discuss the legal implications of the implementation per se of the death penalty or
of the methods utilized for it. However, we acknowledge the consistency of many of the
arguments which support such critiques and, the urgency of developing a sound domestic legal
framework consistent with the U.S. international obligations.
2. A.B.A.'s POLICY PROPOSALS SEEK TO PROMOTE FAIRNESS IN THE
DEATH PENALTY CONVICTIONS
As a professional association, the A.B.A. strives to represent the consensus between the
various positions existing among its members. As a result, the A.B.A. has never opposed the
application of the death penalty. However, it has developed a substantial body of policy and
guidelines on the issue(13), since the U.S. Supreme Court upheld new death penalty statutes in
1976.(14) In that regard, the A.B.A. has pursued a twofold policy objective: "(1) [to] ensure
death penalty cases are administered fairly and impartially, in accordance with due process, and
(2) [to] minimize the risk that innocent persons may be executed".(15) "The policies concern:
competent counsel in capital cases; (2) proper processes for adjudicating claims in capital cases
(including the availability of federal habeas corpus); (3) racial discrimination in the
administration of capital punishment; and (4) the execution of juveniles and mentally retarded
Recently, the A.B.A.'s House of Representatives has given a radical step forward by
adopting with wide support Recommendation Nº 107(17), by which it "calls upon each
that imposes capital punishment not to carry out the death penalty until the jurisdiction
implements policies and procedures that are consistent with the [...] longstanding American Bar
Association Policies [...]".(18) According to this recommendation's supporting report, "[n]ot
have the A.B.A.'s existing policies generally not been implemented, but also, and more critically,
the federal and state governments have been moving in a direction contrary to these policies."(19)
Due to recent regressive actions implemented both at the federal and state levels,
"fundamental due process is now systematically lacking in capital cases".(20) Among those
regressive actions, the aforementioned report mentions the following: (a) moves been made by
the majority of states toward "undermining or eliminating important procedural safeguards that
the A.B.A. has found to be essential"(21); (b) the passing by Congress of the Anti-Terrorism
Effective Death Penalty Act (1996) "that makes it significantly more difficult for the federal
courts to adjudicate meritorious federal constitutional claims in capital cases [...] [and]
dramatically undermines the federal courts' capacity to adjudicate federal constitutional claims in
a fair and efficient manner"(22); and, (c) "[the complete withdrawal by decision of Congress
funding for Post-Conviction Defender Organizations (PCDO's), which have handled many post-conviction cases and have recruited
and supported volunteer lawyers in these cases for many
indigent death row prisoners"(23).
Recommendation Nº 107's supporting report concludes that the aforementioned
regressive actions "have brought the adjudication of capital cases to the point of crisis" and, that
"[u]nless existing A.B.A. policies are now implemented, many more prisoners will be executed
under circumstances that are inconsistent with the Supreme Court's mandate, articulated in
Furman and Gregg, that the death penalty be fairly and justly administered"(24).
The report also
makes reference to the following two factors: (d) "[j]urisdictions that employ the death penalty
have proven unwilling to establish the kind of legal services system that is necessary to ensure
that defendants charged with capital offenses receive the defense they require"(25); and, (e)
states that apply death penalty] grossly unqualified and under compensated lawyers who have
nothing like the support necessary to mount an adequate defense are often appointed to represent
Regarding the requisite of competent counsel, Recommendation Nº 107's supporting
report notes that poor preparation and lack of basic financial support for capital cases
produces as a result very poor defenses(27),
which --we add-- are certainly below the
requirements of human dignity and the standards set forth by international human rights law.
"No state has fully embraced the system [for provision of competent counsel] the A.B.A. has
prescribed for capital trials. To the contrary, grossly unqualified and under compensated lawyers
who have nothing like the support necessary to mount an adequate defense are often appointed to
represent capital clients. In case after case, decisions about who will die and who will live turn
not on the nature of the offense the defendant is charged with committing, but rather on the
nature of the legal representation the defendant receives.
Jurisdictions that employ the death penalty have proven unwilling to establish the kind of
legal services system that is necessary to ensure that defendants charged with capital offenses
receive the defense they require. Many death penalty states have no working public defender
programs, relying instead upon scattershot methods for selecting and supporting defense counsel
in capital cases. For example, some states simply assign lawyers at random from a general list
[...] Other jurisdictions employ 'contract' systems, which typically channel indigent defense
business to attorneys who offer the lowest bids."(28)
The report concludes that "[i]t is scarcely surprising that the results of poor lawyering are often
literally fatal for capital defendants. [...] Case after case all too frequently reveals the
inexperience of lawyers appointed to represent capital clients."(29) Furthermore, "[e]ven when
experienced and competent counsel are available in capital cases, they often are unable to render
adequate service for want of essential funding to pay the costs of investigations and expert
witnesses."(30) The federal courts do not perform substantially better, either. "The standard
effective assistance of counsel under the Sixth Amendment is so egregiously low that the
potential for relief in federal habeas corpus on such grounds is almost always more theoretical
than real."(31) At the post-conviction level: "prisoners sentenced to death typically receive
less effective representation in post-conviction than at the trial stage."(32)
The situation seems to be no better in the prosecutorial instance. State prosecutors are
frequently not well prepared to deal with capital cases, in order to avoid constitutional violations
in capital cases.(33)
A.B.A.'s Recommendation Nº 107's supporting report also deals with the issue of due process.
"In 1990, the A.B.A. House of Delegates adopted a set of recommendations [...] [which]
included the principles that a death row prisoner should be entitled to a stay of execution in order
to complete one round of post-conviction litigation in state and federal court; that the federal
courts should consider claims that were not properly raised in state court if the reason for the
prisoner's default was counsel's ignorance or neglect; and that a prisoner should be permitted to
file a second or successive federal petition if it raises a new claim that undermines confidence in
his or her guilt or the appropriateness of the death sentence.
Regrettably, none of these recommendations have been generally adopted. In fact, the
Supreme Court has denied death row prisoners the very opportunities for raising constitutional
claims that the A.B.A. has insisted are essential. Prisoners have not been entitled even to a single
stay of execution to maintain the status quo long enough to complete post-conviction litigation.
The federal courts typically have refused to consider claims that were not properly raised in state
court, even if the failure to raise them was due to the ignorance or neglect of defense counsel.
And prisoners have not been allowed to litigate more than one petition, even if they have offered
strong evidence of egregious constitutional violations that they could not have presented earlier.
The consequence of these legal tangles has been that meritorious constitutional claims
often have gone without remedy. [...] Yet, in 1996, Congress enacted legislation that will make it
even more difficult for the federal courts to adjudicate federal claims in capital cases."(34)
3. THE RIGHT TO AN EFFECTIVE DOMESTIC REMEDY IS PRESCRIBED IN
THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
(a) Human Rights implementation is primarily a domestic matter
In contrast to the Universal Declaration of Human Rights (hereinafter UDHR), the
ICCPR is meant to be a treaty, i.e. a source of international obligations and rights. Thus, the
ICCPR is not limited to the recognition of human rights as individual entitlements. It also
establishes specific international obligations that States undertake by the mere fact of becoming a
party to the treaty. The notion we focus on, of a Right to an effective domestic remedy, has to be
analyzed in its two-fold dimension; of (a) State obligation and, (b) individual right. Thus, the
unavailability of domestic remedies to redress or compensate human rights violations carries as a
consequence the international responsibility of the respective State.
"Article 2º [of the ICCPR] is critically important as it contains the key general
undertakings to 'respect and ensure' the rights in the ICCPR".(35) Such Article "gives
the principle that the implementation of human rights under international law is primarily a
domestic matter".(36) This is not a unique development of the ICCPR, as quite similar
can be found in all three main regional human rights treaties.(37) But it is worth noticing
idea of a separate provision requiring domestic implementation of the Covenant by way of
appropriate legislative, administrative and, above all, judicial measures can be traced to the first
drafts in the HRComm in 1947. The GA also laid emphasis on the adoption of such a
provision."(38). This reflects how deep-rooted the notion of domestic implementation within
international scenario is.
Such general undertakings are the cornerstone of all the international system of human
rights protection. By essence, they impose an affirmative obligation on the respective State. "The
obligation 'to ensure' these rights encompasses the duty 'to respect' them, but it is substantially
broader... [It] creates affirmative obligations on the state [...]".(39) In this respect,
distinguishes between States' "duties of forbearance" and "duties of performance"(40). The
Human Rights Committee (HRC) has also stressed that twofold dimension of the state
obligations set forth in ICCPR Art. 2º.(41)
On the other hand, these obligations should be interpreted as leaving up to the sovereign
discretion of each state, the choice of the means by which it will fulfill them within the limits set
forth in the ICCPR itself.(42) "International implementation is essentially limited to
domestic measures [...] by political, quasi-judicial or judicial organs".(43) However, while a
not confined to the provision of judicial protection as the only and exclusive means of domestic
remedy pursuant ICCPR Art. 2º, at the level of individual rights a case can be made about the
existence of a universal right of access to justice for the protection of the ICCPR human
Hence, it may be stated that while states can discretionarily develop the means of enforcing their
duties of forbearance and of performance pursuant ICCPR Art. 2º, they must guarantee the
existence of judicial remedies within their domestic jurisdiction for the protection and
enforcement of human rights, on a universal and permanent basis.
