88.          On October 15, 2001 the Commission adopted Report 116/01 pursuant to Article 43 of its Rules of Procedure, setting forth its analysis of the record, findings and recommendations in this matter.

89.          Report 116/01 was transmitted to the State on October 19, 2001 with a request that the State provide information as to the measures it had taken to comply with the recommendations set forth in the report within a period of two months, in accordance with Article 43(2) of the Commission’s Rules. Contemporaneously, in a communication dated October 18, 2001 and received by the Commission on October 19, 2001, the United States delivered to the Commission its response to the petition.

90.          By communication dated December 17, 2001 and received by the Commission on December 19, 2001 the State delivered a response to the Commission’s October 19, 2001 request for information. In its reply, the State relied upon and reiterated the arguments contained in its October 18, 2001 observations, and also provided additional submissions in respect of the Commission’s preliminary merits report in which it did not accept the Commission’s conclusions and recommendations and requested that the Commission “withdraw” its report. This response was followed by a communication dated June 25, 2002 and received by the Commission on June 27, 2002 in which the State provided “supplemental observations” to the Commission’s report.

91.          Prior to addressing the State’s response in further detail, the Commission wishes to make the following observations concerning several procedural aspects of the matter before it. The Commission first emphasizes the obligation of member states to participate in the Commission’s contentious procedures in good faith and in a timely manner, in compliance with the Commission’s authority under Article 20(b) of its Statute to, inter alia, examine communications submitted to it and any other available information and to address the government of any member state not a Party to the Convention for information deemed pertinent by the Commission. In the present case, despite having been provided with communications respecting Mr. Domingues’ complaint in May 2000, January 2001, August 2001 and September 2001, the State did not respond to the Commission’s communications until October 19, 2001 16 months after the Commission’s initial notification and after the Commission adopted its preliminary merits report. Such a delay in providing any response to the Commission is, in its view, plainly inadequate, particularly in a proceeding of this nature concerning the situation of a person under sentence of death.

92.          One of the consequences of a State’s prolonged delay in providing information on a complaint is the possibility that the Commission may decide upon the matter absent representations from the State, which, as matters transpired, occurred in the present case. In this connection, the Commission wishes to emphasize that once a preliminary merits report is adopted and transmitted to the state concerned in accordance with Article 43(2) of the Commission’s Rules of Procedure, all that remains  is for the state to indicate what measures have been adopted to comply with the Commission’s recommendations.[88] At this stage of the process, the parties have had a full opportunity to submit their observations, the admissibility and merits phases of the process are completed, and the Commission has rendered its decision. Therefore, while a state may provide its views on the factual and legal conclusions reached by the Commission in its preliminary report, it is not for a state at this point to reiterate its previous arguments, or to raise new arguments, concerning the admissibility or merits of the complaint before the Commission, nor is the Commission obliged to consider any such submissions prior to adopting its final report on the matter.

93.          The Commission is also cognizant, however, of the significance of the legal issues raised in this case, for the victim concerned and for inter-American human rights jurisprudence more generally. Therefore, without detracting from the fundamental procedural considerations noted above, the Commission has decided to summarize the State’s response and to provide observations on certain aspects thereof. In this regard, the United States has objected to the Commission’s findings on several grounds. In summary, the State argued that the petition was inadmissible on the basis of duplication. In addition and in the alternative, the State contended that the evidence considered by the Commission did not support its conclusion that there exists a customary or jus cogens prohibition on the execution of juvenile offenders.

94.          More specifically, the United States argued that the petition fails to satisfy the criteria for admissibility under Article 33(b) of the Commission’s Rules of Procedure[89] because its “subject matter essentially duplicates a petition pending or already examined and settled by the Commission.” The State pointed out in this regard that in its findings in the 1987 Case of Jay Pinkerton and James Terry Roach,[90] the Commission previously examined the precise question presented in the present petition and found that while there was a jus cogens norm prohibiting the execution of children, there did not exist a norm of customary international law establishing 18 to be the minimum age for the imposition of the death penalty. Accordingly, the State submitted that the petition should be dismissed under Article 33 of the Commission’s Rules.

95.          The United States also contended that neither the state practice identified by, nor the legal standards cited in the Commission’s report, are sufficient to establish either a customary or jus cogens prohibition of the execution of juvenile offenders. In support of its position, the State asserted that the Commission’s reliance upon the American Convention on Human Rights, the International Covenant on Civil and Political Rights, and the Convention on the Rights of the Child as evidence of State practice is misplaced, because the negotiating histories of each of the conventions indicates that the inclusion of the provision concerning the juvenile death penalty was not based upon custom nor even by consensus.[91] The State also suggested that these treaties are not informative of the interpretation and application of the American Declaration because they are subsequent to the Declaration and are only binding on the states parties to them.[92] In any event, the State contended that it is “common knowledge” that many States ratify treaties but fail to implement the obligations that they have assumed under those instruments.[93] This, according to the State, provides an additional reason why reference to treaty provisions prohibiting the use of the death penalty is not sufficient to establish state practice sufficient for customary international law.

96.          Further, the United States suggested that UN organs have through their negotiating processes recognized that there is no customary international law prohibition on the execution of juvenile offenders. The State noted in particular that the 1998 UN Commission on Human Rights Resolution cited in the Commission’s report was adopted by a vote of 26 to 3 with 12 abstentions and with 51 states, including non-Commission members, signing a statement “disassociating” themselves from that decision. The State also referred to a similar text adopted in 2001 by a vote of 27 to 18 with 7 abstentions and 61 states disassociating themselves from the resolution. In addition, the State referred to a decision of the UN Human Rights Commission during its 2001 session adopting two resolutions by consensus which called upon all states in which the death penalty has not been abolished to “comply with their obligations as assumed under relevant provisions of international human rights instruments, including in particular articles 37 and 40  of the Convention on the Rights of the Child and articles 6 and 14 of the International Covenant on Civil and Political Rights.”[94] According to the State, these resolutions were adopted rather than a draft decision proposed by the UN Subcommission on the Promotion and Protection of Human Rights that would have “confirm[ed]” that international law “clearly establishes that imposition of the death penalty on persons aged under 18 at the time of the offense is in contravention of customary international law.”[95]

97.          In its communication of June 25, 2002 the State supplemented its observations in this regard by reference to the UN General Assembly’s May 10, 2002 outcome document following its Special Session on Children, in which the General Assembly “called upon governments that had not abolished the death penalty“ to comply with the obligations they have assumed under relevant provisions of international human rights instruments.”[96] In the State’s view, by not invoking any customary norms in making an appeal for state compliance and only referring to the conventional international law commitments under the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights, the General Assembly implicitly rejected the notion that there is also a customary international law against capital punishment for juvenile offenders.

