"The Supremacy Clause of the United States Constitution mandates that all treaties made ... shall be the supreme law of the land; and the judges in every state shall be bound thereby" (U.S. Const. art. VI, cl. 2).
The key human rights treaties to which the U.S. have signed and ratified are the:
Other important treaties that are not ratified by the U.S. include the:
These treaties contain provisions that are applicable to the sentencing of juveniles to life without parole. The treaties are presented in the following format:
- Basic information as well as important dates and rights that the treaty protects.
- The specific articles of the treaty that are relevant to JLWOP sentencing.
- Relevant reservations made to the treaty.
- Description of the treaty body.
- The clarifications and opinions that the specific treaty body issues. These treaty bodies are in charge of overseeing the implementation of that specific treaty.
Key Human Rights Treaties Ratified by U.S.
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- This is one of the three main treaties that make up the International Bill of Human Rights, which also includes the Universal Declaration of Human Rights and the International Covenant on Economic, Social, and Cultural Rights (G.A. Res. 2200A (XXXI), 999 U.N.T.S. 171 (Dec. 16, 1966)). It was created in 1966 and officially entered into force in 1976. The U.S. signed this treaty and ratified it in 1992, and so the treaty applies to the U.S. as law under the Supremacy Clause of the U.S. Constitution. It protects several main categories of universally recognized rights:
- the individual's physical integrity;
- procedural fairness in law;
- protection from gender, religious, or racial discrimination;
- individual freedoms such as the right to speech, assembly, press, belief, and association;
- and the right to political protection.
- Articles specifically applicable in cases involving JLWOP are:
- Article 7, which prohibits cruel, unusual, and degrading treatment or punishment;
- Article 10(2) (b), which states accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication;
- Article 10(3), which states that the aim of the penitentiary system should be reformation and rehabilitation and that juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status;
- Article 14(4), which recommends that governments should consider age and desirability of promoting rehabilitation when sentencing juveniles;
- and Article 24(l), which states that every child shall have the right to such measures of protection as are required by his status as a minor, on the part of his family, society, and the state.
- Relevant reservations the U.S. has made to the ICCPR include:
- the United States considers itself bound by Article 7 to the extent that 'cruel, inhuman, or degrading treatment or punishment' means the cruel and unusual treatment or punishment prohibited by the 5th, 8th, and/or 14th Amendments to the Constitution of the United States;
- and (t)he policy and practice of the United States are generally in compliance with and supportive of the covenant's provisions regarding treatment of juveniles in the criminal justice system. Nevertheless, the United States reserves the right, in exceptional circumstances, to treat juveniles as adults, notwithstanding paragraphs 2(b) and 3 of Article 10 and paragraph 4 of Article 14. The United States further reserves to these provisions with respect to States with respect to individuals who volunteer for military service prior to age 18.1
- The official oversight body to the ICCPR is the Human Rights Committee. This treaty body is comprised of independent experts who monitor the implementation of the ICCPR. All state parties are obliged to submit regular reports to the committee on how the rights are being implemented. States must report initially one year after acceding to the covenant and then whenever the committee requests (usually every four years). The committee examines each report and addresses its concerns and recommendations to the state party in the form of concluding observations. The committee can also consider inter-state complaints as well as retain competence over the implementation of both Optional Protocols to the ICCPR.
- Pronouncements by the Human Rights Committee:
- General Comment 21
- This comment is concerned with the humane treatment of people who are being deprived of their liberty.
- It seeks to clarify article 10(3) by saying that No penitentiary system should be only retributory; it should essentially seek the reformation and social rehabilitation of the prisoner (para. 10). It also specifically says that that juveniles need to be separated from adults and that their detention should be aimed at reformation (para. 13).
- Citation: U.N. Doc. HRI/GEN/1/Rev.1 at 33 (1994)
- Concluding Observations of the Committee in Regards to the U.S. (2006)
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- The U.S. has made reservations to this treaty, which includes the right to treat juveniles as adults in exceptional circumstances applicable as a reservation to articles 10(2)(b), 10(3) and 14(4). However, this reservation does not protect the U.S. from its treaty obligations. The U.S. still has the duty to uphold article 24(1), which requires states to consider that they are dealing with a minor and certain protections are required.
- The committee stated, in reviewing U.S. compliance, that even with the reservation to treat juveniles as adults in exceptional circumstances, JLWOP sentences are not applied only in exceptional circumstances. The committee is of the view that sentencing children to life sentence without parole is of itself not in compliance with article 24 (1) of the covenant (para. 34).
- Citation: U.N. Doc. CCPR/C/SR.2395 (July 2006)
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- This treaty addresses the need to eliminate racial discrimination and to promote understanding among all races. It was open for signature in 1965 and entered into force January 4, 1969 (660 U.N.T.S. 195). The U.S. signed this treaty and ratified it in 1994; the treaty applies to the U.S. as law under the Supremacy Clause of the U.S. Constitution. It protects several main categories of universally recognized rights.
- Parties to the treaty cannot discriminate on the basis of race, sponsor or defend racism, and must prohibit racial discrimination within their jurisdictions.
- State parties must review their laws and either repeal or amend laws that discriminate based on race.
- There are also other specific commitments required of state parties (e.g., eradicate apartheid and promote public understanding and tolerance).
- Articles specifically applicable in cases involving JLWOP are:
- Article 2, which proclaims that state parties must pledge to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;
- and Article 5(a), which says that states have to eliminate and prohibit racial discrimination in the right to equal treatment before the tribunals and all other organs administering justice.2
- Relevant reservations the U.S. has made to CERD include:
- To the extent, however, that the convention calls for a broader regulation of private conduct, the United States does not accept any obligation under this convention to enact legislation or take other measures under paragraph (1) of Article 2, subparagraphs (1) (c) and (d) of Article 2, Article 3 and Article 5 with respect to private conduct except as mandated by the Constitution and laws of the United States.