(b) ICCPR Art. 2º has an accessory or complementary nature
The obligations set forth in ICCPR Art. 2º have an accessory nature. "The wording of Art.
2 and its location in Part II of the Covenant make it perfectly clear that the rules do not establish
independent, subjective rights but rather duties of the State Parties based on 'the rights
recognized in the present Covenant'."(45) "This [accessory nature] means that a
violation of Art. 2
can occur only in conjunction with the concrete exercise (but not necessarily violation) of one of
the substantive rights ensured by the Covenant."(46) But, "[a]ccessoriness does not, however,
mean that Art. 2 can be violated only when some other provision of the Covenant has been
violated independently"(47); rather, it only means that violations to ICCPR Art. 2º can only
invoked in conjunction with the violation of any other right recognized in the same treaty. The
only exception to this rule is when ICCPR Art. 2º is invoked solely in conjunction with ICCPR
Art. 26º (right of non-discrimination)(48). A better wording for that unique feature of ICCPR
2º might be complementarity instead of accesoriness.
ICCPR Art. 2(3) is also permeated by the feature of complementarity.
"The situation [of complementarity] is similar with the right to an effective remedy in Art. 2(3).
However, Art. 2(3)(a) --like Art. 13 of the ECHR and Art. 25(1) of the ACHR-- suffers from an
unfortunate formulation in this regard. A literal reading indicates that its application depends on
a prior finding of a violation of one of the rights of the Covenant. In conformity with the purpose
of this provision, it may thus be assumed, picking up on the Strasbourg case law on Art. 13 of the
ECHR, that Art. 2(3) accords a right to an effective remedy to any person who tenably asserts
that a substantive right has been violated. Even when the Committee subsequently determines
that the substantive right underlying the communication [presented pursuant ICCPR Art. 41º and
Optional Protocol Art. 2º] was not violated, it may nevertheless find a violation of Art. 2(3) in
conjunction with this right when the State Party has denied the author an effective domestic
remedy. If a finding of a violation of the substantive right is, however, excluded by a reservation
(as in the Fanali case) or ratione temporis (as in the cases relating to the Ley de Punto Final in
Argentina), no violation of the right to an effective remedy can be established either."(49)
(c) ICCPR Arts. 2º and 26º ban discrimination in the exercise of the right
to an effective domestic remedy
According to NOWAK, "[ICCPR] Art. 26 forms a sort of lex specialis to Art. 2(1), such
that a violation of the prohibition of discrimination in Art. 2(1) in conjunction with Art. 26
appears to be ruled out."(50) This brings into discussion the interwoven relationship between
States duties of forbearance and performance ("respect and ensure", in the wording of ICCPR
Art. 2º) and the non-discrimination provisions contained in Art. 26º of the same treaty. That
relationship is furthermore obvious because of the explicit wording of ICCPR Art. 2(1): "to all
individuals", "without distinction of any kind, such as [...]". Also, ICCPR Art. 2(3) establishes
the State duties "(a) To ensure that any person [...] shall have an effective remedy [...]; (b) To
ensure that any person claiming such a remedy shall have his right thereto determined by a
competent [...] authority [...]".
It can be concluded that ICCPR Art. 26º complements ICCPR Art. 2º. However, a
significant difference between both comes into play regarding the normative extent of each. The
former is a general non-discrimination provision (urbi et orbi) in the form of a subjective right,
while the latter is specifically confined to "the rights recognized in the present Covenant" in the
form of a State obligation. Because of that complementary and different nature, a breach of
ICCPR Arts. 2(1)º and 26º might occur only in conjunction with the simultaneous breach of
other rights ruled in the ICCPR or other human rights treaties. This criteria seems to be the only
one consistent with both NOWAK's and the HRC's positions.(51)
(d) ICCPR Art. 2º et al. provides a more comprehensive framework of
protection than UDHR Art. 8º
By comparing ICCPR Art. 2º alone with UDHR Art. 8º it can be inferred that the former
has a narrower scope of application ("the rights recognized in the present Covenant") while at
the same time it must be said that the ICCPR is more comprehensive than the UDHR in its listing
and definition of rights.(52) However, when such comparison is made by systematically coupling
ICCPR Arts. 2º, 14º and 26º, then it can be concluded that the protective framework ruled by the
ICCPR is more extensive and specific than the one of UDHR Art. 8º.
4. THE HUMAN RIGHTS COMMITTEE HAS CONSISTENTLY RULED ABOUT
THE RIGHT TO AN EFFECTIVE DOMESTIC REMEDY
At least four different functions can be distinguished in the performance of the HRC.
Under ICCPR Art. 40º, the HRC receives, requests, analyzes and comments State reports
regarding their compliance with the obligations established in such treaty. Under ICCPR Arts.
41º to 43º, the HRC can receive, consider and promote inter-State conciliation, regarding a
communication submitted by a State Party regarding an alleged non-fulfillment of the obligations
established in the ICCPR by any other State Party.(53) Under Arts. 2º to 5º of the ICCPR
Protocol, the HRC can also receive, analyze and express its views regarding communications
submitted by individuals alleging the violation of the ICCPR human rights provisions by a State
Party which has ratified such treaty.(54) And, under an innovative development of ICCPR Art.
40(4), the HRC can issue General Comments as a sort of advisory opinion on the application of
(a) Comments to States' reports
The HRC has consistently taken into account that the actual enjoyment of the rights and
freedoms recognized in the ICCPR ultimately depends on securing the existence of effective
remedies to redress the violations of such.(56) "Commensurate with this importance members [of
the HRC] have devoted considerable and painstaking attention to paragraph 3 of article 2 [of the
ICCPR]".(57) Among the many different aspects considered by the Committee, in at least one
regarding the report submitted by Bulgaria, they have inquired whether there existed a system of
free legal aid and assistance.(58) The role of the Ombudspersons has also deserved specific
"A consistent theme of the HRC's deliberations has been that for people to exercise their
rights they must be aware of their existence. Thus States parties have been requested to provide
information concerning their efforts to publicize the terms of the Covenant, to disseminate
human rights information, translate the Covenant [i.e., the ICCPR] into the national and minority
languages, improve literacy rates, and encourage the monitoring of the implementation of the
Covenant by national human rights groups."(60) When commenting on the U.S. report, the HRC
has expressed that "[it] regrets that members of the Judiciary both [sic.] at the federal, state and
local levels have not been fully made aware of the obligations undertaken by the State party
under the Covenant, and that the judicial continuing education programmes do not include
knowledge of the Covenant and discussion on its implementation".(61)
(b) Views Adopted Within the Framework of The Optional Protocol to the
The HRC has once and again confirmed the accessory nature of ICCPR Art. 2º. In K.L. v.
Denmark, "the Committee noted that there can be no breach of Art. 2(3) unless a remedy is
sought for the violation of [another] one of the Covenant's rights".(62) The HRC has also
the issue of the coupled applicability of ICCPR Arts. 2º and 26º alone.(63) A violation of
was invoked in L.G. Danning v. the Netherlands.(64) "[The HRC] has had the
opportunity to stress
that the availability of legal aid is also an important consideration in determining whether
domestic remedies can be said to be available and effective [in favor of defendants at criminal
proceedings]. In case Nº 315/1988 (R.M. v. Jamaica) the Committee stated:
With regard to the practical operation of the system of legal aid in Jamaica, the
Committee stresses that article 14, paragraph 3(d), of the Covenant requires
States parties to ensure proper legal assistance to persons accused of criminal
offenses at all stages of their trial and appeal [...] In the light of article 6,
paragraph 2, of the Covenant it is imperative that whenever legal aid is provided,
it must be sufficient to ensure that the trial can be conducted fairly. [Annex XII,
sect. H, para. 6.4]".(65)
(c) General Comments
The HRC's General Comment Nº 18 provides a systematic and authoritative analysis of
various ICCPR's provisions. In it, the HRC states:
"1. Non-discrimination, together with equality before the law and equal
protection of the law without discrimination, constitutes a basic and general
principle related to the protection of human rights. [...]
2. Indeed, the principle of non-discrimination is so basic that article 3 obligates
each State Party to ensure the equal right of men and women to the enjoyment of
the rights set forth in the Covenant [i.e., the ICCPR]. [...]
3. Because of their basic and general character, the principle of non-discrimination as well as that of
equality before the law and equal protection of
the law are sometimes expressly referred to in articles relating to particular
categories of human rights. Article 14, paragraph 1, provides that all persons
shall be equal before the courts and tribunals [...].