98.          The State argued further that, in focussing on the domestic practice of states, the Commission’s report ignored opinio juris as a necessary element of customary international law. The State complained that the report fails to establish that states have discontinued the process of executing juvenile offenders out of a sense of legal obligation rather than, for example, out of courtesy, fairness or morality.[97]

99.          Exception was also taken by the State to the Commission’s suggestion that United States practice demonstrates a trend toward the lack of acceptance of the application of the death penalty to those under 18 years of age. The State contended that the Commission’s reliance on the 1988 U.S. Supreme Court decision in Thompson v. Oklahoma fails to acknowledge that the same Court subsequently found in the 1989 case of Stanford v. Kentucky that the imposition of capital punishment on an individual for a crime committed at the age of 16 or 17 did not violate evolving standards of decency and therefore did not constitute cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution. The United States also asserted that the legislative and judicial decisions in Florida and Montana referred to by the Commission in its report were not based upon a rule of customary law prohibiting the death penalty with respect to offenders under 18 years of age. Moreover, the State disputed any relevance that the Commission placed on the different minimum age limits for the death penalty in different states, or on the fact that the U.S. federal government itself has considered 18 to be the minimum age for the purpose of federal capital crimes, for the reason that U.S. domestic courts have discounted the pertinence of these factors in determining the permissibility of the execution of juvenile offenders under U.S. law.[98] The State also noted that certain federal law, namely the U.S. Uniform Code of Military Justice, “permits the use of capital punishment for crimes committed by members of the military under the age of 18 for the crimes specified therein.“

100.          The final evidentiary issue disputed by the State is the Commission’s reliance on the Optional Protocol to the Convention on the Rights of the Child Concerning Children in Armed Conflict. The State argued in this regard that the Commission has misconstrued the Protocol because the binding declaration that states parties are obligated to deposit upon ratification requires them to affirm their agreement to raise the minimum age for voluntary recruitment into their national armed forces from the current international standards of 15 years and hence expressly authorizes the voluntary recruitment of individuals aged 16 or 17. The State also indicated that the Article 1 of the Protocol requires states parties to take “all feasible measures” to ensure that members of their armed forces under the age of 18 do not take a “direct part in hostilities.” This, according to the State, recognizes that in exceptional circumstances it will not be feasible for a commander to withhold or remove a soldier under the age of 18 from taking a direct part in hostilities. The State therefore contends that the Optional Protocol does not prohibit in its entirety the involvement of juveniles in armed conflict and therefore cannot be considered a related international legal development that supports an absolute prohibition on the execution of juvenile offenders.[99] In any event, the State argued that the Optional Protocol addresses the use of children in armed conflict and not the execution of persons under 18 years of age and therefore has no probative value in attempts to establish a norm of international law prohibiting the execution of juvenile offenders.

101.           As its final ground of objection, the United States argued that it is not bound by any international norm prohibiting the execution of juvenile offenders. Specifically, the United States contends that it has consistently asserted its right to execute juvenile offenders, by making reservations to treaties, filing briefs before national and international tribunals, and making public statements,[100] and correspondingly that even if a norm of customary international law establishing 18 to be the minimum age for the imposition of the death penalty had evolved since the Commission’s decision in the Roach and Pinkerton Case, the United States is not bound to such a rule. The State also asserted that because the Commission did not find evidence of customary international law that would prohibit the imposition of the death penalty for juvenile offenders in the Roach and Pinkerton Decision 15 years ago, to find now that there exists a jus cogens norm is both inconsistent and implausible.  The State claimed in this regard that the only argument presented in favor of this finding in the Commission’s report is the assertion that the execution of Mr. Domingues would “shock the conscience of humankind.” The State considered this assertion to be “specious at best,” and argued to the contrary that the “acts of Mr. Domingues should shock the consciousness of humankind, not the punishment those acts have earned him.” [101]

102.          Several points in the State’s response warrant comment by the Commission. As to the State’s objection to the admissibility of the petition on the ground of duplication, the Commission has previously considered that a prohibited instance of duplication under Article 47(d) of the American Convention, which essentially replicates the criteria under Article 33(1)(b) of the Commission’s Rules of Procedure, involves, in principle, the same person, the same legal claims and guarantees, and the same facts adduced in support thereof.[102] Accordingly, claims brought in respect of different victims, or brought regarding the same individual but concerning facts and guarantees not previously presented and which are not reformulations, do not raise issues with respect to res judicata and will not in principle be barred by the prohibition of duplication of claims.[103] In the present case, Mr. Domingues has not previously lodged a complaint with the Commission, raising the legality of his death sentence under the American Declaration or otherwise. Consequently, his petition cannot be considered inadmissible for duplication of claims.

103.          The State has also asserted that it is “inconsistent” and “implausible” for the Commission to conclude that the prohibition of execution of juveniles violates a norm of jus cogens 15 years its decision in Roach and Pinkerton.  As indicated in the present report, and as the State itself recognized in its response, the Commission determined in its 1987 resolution in the Roach and Pinkerton case that the prohibition against the execution of children constituted at that time a norm of jus cogens. The principal issue before the Commission in the present case was therefore whether it could now be said that the norm has since evolved to delimit the age of 18 as the defining age of a child for this norm. Based upon the formidable evidence of international developments on this question since 1987, the Commission concluded that it had.[104]

104.          The State’s objections to the Commission’s reliance upon treaties inside and outside of the inter-American system as evidence of the emergence of a customary norm are also misguided. It is well-established that other treaties concerning the protection of human rights in the American states may be invoked by the supervisory bodies of the inter-American human rights system, regardless of the bilateral or multilateral character of those treaties, or whether they have been adopted within the framework or under the auspices of the inter-American system.[105] Such treaties form part of the corpus juris gentium of international human rights law within which states’ current international obligations are to be interpreted.[106] The norms of a treaty can be considered to crystallize new principles or rules of customary law.[107] It is also possible for a new rule of customary international law to form, even over a short period of time, on the basis of what was originally a purely conventional rule, provided that the elements for establishing custom are present.[108]

105.          In the present case, the State has not contested the fact that since 1987 the Convention of the Rights of the Child was adopted by the UN General Assembly, ratified by all but two states, and signed by the United States without reservation as to the prohibition of executing juvenile offenders. Overwhelming international acceptance of the principles and standards of the International Covenant on Civil and Political Rights was similarly amplified through 64 additional ratifications of or accessions to that instrument, bringing the total number of states parties to 147. Both of these instruments prescribe as part of the nonderogable right to life, which itself has been regarded by this Commission as a norm of jus cogens,[109] a clear and unambiguous prohibition against the execution of persons who were under the age of 18 at the time of their crimes, to which no state but the United States has purported to claim a reservation. Notwithstanding views that may have been asserted by certain states when these treaty provisions were negotiated, the fact remains that nearly all world states, abolitionist and retentionist alike, have through the acts of ratification or accession accepted this proscription unconditionally. And while the United States may rely upon a historical disconnect between the ratification and implementation of treaty provisions by states, the United States itself points out that according information compiled in 2000 by the United Nations,[110] all but 14 of the 191 states parties to the Children’s Convention have enacted laws that conform with Article 37(a), and between 1994 and 1998 only four states, including the United States, are reported to have executed at least one person who was under the age of 18 at the time of their offense. State practice has therefore been remarkably consistent with these underlying international obligations.[111]

106.          The State’s assertions concerning evidence of opinion juris fail to consider several factors relating to the nature and development of jus cogens norms as well as the manner in which the opinio juris of states may be evidenced and expressed. The Commission notes in this regard that evidence of opinio juris may not always be necessary to determine the existence of a jus cogens norm. More particularly, a norm of jus cogens may emerge by several means, including state practice as well as through treaty provisions that are viewed as being of a peremptory nature. Genocide may be considered an example of a norm of the latter character, whereby the 1948 Genocide Convention[112] articulated the definition of genocide as an international crime and coincidentally encapsulated the international community’s view that the prohibition of genocide constituted a peremptory norm of international law from which no derogation is permitted, by proclaiming in no uncertain terms that “genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world.”[113] In these circumstances, evidence of opinio juris through state practice followed out of a sense of legal obligation is not necessarily a prerequisite to the existence of a norm of jus cogens. In the context of the present case, the Commission has long considered that the international prohibition against the execution of children has attained the status of a peremptory norm. Through this report, the Commission has also considered that the international community has defined the age for the purposes of this norm as 18, based to a significant extent upon the UN Convention on the Rights of the Child and other treaty provisions prescribing this as an absolute standard. In these circumstances, evidence of opinio juris beyond the widely accepted and absolute prohibition under the Children’s Convention, the International Covenant on Civil and Political Rights and other pertinent sources of international law of the execution of offenders under 18 years of age may not be essential in order to preclude the United States from exempting itself from this norm.

