No. ______________________

__________________________

IN THE

SUPREME COURT OF THE UNITED STATES_________________________________

Rex Allan Krebs - PETITIONER

vs.

State of California - RESPONDENTS

ON PETITION FOR A WRIT OF CERTIORARI TO

California Supreme Court

PETITION FOR WRIT OF CERTIORARI

APPLICATION FOR STAY OF CAPITAL TRIAL SET FOR FEBRUARY 14, 2001

WILLIAM R. McLENNAN (#75325)1022 Mill Street, Suite ESan Luis Obispo, CA 93401(805) 544-7950Attorney for Petitioner Rex Allan Krebs

No. ______________________

__________________________

IN THE

SUPREME COURT OF THE UNITED STATES

_________________________________

Rex Allan Krebs - PETITIONER

vs.

State of California - RESPONDENTS

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

Petitioner asks leave to file the attached petition for a writ of certiorari and application for a stay of his capital trial without prepayment of costs and to proceed in forma pauperis.

Petitioner was previously granted leave to proceed in forma pauperis in the San Luis Obispo County Superior Court, State of California, in case number CV 000344.

Petitioner’s affidavit or declaration in support of this motion is attached hereto as Appendix F.

_____________________________Rex Allan Krebs

CAPITAL CASE QUESTIONS PRESENTED FOR REVIEW

1. Does the International Covenant on Civil and Political Rights (hereinafter Covenant),

as a ratified treaty and the “law of the land” pursuant to Article IV, section 2, of the United

States Constitution, provide enforceable rights and protections to Petitioner as a capital

defendant selected for prosecution and death pursuant to the laws of the State of California?

2. Does the language of United States Declaration 1 stating, “the provisions of Article 1

through 27 of the Covenant are not self-executing” prevent judicial enforcement of Covenant

rights and protections raised as defenses to California laws and procedures that violate the

Covenant?

3. Does the language of United States Reservation 2, reserving the right to execute

juveniles, prevent judicial enforcement of Covenant rights and protections raised as defenses in a

capital case to California laws and procedures that violate the Covenant?

4. Should Petitioner’s capital trial be stayed to guarantee that in his defense he may

claim the rights and protections of the International Covenant on Civil and Political Rights, a

ratified treaty of the United States of America, as guaranteed by Article IV, section 2, of the

United States Constitution?

PARTIES TO THE PROCEEDING

Petitioner is capital defendant Rex Allan Krebs. He is represented by William R.

McLennan, 1022 Mill Street, Suite E, San Luis Obispo, California, 93401, (805-544-7950).

The prosecutor is District Attorney Gerald Shea, Office of the District Attorney, County

Government Center, Room 450, San Luis Obispo, California 93401, (805-781-5800).

AS TO PETITIONER’S REQUEST FOR A STAY

The trial court is Judge Barry LaBarbera, San Luis Obispo County Superior Court,

County Government Center, Room 220, San Luis Obispo, California 93408, (805) 781-5473.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW...............................................................................ii

LIST OF PARTIES ...................................................................................................................iii

TABLE OF CONTENTS...........................................................................................................iv

LIST OF APPENDICES............................................................................................................vCAPITAL CASE QUESTIONS PRESENTED FOR REVIEW.....................................................3TABLE OF AUTHORITIES...........................................................................................................7

IIDECLARATION 1 DOES NOT DEPRIVEPETITIONER OF COVENANT PROTECTION .....................................................................................................................................................7

A..........................................................................................................................Introduction ................................................................................................................................................7B..............................................................................................Self Execution\: Judicial Tests ................................................................................................................................................8C........................Covenant Terms Grant Immediate Rights and Restrict Capital Punishment ..............................................................................................................................................11D...............................................................................Intent of President Bush and the Senate ..............................................................................................................................................14E.............................................................Additional Judicial Factors Support Self-Execution ..............................................................................................................................................17

IIIA BROAD INTERPRETATION OF DECLARATION 1RAISES CONSTITUTIONAL CONCERNS ............................................................................................................................17IVRESERVATION 2 ONLY APPLIES TO JUVENILE EXECUTIONS ..............................19VTHE OBJECT AND PURPOSE OF THECOVENANT MUST BE HONORED ................21VITHE COVENANT MAY BE USED DEFENSIVELY .......................................................24CONCLUSION ........................................................................................................................25

PROOF OF SERVICE/ CERTIFICATE OF SERVICE...............................................................26

INDEX OF APPENDICES

Appendix A Decision of the State Court of Appeal denying Petition for Writ of Mandate/Prohibition/Stay

