Since the last version of this report was released, state court litigants in the United States have continued using international human rights law in their arguments. Many of these cases have been met with cursory dismissals from the court, especially in death penalty cases. At the same time, courts have seriously considered some arguments, and occasionally use international law affirmatively as persuasive authority for the interpretation of state constitutions, statutes, and common law.
This updated publication includes cases that have been decided since the last edition, as well as cases that were not included previously. Some highlights include:
- Before the U.S. Supreme Court found that sentencing a juvenile to life without the possibility of parole for a non-homicide offense constituted cruel and unusual punishment under the Eighth Amendment, a Florida court used international human rights law to analyze the issues. Though it referred to both international treaties and “international pressure to change our existing legal system” as the defendant’s strongest argument, the court declined to create a per se ban on the punishment for juveniles.
- Cases have increasingly referred to Article 36 of the Vienna Convention, which provides the right to communicate with a consular official and to have an official notified promptly of one’s arrest. In evaluating this argument, courts are divided as to whether the treaty grants individual rights. In a notable 2011 decision, Commonwealth v. Gautreaux, the Supreme Judicial Court of Massachusetts held that the VCCR does confer an individual right to consular notification. Further, the Massachusetts court acknowledged that the state falls within the ambit of international law, noting that decisions of the International Court of Justice are entitled to “respectful consideration” by the state court.
- Courts have also used human rights law, in particular the Hague Convention on Civil Aspects of International Child Abduction, to analyze both procedural and substantive rights in the family law context.
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