Death penalty proposal

[Carlos Vazquez]

Francisco Forrest Martin argues that the Covenant on Civil and Political Rights is a self-executing treaty despite the United States' formal declaration that the treaty is not self-executing.  Whether the treaty-makers have the power to render a treaty non-self-executing simply by attaching a non-self-executing declaraton to the instruments of ratification is certainly debatable, and I didn't mean to take a position on that question in my earlier posting.  I assumed that the treaty was non-self-excuting because otherwise the legislation the House approved would be superfluous.

Sanford Levinson correctly notes that Curtis Bradley has questioned the continuing vitality of Missouri v. Holland.  I respond to Bradley, and defend Missouri v. Holland, in "Breard, Printz, and the Treaty Power," 70 U. Colo. L. Rev. 1319.

Another possible problem with my suggestion that the Treaty Power supports the proposed statute is that the United States also attached a "federalism" understanding to its ratification of the Covenant.  This understanding provides:

The United States understands that this Covenant shall be implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered herein, and otherwise by the state and local governments . . . "

If this "understanding" was intended as a statement that the treaty would not be used as the basis for federal legislation that would not fall within the federal legislative power in the absence of the treaty, interesting questions arise concerning (a) whether the understanding is binding on Congress, and (b) whether the understanding would preclude the courts from upholding the statute on the basis of the Treaty Power.

As to the Breard case, I have been highly critical of the US government's position (see 92 Am. J. Int'l L. 683), but I wouldn't go so far as to say that the "the Clinton administration . . . agreed that Virginia had no duty whatsoever to comply with the international treaty."  The administration stressed that the states are required to comply with the treaty and accordingly must inform arrested persons of their right to consult with their consuls (which is what the treaty expressly requires).  But the administration denied that Virginia's violation of this provision required that Breard's death sentence be vacated.  It argued that Breard had procedurally defaulted the treaty claim, that vacation of a sentence is not an appropriate remedy under the treaty (which does not expressly address remedies), and that, in any event, the failure to provide the required notice was harmless error.  Although I do not agree with those arguments, I wouldn't say that the administration took the position that states need not comply with treaties.

Carlos M. Vázquez
Professor of Law
Georgetown University Law Center
600 New Jersey Avenue, N.W.
Washington, D.C. 20001
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