TEXAS LAWYERS ATTEMPT TO USE UN RESOLUTIONS TO OVERTURN US LAW

The State of Texas executed Gerald Lee Mitchell recently but not before his lawyers advanced arguments that he should be spared based on United Nations resolutions not ratified by the US government. These arguments have caused grave concern to human rights attorneys who have warned repeatedly that UN resolutions would be used to overturn existing laws and intrude on national sovereignty.

In 1985 Mitchell kidnapped, robbed, and shot two boys after he sold them marijuana. One of the boys died. Mitchell, 17 years old at the time, received the death penalty. Because he was under the age of 18 at the time of the murder, his lawyers evoked the novel argument that "international customary law" prevents the State of Texas from executing someone who committed the act prior to age 18.

His lawyers argued that what is known as a jus cogens norm of international law has been established on the question of executing those who commit capital crimes under the age of 18. This norm requires adherence by states even if their laws do not agree. According to the lawyers brief, "A jus cogens norm of customary international law is a peremptory norm which can never be derogated by any nation." The brief explains that genocide and slavery are examples of such bans.

Mitchell's lawyers assert this admittedly new norm has been established mostly through UN resolutions or UN-sponsored treaties. The ban is supposed to have achieved non-revocable status in recent years because of a September, 2000 report by the International Commission of Jurists, an August, 2000 resolution from the UN Human Rights Commission, and more importantly the nearly universal ratification of the Convention on the Rights of the Child. The lawyer's brief also cites the Vienna Convention on the Law of Treaties.

Human rights lawyers argue that reports by the International Commission of Jurists have no weight in US courts, neither do non-binding resolutions from the UN Human Rights Commission. Moreover, the US has never ratified the Convention on the Rights of the Child or the Vienna Convention on the Law of Treaties.

Human rights attorneys are increasingly concerned with these ongoing attempts to use UN conventions and resolutions to circumvent US law and laws in other countries. In recent weeks, the pro-abortion lawyers group Committee for Reproductive Law and Policy (CRLP) used a similar argument in their suit against the Bush administration when it reinstituted so-called Mexico City language, which forbids US money from supporting groups that promote or perform abortions overseas. The CRLP suit claims the repetitious use of the term "reproductive health" in UN documents has already established a universal right to abortion, even if the Supreme Court eventually overturns Roe V. Wade and Doe V. Bolton.

The Mitchell case lost, but the CRLP case is still pending while more lawsuits using non-binding UN resolutions are expected.

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