12. While article 2 limits the scope of the rights to be protected against
discrimination to those provided for in this Covenant [i.e., the ICCPR], article 26
does not specify such limitations. That is to say, article 26 provides that all
persons are equal before the law and are entitled to equal protection of the law
without discrimination, and that the law shall guarantee to all persons equal and
effective protection against discrimination on any of the enumerated grounds. In
the view of the Committee, article 26 does not merely duplicate the guarantee
already provided for in article 2 but provides in itself an autonomous right. It
prohibits discrimination in law or in fact in any field regulated and protected by
public authorities. Article 26 is therefore concerned with the obligations imposed
on States Parties in regard to their legislation and the application thereof. [...]".(66)
Also, the HRC, in its General Comment Nº 3 states that
"[it] notes that article 2 of the Covenant generally leaves it to the State parties concerned
to choose their method of implementation in their territories [...] It recognizes, in
particular, that the implementation does not depend solely on constitutional or legislative
enactments, which in themselves are often not per se sufficient [...] the obligation under
the Covenant is not confined to the respect of human rights, but that State parties have
also undertaken to ensure the enjoyment of these rights to all individuals under their
jurisdiction. This aspect calls for specific activities by the State parties to enable
individuals to enjoy their rights."(67)
5.1. In our description of facts and legal objections about the current U.S. death penalty
policies, we have heavily relied on the policies and recommendations produced by the A.B.A.. It
is worth noting that none of such have any legally binding nature. However, being the A.B.A. a
respectable representative association of a highly sophisticated professional community, its
points of view and information can be deemed as very helpful guidelines and supporting material
for the monitoring and supervisory tasks of any competent international body, such as the HRC.
5.2. While ICCPR Art. 6º does not ban the death penalty, it does impose various restrictions
for its application ("only for the most serious crimes" "in accordance with the law in force at the
time of the commission of the crime" "can only be carried out pursuant to a final judgement"
"[a]nyone sentenced to death shall have the right too seek pardon or commutation of the
5.3. The U.S. is legally allowed to continue imposing and executing death penalty sentences
due to the fact that they are not prohibited by international law(68). However, this does not
carte blanche to this country to breach any of its international obligations. The U.S. has made an
express reservation of such attribution, with particular implications regarding to ICCPR Art.
6(5)º (which prohibits the imposition of sentence of death "for crimes committed by persons
below eighteen years of age").(69) Meaningfully, eleven states parties to ICCPR and the HRC
have objected that specific U.S. reservation(70) in regard to the capital conviction of
5.4. The issue of the complementary nature of ICCPR Art. 2.3º is not particularly relevant to
the analysis of U.S. obligations before international law due to the fact that regretfully, the U.S.
has not ratified the ICCPR's Optional Protocol. The main circumstance in which such a
distinction becomes relevant is when the HRC has to qualify the merits of individual
communications based on the invocation of a violation which is solely referred to such treaty
provision. While the U.S. has declared its acceptance of inter-state complaints filed against itself
pursuant ICCPR Art. 41º et seq.(72), this procedural mechanism has never been put in
any State party. The HRC can issue comments regarding the effectiveness of ICCPR Art. 2.3º
within the U.S., when revising that country's reports, but in such case it needs not to regard the
complementary nature of such treaty provision.
However, it is worth reflecting upon the hypothetical case of a state which --unlike the
U.S.-- has ratified the ICCPR's Optional Protocol. In such case, the HRC would be entitled by its
own jurisprudence to deny the merits of an individual communication filed by an inmate who is
likely to be condemned to death penalty, if it is solely based on the invocation of ICCPR Art.
2(3)º. While such petitioner might have not yet himself suffered the actual violation of any of the
rights set forth in the ICCPR, the overall situation of lack of effective domestic remedies --like
the currently prevailing one in the U.S.-- might in the near future lead to the deprivation of his
right to life. The alternative course of action, based on the complementary nature of ICCPR Art.
2(3)º, for example to wait until a death penalty sentence is passed and then challenge it invoking
violations of due process provisions complemented by the invocation of ICCPR Art. 2(3)º, might
not be in itself an effective remedy and still lead to the applicant's deprivation of the right to life,
if --like in the U.S. McFarland v. Scott case(73)-- not even a stay of execution is
maintain the status quo long enough to complete post-conviction litigation".(74)
5.5. The situation we are analyzing, of U.S. states and federal death penalty policies, has a
wide array of dimensions and implications. Not all of them represent per se violations of the
standards set forth in the ICCPR. Moreover, the analysis becomes clouded when taking into
account the wide range of exclusions contained in the package of U.S. reservations,
understandings and declarations attached to its ICCPR ratification.(75) The HRC has expressed
it "regrets the extent of the [U.S.] State party's reservations, declarations and understandings to
the Covenant"(76) while its Chairman has made critical observations in that respect(77). Such
attachments have deserved widespread criticism.(78)
5.6. ICCPR Art. 14.5º rules the right of appeal in criminal cases: "Everyone convicted of a
crime shall have the right to his conviction and sentence being reviewed by a higher tribunal
according to law".(79) This provision is fully applicable to the U.S. as this country has not
any reservation, understanding or declaration to limit its domestic application. Such provision
has to be construed as entitling defendants to exhaust all available instances of appeal.(80)
According to BLACK'S LAW DICTIONARY appeal means "n. A proceeding undertaken to
reverse a decision by bringing it to a higher authority; [...] vb. To seek review (from a lower
court's decision) by a higher court".(81) Considering the fundamental value of human life
in capital cases, the term appeal should be defined extensively to include any reasonable and
legal procedure which might bring upon a reversion of the capital conviction and sentence.
The HRC, "in Capital punishment cases v. Jamaica found violations of Art. 14(5): [...]
the convicted persons were in fact prevented from appealing in third instance to the Judicial
Committee of the Privy Council in London."(82) This HRC precedent is uniquely important to our
analysis due to the fact that the Privy Council acts "sitting as the Constitutional Court of
Jamaica"(83), that is, performing the same jurisdictional task than the U.S. federal courts.(84) Besides,
the HRC has consistently held the same ruling: "Under the jurisprudence of the Committee, on
the one hand, every person confined to death row must be afforded the opportunity to pursue all
possibilities of appeal, and, on the other hand, the State party must ensure that the possibilities
for appeal are made available to the condemned prisoner within a reasonable time".(85) This
dictum from the HRC is categoric: all available post-conviction appellation
should be granted in capital cases.
If reasonable constitutional questions arise out of the conviction procedure, it cannot be
denied that the capital inmate is entitled to a "fair and public hearing by a competent,
independent and impartial tribunal" to have "[the] conviction and sentence being reviewed by a
higher tribunal" pursuant to ICCPR Arts. 14.1º and 14.5º, complemented by ICCPR Arts. 2.3º
and 26º. The fate of the right of appeal ruled by ICCPR Art. 14(5)º cannot be determined by the
passing of domestic laws, even less by the discretionary decisions of state judges. The power of
competent domestic authorities in this respect is limited to the mere determination of the means
by which such right is to be exercised.(86) "This results clearly from the wording [of ICCPR
14(5)º] and was confirmed [by the HRC] in Salgar de Montejo v. Colombia [...]".(87)
Further, according to ICCPR Art. 6º:
"1. Every human being has the inherent right to life. This right shall be protected by law. No one
shall be arbitrarily deprived of his life.
2. In countries which have not abolished the death penalty, sentence of death may be imposed
[...]. This penalty can only be carried out pursuant to a final judgement rendered by a competent
It is worth noticing that ICCPR Art. 6º is among those rights ruled by ICCPR Art. 4(2)º as
non-derogable during states of emergency (lest during states of normality). The
condition of final judgement established in ICCPR Art. 6(2)º can only be construed as a
confirmation of the right of a capital convict to exhaust all available instances of appeal as
established by the respective domestic law pursuant ICCPR, Art. 14(5)º.
Hence, any unreasonable restriction of the right of appeal as a matter of fact by a state
court which impedes the revision in federal instances of the constitutional issues which might
have been put at stake by the respective capital conviction or sentence, carries as a consequence
the breach of the rights set forth inter alia in ICCPR Arts. 2(3)º, 6(2)º, 14(1)º and 14(5)º, and of
the international obligations derived thereof. Such reasoning is reinforced by the fact that ICCPR
Art. 6.4º rules that "[a]nyone sentenced to death shall have the right to seek pardon or
commutation of the sentence", thus giving a special qualification to the procedural rights of
capital inmates. Alike any other situation, in capital cases the defendants are entitled not only to
exhaust all available domestic remedies but also to apply for a post-judicial recourse: the pardon.
The only congruent way of interpreting the right granted in ICCPR Art. 6.4º is precisely that of a
right that can be exercised after the exhaustion of all available judicial remedies. The U.S. has
made no reservations, understandings or declarations regarding this provision.
5.7. The writ of habeas corpus has become a cornerstone constitutional procedural remedy to
protect human rights and fundamental liberties.(88) Its core importance in that respect is
the fact that it is a non-derogable judicial guarantee under the Inter-American Convention (89) (of
which, regretfully, the U.S. is not a State party).
Taking as inspirational base the reasoning developed by the Inter-American Court of
Human Rights in the Habeas Corpus in Emergency Situations Advisory Opinion(90), mutatis
mutandi, it can be argued that the writ of habeas corpus is non-derogable within the
system, to the extent that it protects a right in itself non-derogable, such as is the case of ICCPR
Art. 6º.(91) In theory, a right can be lawfully derogated by means of an express declaration
state of emergency or through the passing of legislation, as long as such right is not a non-derogable one.