107.          To the extent that evidence of opinio juris may be pertinent to the emergence of a jus cogens norm through practice, namely where it is demonstrated that states have followed a given practice not only out of a sense of legal obligation but out of recognition that the resulting obligation is of a peremptory nature, the United State’s position fails more broadly to take into account the particular role that treaties and other international instruments may play in this connection. Where an instrument is widely ratified or endorsed by members of the international community and speaks to the legality of certain actions, the provisions of that instrument might themselves properly be considered as evidence of opinion juris.[114] Human rights treaties are particularly significant in this respect, as they are widely regarded as recognizing and building upon rights that already exist by reason of the attributes of the human personality and which therefore may not be abrogated by any state.[115] Further, by these instruments, states are deemed to submit themselves to a legal order within which they, for the common good, assume various obligations, not in relation to other states, but towards all individuals within their jurisdiction.[116]

108.          That States have denounced the execution of juveniles out of a sense of legal obligation is also born out in the nature of the specific prohibition at issue, which instructs states as to the manner in which they may and may not apply their domestic criminal law so as to deprive individuals of their most fundamental right, their right to life. It is difficult to conceive of more compelling evidence of states’ views as to the legally binding nature of international prescriptions than the amendment of their domestic criminal laws to comply with those obligations.[117] As was apparent from the evidence canvassed by the Commission in its merits decision in this matter, therefore, state measures in eradicating the juvenile death penalty may properly be considered to have been undertaken out of a sense of legal obligation to respect fundamental human rights.

109.          Finally, as to the State’s attempt to discount related developments in other areas of international law and practice, including the treatment of children in armed conflict, the Commission reiterates its contrary view that these initiatives are pertinent to the issues presently under consideration as they, like the international prohibition of the juvenile death penalty, are motivated by a common precept, namely the widely accepted view that age 18 is the threshold that society has generally drawn at which a person may reasonably be assumed able to make and bear responsibility for their judgments, including and in particular those by which they may forfeit their lives.[118] To deprive individuals of their lives based upon acts taken by them before they reached the age of 18 is therefore regarded by the international community as a disproportionate punishment that violates contemporary standards of humanity and decency and is therefore prohibited in all circumstances.

110.          Based upon the State’s response, the Commission concludes that no measures have been taken to comply with the Commission’s recommendations. On this basis, and having considered the State's observations, the Commission has decided to ratify its conclusions and reiterate its recommendations, as set forth below.


111.          The Commission, based upon the foregoing considerations of fact and law, and in light of the response of the State to Report 116/01, hereby ratifies the following conclusions.

112.          The Commission, based upon the foregoing considerations of fact and law, hereby concludes that the State has acted contrary to a international norm of jus cogens as reflected in Article I of the America Declaration by sentencing Michael Domingues to the death penalty for crimes that he committed when he was 16 years of age.  Consequently, should the State execute Mr. Domingues pursuant to this sentence, it will be responsible for a grave and irreparable violation of Mr. Domingues’ right to life under Article I of the American Declaration.


113.          In accordance with the analysis and conclusions in the present report,


1.          Provide Michael Domingues with an effective remedy, which includes commutation of sentence.

2.          Review its laws, procedures and practices to ensure that capital punishment is not imposed upon persons who, at the time their crime was committed, were under 18 years of age. 


114.          In light of the above, and given the exceptional circumstances of the present case, where the victim remains under imminent threat of execution pursuant to a death sentence that the Commission has determined to be invalid and where the State has clearly indicated its intention not to comply with the Commission’s recommendations concerning violations of the American Declaration of the Rights and Duties of Man, the Commission has decided pursuant to Article 45(2) and (3) of its Rules of Procedure to set no further time period prior to publication for the parties to present information on compliance with the recommendations, to transmit this Report to the State and to the Petitioner’s representatives, to make this Report public, and to include it in its Annual Report to the General Assembly of the Organization of American States. The Commission, according to the norms contained in the instruments which govern its mandate, will continue evaluating the measures adopted by the United States with respect to the above recommendations until they have been complied with by the United States.

Done and signed at the headquarters of the Inter-American Commission on Human Rights in the city of Washington, D.C., on the twenty-second day of the month of October, 2002. (Signed): Juan E. Méndez, President; Marta Altolaguirre, First Vice-President; José Zalaquett, Second Vice-President; Julio Prado Vallejo, Clare K. Roberts and Susana Villar[ian Commissioners.


          1.          Although I endorse the findings, reasoning and motives of my fellow commissioners in this report, I would like to take the matter further and express my understanding concerning the lawfulness of the death penalty in the inter-American system.

2.          The American Declaration of the Rights and Duties of Man (hereinafter "American Declaration"), approved at the Ninth International American Conference, which took place in Santa Fe de Bogotá in May and June of 1948, affirms that “Every human being has the right to life, liberty and the security of his person” (Article I) and, moreover, that “All persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor” (Article II).

3.          Article 4 of the American Convention on Human Rights (hereinafter "American Convention"), approved on November 22, 1969 in San Jose, Costa Rica, states that “Every person has the right to have his life respected.  This right shall be protected by law and, in general, from the moment of conception.  No one shall be arbitrarily deprived of his life.”

4.          At the same time, the American Convention, by including the right to personal integrity in the civil and political rights framework, affirms that “No one shall be subjected to torture or to cruel, inhumane, or degrading punishment or treatment.”

5.          However, death penalty is provided for in the American Convention in its original version.  Article 4, Section 2 allows the death penalty to be applied by member states only for the most serious crimes.

6.          There is a contradiction among the aforementioned articles which repudiate torture, cruel, inhumane or degrading punishment or treatment.

7.          The American Declaration considers life to be a fundamental right, and the American Convention condemns torture or the imposition of cruel, inhumane or degrading punishment or treatment.  The elimination of a life could be deemed torture or cruel, inhumane or degrading punishment or treatment.

8.          It seems that the tolerance expressed in Article 4, Section 2 of the American Convention reveals the sole adoption of a political position of conciliation between all member states in order to approve a more general article, the one about the right to life.

9.          Before analyzing what it means for some States to retain the death penalty as a part of their legal systems, it is important to note that the Inter-American Convention to Prevent and Punish Torture, signed in Cartagena de Indias, Colombia, on December 9th, 1985, describes the meaning of torture as follows: “Torture shall be understood to be any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as  personal punishment, as a preventive measure, as a penalty, or for any other purpose” (Article 2).

10.          Notice that this article addresses torture as a personal punishment or penalty in all circumstances.

11.          The death penalty brings immeasurable suffering to the individual.  Is it possible to imagine the anguish that the individual feels when he/she is informed of the verdict?  Or the moments leading up to the actual execution?  Would it be possible to evaluate the suffering of those who wait on death row for execution, in some cases for several years?  In the United States, fifteen, sixteen or seventeen year-old minors, who committed homicide and subsequently received the death penalty, wait for fifteen years or longer for their execution.  Is it possible to imagine a fate worse than remaining between hope and despair until the day of execution?

12.          The OAS member states, by adopting the Convention on Forced Disappearance of Persons, reaffirms that “the true meaning of American solidarity and good neighborliness can be none other than that of consolidating in the Hemisphere, in the framework of democratic institutions, a system of individual freedom and social justice based on respect for essential human rights.”