Appendix B Decision of the State Trial Court (Hearing transcript)

Appendix C Decision of the State Supreme Court Denying Petition for Review

Appendix D International Covenant on Civil and Political Rights

Appendix E Reservations to the International Covenant on Civil and Political Rights filed by the Senate of the United States of America

Appendix F United States v. Duarte-Acero (11th Cir. 2000) 208 F.3d 1282

Appendix G Petitioner’s affidavit or declaration in support of his motion to proceed in forma pauperis

TABLE OF AUTHORITIES

U.S. Supreme Court Asakura v. Seattle (1924)................................................................................................................8265 U.S. 332 [44 S.Ct. 515, 68 L.Ed. 104]Clinton v. City of New York (1998) ...............................................................................................18524 U.S. 417 [141 L.Ed. 2d 393, 118 S.Ct. 2091]Cook v. United States (1933) ........................................................................................................25288 U.S. 102 [53 S.Ct. 305, 77 L.Ed. 64]Ford v. United States (1927) .........................................................................................................25273 U.S. 593 [47 S.Ct. 531, 71 L.Ed. 793]Foster v. Neilson (1829) .................................................................................................................927 U.S. (2 Pet.) 253In Head Money Cases (1884) .......................................................................................................10112 U.S. 580 [28 L.Ed. 798, 5 S. Ct. 247]Kolovrat v. Oregon (1961) ........................................................................................................9, 25366 U.S. 187 [81 S.Ct. 922, 6 L.Ed.2d 218]Marbury v. Madison (1803) ..........................................................................................................185 U.S. 137 [2 L.Ed. 60, 2 Cranch 137]Murray v. The Schooner Charming Betsy (1902) ....................................................................18,196 U.S. 64 [2 L.Ed. 208, 2 Cranch 64]Patsone v. Pennsylvania (1914) ....................................................................................................25232 U.S. 138 [34 S.Ct. 281, 58 L.Ed.2d 539]Patterson v. Superior Court of California (1975) ..........................................................................3420 U.S. 130 [43 L.Ed.2d 645, 95 S.Ct. 1245]United States v. Delaware and Hudson Co. (1909) ........................................................................8213 U.S. 366 [53 L.Ed. 836, 29 S.Ct. 527]United States v. Percheman (1833) ...............................................................................................932 U.S. (7 Pet.) 51United States v. Rauscher (1886) ..................................................................................................25119 U.S. 407 [7 S.Ct. 234, 30 L.Ed.2d 425]Warren v. United States (1951) ......................................................................................................9340 U.S. 523 [71 S.Ct. 432, 95 L.Ed. 503]

Federal CircuitFrolova v. USSR.................................................................................................................10, 11, 17 (7th Cir. 1985) 761 F.2d 370Islamic Republic of Iran v. Boeing Co.................................................................................9, 10, 17 (9th Cir. 1985) 771 F.2d 1279Kim Ho Ma v. Reno .......................................................................................................................18(9th Cir. 2000) 208 F.3d 81People of Saipan v. United States Dep’t of Interior .................................................................9, 10(9th Cir. 1974) 502 F.2d 90United States v. Durate-Acero .................................................................................1, 2, 7, 8, 17,25(11th Cir. 2000) 208 F.3d 1282

Federal Supp.Maria v. McElroy (1999) ..........................................................................................................2, 1768 F. Supp.2d 206United States v. Benitez (1998) .................................................................................................2, 1728 F. Supp.2d 1361

California Supreme CourtSei Fuji v. State (1952) ..................................................................................................................1038 Cal.2d 718

ForeignBelilos v. Switzerland (1988).........................................................................................................23132 Eur. Ct. H.R. (Ser.A)

CONGRESSIONAL RECORDU.S. Senate Executive Report 102-23...............................................................................6, 8,14, 16Report on the International Covenant on Civil and Political Rights (102nd Cong., 2d Sess.) (1992)

United States Senate, Executive Session.................................................................................15, 20International Covenant on Civil and Political RightsPolitical Rights (102nd Cong.,2d Sess.)Vol. 138, No. 49 (138 Cong. Rec. S4781)