Such derogation may also be applied universally (urbi et orbi within the
respective jurisdiction) or in a way which affects a particular segment of the population. In this
latter case, such derogation, while in abstracto allowed by international law, could be illegal
because of bearing discriminatory implications (if such discrimination cannot be reasonably and
The U.S. has made a reservation to the ICCPR by which it "reserves [sic.] the right,
subject to its Constitutional constraints, to impose capital punishment on any person [...] duly
convicted [...]". The effect of such reservation before international law is not broader than to
merely entitle the U.S. to impose the death penalty, as long as such entitlement does not override
any other rights and duties --inter alia those set forth in the ICCPR and which are not annulled by
a U.S. reservation. This means that the access to a federal habeas corpus recourse, the right of
appeal, or due process, cannot be restricted as a matter of fact or of law in capital cases, based on
the invocation of such U.S. reservation.
"The [U.S.] federal Anti-Terrorism and Effective Death Penalty Act, enacted in 1996,
includes provisions that severely undermine death row inmates' ability to use federal habeas
corpus procedures to challenge their unconstitutional convictions or death sentences."(92) Such
substantial restriction to the federal habeas corpus recourse represents a derogation by law of a
non-derogable right, thus illegal before international law based on the provisions of ICCPR
Arts. 2(3)º and 14(5)º.(93) Moreover, as the virtual derogation by law of the habeas
recourse in death penalty cases only affects a particular segment of population (i.e., capital
inmates), while being in itself internationally illegal, it also bears as an automatic consequence
the fact of representing an illegal discrimination(94) contrary to ICCPR Arts. 2(1)º, 14(1)º
Why is it so? Because discrimination can only be justified on the basis of reasonable and legal
grounds (for example, positive discrimination(96)); but, when a given situation is in itself
(on other grounds than mere discrimination), then the presumption of reasonableness --on which
such discrimination is sustained-- becomes ipso jure rebutted: illegality cannot bear any legal
reasonableness, and discrimination cannot be justified when in pursuits an otherwise illegal
purpose. This reasoning is confirmed precisely by the U.S. understanding to ICCPR Arts. 2(1)º
"That the Constitution and laws of the United States guarantee all persons equal protection of the
law and provide extensive protections against discrimination. The United States understands
distinctions [...] [as ruled by ICCPR Arts. 2(1)º and 26º] to be permitted when such distinctions
are, at minimum, rationally related to a legitimate governmental objective".(97)
It must be added that the presumption of legality and the duty to perform conventional
obligations in good faith are fundamental principles of international law.(98) Hence, the
to "a legitimate governmental objective" within such U.S. understanding can only be interpreted
as affirming the commitment of this country to perform its international conventional duties (like
the ones set forth in the ICCPR) according to international law and in good faith. Contrario
sensu, such understanding cannot be legitimately interpreted as entitling the U.S. to incur into
discriminations intended to breach its other international conventional obligations, such as the
one of non-derogation of the federal habeas corpus recourse pursuant ICCPR Arts. 2(3)º, 4(2)º,
6(2)º in fine, and 14(5)º.(99) Moreover, the factual effects of such undesired
example as a result of a judicial act produced by a competent U.S. judge, could amount in
themselves an additional breach of international law pursuant the U.N. Convention on the Law of
Treaties Art. 31(1):
"A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given
to the terms of the treaty in the context and in light of its object and purpose."(100)
In light of the aforementioned considerations, it can be concluded that the restrictions
imposed to the right of capital inmates to file a federal habeas corpus intended to revise their
capital conviction or sentence, or any substantial element thereof, such as the ones the U.S. Anti-Terrorism and Effective
Death Penalty Act (1996) has established, violates the human rights of
those inmates as prescribed in ICCPR Arts. 2(1)º, 2(3)º, 4(2)º, 6(2)º in fine, 14(1)º, 14(5)º, and
5.8. Regarding the principle of equality of arms, its pivotal role within modern criminal
procedure and the due process standards must be recalled. It can be stated that equality of arms
and due process are inter-dependent concepts: the lack of one of them carries as a consequence
the absence of the other. All criminal procedures have to meet the standards of fairness as to
guarantee that all the involved parties are being treated as "equal before the courts and
tribunals".(101) "When is this condition fulfilled? The European Commission [of Human Rights]
has always taken the position that in abstracto no enumeration of criteria can be given for this,
but that in each individual case the course of the proceedings as a whole has to be assessed".(102)
The principle of equality of arms is manifold, and its basic content is ruled in ICCPR Art.
14(3)º. Our analysis is hereunder focused in one particular and fundamental dimension: the right
From a formal standpoint, no objection can be raised regarding the U.S. declaration
regarding ICCPR Art. 14(3)º, subparagraphs (b) and (d):
"That the United States understands that subparagraphs 3(b) and (d) of Article 14 do not require
the provision of a criminal defendant's counsel of choice when the defendant is provided with
court-appointed counsel on grounds of indigence, when the defendant is financially able to retain
alternative counsel, or when imprisonment in not imposed."(103)
It can be assumed as being prima facie reasonable any such interpretative declaration made by a
State party stating that it opts to exclude itself from the obligation of providing indigent
defendants a counsel of their choice and rather provide a court-appointed counsel. Such
exclusion does not per se imply the breach of the principle of equality of arms nor of the due
process standards, as long as the alternative system of counsel is guaranteed to be fair and
"Where the accused has the right to free legal assistance, it may not be enough for the competent
authorities merely to nominate a lawyer to act for him, since the accused is entitled to legal
assistance which is 'practical and effective' and not merely 'theoretical and illusory'. The state is
not responsible for every shortcoming of a legal aid lawyer and the conduct of the defence,
whether under legal aid or not, is essentially a matter between the accused and his counsel.
However, if failure by, or inability of, a legal aid counsel to provide effective representation is
either manifest, or sufficiently brought to the attention of the competent national authorities,
there is an obligation on them to intervene."(104)
In contrast with the international standards, U.S. death penalty policies quite usually
provide very ineffective counseling to capital inmates, putting at peril the principles and rules
regarding the equality of arms, right to counsel and due process. That
conclusion can be drawn
from the bold statements contained in the report supporting A.B.A.'s Recommendation Nº
107(105), prepared by the Chair of the Section of Individual Rights and Responsibilities of
association. The evidence provided in such report justifies the qualification of U.S. death penalty
policies as internationally unlawful.
6.1. The A.B.A., while not opposing the implementation of the death penalty per se within the
U.S., has produced outstanding information regarding the flaws of the existing
governmental policies, and has developed very consistent policy proposals. Such
elements can be extremely valuable for the performance of the HRC's supervisory
functions regarding this country.
6.2. From the information produced by the A.B.A., it can be inferred that many of the death
penalty policies being implemented in the U.S. both by federal and state instances,
severely curtail the right to a competent counsel, the right of appeal, the right to an
habeas corpus, and generally due process. In that regard, many aspects of such policies
represent violations of the capital inmates' human rights and breaches of U.S.
international obligations as set forth mainly in the ICCPR.
6.3. The implementation of the right to public counsel by both federal and state instances, in
favor of indigent capital inmates, is totally insufficient, due to the extreme lack of
adequate qualifications among many of the respective counsels and the scarcity of
budgetary resources allocated by those instances. In this respect, such public counseling
services are far from meeting the basic international standards set forth in the ICCPR,
thus representing both human rights violations and breaches of international obligations
by the U.S.
6.4. Many of the restrictions posed by U.S. governmental instances to the rights of access to
justice and to an effective remedy, by means of legislation or judicial rulings limiting
reasonable post-conviction litigation of capital inmates, are contrary to the provisions set
forth in the ICCPR. This is particularly evident with regard to the virtual derogation of
the habeas corpus recourse of those inmates and the denial of post-conviction counseling
to indigent capital inmates.
6.5. The internationally illegal derogation by the U.S. of an inderogable recourse such as the
habeas corpus in detriment of capital inmates' rights, bears as a consequence an illegal
discrimination contrary to ICCPR Arts. 2(1)º, 14(1)º and 26º.
6.6. Whenever U.S. state courts as a matter of fact impede a capital convict's appeal to federal
instances when reasonable constitutional questions are being invoked, the U.S. incurs in a
breach of the provisions set forth in ICCPR Arts. 2º, 14.1º, 14.5º, and 26º.
6.7 It is advisable that the HRC adopts a more flexible approach to the interpretation of
ICCPR Art. 2(3)º in relation to death penalty cases, i.e. by not considering it exclusively
under a complementary nature to other ICCPR rights.
6.8. In light of the gross human rights violations taking place in the U.S. against capital
inmates, and considering that this country regretfully has not ratified the Optional
Protocol to the ICCPR, the HRC may intervene: (a) as a result of an inter-State
complaint; (b) when commenting the next report submitted by the U.S.; or, (c) producing
a specific General Comment on the issue. Option (a) is unlikely to happen as such
procedure has never been utilized. Option (c) seems relatively inappropriate, due to the
fact that General Comments are intended to be interpretative instruments rather than
protective ones, do not have a legally binding nature, and are usually not country-specific(106). All circumstances considered, option (b) is the most appropriate one.