13.          It is important to mention that in 1998 and 1999, the United States was the only country in the world known for executing minors under 18 years of age.  To that extent, it is important to note that the United States has accepted the International Covenant on Civil and Political Rights since September 1992, Article 6(5) of which establishes that the death penalty cannot be imposed on minors under 18 years old or on pregnant women.  The U.S. Senate opted to express its reservation to this section at the moment of its ratification but currently there is an international consensus opposed to that reservation based on Article 19(c) of the Vienna Convention on the Law of Treaties.  This Convention gives the State the possibility to formulate reservations, but these reservations cannot be incompatible with the object and purpose of the treaty.

14.          In June 2000, Shaka Sankofa, formerly known as Gary Graham, was convicted in the State of Texas for a crime he committed when he was 17 years old.  He was executed after waiting 19 years on death row, although the Inter-American Commission on Human Rights (hereinafter “IACHR” or “Commission”) had formally presented requests to the American government to suspend the act until the case was decided by the Commission.  There were serious doubts regarding whether Shaka Sankofa had really committed the crime.  The U.S. Government did not respond to the Commission’s recommendation but could not escape from the jurisdiction of the IACHR on the protection of human rights, according to the American Declaration.  The Commission thus sent out a press release condemning the U.S. decision, since it was not in accordance with the inter-American system of protection of human rights.[120]

15.          The Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (hereinafter "Convention of Belem do Pará"), approved in Belem do Pará, Brazil, on June 9, 1994, does not allow the imposition of the death penalty on women.  Article 3 states “Every woman has the right to be free from violence in both the public and private spheres” and Article 4 states that “Every woman has the right to have her life respected”.  Regarding the duties of States, the Convention of Belem do Pará establishes that States should “refrain from engaging in any act or practice of violence against women and ensure that their authorities, officials, personnel, agents, and institutions act in conformity with this obligation”.  Therefore, if every woman has the right to life, and the right to be free from violence, and the State is denied the practice of violence against women, it seems that the Convention of Belem do Pará  prohibits the application of the death penalty to women.  There is no discrimination against men or children.  It cannot be argued that it is “positive discrimination” or “affirmative action”, because it only serves to preserve the inherent rights of the individual.  For instance, pregnant women or women with children are entitled to rights based solely on the fact of their exclusive female condition.  Thus, the same rights cannot be extended to men.  Positive discrimination is usually applied to bring about equality, through temporary and proportional measures, to groups of people that experience de facto inequality.  There is no inequality between men and women with regard to the right to life.  In any case, the imposition of the death penalty is not a proportional measure, as we will see later on.  When it comes to common rights–such as the right to life-we cannot argue positive discrimination.   All persons are equal before the law.  The prohibition of the death penalty for women was based on both the female condition and the human condition.

16.          Article 24 of the American Convention affirms that all persons are equal before the law, and consequently, they are entitled, without discrimination, to equal protection of the law.  Although that Convention does not define discrimination, the IACHR understands that discrimination includes distinction, exclusion, restriction or preference which has the purpose or effect of nullifying or impairing the recognition of human rights and fundamental freedoms in the political, economic, social cultural or any other field of public life (Manual on the Preparation of Reports on Human Rights, International Covenant on Civil and Political Rights, Article 26.)

17.          It is also important to note that Article 37(a) of the Convention on the Rights of the Child prohibits the imposition of the death penalty on minors under 18 years of age.

18.          The above-mentioned Convention is considered a universal legal instrument in the area of human rights.  (Only the United States and Somalia have failed to ratify it.)

          19.          Article 37 of the Convention on the Rights of Child states:  “No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.  Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.”

20.          Although the U.S. has not ratified the Convention on the Rights of the Child, it became a signatory to the Convention in February 1995, and has thus accepted its legal obligations.  Article 18 of the Vienna Convention on the Law of Treaties establishes that the States that have signed a treaty, but not ratified it, shall refrain from engaging in any act that is contrary to its purpose until it has decided to announce its intention of not becoming part of that treaty.  Despite the fact that the U.S. has not ratified the Convention, the U.S. State Department has already recognized that the Vienna Convention on the Law of Treaties serves as a precedent for international treaty proceedings.  The U.S. State Department considers the Convention a declaration of customary law based on the Vienna Convention on the Law of Treaties, which establishes the importance of treaties as sources of international law as well as a method of peaceful development and cooperation between nations, no matter what their Constitutions and social systems entail.

21.          As mentioned above, the imposition of the death penalty against women is not a case in which positive discrimination could be applied because Article 37(a) of the Convention on the Rights of the Child aims to preserve rights that are created not only for children  but for all human beings.

22.          If that is the case, then Article 4 of the American Convention has lost its previous meaning.  Therefore States that have signed and ratified it as well as other international instruments cannot impose the death penalty upon any person, regardless of gender or any other personal condition.

23.          The issue will be examined under legal hermeneutics of positive law. International law presupposes [normative] dispositions that are above [the] State [law].  As set forth by the illustrious Italian jurist, Norberto Bobbio, universalism–which international law attempts to embody–reappears today, specially after the end of WWII and the creation of the UN, no longer as a belief in an eternal natural law [order], but as the will to constitute, in the end, a single body of positive law of the social and historical development (as natural law and the state of nature).  He also ponders that the idea of the single global State is the final limit of the idea of the contemporary juridical universalism, that is the establishment of a universal positive law (Cf. Teoria do Ordenamento Jurídico, Universidade de Brasília, 1991, p. 164).

24.          In the present case, we cannot allow a previous law with the same content of a new law to supersede the new law.  That would be considered as antinomy, and therefore it has to be solved.  What are the rules that should prevail? There is no doubt that they are incompatible. But how could we solve the problem?

25.          According to Mr. Bobbio, the criteria to solve an antinomy are the following: a) chronological criteria, b) hierarchical criteria, c) specialty criteria.[121]

26.          According to the chronological criteria the new law prevails over the previous law–lex posteriori derogat priori. According to the hierarchy criteria, international law prevails over national law.  Lastly, the specialty criteria could also apply in this case, since it is a specific law with a specific purpose.

27.          It is impossible to argue that death penalty as described in the Section 2 of Article 4 of the American Convention is a specific law as opposed to general law of the right to life.  It is also not possible to accept the idea that death penalty is considered a particular penalty that does not entail a violation of right to life or torture or any other cruel or inhumane treatment.

28.          The Inter-American Court of Human Rights affirms that the imposition of restrictions on the death penalty should be effected by setting up a limit through an irreversible and gradual process, which would be applied both in countries that have not abolished the death penalty and in those that have done so.  (Advisory Opinion – OC-3/83)

29.          The Court also understands that the American Convention is progressive to the extent that, without deciding to abolish the death penalty, it adopts certain measures to limit it and diminish its application until it is no longer applicable.

30.          It is worth reviewing the preparatory work of the American Convention that illustrates the interpretation of Article 4.  The proposal to outlaw the death penalty made by several delegations did not receive any opposing vote, despite the fact that the majority of votes had not been reached.  The development of negotiations in the Conference can be reviewed in the following declaration presented before the Plenary Session of Completion and signed by 14 of 19 participants (Argentina, Costa Rica, Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Uruguay and Venezuela):

“The delegations that sign below, participants of the Specialized Inter-American Conference on Human Rights, taking into consideration the highly prevailing feeling, expressed in the course of the debates on the abolishment of the death penalty, in accordance with the purest humanistic traditions of our peoples, solemnly declare our firm aspiration of seeing the application of the death penalty in the American context eradicated as of now, and our indeclinable purpose of effecting all possible efforts so that, in the short term, an additional protocol to the American Convention on Human Rights 'Pact of San Jose, Costa Rica' might be adopted, consecrating the definitive abolition of the death penalty, and putting America once more in the forefront  of the protection of fundamental human rights.” (author’s translation from the original in Spanish, Acts and documents, OAS/Ser. K-XVI-I2, Washington – DC, 1973, hereafter Acts and Documents, repr. 1978, Spanish version, p. 161, 195, 296 and 449/441).