- The enforcement body is the Committee on the Elimination of Racial Discrimination. This treaty body is made up of independent experts who monitor the implementation of CERD by its state partners. All state parties are obliged to submit regular reports to the committee on how the rights are being implemented. States must report initially one year after acceding to the convention and then every two years. The committee examines each report and addresses its concerns and recommendations to the state party in the form of concluding observations. In addition to the reporting procedure, the convention establishes three other mechanisms through which the committee performs its monitoring functions: the early-warning procedure, the examination of inter-state complaints, and the examination of individual complaints.
- Pronouncements by the committee include:
- Concluding Observations of the Committee regarding the U.S. (2008)
- There has been a disproportionate sentencing of young offenders (including children) who belong to racial, ethnic, and national minorities to life without parole. The persistence of such sentencing is incompatible with Article 5(a) of the convention and the committee recommends that the U.S. stop using JLWOP sentences (para. 21). The committee said: In light of the disproportionate imposition of life imprisonment without parole on young offenders—including children—belonging to racial, ethnic and national minorities, the committee considers that the persistence of such sentencing is incompatible with Article 5(a) of the convention. The committee therefore recommends that the state party discontinue the use of life sentence without parole against persons under the age of 18 at the time the offence was committed, and review the situation of persons already serving such sentences.
- Citation: U.N. Doc. CERD/C/USA/CO/6 (February 2008)
Important Treaties Not Ratified by the U.S.
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- This very important treaty sets out the civil, political, economic, social and cultural rights of children, which the treaty defines as youth under the age of 18. It was opened for signature in 1989 and came into force in 1990. The U.S. has signed (February 16, 1995) but not ratified this treaty and is not a party to this treaty. The U.S. and Somalia are the only two countries in the world that are not parties to this treaty.3 The treaty protects several main categories of universally recognized rights.
- It requires states to act in the best interest of children, which goes against common law notions of custody and guardianship.
- Children have basic rights like the right to life, right to an identity, and right to a relationship with family.
- Children also have the right to express their opinions and viewpoints. This allows children to express such opinions when it affects things like their privacy, custody, and abusive situations.
- Articles specifically applicable to cases of JLWOP sentencing:
- Article 37(a), which states that capital punishment or life imprisonment without possibility of release shall not be imposed for offences committed by persons younger than 18 (as further clarified by General Comment 10);
- Article 37(b), which states that The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
- and Article 40(1), which states that children accused or convicted of crimes have to be treated in a manner that takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.
- U.S. did not ratify treaty, therefore there are no reservations.
- The enforcement body is the Committee on the Rights of the Child. This treaty body is comprised of independent experts who monitor the implementation of the CRC and its optional protocols. All state parties are obliged to submit regular reports to the committee on how rights are implemented. States must report initially two years after acceding to the convention and then every five years. The committee examines each report and addresses its concerns and recommendations to the state party in the form of concluding observations. The committee cannot consider individual complaints, although child rights may be raised before other committees with competence to consider individual complaints.
- Pronouncements by the Committee on the Rights of the Child:
Similarly, the U.S. has signed (April 24, 1970) but not ratified this treaty. This treaty lays out the international standards for the formation of treaties between states. (However, it does not cover treaties between states and international organizations.)
Although the United States has not ratified the VCLT, the U.S. accepts the treaty's principles as binding law—i.e., part of United States law. See, e.g., "Restatement (Third) of the Foreign Relations Law of the United States" § 102 or Connie de la Vega and Jennifer Brown, "Can a United States Treaty Reservation Provide a Sanctuary for the Juvenile Death Penalty?" 32 U.S.F. L. Rev. 735, 754, 759-62 (1998) (explaining that United States is bound by jus cogens).
The U.S. and Their Treaty Obligations/Violations
Additionally, the JLWOP sentencing practice of the United States violates international standards of justice, as well as treaties to which the United States is a party. Each state must ensure that its criminal punishments comply with the United States’ international treaty obligations. The comments of the treaties’ oversight committees clearly admonish the United States for failure to comply.
- The International Covenant on Civil and Political Rights (ICCPR) oversight Committee instructed the United States to: “Ensure that no such child offender is sentenced to life without parole” [and] “adopt all appropriate measures to review the situation of persons already serving such sentences.”
- The Convention against Torture oversight Committee warned the United States that the JLWOP sentence could constitute “cruel, inhuman or degrading treatment or punishment” for youth.
- The oversight body of the Committee on the Elimination of Racial Discrimination found that because the JLWOP sentence is applied disproportionately to youth of color, and the United States has done nothing to reduce what has become pervasive discrimination, it is recommended that the United States discontinue the use of LWOP against persons under the age of eighteen at the time the offence was committed, and review the situation of persons already serving such sentences.
- The United Nations General Assembly has called upon governments to: “abolish by law, as soon as possible…life imprisonment without possibility of release for those below the age of 18 years at the time of the commission of the offence.”
1However, note that the Concluding Comments of the Committee regarding the U.S. clarifies the treaty body's stance on the U.S.'s reservations to this treaty.
2The U.S. is in violation of these articles because African American children are serving JLWOP sentences at a rate 10 times higher than white children. This disparity in treatment is further emphasized since the total population of minority is often much less than the population of minority inmates serving JLWOP sentences.
3However, with 193 parties to this treaty, an argument can be made that the rights the CRC protects has risen to the level of customary international law and these basic standards of human rights should apply to all children.