It is suggested that the HRC make an in-depth supervisory intervention about U.S.
internationally unlawful death penalty policies the next time this country presents a report before
that body.(107) It is worth noting that such circumstance did arise recently, when the U.S.
its ICCPR initial report to the HRC, on August 1994(108). Such body analyzed the state report
during its sessions of March 29 and 31, 1995.(109) Unfortunately, the HRC's Comments
report deal with the issue of U.S. death penalty policies(110) in an insufficient manner. The
Comments understates the fact that death penalty is actually being applied to mentally retarded
persons. And, while all the concerns and criteria expressed by the HRC are legitimate, its
Comments do not regard the issues of the internationally illegal restrictions being imposed by the
U.S. to the rights to effective remedy, access to justice,
habeas corpus recourse and due process
to capital inmates, some of which were already being implemented at the time the U.S. presented
its initial report to the HRC.
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Press and Web Sites Sources
A.B.A. Calls For Moratorium on Death Penalty. A.B.A.'s press release, February 24, 1997.
(visited Mar. 15, 1996) <http://www.abanet.org/media/home.html>.
American Civil Liberties Union Web Site (visited March 12, 1997)
Death Penalty Information Center Web Site (visited July 20, 1997)
National Association of Criminal Defense Lawyers' Web Site (visited April 10, 1997)
Time, April 7, 1997; p. 21.
REUTER press dispatch, via Internet, 04/17/97, 08:41 PM ET.
Washington Post (The) March 25, 1997; p. A1.
A P P E N D I X
SOME CASES THAT EXEMPLIFY THE UNFAIRNESS
OF U.S. DEATH PENALTY POLICIES
"In Young v. Kemp,(111) the defense counsel was himself so dependent on
drugs during the
trial that, as even he later admitted, he mounted only the semblance of a defense. His client
received the death penalty [...]".(112)
"Cases in which defense attorneys use racial slurs in reference to their clients are also too
common. [...] Isaacs v. Kemp(113) [...] showing the following opening argument: You
have got a
little ole nigger man over there that doesn't weigh over 135 pounds. He is poor and he is broke.
He's got an appointed lawyer. ...He is ignorant. I will venture to say he has an IQ of not over 80.
Unsurprisingly, the jury that heard that statement from defense counsel later sentenced the
defendant to death."(114)
In Tyler v. Kemp,(115) and Paradis v. Arave,(116) "state trial courts assigned capital cases to
lawyers who had passed the bar only few months earlier".(117)
In Bell v. Watkins,(118) a state trial court appointed a lawyer who had
never finished a
criminal trial of any kind".(119)
In Leatherwood v. State,(120) "yet another trial court allowed a third-year
law student to
handle most of a capital trial."(121)
In Smith v. State,(122) "defense counsel asked for extra time between the
sentencing phases of a capital case in order to read the state death penalty statute for the first
In Romero v. Lynaugh,(124) "defense counsel declined to offer any evidence
at all during the
penalty phase of a capital case, and then made the following brief and ineffective closing
argument: 'You are an extremely intelligent jury. You've got the man's life in your hands. You
can take it or not. That's all I have to say.' The jury, in its turn, sentenced the defendant to
In Messer v. Kemp,(126) "defense counsel presented very little of the
available, made no objections at all, then essentially told the jury that the death penalty was
appropriate. That defendant, too, was sentenced to die."(127)
"The federal courts found the 'services' rendered [by the respective counsels] in Romero,
Messer, and Young cases [...] to be 'effective' for constitutional purposes --and, accordingly, all
three prisoners were executed."(128)
1. The Washington Post, March 25, 1997; p. A1.
2. Time, April 7, 1997; p. 21. Also, on April 17th., 1997, Leo A. Jones, a
capital inmate was granted
"a few weeks' reprieve [...] while a court decides whether use of the chair is cruel and unusual [sic.] punishment
[following the recent burning of Medina]. [...] Jones' family members have maintained the condition of Florida's
electric chair is irrelevant to his case because they believe he is innocent. Jones confessed to the killing, but has said
he did so only to keep police from beating him." REUTER press dispatch, via Internet, 04/17/97, 08:41 PM ET.
3. For a comprehensive list of over-kill events during death penalty executions, see
Information Center (visited July 20, 1997) <http://www.essential.org/orgs/dpic/dpicbotched.html>.
4. See: A.B.A. Calls For Moratorium on Death Penalty. A.B.A.'s press release,
February 24, 1997.
(visited March 15, 1997) <http://www.abanet.org/media/home.html>.
Alsoinfra note 5.
5. A.B.A.'s House of Delegates Recommendation Nº 107, approved February 3, 1997.
6. A.B.A. Chair, Section of Individual Rights and Responsibilities. Report submitted by the Chair
accompanying Recommendation Nº 107, p. 1, heading.
7. The Anti-Terrorism and Effective Death Penalty Act (1996), Pub.L. Nº 104-132, 110 Stat. 1217
(amending 28 U.S.C. § 2244); and the Violent Criminal Incarceration Act of 1995 (H.R. 667), incorporated into the
FY 1996 Omnibus Appropriations Act, Pub.L. Nº 104-134.
8. Currently, there exist treaties specifically for the abolition of the death penalty in the
European and the Inter-American systems. See Second Optional Protocol to the ICCPR, aiming to the abolition of
the death penalty (G.A. res. 44/128, annex, 44 U.N. GAOR Supp. (Nº 49) at 207, U.N. Doc. A/44/49 (1989),
entered into force July 11, 1991); Protocol Nº 6 to the ECHR, concerning the abolition of the death penalty (E.T.S.
114, entered into force March 1, 1985); Protocol to the ACHR to Abolish the Death Penalty (O.A.S. Treaty Series
Nº 73 (1990), adopted June 8, 1990, reprinted in OEA/ser.L.V/II.82 doc.6 rev.1 at 80 (1992)). The U.N.
Commission on Human Rights has adopted on April 3, 1997, its Resolution Nº 1997/12 calling on countries which
retain capital punishment "to consider suspending executions, with a view to completely abolishing the death
penalty, and also calls on states which have not abolished the death penalty "progressively to restrict the number of
offences for which the death penalty may be imposed". The resolution was adopted by a vote of 27 in favor and 11
against, with 14 abstentions. Also, according to Amnesty International as of March 1997, 58 countries and
territories have abolished the death penalty for all crimes; 15countries have abolished the death penalty for all but
exceptional crimes such as wartime crimes; and 27 countries can be considered abolitionist de facto: they retain the
death penalty in law but have not carried out any executions for the past 10 years or more making a total of 100
countries which have abolished the death penalty in law or practice. Amnesty International - U.S.A. Web Site
(visited July 25, 1997) <http://www.amnesty.org/ailib/intcamp/dp/dpfacts.htm>.
See also SCHABAS, William A.
(1993) The Abolition of the Death Penalty in International Law. Cambridge, Grotius Publications; American Civil
Liberties Union Web Site (visited July 22, 1997) <http://www.aclu.org/issues/death/>; and, HOOD, Roger G.
(1996) The Death Penalty: A World-Wide Perspective. 2nd. ed. rev. Oxford, Clarendon Press and New York, Oxford
9. The distinction between state or federal instances in relation to the federal declaration
the U.S. ICCPR ratification is irrelevant for the purpose of our analysis, as our focus is that of U.S. international
obligations pursuant the ICCPR rather than its domestic implementation. The U.S. did not make a reservation to the
ICCPR's federal clause (Art. 50º) which mandates that "[t]he provisions of the present Covenant shall extend to all
parts of federal States without any limitations or exceptions". Rather, the U.S. merely annexed a declaration, which,
whatever its specific effects might be, has a softer legal nature than a reservation. According to STEWART, "[i]t is
important to note that this provision [the U.S. federal declaration] is not a reservation and does not
modify or limit
U.S. obligations under the Covenant. Rather, it addresses the essentially domestic issue of how the Covenant will be
implemented within the U.S. federal system." STEWART, David P. (1993) U.S. Ratification of the Covenant on
Civil and Political Rights: The Significance of the Reservations, Understandings and Declarations. 14 HRLJ 3-4,
77, at 79. Similarly, the declaration by the U.S. about the "non-self-executing" nature of the ICCPR within its
jurisdiction, "does not affect or circumscribe the international obligations of the U.S. under the Covenant", thus
falls out of the scope of our analysis. Id.
10. See e.g., A.B.A. Chair, Section of Individual Rights and Responsibilities. Report
Op. Cit., pp. 11 - 13; U.S. GENERAL ACCOUNTING OFFICE (1990) Death Penalty Sentencing: Research
Indicates Pattern of Racial Disparities, reprinted in 136 Cong. Rec. S6889-90 (daily ed. May 24, 1990); Proposed
Fairness in Death Sentencing Act of 1991, H.R. 2851, 102d Cong., 1st Sess. (1991); TABAK, Ronald J. (1991) Is
Racism Irrelevant? Or Should the Fairness in Death Sentencing Act Be Enacted to Substantially Diminish Racial
Discrimination in Capital Sentencing? 18 N.Y.U. Rev. L. & Soc. Change 777; WEATHERSPOON, Floyd D.