31.          In agreement with these assertions, the Commission’s Rapporteur made clear, on this article, his firm tendency towards the abolition of this penalty.  (Acts and documents, supra, n.296)

32.          Moreover, the rule of law (Estado de derecho) implies, when punishment is imposed, the knowledge of what the penalty actually means.  When the purpose of the punishment applied is not only retribution, but the recuperation or rehabilitation of the convict, he or she knows what will happen in his or her future.  If the punishment is purely retributive, as in a sentence imposing imprisonment for life, the convict still envisages his future.  But if the convict is sentenced to death, the State does not point to what the elimination of his being will bring him.  Science, with all its developments, has not managed, up to now, to unveil the after-death: future life, with prize or punishment? Pure and simple elimination?

33.          In this sense, the rule of law forbids the imposition of a penalty whose consequences cannot be unveiled.

34.          In truth, all punishment enacted by the legislator constitutes species of sanctions, distributed according to a rational scale that attempts to take into consideration a series of factors specific to each hypothesis of unlawfulness.

35.          The right and obligation to punish which belongs to the State expresses itself in a variety of figures and measures, according to gradual solutions, measurable in money or in amounts of time.  This gradual order is essential to criminal justice, for it would not be realized without a superior criterion of equality and proportionality in the distribution of punishment, for transgressors would then receive more than their just deserts.

36.          With the imposition of the death penalty, however, the aforementioned serial harmony is abruptly and violently shattered; one jumps from the temporal sphere into the non-time of death.

37.          With what objective criterion or with what rational measure (for ratio means reason and measure) does one shift from a penalty of 30 years imprisonment or a life sentence to a death penalty? Where and how is proportion maintained? What is the scale that ensures proportionality?

38.          It could be argued that there is also a qualitative difference between a fine and detention, but the calculus of the former can be reduced to chronological criteria, being determined, for instance, in terms of work days lost, so that it has a meaning of punishment and suffering to the perpetrator, linked to his patrimonial situation.  In any circumstance, these are rational criteria of convenience, susceptible to contrast with experience, that govern the passage from one type of punishment to the other, whereas the notion of “proportion” is submerged in face of death.

39.          Summing up, the option for the death penalty is of such order that, as Simmel affirmed, it emphasizes all contents of the human life, and it could be said that it is inseparable from a halo of enigma and mystery, of shadows that cannot be dissipated by the light of reason: to attempt to fit it into the scheme of penal solutions is equal to depriving it from its essential meaning to reduce it to the violent physical degradation of a body (quoted by Miguel Reale, in O Direito como experiencia).

40.          Hence, the conclusion of the eminent philosopher and jurist Miguel Reale: Analyzed according to its semantic values, the concept of punishment and the concept of death are logically and ontologically impossible to reconcile and that, therefore the “death penalty” is a “contradictio in terminis” (cf. O Direito como Experiencia, 2nd edition, Saraiva, Sao Paulo, Brasil)

41.          The jurist Hector Faundez Ledesma writes on this topic: “as the rights consecrated in the Convention are minimum rights, it cannot restrict their exercise in a larger measure than the one permitted by other international instruments.  Therefore, any other international obligation assumed by the State in other international instruments on human rights is of utmost importance, and its coexistence with the obligations derived from the Convention must be taken into consideration insofar as it might be more favorable to the individual.”

42.          “The same understanding”, continues the jurist, “is extensive to any other conventional provision that protects the individual in a more favorable way, be it contained in a bilateral or multilateral treaty, and independently of its main purpose” (El Sistema Interamericano de Protección de los Derechos Humanos, 1996, pp. 92-93).

43.          Moreover, Article 29(b) of the American Convention establishes, in the same line of thought, that no disposition of the Convention may be interpreted in the sense of “restricting the enjoyment or exercise of any right or freedom recognized by the virtue of the laws of any State Party”.  In this sense, it is opportune to refer to the IACHR report on Suriname, and the Advisory Opinions 8 and 9 (of the Inter-American Court on Human Rights, 1987).

          44.          On this opportunity, the IACHR affirmed that the prohibition of imposing the death penalty in cases where the offender was a minor at the time of the crime was an emerging principle of international law.  Twelve years later there is no doubt that this principle is totally consolidated.  The ratification of the Convention on the Rights of the Child by 192 States, where the death penalty of minor offenders is prohibited, is a irrefutable proof of the consolidation of the principle (Cf. Report presented by Amnesty International to the IACHR, in Washington, on March 5th, 1999).

          45.          It is true that the Universal Declaration on Human Rights does not refer specifically to the prohibition of the death penalty, but consecrates in its Article 3 the right of every person to his life, liberty and security (the same provision can be found on Article I of the American Declaration of the Rights and Duties of Man).  Adopted by the General Assembly of the United Nations in 1948, under the guise of a recommendatory resolution, the Universal Declaration is held–by many important scholars–to be a part of the body of international customary law and a binding norm (jus cogens)–as defined in Article 53 of the Vienna Convention on the Law of Treaties. Mutatis Mutandi, it would be lawful to affirm that the Convention on the Rights of the Child, by reason of its breadth and binding character, must also be observed by the only two States that have not ratified it, as has already been said, and has been recognized by the Department of State of the United States of America.

          46.          It is convenient to observe, furthermore, that the European Court of Human Rights, in its decision in the Soering Case–Jens Soering, born in Germany, in detention in England and submitted to an extradition procedure on behalf of the government of the United States pending charges of murder committed in Virginia, a State that punishes this crime with the death penalty–made opportune comments regarding Article 3 of the European Convention, which establishes the interdiction of torture, inhuman, cruel or degrading treatment or punishment.  The Court considered that the request could not be granted unless the person subject to extradition would be guaranteed his or her rights under Article 3 of the Convention (cf. Jurisprudence de la Cour europeenne des droits de l’homme, 6th ed. 1998, Sirey, Paris, pp. 18 and ff.).

          47.          The Court concluded that the extradition to a country that applied the death penalty did not constitute a breach of the right to life or to the right to personal integrity since the death penalty is not, in itself, explicitly prohibited by the European Convention. Nonetheless, the possibility that the condemned could spend years waiting for the moment–totally unpredictable, by the way–of the execution of the punishment, the so called “death row syndrome”, was considered by the Court as constituting a cruel treatment and, therefore, a breach of the right to personal integrity.

          48.          It is, doubtlessly, an ambiguity: if there is a delay in imposing the penalty, there is violation of the right; if the sentence is carried out immediately, the State’s action will not be considered a breach of the fundamental right to life.

          49.          This decision gives rise to the conclusion that little by little, the traditional vision, the positivistic application of the law, is being abandoned.  Instead of a literal interpretation of the texts in discussion, a teleological hermeneutics is searched, in this case, of the European Convention, to achieve the major conclusion that the death penalty should not be permitted in any hypothesis.