CALIFORNIA STATUTESPenal Code § 187(a).........................................................................................................................3Penal Code § 190.2(a)(3).................................................................................................................3Penal Code § 190.2(a)(15)...........................................................................................................3, 4Penal Code § 190.2(a)(17)...............................................................................................................3Penal Code § 209(b).........................................................................................................................3Penal Code § 261(a)(2)....................................................................................................................4Penal Code § 286(c).........................................................................................................................4Penal Code § 459.............................................................................................................................4Penal Code § 667(a).........................................................................................................................4Penal Code § 667(d)(e)....................................................................................................................4Penal Code § 667.5(b)......................................................................................................................4

FEDERAL STATUTES28 U.S.C. 1257.................................................................................................................................1

LEGISLATIVE HISTORY/SUMMARYConvenant Legislative History, 6 I.L.M. 368 (1967) .................6Covenant Text, 31 I.L.M. 645 (1992)..............................................................................................6

UNITED STATES CONSTITUTIONArticle II, section 2........................................................................................................................18

Article IV, section 2.........................................................................................................2, 3,8, 9,18

TREATIESInternational Covenant.....................................................................................................................6on Civil and Political Rights (31 I.L.M. 645 (1992)Article 2...........................................................................................................................2, 7, 13, 22Article 2(1)..................................................................................................................................7,22Article 2(2).................................................................................................................................6, 13Article 2(3)(a).................................................................................................................6, 11, 13,14Article 2(3)(b)................................................................................................................................13Article 4(1).....................................................................................................................................12Article 4(2).....................................................................................................................................23Article 5(2)................................................................................................................................12,19Article 6..............................................................................................................2, 5, 12, 21, 20, 21Article 6(1)...........................................................................................................................6, 12, 22Article 6(2)......................................................................................................................6, 12, 21,22Article 6(5)...............................................................................................................................20, 21Article 6(6).....................................................................................................................................12Article 7.........................................................................................................................................23Article 14...............................................................................................................................4, 6, 12Article 20.......................................................................................................................................11Vienna Convention on the Law of Treaties........................................................................11, 19,22Article 19, May 23, 1969, 155 U.N.T.S. 331

LEGAL TREATISESRestatement (Third) of Foreign Relations ....................................................................................23Law of the United States, section 313(1)(a) (1987)Restatement (Third) of Foreign Relations ....................................................................................22Law of the United States, section 313(1)(c) (1987)

INTERNATIONAL COURT OF JUSTICEReservations to the Convention on the Prevention .......................................................................22and Punishment of the Crime of Genocide1951, I.C.J. 15 (May 28, 1951)Military and Paramilitary Activities .............................................................................................24(Nicar. V. U.S.), 1986 I.C.J. 14 (June 27, 1986)

HUMAN RIGHTS COMMITTEEHuman Rights Committee..............................................................................................................23Comments on the United States of AmericaU.N. Doc. CCCPR/C/79/Add.50 (1995)Human Rights Committee..............................................................................................................13General Comment 16 (32d Sess. 1988)IHRR Vol. 1 No. 2 (1994)Human Rights Committee..............................................................................................................11General Comment 24(52)

52nd Sess., 1382nd mtg. paragraph 2U.Doc. ICCPR/C/21/Rev. 1; Add.6 (1994)Human Rights Committee..............................................................................................................24General Comment No. 24 (52) relating to ReservationsU.N. GAOR, 52 Sess., 1382d mtg. paragraph 3U.N. Doc. CCCPR/C/21/Rev.1/Add.6 (1994)

LAW REVIEW ARTICLESConstance De La Vega.....................................................................................................................7Civil Rights During the 1990's: New Treaty Law Could Help Immensely65 U.Cin.L. Rev. 423 (1997)Marian Neich............................................................................................................................16,21U.S. Practice: International Covenant on Civil and Political Rights: U.S. Presentation before the Human Rights Committee (1995) 89 A.J.I.L. 589Jordan Paust.....................................................................................................................................7Avoiding “Fraudulent” Executive Policy: Analysis of Non-Self-Execution of the Covenant on Civil and Political Rights42 DePaul L.Rev. 1257 (1993)John Quigley....................................................................................................................................7Human Rights Defenses in US Courts20 Hum. Rts. Q. 555 (1998)Stefan A. Riesenfeld and Frederick M. Abbott..........................................................................7, 10The Scope of U.S. Senate Control Over the Conclusion and Operation of Treaties67 Chi.-Kent L. Rev. 571 (1991)William A. Schabas.......................................................................................................7, 19, 23, 24Invalid Reservations to the International Covenant on Civil and Political Rights: Is the United States Still a Party21 Brook J. Int’l L. 277 (1995)David Sloss................................................................................................................................7, 13The Domestication of International Human Rights: Non-Self-Executing Declarations and Human Rights Treaties24 Yale.J.Int’l. L. 129 (1999)David P. Stewart............................................................................................................................20U.S. Ratification of the Covenant on Civil and Political Rights: The Significance of the Reservations, Understandings and Declarations14 Hum. Rts. L.J. 77 (1993)Carlos Manuel Vásquez...................................................................................................................9The Four Doctrines of Self-Executing Treaties89 Am. J. Int’l L. 695 (1995)