(1994) The Devastating Impact of the Justice System on the Status of African-American Males: An Overview
Perspective, 23 Cap. U. L. Rev. 23. But, Inter-American Commission of Human Rights (IACHR), Resolution 23/89,
Case 10.031 (United States), in: Annual Report of the Inter-American Commission of Human Rights 1989 - 1990,
OEA/Ser.L/V/II/77 rev.1, doc. 7, 17 May 1990; pp. 62 - 73 (stating that statistical data do not suffice to prove
discrimination in capital cases).
11. See e.g., European Court of Human Rights, Soering v. United Kingdom, July 7,
1989. Series A
161; HRC Earl Pratt and Ivan Morgan v. Jamaica, (infra note 100) Doc. A/44/40, p. 222; Carlton Reid v.
(infra note 100), Doc. A/45/40, App., para. 11.6; LILLICH, Richard B. (1991) The Soering Case, 85 AJIL at. 128;
HRC General Comment Nº 24, U.N. Doc. CCPR/C/21/Rev. 1/Add. 6 (1994); para. 8; Contemporary Practice of the
United States, 85 AJIL 334, 337 (1991).
12. See e.g., HRC General Comment Nº 24, U.N. Doc. CCPR/C/21/Rev. 1/Add. 6 (1994); para.
HRC Comments on United States of America, U.N. Doc. CCPR/C/79/Add 50 (1995), para. 16, 27 and 31; U.N.
ECONOMIC AND SOCIAL COUNCIL, Safeguards Guaranteeing Protection of the Rights of Those Facing the
Death Penalty, E.S.C. res. 1984/50, annex, 1984 U.N. ESCOR Supp. (Nº 1) at 33, U.N. Doc. E/1984/84 (1984);
Contemporary Practice of the United States, 89 AJIL 96, 109 (1995); IACHR Resolution 3/87 (United States), in:
Annual Report of the Inter-American Commission of Human Rights 1985 - 1987, OEA/Ser.L/V/II/71, doc. 9, rev. 1,
22 Sept. 1987; pp. 148, 154-160, 164-173.
13. See inter alia Guidelines for the Appointment and Performance of Counsel in Death
Cases (adopted in February 1989); Policies intended to encourage competency of counsel in capital cases (adopted
in February 1979; February 1988; February 1990; and, August 1996); Preserving, enhancing, and streamlining state
and federal courts' authority and responsibility to exercise independent judgement on the merits of constitutional
claims in state post-conviction and federal habeas corpus proceedings (adopted in August 1982 and, February
1990); Striving to eliminate discrimination in capital sentencing on the basis of the race of either the victim or the
defendant (adopted in August 1988 and August 1991); and, Preventing execution of mentally retarded persons
(adopted in February 1989) and persons who were under the age of 18 at the time of their offenses (adopted in
14. Gregg v. Georgia, 428 U.S. 153 (1976). Earlier, in 1972, the Supreme Court had
existing death penalty statutes (Furman v. Georgia, 404 U.S. 238).
15. A.B.A.'s House of Delegates Recommendation Nº 107, Op. Cit., lines 4 - 6.
16. A.B.A. Chair, Section of Individual Rights and Responsibilities. Report submitted by...,
17. A.B.A.'s House of Delegates Recommendation Nº 107, Op.Cit. Adopted by a margin of 280
18. A.B.A.'s House of Delegates Recommendation Nº 107, Op. Cit., lines 1 - 4.
19. Id., at p. 1.
20. Id., at p. 1.
21. Id., at p. 3.
22. Id., at p. 3.
23. Id., at p. 3.
24. Id., at. p. 3.
25. Id., at 5.
26. Id., at 5.
27. Id., at 7 - 8.
28. Id., at p. 5.
29. Id., at p. 6.
30. Id., at p. 8. "In one instance, illustrative of other states' practices as well,
researchers found that
Texas typically does not use central appointing authorities to choose counsel in death penalty cases, does not
monitor the performance of assigned counsel in capital cases, and does not adequately compensate appointed
counsel or reimburse them sufficiently for support services. The Spangenberg Group, A Study of Representation in
Capital Cases in Texas (1993)." Id., at p. 6 note 15.
31. Id., at p. 9.
32. Id., at p. 9.
33. Id., at p. 9.
34. Id., at p, 10. See ROBBINS, Ira P. (1990) Toward a More Just and Effective
System of Review in
State Death Penalty Cases, 40 Am. U. L. Rev. 1 (1990) and A.B.A.'s Resolutions of the House of Delegates Nºs 1 -
16, of February 13, 1990. 40 Am. U. L. Rev. 1 (1990), at pp. 9 - 52. Also: McFarland v. Scott, 114 S.Ct.
(1994), regarding denial of stay of execution to complete post-conviction litigation; Coleman v. Thompson, 111
S.Ct. 2546 (1991), regarding consideration of claims by federal court which were not raised in state court;
McCleskey v. Zant, 499 U.S. 467 (1991), regarding access to the litigation of more than one petition even when
egregious constitutional violations might have occurred in the capital case.
35. McGOLDRICK, Dominic (1991) The Human Rights Committee. New York, Oxford University
Press; p. 269.
36. NOWAK, Manfred (1993) U.N. Covenant on Civil and Political Rights. CCPR Commentary.
Kehl, N.P. Engel Verlag; p. 27.
37. ECHR, Art. 1º; ACHR, Art. 1(1); and, AchHPR, Art. 1º.
38. NOWAK, Op. Cit., p. 29. See also U.N. docs. E/CN.4/21, annex B (proposal of
and E/CN.4/37 (proposal of the U.S.A.).
39. BUERGENTHAL, Thomas (1981) State Obligations and Permissible Derogations, in: HENKIN,
L., ed., The International Bill of Rights. New York, Columbia University Press; pp. 25, 72, 77.
40. NOWAK, Op. Cit., p. 36.
41. General Comment Nº 3. U.N. Doc. HRI/GEN/1/Rev.1 at 4 (1994).
42. Supra, notes 36, 37 and 41.
43. NOWAK, Op. Cit., pp. 27 - 28.
44. The existence of a right of access to justice can be construed from
the joint application of ICCPR
Arts. 2º, 14º and 26º, and the literal provision of UDHR Art. 8º. A similar analysis can be made by interpreting
different provisions of the main regional human rights treaties.
45. NOWAK, Op. Cit., p. 33.
46. Id., at p. 28.
47. Id., at p. 35.
48. Infra 3(c) and note 50.
49. NOWAK, Op. Cit., at pp. 35 - 36.
50. Id., at p. 35. But, "[i]n view of the Committee, article 26 does not merely duplicate
already provided for in article 2 but provides in itself an autonomous right. It prohibits discrimination in law or in
fact in any field regulated and protected by public authorities." HRC General Comment Nº 18. U.N. Doc. Nº
HRI\GEN\1\Rev. 1 at 26 (1994); para. 12.
52. Inter alia, the right to self-determination (ICCPR, Art. 1º). This right falls within
the scope of
application of ICCPR Art. 2º. SeeId., at pp. 33 - 34. Also, General Comment Nº 12, para. 2 - 4, U.N. Doc.
HRI\GEN\1\Rev.1 at 12 (1994).
53. Provided that both State Parties have recognized the competency of the HRC to perform such
function, according to ICCPR Art. 41º. It is worth mentioning that the HRC has never had the opportunity of
exercising this function, because no inter-State complaints have ever been submitted under such treaty provision.
54. However, individuals subject to the jurisdiction of the U.S. are deprived of filing individual
communications before the HRC due to the fact that such country has not ratified the Optional Protocol to the
55. Regarding the HRC's General Comments practice, see generally BUERGENTHAL,
(1997) Human Rights Committee. Photocopy; pp. 61 - 66. Also, McGOLDRICK, Op. Cit., pp. 92 - 96.
56. McGOLDRICK, Op. Cit., p. 279.
58. SR Nº 132 pr. 30 (Opsahl on Bulgaria), mentioned by MCGOLDRICK, Op. Cit., p. 279 and
59. See e.g. SR Nº 353 pr. 28 (Tomuschat on Guyana), mentioned by MCGOLDRICK, Op.
280 and note 102.
60. McGOLDRICK, Op. Cit., p. 280. See also e.g. SR Nº 355 pr. 18 (Prado-Vallejo
on Uruguay); SR
Nº 98 pr. 46 (Vincent-Evans on Yugoslavia); SR Nº 421 pr. 6 (Hanga on Nicaragua); and, SR Nº 345 pr. 37
(Graefrath on Rwanda).
61. UNITED NATIONS HUMAN RIGHTS COMMITTEE (1995) Comments on United States of
America. U.N. Doc. CCPR/C/79/Add 50; para. 15.
62. NOWAK, Op. Cit., p. 34. See also HRC's views Nºs 81/1980; 268/1987;
275/1988; 343-345/1988; 347/1988; 348/1989; 363/1989; 398/1990.