          50.          Therefore, the absolute prohibition, in the European Convention, of the practice of torture or of inhuman or degrading treatment or punishment shows that Article 3, referred to above, proclaims one of the fundamental values of democratic societies.  The judgment underlines that provisions in the same sense can be found in the International Covenant on Civil and Political Rights of 1966, and in the American Convention on Human Rights of 1969, protecting, in all its extension and depth, the right of the human person. The Court concludes that it is an internationally approved norm.

          51.          It is true that the concept of inhuman or degrading treatment or punishment depends upon a whole set of circumstances.  It is not for any other reason that one should have utmost care to ensure the fair balance between the requirements of the communities’ general interest and the higher imperatives of the protection of the fundamental rights of the individual, that take form in the principles inherent to the European Convention taken as a whole.

          52.          Amnesty International has affirmed that the evolution of the norms in Western Europe concerning the death penalty leads to the conclusion that it is an inhuman punishment, within the meaning of Article 3 of the European Convention.  It is in this sense that the judgment of the court in the Soering case should be understood.

          53.          For its part, the Inter-American Court on Human rights has already affirmed that “The right to life and the guarantee and respect thereof by States cannot be conceived in a restrictive manner.  That right does not merely imply that no person may be arbitrarily deprived of his or her life (negative obligation).  It also demands of the States that they take all appropriate measures to protect and preserve it (positive obligation).” (Cf. Repertorio de Jurisprudencia del Sistema Interamericano de Derechos humanos, 1998, Washington College of Law, American University, 1/102)

          54.          It was for the same reason that the European Court, in the aforementioned Soering decision, considered that “Certainly, the Convention is a living instrument which ... must be interpreted in the light of present-day conditions"; and, in assessing whether a given treatment or punishment is to be regarded as inhuman or degrading for the purposes of Article 3 (art. 3), "the Court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the Member States of the Council of Europe in this field” (par. 102).

          55.          In fact, to determine whether the death penalty, because of current modifications of both domestic and international law, constitutes a treatment prohibited by Article 3, it is necessary to take into consideration the principles that govern the interpretation of that Convention.  In this case, both in the European Convention and in the American Convention, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment” (Article 3 of the European Convention); “No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.” (Article 5(2) of the American Convention on Human Rights).

          56.          In the same line of thought, in the case between Ireland and the United Kingdom, the European Court had already decided that “The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim's conduct (…) Article 3 (Art. 3) makes no provision for exceptions (…)the only relevant concepts are "torture" and "inhuman or degrading treatment", to the exclusion of "inhuman or degrading punishment".(par. 163-164)

          57.          More recently, in its Advisory Opinion OC-16, of October 1st, 1999, requested by Mexico, the Inter-American Court of Human Rights considered it opportune to state that, as regards the right to information about consular assistance, as part of the due process guarantees, that “in a previous examination of Article 4 of the American Convention, the Court observed that the application and imposition of capital punishment are governed by the principle that "no one shall be arbitrarily deprived of his life." Both Article 6 of the International Covenant on Civil and Political Rights and Article 4 of the Convention require strict observance of legal procedure and limit application of this penalty to "the most serious crimes." In both instruments, therefore, there is a marked tendency toward restricting application of the death penalty and ultimately abolishing it. (par. 134)

          58.          It is reasonable to ask what is still lacking for the universal elimination of the death penalty? Simply the total recognition of the rights emanated from the treaties.

          59.          In support of this idea, we find the concurring vote, in the above-mentioned Advisory Opinion requested by Mexico, of Judge Cançado Trindade, wherein relevant assertions are made concerning the hermeneutics of law in face of the new protection demands.

          60.          In his concurring vote, the illustrious international legal scholar and current President of the Court (1999/2001) underlines that “The very emergence and consolidation of the corpus juris of the International Law of Human Rights are due to the reaction of the universal juridical conscience to the recurrent abuses committed against human beings, often warranted by positive law: with that, the Law (el Derecho) came to the encounter of the human being, the ultimate addressee of its norms of protection.” (Concurring vote, par.4)

          61.          The author of the concurring vote also warns that “In the same sense the case-law of the two international tribunals of human rights in operation to date has oriented itself, as it could not have been otherwise, since human rights treaties are, in fact, living instruments, which accompany the evolution of times and of the social milieu in which the protected rights are exercised” (ibid, par. 10)

          62.          In this sense the European Court on Human Rights, in its Tyrer vs. United Kingdom Case (1978), when determining the unlawfulness of physical punishment applied to teenagers in the Isle of Man, affirmed that the European Convention on Human Rights is “a living instrument which ... must be interpreted in the light of present-day conditions”.

          63.          Finally, with the demystification of the postulates of the voluntarist legal positivism, it has become clear that the answer to the problem of the basis and the validity of general international law can only be found in the universal legal consciousness, from the affirmation of an idea of objective justice.

          64.          Furthermore, in a meeting of representatives of the human rights treaty bodies, it was emphasized that conventional procedures are part of a broad international system of human rights protection, which has–as a basic postulate–the indivisibility of human rights (civil, political, economic, social and cultural).  To ensure in practice the universalization of human rights, the meeting recommended the universal ratification, up to the year 2000, of the six core human rights treaties of the United Nations (the two International Covenants of 1966; the conventions on the elimination of racial discrimination and discrimination against women; the UN Convention against Torture; and the Convention on the Rights of the Child), of the three regional conventions on human rights (European, American and African), and the ILO Conventions that concern basic human rights.  The representatives at the meeting warned that the non-compliance by the states in respect of their obligation to ratify constituted a breach of conventional international obligations and that the invocation of state immunity, in this context, would result in a “double standard” that would punish the States that duly complied with their obligations.  (Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol 1, Fabris Ed. 1997, pp. 199-200)

          65.          Article 27 of the Vienna Convention on the Law of Treaties of 1969 forbids the invocation of domestic law to justify the non-compliance of an international obligation. Moreover, according to Article 31 of the Vienna Convention: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their contest and in light of its object and purpose”.  It follows also that, according to the doctrine of “effet utile”, the interpreter must not deny any term of a normative provision its value in the text: no provision can be interpreted as not having been written.

          66.          In effect, the Inter-American Court, in its Advisory opinion OC-14/94, has held that: “Pursuant to international law, all obligations imposed by it must be fulfilled in good faith; domestic law may not be invoked to justify nonfulfillment.  These rules may be deemed to be general principles of law and have been applied by the Permanent Court of International Justice and the International Court of Justice even in cases involving constitutional provisions [Greco-Bulgarian “Communities”, Advisory Opinion, 1930, P.C.I.J., Series B, Nº 17, p.32; Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion, 1932, P.C.I.J., Series A/B, Nº 44, p. 24; Free Zones of Upper Savoy and the District of Gex, Judgment, 1932, P.C.I.J., Series A/B, Nº 46, p. 167; and, I.C.J. Pleadings, Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 (Case of the PLO Mission) (1988) 12, at 31-2, para. 47].” (par. 35)

          67.          In view of the considerations presented here, it can be said that the norm of article 4, section 2 of the American Convention has been superseded by the aforementioned conventional provisions, following the best hermeneutic of the International Law of Human Rights, with the result that it is prohibitive, for domestic
law–even if older than the American Convention–to apply cruel punishment, such as the death penalty.

          68.          This result also follows from the principle of the International Law of Human Rights that all action must have as its basic goal the protection of victims.

          69.          In light of these considerations, provisions such as Article 4(2) of the American Convention on Human Rights should be disregarded, in favor of legal instruments that better protect the interests of the victims of violations of human rights.

          Done and signed by the Inter-American Commission on Human Rights, in the city of Washington, D.C., the 15th day of the month of October, 2001. (Signed): Hélio Bicudo.