Petitioner Rex Allan Krebs respectfully prays that a stay issue halting his pending capital

trial, set to begin on February 14, 2001, and a writ of certiorari issue to consider his claim that

the International Covenant on Civil and Political Rights provides rights and protections to a

capital defendant to state action that is repugnant to this ratified treaty.

CITATIONS OF OPINIONS BELOW

The California Supreme Court and the California Court of Appeal, Second District, both

rejected Petitioner’s request to stay his capital trial and grant him a hearing on the issues

presented in this petition. Neither court issued an opinion. A copy of the order from the Court of

Appeal is attached as Appendix A, and a copy of the order from the California Supreme Court is

attached as Appendix C.

JURISDICTION

The jurisdiction of this court is invoked under 28 U.S.C. §1257, which states in part:

(a) Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of any State is drawn in question on the ground of its being repugnant of the Constitution, treaties, or laws of the United States, or where any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or statutes of, or any commission held, or authority exercised under, the United States.

Review on the writ of certiorari should be granted pursuant to Rule 10 (b) because the

order of the California Supreme Court is in conflict with United States v. Durate-Acero (11th

Cir. 2000) 208 F.3d 1282.

The present petition does not challenge the constitutionality of any California or federal

statute. However, a ruling granting a capital defendant the rights and protections of the

International Covenant on Civil and Political Rights could have an immediate impact on

California and federal capital-related procedures and statutes. As such, 28 U.S.C. §2403(b) may

apply and California Attorney General Bill Lockyear and the Solicitor General of the United

States have been served with a copy of this petition.

CONSTITUTIONAL AND TREATY PROVISIONS

Article VI of the United States Constitution provides, in pertinent part:

“[A]ll Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.”

The International Covenant on Civil and Political Rights is attached as Appendix B.

The Reservations to the International Covenant on Civil and Political Rights filed by the

Senate of the United States of America is attached as Appendix C.

REQUEST FOR STAY

There is an immediate need to stay Petitioner’s capital trial. Petitioner is being

forced to proceed to trial without the rights and protections guaranteed by a ratified treaty of the

United States of America. The California Supreme Court and the California Court of Appeal,

Second District, both rejected Petitioner’s request to stay his capital trial and grant him the

rights and protections guaranteed by the International Covenant on Civil and Political Rights.

In all California courts, Petitioner continually raised an urgent federal question: The

International Covenant on Civil and Political Rights provides specific rights and protections to

capital defendants in Articles 6 and 14, and requires a remedy for Covenant violations in Article

2. The use of the Covenant as a defense to state action was recognized by the Eleventh Circuit

in United States v. Durate-Acero (11th Cir. 2000) 208 F.3d 1282. (Accord: Maria v. McElroy

(1999) 68 F. Supp.2d 206; United States v. Benitez (1998) 28 F. Supp.2d 1361).

Article IV, section 2 of the United States Constitution subordinates state law to a ratified

treaty of the United States. Absent a stay of his trial and either a remand to the California

Supreme Court for its reasoned consideration, or the granting of Petitioner’s writ of certiorari by

this Court, Petitioner and all California capital defendants will be stripped of the treaty

protections guaranteed by the United States Constitution. (See Patterson v. Superior Court of

California (1975) 420 U.S. 130 [43 L.Ed.2d 645, 95 S.Ct. 1245]).

STATEMENT OF THE CASE

In late April 1999, the bodies of two young women were discovered in a rural area

outside San Luis Obispo, California. Petitioner was subsequently arrested for both murders.

