Natural Law and Jus Cogens

Case: The Michael Domingues Case

Summary: Michael Domingues had been convicted and sentenced to death in Nevada,
United States for two murders committed when he was 16 years old. Domingues
brought the case in front of the Inter-American Commission of Human Rights which
delivered a non-legally binding report.

Argument of the United States (2002, US) [pp. 150-151]

• US's imposition of the juvenile death penalty does not violate any treaty
obligation or customary international law
○ US has persistently objected to customary in't law prohibiting juvenile
death penalty, so US would not be bound even if such a principle existed.
§ US domestic law - many states prosecute juveniles as adults
§ US has asserted this right in diff for a (UN general Assembly, UN
Commission on human rights, etc.)
• There is no Jus Cogens prohibition on juvenile death penalty
○ For a norm to be jus cogens, the international community of States as a
whole must accept and recognize not only the norm, but its peremptory character
§ There is no such norm on this. To establish this, Commission would
have to "decide that this alleged prohibition has similar force to prohibitions
such as those against piracy and genocide."

• The Commission concluded that there was a "jus cogens norm not to impose capital
punishment on individuals who committed their crimes when they had not yet reached
18 years of age."

Notes
• Inter-American Commission on Human Rights
○ US has signed onto this
○ This is a court of last resort (after Supreme court denied him)
○ 2004 - Supreme court granted cert on similar case (Roper v Simmens)
§ Held that juvenile death penalty was unconstitutional - cruel and
unusual punishment
□ Used int'l law, and cited human rights (amicus) briefs that
cited the Domingues case
• Regional institutions in Europe
○ European Court of Human Rights (ECHR) - after WWII, to prevent those
atrocities, established this court
○ EU (formerly EEC) - has own ECJ (European Court of Justice)
○ EU and ECHR co-exist as courts of justice: ECHR only cover human rights
topics, EU many
• What is the commission's holding?
○ The Commission concluded that there was a "jus cogens norm not to impose
capital punishment on individuals who committed their crimes when they had not yet
reached 18 years of age."
○ Even though US defense is of their persistent objection, b/c it's a
preemptive norm, that defense is no good
• How did they decide that juvenile death penalty is a preemptory norm?
○ Many Conventions.
§ UN Convention on the Rights of a Child
□ All but 2 countries had adopted the resolution on the adaption
of Human Rights agreement
□ US one of 7 countries who had a practice on record of juvenile
death penalty
 □ US signed this, but didn’t ratify. This means they don’t have
to take affirmative steps, but can't do anything to oppose it.
® But US also said they had the right to enact capital
punishment as they want it
§ Also looked at American Convention on Human Rights
§ ICCPR - US lodged a reservation to use juvenile death penalty - many
countries lodges an objection to this reservation. This proves CIL.
§ Geneva Convention
○ Practice - not only did countries sign on to these agreements, this is
one thing that countries of the world are following
§ since this time, all the other 6 countries had publicly disavowed
juvenile death penalty
§ Disagreement among states
§ Most countries are practicing
• This case not binding, but caused a lot of controversy, and in next case of this
sort, US Supreme court uses int'l law as persuasive

• In contrast with the Libya case, we see more evidence for the norm. but is this
still enough?
○ What does a preemptory norm different from CIL?
§ Critics may say this is going far, considering what other norms are
about. Does juvenile death penalty rise to the same level? This commission says
yes, b/c all nations are signing on.
□ Is there a way to clarify a way for the line btwn CIL and
preemptive norm?
□ Do we want to cede our sovereignty to another court? - policy
question.
○ How do we rise it to the level of a preemptory norm?
§ Maybe this type of debate should be brought to a broader int'l
community, b/c taken into context of a universal norm.
• Arguments:
○ US has an obligation b/c of jus cogens
§ Although can't yet be enforced, we can say US has this obligation
○ Foreign developments can and should be persuasive
§ US constitution defines cruel & unusual vaguely, so we should look
outside
○ Only look within (domestic law)
§ b/c it should be worked out in the American democratic process

• Let's assume there is such a thing as jus cogens, what should we do?