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[88] Article 43(2) of the Commission’s Rules of Procedure provides: “If [the Commission] establishes one or more violations, it shall prepare a preliminary report with the proposals  and recommendations it deems pertinent and shall transmit it to the State in question. In so doing, it shall set a deadline by which the State in question must report on the measures adopted to comply with the recommendations. The State shall not be authorized to publish the report until the Commission adopts a decision in this respect.” [emphasis added]

[89] Article 33(1)(b) of the Commission’s Rules of Procedure provides: “1. The Commission shall not consider a petition if its subject matter: (b) essentially duplicates a petition pending or already examined and settled by the Commission or by another international governmental organization of which the State concerned is a member.”

[90] Case 9647, Resolution Nº 3/87, Case of Jay Pinkerton and James Terry Roach (United States), Annual Report of the IACHR 1986-87.

[91] The State cites in this regard authorities indicating that Article 4(5) of the American Convention on Human Rights was approved with only a two-vote margin, with 40% of the assembled States abstaining from voting in favor of the provision, that Article 6(5) of the International Covenant on Civil and Political Rights was adopted by fifty-three votes to five with fourteen abstentions, and that Article 37 of the Convention on the Rights of the Child was adopted with the express understanding that states retained the right to ratify the Convention with a reservation to that article. The State also asserts that Article 68 of the Fourth Geneva Convention by its terms only applies to international armed conflicts and therefore cannot be considered a demonstration of custom in time of peace.

[92] State’s observations of December 17, 2001 p. 4, citing Case of Roach and Pinkerton, supra, Dissenting Opinion of Dr. Marco Gerardo Monroy Cabra, para. 6.

[93] The State relies in this connection upon the sixth quinquennial report of the UN Secretary General on capital punishment, indicating that there were “at least 14 countries which have ratified the Convention on the Rights of the Child without reservation but, as far as is known, have not amended their laws to exclude the imposition of the death penalty on persons who committed the capital offense when under 18 years of age.” Sixth quinquennial report of the Secretary General on capital punishment, reported in UN Doc. E/2000/3 (March 31, 2000), at p. 21. 

[94] State’s observations of December 17, 2001, p. 5, citing UN Human Rights Commission Resolution 2001/45 (Apr. 23) (Extrajudicial, summary or arbitrary executions); CHR Res. 2001/75 (Apr. 25) (Rights of the Child).

[95] Id. citing UN Doc. E/CN.4/2001/2 at 14.

[96] State’s observations dated June 25, 2002, referring to United Nations Special Session on Children, “A World Fit for Children,”  Plan of Action, para. 44(8), available at <http : // www . unicef.org/specialsession/>.

[97] State’s observations of December 17, 2001, p. 6, citing Ian Brownlie, Principles of Public International Law (5th ed., 1998), at 7; Restatement of the Foreign Relations Law of  the United States (Third), § 102(2).

[98] State’s observations of December 17, 2001, pp. 6-7, citing United States v. Wheeler, 435 U.S. 313 (1978)  (opining that under a federal system, states are expected to have different laws because “[e]ach has the power, inherent in any sovereign, independently to determine what shall be an offense against its authority and to punish such offenses”); Stanford v. Kentucky, 492 U.S. 361 (finding that the US Anti-Drug Abuse Act of 1988 “does not embody a judgment by the federal legislature that no murder is heinous enough to warrant the execution of a youthful offender, but merely that the narrow class of offense it defines is not.”). 

[99] In support of its position, the State cites the instrument of ratification of the Protocol deposited with the UN by the United Kingdom, which states that “article 1 of the Optional Protocol would not exclude the deployment of members of its armed forces under the age of 18 to take a direct part in hostilities where: (a) there is a genuine military need to deploy their unit or ship to an area in which hostilities are taking place; and (b) by reason of the nature and urgency of the situation: (i) it is not practicable to withdraw such persons before deployment; or (ii) to do so would undermine the operational effectiveness of their ship or unit, and thereby put at risk the successful completion of the military mission and/or safety of other personnel.”.  Multilateral Treaties deposited with the Secretary General, Vol. I, p. 299, Optional Protocol to the Convention on the Rights of the Child Concerning Children in Armed Conflict, Declaration of the United Kingdom of Great Britain  and Northern Ireland (status as at 31 Dec. 2000).

[100] State’s observations of December 17, 2001, p. 11, citing the US reservation to Article 6(5) of the International Covenant on Civil and Political Rights, taken after the Roach and Pinkerton decision, United Nations Multilateral Treaties Deposited with the Secretary General: Status as at 31 December 2000, UN Doc. ST/LEG/SER.E/19 (2001); Vienna Convention on the Law of Treaties, 1155 UNTS 332, 333, Art. 20(4)(b) . 

[101] State’s observations of December 17, 2001, pp. 12 (describing the crimes committed by Mr. Domingues as follows: “On October 22, 1993, sixteen-year-old Michael Domingues brutally murdered Arjin Chanel Pechpo and her four-year-old son, Jonathan Smith. After the victims arrived home, where Domingues was waiting for them, Domingues threatened Pechpo with a gun then tied her up with a cord which he used to strangle her. He ordered her little boy to take off his pants and get into the bathtub with his mother’s dead body. When an attempt at electrocuting the four-year-old failed, Domingues stabbed Jonathan with a knife multiple times, killing him. After the murders, Domingues then bragged about killing Pechpo for her car, gave items he had stolen from Pechpo as gifts to friends, and used the victim’s credit card. Domingues v. Nevada, 112 Nev. 683, 917 P.2d 1364, 112 Nev 683; 917 P.2d 1364 (1996).

[102] See e.g. Case 11.827, Report No. 96/98, Peter Blaine (Jamaica), Annual Report of the IACHR 1998, para. 43.

[103] Id., para. 45.

[104] That human rights treaties are living instruments whose interpretation must consider changes over time and present-day conditions is well-accepted. I/A Court H.R., Advisory Opinion OC-16/99 of October 1, 1999, The Right to Information on Consular Assistance in the Framework of the Guarantees of Due Process of Law, (Ser. A) Nº 16 (1999); Eur. Court H.R., Louizidou v. Turkey, Judgment on Preliminary Objections, 23 March 1995, Ser. A Nº 310, p. 26, para. 71; I/A Court H.R., Advisory Opinion OC-10/89 of July 14, 1989, Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights, (Ser. A) Nº 10 (1989), para. 37 (pointing out that in determining the legal status of the American Declaration, it is appropriate to look to the inter-American system of today in the light of the evolution it has undergone since the adoption of the Declaration, rather than to examine the normative value and significance which that instrument was believed to have had in 1948); ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16 ad 31 stating that "an international instrument must be interpreted and applied within the overall framework of the juridical system in force at the time of the interpretation").  Indeed, a similar approach to the interpretation of civil liberties under the US Constitution was recently confirmed in the June 20, 2002 decision of the US Supreme Court in the case Atkins v. Virginia, in which that Court overturned its 1989 decision in Penry v. Lynaugh by finding the development over the 13 year period of sufficient consensus among the American public, legislators, scholars and judges that the execution of mentally retarded criminals constitutes cruel and unusual punishment. Atkins v. Virginia, No. 008452, June 20, 2002 (USSC).

[105] I/A Court H.R., "Other Treaties" Subject to the Consultative Jurisdiction of the Court (Article 64 of the American Convention on Human Rights), Advisory Opinion OC-1/82, September 24, 1982, Ser. A Nº 1 (1982), para. 43.

[106] Advisory Opinion OC-16/99, supra, para. 114.