On May 6, 1999, Petitioner was charged in count I of a criminal complaint with a

violation of California Penal Code § 187(a) (murder), and with enhancement 1, a violation of

California Penal Code § 192.2(a)(15) (lying in wait), enhancement 2, a violation of California

Penal Code § 190.2(a)(17) (murder in the commission of a kidnaping) and enhancement 3, a

violation of California Penal Code § 190.2(a)(17) (murder in the commission of rape). Petitioner

was charged in count 2 of the complaint with a second violation of California Penal Code §

187(a) (murder) and with enhancement 4, a violation of California Penal Code § 190.2(a)(17)

(murder in the commission of kidnaping), enhancement 5, a violation of California Penal Code §

190.2(a)(17) (murder in the commission of rape), enhancement 6, a violation of California Penal

Code § 190.2(a)(17) (murder in the commission of sodomy), and enhancement 7, a violation of

California Penal Code § 190.2(a) (3) (multiple murder). Petitioner was further charged in count

3 of the complaint with a violation of California Penal Code § 209(b) (kidnaping for sexual

purposes), in count 4 of the complaint with a violation of California Penal Code § 261(a)(2)

(rape by force), in count 5 of the complaint with a violation of California Penal Code § 459

(burglary), in count 6 of the complaint with a violation of California Penal Code § 209(b)

(kidnaping for sexual purposes), in count 7 of the complaint with a violation of California Penal

Code § 261(a)(2) (rape by force), in count 8 of the complaint with a violation of California Penal

Code § 261(a)(2) rape by force) and in count 9 of the complaint with a violation of California

Penal Code § 286(c) (sodomy by force). Petitioner was charged with priors 1-6, alleging serious

or violent felony prior convictions pursuant to California Penal Code §667(d)(e), with Priors

7-12, alleging serious felony prior convictions pursuant to California Penal Code § 667(a) and

Prior 13, alleging one felony prior conviction pursuant to California Penal Code § 667.5(b).

On September 16th and 17th, 1999, a preliminary hearing was conducted before the

Honorable Barry T. LaBarbera and Petitioner was held to answer on all counts and

enhancements alleging in the complaint, except enhancement 1, an alleged violation of Penal

Code section 190.2(a)(15) (lying in wait). On September 28, 1999, an information was filed that

charged Petitioner with the same crimes previously alleged in the complaint, except the alleged

violation of Penal Code section 109.2(a)(15) (lying in wait). Petitioner entered pleas of not

guilty and denied all allegations.

On May 3, 2000, Petitioner filed a Notice of Motion and Motion to Strike Special

Circumstances for Violations of the International Covenant on Civil and Political Rights and/or

Violations of the Eighth and Fourteenth Amendments (hereinafter Covenant Motion), contending

the 1978 California Death Penalty Statutes and related procedures create an arbitrary death

penalty scheme that in toto violates Articles 6 and 14 of the Covenant, and selected capital case

procedures individually violate the Covenant. Petitioner filed a separate Motion for Judicial

Disclosures and Orders Re: Jury Selection that relied on the authority of the Covenant and

requested information from Respondent concerning its present attitude and past history relating

to capital punishment.

On August 15, 2000, a change of venue was granted by the Court of Appeal and trial is

now set in Monterey, California, for February 14, 2001.

On October 24, 2000, the trial court ruled that Petitioner had no judicial remedy for

Covenant violations because United States Reservation 2 (reserving the right to execute

juveniles) prohibits any change in domestic law relating to capital punishment and Declaration 1

(“that the provisions of articles 1 through 27 of the Covenant is not self-executing’) strips

Petitioner of any remedy for Covenant violations. (A copy of the hearing transcript is attached as

Appendix B).

On November 27, 2000, the Court of Appeal for the Second District, Division 6, denied

Petitioner’s Petition for Writ of Mandate/Prohibition/Request for Stay without issuing an

opinion. (See Appendix A).

On November 30, 2000, Petitioner filed a Petition for Review with the California

Supreme Court. On January 26, 2001, the California Supreme Court extended its time for

granting or denying review to February 28, 2001. On February 2, 2001, the California Supreme

Court denied Petitioner’s Petition for Review/Request for Stay and did not issue an opinion. (See

Appendix C).

REASONS FOR GRANTING THE PETITIONI

INTRODUCTION

The International Covenant on Civil and Political Rights (hereinafter Covenant) was

unanimously adopted by the U.N. General Assembly on December 16, 1966, and entered into

force on March 23, 1976. On April 2, 1992, the United States Senate gave its advice and consent

to the ratification of the Covenant, and on June 8, 1992, the United States deposited its

instrument of ratification. The Covenant entered into force for the United States on September 8,

1992. (See legislative history at 6 I.L.M. 368 (1967); Covenant text, see 31 I.L.M. 645 (1992)).

The Covenant grants individuals in a signing State immediate rights and protections,

including the freedom arbitrary execution (Article 6 (1)), the right to all Covenant protections in

a capital case (Article 2 (2)), and freedom from execution except for the most serious crimes

(Article 6 (2)). The Covenant specifically requires a remedy for Covenant violations before an

independent tribunal. (Article 2 (3)(a), Article 14 (1)).