63. See supra note 48.
64. Nowak, Op. Cit., at p. 35, note 52. See HRC view Nº 180/1984, para. 2.1.
65. U.N. HUMAN RIGHTS COMMITTEE (1996) Annual Report of the Committee to the General
Assembly - Fifteenth Report, U.N. Doc. A/46/40, para. 689, in: UNITED NATIONS, Official Records of the
Human Rights Commission 1990/91, Vol. 2, U.N. Doc. CCPR/10/Add.1; p. 433.
66. HRC General Comment Nº 18, Op. Cit.
67. HRC General Comment Nº 3, U.N. Doc. Nº HRI\GEN\1\Rev. 1 at 4 (1994); para. 1.
68. With the exception of minors and pregnant women, ICCPR Art. 6(5)º; and, supra note 8.
69. The U.S. signed the ICCPR in 1977. The Senate gave its advice and consent to ratification on
April 2, 1992; and, the U.S. instrument of ratification --containing various reservations, understandings and
declarations-- was deposited with the U.N. on June 8, 1992. See Cong. Rec. 138 S4 781-01 (daily ed. April 2,
70. UNITED NATIONS (1995) Multilateral Treaties deposited with the Secretary General: Status as
of 31 December 1994, at 123, 127 - 130, U.N. Doc. ST/LEG/SER.E/13. The HRC has declared that the U.S.
reservations to ICCPR Arts. 6(5)º and 7º "[are] incompatible with the object and purpose of the
Covenant".UNITED NATIONS HUMAN RIGHTS COMMITTEE (1995) Comments on..., Op. Cit., para. 14.
However, the legal consequences of such invalidation are not clear. "The Committee is silent as to the consequences
of its ruling, although other authorities [...] suggest that the United States is bound at law by the Covenant as a
whole [including Art. 6(5)] [...]". SCHABAS, William A. (1995) Invalid Reservations to the International Covenant
on Civil and Political Rights: Is the United States Still a Party? 21 Brook. J. Int'l L. 324. Also, see infra note
71. According to SCHABAS, since juvenile executions have continued to be carried out in the U.S.
after the ICCPR came into force for this country, "clear breaches of international law can be established".
SCHABAS (1995), Op. Cit., p. 324. A relevant factor in the qualification of the U.S. reservation to ICCPR Art.
6(5)º is the ratification without reservations by this country of the Convention on the Rights of the Children, which
in its Art. 37(a)º repeats the norm of the ICCPR Art. 6(5)º. The HRC has also issued a general declaration
establishing the incompatibility of reservations concerning the execution of children before customary international
law. HRC General Comment Nº 24(52), U.N. Doc. CCPR/C/21/Rev.1/Add.6 (1994). Earlier, in 1987, the Inter-American Commission of
Human Rights has established that the U.S. breaches the ACHR by imposing the death
penalty to juveniles.
72. 138 Cong. Rec., Op. Cit.
73. 114 S.Ct. 2568 (1994).
74. A.B.A. Chair, Section of Individual Rights and Responsibilities. Report submitted by...,
75. See supra, notes 69 and 70. "As adopted, the VCLT [Vienna Convention on the
Law of Treaties]
fails clearly to specify the legal consequences of an impermissible reservation [...] State practice reveals no clear
trend and continuing confusion [sic.] as to the legal consequences of an objection to a reservation as incompatible
with the object and purpose of the treaty." REDGWELL, Catherine (1994) Universality or Integrity? Some
Reflections on Reservations to General Multilateral Treaties, in: The British Year Book of International Law 1993.
Oxford, Oxford at the Clarendon Press; p. 278. "There is no clear consensus in the doctrine as to the legal effect
under the Vienna Convention of an impermissible reservation." Id., at p. 263.
76. UNITED NATIONS HUMAN RIGHTS COMMITTEE (1995) Comments on..., Op. Cit., para.
14. See also HRC General Comment Nº 24(52), U.N. Doc. CCPR/C/21/Rev.1/Add.6.
77. HRC's 1406th meeting, 31 March 1995. See U.N. Doc. CCPR/C/SR.1406.
78. "As a result of those qualifications of its adherence [to human rights treaties], U.S.
been described as specious, meretricious, hypocritical." HENKIN, Louis (1995) U.S. Ratification of Human Rights
Conventions: The Ghost of Senator Bricker. Editorial Comment. 89 AJIL 341. "Some [states] have declared U.S.
adherence ineffective under international law. Id., at note 2. "[None less than] 10 states have objected to one or
more of the RUDs attached by the U.S. to its ratification of the [ICCPR][...]". Id., at note 11. KAUFMAN has stated
that "[such package of attachments] makes mockery of international human rights consensus" (quoted by MAYER,
Ann E. (1996) Reflections on the Proposed United States Reservations to CEDAW: Should the Constitution be an
Obstacle to Human Rights?, 23 HSTCLQ 727, at note 140). HENKIN has called that practice "clutter[ring]" of
treaties. Id., at p. 755. SCHABAS questions whether the U.S. is still a party to the ICCPR, as a result of its
reservations. SCHABAS (1995), Op. Cit.
79. "The right to appeal a criminal conviction to a higher tribunal is one of the most recent
rights of the 'first generation'." It is not included in the U.N. Human Right's Commission draft of the ICCPR nor in
the European Convention of Human Rights. Nowak, Op. Cit., p. 266.
80. Id., at 267 - 268.
81. GARNER, Bryan A., ed. (1996) BLACK'S Law Dictionary. Pocket edition. St. Paul, West;
82. NOWAK, Op. Cit., p. 268. "Henry v. Jamaica, Nº 230/1987, § 8.4; Little
v. Jamaica, Nº
283/1988, § 8.5." Id., at note 190.
83. BUERGENTHAL, Thomas (1996) International Tribunals and National Courts: The
Internationalization of Domestic Adjudication, in: Netherlands Yearbook of International Law 1994. Vol Nº 25.
Dordrecht, Boston and London, Netherlands International Law Review and Martinus Nijhoff; p. 689.
84. Since Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), it has been recognized that
federal courts perform a function of judicial review of constitutionality.
85. View Nº 486/1992, Cox v. Canada, para. 17.2 = 13 HRLJ 352, 131 (1992). Also,
communications Nºs 210/1986 and 225/1987. Earl Pratt and Ivan Morgan v. Jamaica, para. 13.6 = 11 HRLJ 150
(1990); Nº 250/1987, Carlton Reid v. Jamaica, para. 11.6 = 11 HRLJ 321 (1990); Nºs 270/1988 and 271/1988,
Randolph Barrett and Clyde Sutcliffe v. Jamaica, para. 8.4; Nº 274/1988, Loxley Griffith v. Jamaica, para.
317/1988, Howard Martin v. Jamaica, para. 12.1; Nº 470/1991, Kindler v. Canada, para 15.2 = 14 HRLJ 314
(1993)." Id., note 7. See also, U.N. ECONOMIC AND SOCIAL COUNCIL, Safeguards Guaranteeing Protection...,
Op. Cit., para. 5 - 6.
86. NOWAK, Op. Cit., p. 267.
87. Id., at note 188. HRC case Nº 64/1979, § 10.4: "The Committee considers that the
'according to law' in article 14(5) of the Covenant is not intended to leave the very existence of the right of review
to the discretion of the State parties, since the rights are those recognized by the Covenant, and not merely those
recognized by domestic law. Rather, what is to be determined 'according to law' is the modalities by which the
review by a higher tribunal is to be carried out." NOWAK, Op. Cit., note 188.
88. See HAMILTON, Alexander (1788) The Federalist Papers Nº 84. Certain General and
Miscellaneous Objections to the Constitution Considered and Answered. According to BLACKSTONE, the writ of
habeas corpus is "the bulwark of the British Constitution" (Commentaires, Vol. iv, p. 438). ZECHARIAN
paraphrases BLACKSTONE by calling habeas corpus "The Most Important Human Right in the Constitution". 32
B.U.L. Rev. 143 (1952).
89. See INTER-AMERICAN COURT OF HUMAN RIGHTS (1987) Advisory Opinion OC-8/87.
Habeas Corpus in Emergency Situations. Inter-Am.Ct.H.R. (Ser. A) Nº 8 (1987).
91. The HRC's statements more closely related to this topic are those of the General Comment Nº 5,
on ICCPR Art. 4º: "When a public emergency which threatens the life of the nation arises and it is officially
proclaimed, a State party may derogate from a number of rights to the extent strictly required by the situation." U.N.
Doc. HRI\GEN\1\Rev.1 at 5 (1994), para. 1. Contrario sensu, if no such an emergency exists or if it is not officially
proclaimed, derogations to the ICCPR provisions are not allowed as a matter of international law. " The State party,
however, may not derogate from certain specific rights [...]." Id. Besides, it can further be argued that the
underlying the ACHR's Advisory Opinion is similarly applicable within both the ICCPR's and the ACHR's
systems, as the habeas corpus is an essential remedy to protect some of those same rights wich are non-derogable
according to the ICCPR.
92. A.B.A. SECTION OF INDIVIDUAL RIGHTS AND RESPONSIBILITIES (1996) General
Information Form. Annex to Recommendation Nº 107; para. 5. See also the NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS' Web Site <http://www.criminaljustice.org/LEGIS/leg10.htm>.