[107] Military and Paramilitary Activities in and against Nicaragua (Nic. V. US) (Merits), 1986 ICJ Rep. 14, 92-6 (June 27). See also Brownlie, supra, at 13.

[108] North Sea Continental Shelf Case (FRG/Den.; FRG/Neth.) 1969 ICJ Rep. 3, 43-44 (Feb. 20).

[109] See e.g. Case 11.436, Report Nº 47/96, Victims of the Tugboat “13 de marzo” v. Cuba, Annual Report of the IACHR 1996, para. 79.

[110] State’s observations of December 17, 2001, p. 7, n. 3, citing Sixth quinquennial report of the Secretary General on capital punishment, reported in UN Doc. E/2000/3 (March 31, 2000), at p. 21.

[111] It is also due to the overwhelming ratification of the Convention on the Rights of the Child that little guidance can be drawn from references in United Nations Human Rights Commission resolutions to treaty rather than customary law obligations. While the United State relies upon this as evidence of a recognition by states that there is no customary international law prohibition on the execution of juvenile offenders, UN member states may equally have omitted references to customary international law for reasons of superfluity in light of fact that nearly all states are in fact bound to these obligations by treaty.

[112] Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277, entered into force January 12, 1951.

[113] Id., Preamble.

[114] See generally Anthony D’Amato, The Concept of Custom in International Law 49 (1971).

[115] See e.g. American Declaration, Preamble (recognizing that “the essential rights of man are not derived from the fact that he is a national of a certain state, but are based upon attributes of his human personality”). See also The International Bill of Rights 12 (Louis Henkin ed. 1981) (stating that “[i]nternational human rights instruments do not legislate human rights; they ‘recognize’ them and build upon their recognition”). 

[116] I/A Court H.R., The Effect of Reservations on the Entry into Force of the American Convention on Human Rights, Advisory Opinion OC-2/82, supra, para, 29. In this same advisory opinion, the Inter-American Court observed that the distinct nature of human rights treaties may give rise to an enhanced risk that the application of traditional rules governing  treaty interpretation, including Article 20(4) of the Vienna Convention on the Law of Treaties, may lead to manifestly unreasonable results that undermine the object and purpose of human rights instruments. Viewed from this perspective, the State’s apparent suggestion that the objections of states to the United States’ reservation to Article 6(5) of the ICCPR are pertinent only to the extent that those states explicitly indicate that they do not recognize the ICCPR as being in force between itself and the United States in accordance with Article 20(4)(b) of the Vienna Convention is clearly misguided – the essence of the obligations concerned are binding unilateral commitments by states not to violate the human rights of individuals within their jurisdiction, and it is therefore not reasonable to predicate the value of objections to reservations taken to those rights upon the applicability or non-applicability of those rights as between states parties to the instruments. Id., paras. 29-35.

[117] J.L. Brierly, The Law of Nations 61 (6th ed., 1963) (citing acts of state legislatures and state courts as particularly important sources of evidence of customary international law). It is also telling  that many states, upon ratifying the ICCPR and CRC, explicitly pointed out the manner in which their domestic law conformed with this requirement. See e.g. UN Treaty Database, ICCPR, supra, Interpretive Declaration of Thailand concerning Article 6(5) on its Accession to the International Covenant on Civil and Political Rights.

[118] The proscription against executing juvenile offenders, like the initiative to establish 18 as the age at which individuals may be compelled or allowed to take up arms, has been recognized as the consequence of the broadly-held assumption that persons under the age of 18, no matter their individual capacities, are unable to appreciate fully the nature of their actions, or the extent of their own responsibility. See e.g. William A. Schabas, The Abolition of the Death Penalty under International Law 122 (2d ed.); Ilene Cohn & Guy S. Goodwin-Gill, Child Soldiers: The Role of Children in Armed Conflict 168 (1997) ; International Committee of the Red Cross, Commentary on the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (J.S. Pictet ed., 1958), at 346-347.

[119] When the preliminary merits report in this matter was approved pursuant to Article 43 of the Commission’s Rules of Procedure, the Commission’s composition included Prof. Hélio Bicudo, who at that time adopted a separate opinion. Accordingly, Prof. Bicudo’s separate opinion has been included with the final report in this case approved under Article 45 of the Commission’s Rules, even though Prof. Bicudo’s term as a Commission Member expired on December 31, 2001.

[120] Press Release Nº 9/00, Washington, D.C. June 28, 2000:

“The Inter-American Commission on Human Rights deplores the execution of Shaka Sankofa, formerly known as Gary Graham, in the state of Texas on June 22, 2000. Mr. Sankofa was executed, despite formal requests by the Commission for the United States to ensure a suspension of Mr. Sankofa's execution pending the determination of a complaint lodged on his behalf before the Commission.

In 1993, the Commission received a complaint on behalf of Mr. Sankofa, alleging that the United States, as a Member State of the Organization of American States, had violated Mr. Sankofa's human rights under the American Declaration of the Rights and Duties of Man, including his right to life under Article I of that instrument. In particular, it was contended that Mr. Sankofa was sentenced to death for a crime that he was alleged to have committed when he was 17 years of age, that he was innocent of that crime, and that he had been subjected to legal proceedings that did not comply with international due process standards.

On August 11, 1993, the Commission opened Case Nº 11.193 in respect of Mr. Sankofa's complaint. Following a hearing on the matter on October 4, 1993, the Commission transmitted to the United States on October 27, 1993 a formal request for precautionary measures under Article 29(2) of the Commission's Regulations, asking that the United States ensure that Mr. Sankofa's death sentence was not carried out, in light of his pending case before the Commission. At that time, Mr. Sankofa's execution, which had previously been scheduled for August 17, 1993, was postponed pending the completion of domestic judicial procedures.

In February 2000, the Commission was informed that Mr. Sankofa's domestic proceedings were nearly completed, and that the issuance of a new warrant of execution was imminent. Accordingly, in a February 4, 2000 letter to the United States, the Commission reiterated its October 1993 request for precautionary measures. Subsequently, in May 2000, the Commission received information that Mr. Sankofa's petition before the U.S. Supreme Court had been dismissed and that his execution was scheduled for June 22, 2000. Accordingly, on June 15, 2000, during its 107th Period of Sessions, the Commission adopted Report Nº 51/00, in which it found Mr. Sankofa's petition to be admissible and decided that it would proceed to examine the merits of his case. Also in this report, the Commission again reiterated its request that the United States suspend Mr. Sankofa's death sentence pending the Commission's final determination of his case.

By communication dated June 21, 2000, the United States acknowledged the receipt of the Commission's February 4, 2000 communication and indicated that it had forwarded the same to the Governor and Attorney General of Texas. On June 22, 2000, however, the Commission received information that the Texas Board of Pardons and Paroles declined to recommend that Mr. Sankofa be granted a reprieve, commutation or pardon, and that his execution was to proceed on the evening of June 22, 2000. Consequently, by communication of the same date, the Commission requested that the United States provide an urgent response to its previous request for precautionary measures. Regrettably, the United States did not respond to the Commission's June 22, 2000 request, and Mr. Sankofa's execution proceeded as scheduled.

The Commission is gravely concerned that, despite the fact that Mr. Sankofa's case had been admitted for consideration by a competent international human rights body, the United States failed to respect the Commission's requests to preserve Mr. Sankofa's life so that his case could be properly and effectively reviewed in the context of the United States' international human rights obligations. In light of the irreparable damage caused by such circumstances, the Commission calls upon the United States and other OAS Member States to comply with the Commission's requests for precautionary measures, particularly in those cases involving the most fundamental right to life.”

[121] Op.cit 2, p.92.