The Covenant was supplemented by President Bush and the United States Senate with

“Reservations, Understandings and Declarations” that limit the application of the Covenant but,

if properly interpreted in a manner consistent with the terms of the treaty and the intent of the

President and the Senate, do not conflict with the goal of providing a remedy to capital

defendants for Covenant violations. Specifically, Reservation 2 only reserves the right of the

United States to execute juveniles, and Declaration 1, stating “the provisions of Articles 1

through 27 of the Covenant are not self-executing,” only prevents using Covenant terms to

support a private cause of action. (U.S. Senate Executive Report 102-23 (102nd Cong.,2d Sess.)).

An expansive interpretation of Reservation 2 beyond “persons subject to execution”

would violate the intent of the President and the Senate, the “object and purpose of the Covenant,

and either invalidate the reservation or remove the United States as a signing State.1 See William

A. Schabas, Invalid Reservations to the International Covenant on Civil and Political Rights: Is

the United States Still a Party, 21 Brook J. Int’l L. 277 (1995); Stefan A. Riesenfeld and

1

Frederick M. Abbott, The Scope of U.S. Senate Control Over the Conclusion and Operation of

Treaties, 67 Chi.-Kent L. Rev. 571 (1991); John Quigley, Human Rights Defenses in US Courts,

20 Hum. Rts. Q. 555, 582-585 (1998). An expansive interpretation of Declaration 1 that

eliminates all Covenant protections pending future legislation would violate Article 2 of the

Covenant and is simply incorrect. Declaration 1 was only intended to limit “private causes of

action” and does not deprive a capital defendant of Covenant protection from state action.2 See

David Sloss, The Domestication of International Human Rights: Non-Self-Executing

Declarations and Human Rights Treaties, 24 Yale.J.Int’l. L. 129 (1999); Connie De La Vega,

Civil Rights During the 1990's: New Treaty Law Could Help Immensely, 65 U.Cin.L. Rev. 423

(1997); Jordan Paust, Symposium: The Ratification of the International Covenant on Civil and

Political Rights: Article: Avoiding “Fraudulent” Executive Policy: Analysis of Non-Self-

Execution of the Covenant on Civil and Political Rights, 42 DePaul L.Rev. 1257 (1993).

(United States v. Duarte-Acero, supra, 208 F.3d 1282).

IIDECLARATION 1 DOES NOT DEPRIVE

PETITIONER OF COVENANT PROTECTION A. Introduction

United States Declaration 1 states, “the provisions of articles 1 through 27 of the

Covenant are not self-executing.” This phrase creates immediate ambiguity because “non-self-

executing” is a judicial doctrine that recognizes a treaty is not judiciable if it does not confer

immediate rights to an individual and requires implementing legislation to be enforceable.

However, the simplistic conclusion that Declaration 1 renders the Covenant unenforceable

contradicts the terms and intent of the Covenant, which grants immediate rights and protections

to a capital defendant and requires a remedy for Covenant violations. It creates additional

2

confusion because the Covenant, as a ratified treaty, is the “law of the land” pursuant to Article

IV, section 2, of the United States Constitution. (United States v. Duarte-Acero, supra, 208 F.3d

1282).

As will be demonstrated, this Court must look at the language of the Covenant and the

intent of the Senate and President to determine whether or not the Covenant is “self-executing.”

A broad interpretation of Declaration 1 would violate the intent of the Covenant to provide rights

and protections to a capital defendant, the specific requirement of a remedy for Covenant

violations, the “object and purpose” of the Covenant to provide rights and protections to

individuals in a signing State, and raise serious international law and constitutional issues. This

disruptive interpretation is unnecessary: the intent of the Senate and the President was only to

“limit causes of action.” (U.S. Senate Executive Report 102-23 (102nd Cong., 2d Sess.). This

“harmonizing” interpretation must be adopted by this Court. (United States v. Delaware and

Hudson Co. (1909) 213 U.S. 366, 407-408 [53 L.Ed. 836, 849, 29 S.Ct. 527].

B. Self Execution: Judicial Tests

The Supremacy Clause of the United States Constitution states without ambiguity that the

Constitution, international treaties and federal statutory law are the “supreme law of the land”

that override any state statutory or constitutional law. (Article IV, section 2). In Asakura v.