93. The Fanali precedent [HRC case Nº 75/1980, § 13] does not affect our analysis. This
to a single-level domestic proceeding related to the Lockheed scandal in Italy. "[The convicted Fanali] asserted that
his right to an appeal pursuant to [ICCPR] Art. 15(5) (to which Italy had made a reservation) and his right to a
remedy pursuant to Art. 2(3) (to which Italy had not made a reservation) had been violated. The Committee [i.e.,
HRC] rejected the communication, holding that the author had misinterpreted the [accessory] essence of Art. 2".
NOWAK, Op. Cit., p. 35. In the case of U.S. death penalty policies, this country has not made any reservation to
ICCPR Arts. 2(3)ºor 14(5)º, nor to the right to file federal habeas corpus. Furthermore, even if a
reservation of the
latter kind would have been made by the U.S., it would be void before international law based on the
non-derogable nature of the writ of habeas corpus. When objecting to the U.S. reservation of
ICCPR Art. 7º, the
Netherlands declared that "this reservation has the same effect as a general derogation from this Article, while
according to Article 4 of the Covenant, no derogations, not even in times of public emergency, are permitted."
Multilateral Treaties Deposited with the Secretary General, Op. Cit., at 129. The Inter-American Court of Human
Rights has taken the position that those reservations seeking only to restrict certain aspects of a non-derogable rights
cannot be presumed as invalid, inasmuch as they do not vacate such right of its basic purpose. See Advisory
Opinion OC-3/83, 3 Inter-Am.Ct.H.R. (Ser. A) at 83 (1983). The HRC has expressed a similar criteria: "(w)hile
there is no automatic correlation between reservations to non-derogable provisions, and reservations which offend
against the object and purpose of the Covenant, a State has a heavy onus to justify such a reservation." General
Comment Nº 24(52). U.N. Doc. CCPR/C/21/Rev.1/Add.6 (1994), para. 10.
94. The HRC, in its General Comment Nº 18, states:
"6. The Committee notes that the Covenant neither defines the term 'discrimination' nor indicates what
constitutes discrimination. [...]. HRC General Comment Nº 18, Op. Cit.
7. While these conventions [the International Convention on the Elimination of All Forms of Racial
Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women] deal only
with cases of discrimination on specific grounds, the Committee believes that the term 'discrimination' as used in
the Covenant [i.e., the ICCPR] should be understood to imply any distinction, exclusion, restriction or preference
which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the
recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. [...]
12. [...] Thus, when legislation is adopted by a State party, it must comply with the requirement of article
26 that its content should not be discriminatory." U.N. Doc. HRI/GEN/1/Rev.1 at 26 (1994).
95. According to NOWAK, "[ICCPR] Art. 26 forms a sort of lex specialis to Art. 2(1), such
violation of the prohibition of discrimination in Art. 2(1) in conjunction with Art. 26 appears to be ruled out."
35. "A violation of this sort was alleged in L.G. Danning v. the Netherlands, [HRC case] Nº 180/1984, § 2.1."
at note 52. However, this reasoning does not affect our analysis due to the fact that we are invoking the breach of
ICCPR Arts. 2(1)º and 26º together with ICCPR Art. 14(1)º, in addition to breaches of ICCPR
Arts. 2(3)º and
96. See HRC General Comment Nº 18, Op. Cit., par. 8, 10.
97. Supra, note 69.
98. See U.N. Charter, Art. 2.2º, opened for signature June 26, 1945. Also U.N.
Convention on the
Law of Treaties, opened for signature May 23, 1969, 1155 U.N.T.S. 331 (entered into force Jan. 27, 1980), Art.
31(1)º.. "'Good faith' is a basic requirement in the law of treaties". BASSIOUNI, M. Cherif (1993) Reflections on
the Ratification of the International Covenant on Civil and Political Rights by the United States Senate. 42 DePaul
L. Rev. 1169, at. 1179.
99. It can further be brought into discussion what are the implications of an understanding before
international law. The U.N. Convention on the Law of Treaties, 1155 U.N.T.S. 331, Art. 2(1)(d), defines
'reservation' as "a unilateral statement, however phrased or named, made by a State, when signing, ratifying,
accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain
provisions of the treaty in their application to that State" (our italics). See also Art. 31(1) and (4) of the same
instrument. According to REUTER, the interpretative declarations "would be meaningless if they were not in fact
reservations". REUTER, Paul (1995) Introduction to the Law of Treaties. London and New York, Kegan Paul
International. 2nd. English edition; p. 78. But ELIAS considers that a distinction should be made between both
categories. ELIAS, Taslim O. (1974) The Modern Law of Treaties. New York, Oceana Publishers; p. 35.
According to SHAW, "[r]eservations must be distinguished from other statements made with regard to a treaty that
are not intended to have the legal effect of a reservation, such as understandings, political statements or
interpretative declarations. In the latter instance, no binding consequence is intended with regard to the treaty in
question. What is involved is a political manifestation for primarily internal effect." SHAW, Malcolm N. (1991)
International Law. 3rd. ed. Cambridge, Grotius Publications; p. 571. See the Temelstasch case, 5
Rights Reports (1983), p. 417 (differentiation between reservations and interpretative declarations); and, the
case, European Court of Human Rights, Series A, Nº 132 (giving an interpretative declaration the same legal effects
than a reservation to establish its invalidity).
100. Supra, note 98.
101. ICCPR, Art. 14.1º.
102. DIJK (van), Pieter (1983) The Right of the Accused to a Fair Trial Under International Law.
Special Nº 1. Utrecht, Netherlands Institute of Human Rights; p. 23. "See e.g., the report of 15 March 1961 in the
Nielsen Case, Yearbook IV (1961), p. 494 (548-550)."Id., at note 81.
103. Supra, note 69.
104. GROTRIAN, Andrew (1994) Article 6 of the European Convention on Human Rights. The right
to a fair trial. Human Rights Files Nº 13. Strasbourg, Council of Europe; p. 52. See e.g., ECHR Artico
May 13, 1980, Series A Nº 37, p. 15, par. 33; Goddi judgement of April 9, 1984, Series A Nº 76, p. 12, par. 31;
Kamasinski judgement of December 19, 1989, Series A Nº 168, p. 32, par. 65.
105. Supra, item 2.
106. Notwithstanding that the HRC's General Comment Nº 24 made an exception to the rule by
referring to the U.S. reservations to the ICCPR, without expressly naming this country. U.N. Doc.
107. Supra item 6.8.
108. U.N. Doc. CCPR/C/81/Add.4 and HRI/CORE/1/Add.49.
109. HRC meetings 1401-02 and 1405-06. See UNITED NATIONS HUMAN RIGHTS
COMMITTEE (1995) Comments on..., Op. Cit. "Consistent with the practice of the Committee [HRC], its Member,
Mr. Buergenthal, National of the United States of America, did not take part in the adoption of these comments [to
the U.S. report]". Id., note 1.
110. "The Committee is concerned about the excessive number of offenses punishable by the death
penalty in a number of [U.S.] States, the number of death sentences handed down by courts, and the long stay on
death row which, in specific instances, may amount to a breach of article 7 of the Covenant. It deplores the recent
expansion of the death penalty under federal law and the re-establishment of the death penalty in certain States. It
also deplores provisions in the legislation of a number of States which allow the death penalty to be pronounced for
crimes committed by persons under 18 and the actual instances where such sentences have been pronounced and
executed. It also regrets that, in some cases, there appears to have been lack of protection from the death penalty of
those mentally retarded." UNITED NATIONS HUMAN RIGHTS COMMITTEE (1995) Comments on..., Op. Cit.,
111. Nº 85-98-2-MAC (M.D. Ga. 1985).
112. A.B.A. Chair, Section of Individual Rights and Responsibilities. Report submitted
113. 778 F.2d 1482 (11th Cir. 1985), cert.denied, 476 U.S. 1164 (1986).
114. A.B.A. Chair, Section of Individual Rights and Responsibilities. Report submitted by...,
115. 755 F.2d 741 (11th Cir.), cert. denied, 474 U.S. 1026 (1985).
116. 954 F.2d 1483 (9th Cir. 1992).
117. A.B.A. Chair, Section of Individual Rights and Responsibilities. Report submitted
pp. 6 - 7.
118. 692 F.2d 999 (5th Cir. 1982).
119. A.B.A. Chair, Section of Individual Rights and Responsibilities. Report submitted
120. 548 So.2d 389 (Miss. 1989).
121. A.B.A. Chair, Section of Individual Rights and Responsibilities. Report submitted
122. 581 So.2d 389 (Miss. 1989).
123. A.B.A. Chair, Section of Individual Rights and Responsibilities. Report submitted
124. 884 F.2d 871 (5th Cir. 1989).
125. A.B.A. Chair, Section of Individual Rights and Responsibilities. Report submitted
126. 831 F.2d 946 (11th Cir. 1987).
127. A.B.A. Chair, Section of Individual Rights and Responsibilities. Report submitted
128. A.B.A. Chair, Section of Individual Rights and Responsibilities. Report submitted by...,