Seattle (1924) 265 U.S. 332 [44 S.Ct. 515, 68 L.Ed. 104], the United States Supreme Court

invalidated a city ordinance based on a bilateral treaty with Japan and stated a treaty “stands on

the same footing of supremacy as do the provisions of the Constitution and the laws of the

United States. It operates itself without the aid of legislation, state or national, and will be

applied and given authoritative effect by the courts.” (Id. at 341).

The nature of a treaty (i.e., whether or not it is self-executing) is a matter for judicial

determination. (Islamic Republic of Iran v. Boeing Co. (9th Cir. 1985) 771 F.2d 1279, 1283;

Frolova v. USSR (7th Cir. 1985) 761 F.2d 370, 373) and the interpretation given to a treaty by

the executive branch of government is not controlling. (Kolovrat v. Oregon (1961) 366 U.S.

187, 194 [81 S.Ct. 922, 6 L.Ed.2d 218]). A court may find a treaty is self or non-self-executing

even if the executive branch holds a contrary view. (Warren v. United States (1951) 340 U.S.

523, 526-528, n.2 [71 S.Ct. 432, 95 L.Ed. 503]).

Self-executing treaties immediately provide rights or protections to individuals. (People

of Saipan v. United States Dep’t of Interior (9th Cir.1974) 502 F.2d 90). Non-self-executing

treaties are “executive and political” in nature; they are non-judiciable and require further

legislation before the treaty or its concepts can be enforced by the courts. (Foster v. Neilson

(1829) 27 U.S. (2 Pet.) 253, 315; United States v. Percheman (1833) 32 U.S. (7 Pet.) 51). The

doctrine of self-execution emanates from the separation of powers doctrine. (Carlos Manuel

Vásquez, The Four Doctrines of Self-Executing Treaties, 89 Am. J. Int’l L. 695, 717 (1995)).

Justice Marshall noted in Foster that the Court must rely on the express language of the treaty to

determine if a treaty is “addressed to the political” or if it should have direct effect without the

necessity of implementing legislation pursuant to Article IV, section 2, of the Constitution.

(Foster v. Neilson, supra, 27 U.S. at 315).

More recently, several judicial tests have been developed to determine whether or not a

treaty is self-executing. (Islamic Republic of Iran v. Boeing Co., supra, 771 F.2d 1279, 1283;

Frolova v. USSR, supra, 761 F.2d 370, 373). Courts look to the intent of the signing States, as

demonstrated by the language of the treaty, to determine if it is self-executing and, if the treaty is

uncertain, to the circumstances surrounding its execution. (Sei Fuji v. State (1952) 38 Cal.2d

718, 721-22; People of Saipan v. United States Dep’t of Interior, supra, 502 F.2d 90, 101). If a

treaty contains language “which confers right or obligations on the citizenry of the compacting

nation” it is the law of the land. (People of Saipan v. United States Dep’t of Interior, supra, 502

F.2d 90, 101). Similarly, when treaty rights are “of a nature to be enforced in a court of justice,

that court resorts to the treaty for a rule of decision for the case before it as it would to a statute.”

(Head Money Cases (1884) 112 U.S. 580, 598-599 [28 L.Ed. 798, 5 S. Ct. 247]).

When dealing with multinational human rights treaties, a multifactorial test is necessary

because, “Some U.S. courts have mistakenly applied a unilateral intent test in deciding whether

the terms of a treaty are self-executing, misapprehending the relationship between international

and constitutional law as it applies to the question of self-execution.” (See Stefan A. Risenfeld

and Frederick M. Abbott, The Scope of U.S. Senate Control over the Conclusion and Operation

of Treaties, 67 Chi.-Kent L. Rev. 571 (1991)). In Islamic Republic of Iran v. Boeing Co., supra,

771 F.2d 1279, 1283, the Ninth Circuit developed a four-part test to determine whether and to

what extent a multinational treaty is self-executing. These factors are: 1) the purposes of the

treaty and the objectives of its creators; 2) the existence of domestic procedures and

institutions appropriate for direct implementation; 3) the availability and feasibility of alterative

enforcement methods; and 4) the immediate and long-range social consequences of self or non-

self-execution. (Id. at 1283). The first factor requires an analysis of the terms of Covenant and

the history of the ratification process. It is the definitive factor for determining self-execution.

(Id. at 1283). The remaining three factors are used to determine the extent to which the

Covenant is self-executing. (Id. at 1283). This Ninth Circuit test parallels the “object and

purpose” rule recognized by Article 19 of the Vienna Convention on the Law of Treaties.

(Vienna Convention on the Law of Treaties, May 23, 1969, 155 U.N.T.S. 331, 339).

Frolova v. USSR, supra, 761 F.2d 370, 373, provides a similar test to assess the intent of

the parties to determine if a treaty is self-executing. These factors are: 1) the language and

purposes of the agreement as a whole; 2) the circumstances surrounding its execution; 3) the

nature of the obligations imposed by the agreement; 4) the availability and feasibility of the

alternative enforcement mechanisms; 5) the implications of permitting a private right of actions;

and 6) the capability of the judiciary to resolve the dispute. (Id. at 373).

C. Covenant Terms Grant Immediate Rights and Restrict Capital Punishment

As noted above, this Court must look to the intent and terms of the Covenant to

determine if it is a “self-executing” treaty. Clearly, the terms of the Covenant demonstrate an

intent to provide capital defendants with a broad range of rights and protections and an effective

remedy for Covenant violations. (Article 6 (2), Article 2 (3)(a)). In United States v. Benitez,

supra, 28 F. Supp. 2d 1361, the federal district court supported this conclusion and specifically

observed:

The Human Rights Committee - - created under Article 20 of the ICCPR - - states that the ICCPR is not a mere exchange of obligations between States, but rather, a human rights treaty which is “for the benefit of persons within their jurisdiction.” General Comment 24(52), U.N. Human Rights Committee, 52nd Sess., 1382nd mtg. at 2, U.Doc. ICCPR/C/21/Rev. 1; Add.6 (1994). The committee Comment further declares, “The intention of the Covenant is that the rights contained therein should be ensured to all those under a State’s [sic] party’s jurisdiction. (Id. at 1364-1365).

The Covenant drastically restricts capital punishment and provides stringent

procedural protections for a capital-case defendant. Article 6 (1) specifically states, “No one

shall be arbitrarily deprived of his life.” Article 6 (2) and (6) of the Covenant illustrate that

capital punishment must be severely restricted until it is banned, and the term “arbitrary” broadly

interpreted, as illustrated by the following Covenant Provisions:

Covenant, Article 6 (2) and (6)(2) In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court.(6) Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any state Party to the present Covenant.

Article 4 (1) of the Covenant prohibits any derogation from Article 6, even “in time of public

emergency which threatens the life of the nation and the existence of which is officially

proclaimed.” Article 5 (2) reinforces the importance of the Covenant as a progressive document

that cannot be used as a pretext to limit life and liberty, but is intended to expand human liberty

and the right to life. As stated in Article 5 (2):

There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.

Article 14 (1) of the Covenant defines the rights that must be granted to avoid arbitrariness:

“everyone shall be entitled to a fair and public hearing by a competent, independent and

impartial tribunal established by law.” The Second Optional Protocol to the International

Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, although

not yet ratified by the United States, indicates the Covenant must be strictly interpreted to restrict

capital punishment when it notes, “that article 6 of the International Covenant on Civil and

Political Rights refers to abolition of the death penalty in terms that strongly suggest that

abolition is desirable . . .”

The Human Rights Committee provided guidance concerning Covenant

interpretation when it discussed the concept of “arbitrariness.” As the Committee noted, “the

introduction of the concept of arbitrariness is intended to guarantee that even interference

provided for by law should be in accordance with the provisions, aims and objectives of the

Covenant and should be, in any event, reasonable in the particular circumstances.” (Human

Rights Committee, General Comment 16 (32d Sess. 1988), IHRR Vol. 1 No. 2 (1994)). All

Covenant language must be interpreted in the same manner: “in accordance with the provisions,

aims and objectives of the Covenant.” (Ibid.)

Article 2 of the Covenant states a signing State must provide a remedy for

Covenant violations, consistent with its constitutional structure.3 Covenant, Article 2 (2) states,

in pertinent part, “each State Party to the present Covenant undertakes to take the necessary

steps, in accordance with its constitutional processes and with the provisions of the present

Covenant, to adopt such legislative or other measures as may be necessary to give effect to the

rights recognized in the present Covenant.” Article 2 (3)(a) states each state must ensure that

“any person whose rights or freedoms as herein recognized are violated shall have an effective

remedy, notwithstanding that the violation has been committed by persons acting in an official

capacity.” In the United States, the constitutional method for enforcing treaty rights that protect

criminal defendants is judicial, as specifically provided by Article IV, section 2, of the United

States Constitution. Where a defendant seeks to invoke the Covenant defensively, Article 2 (3)

(b) requires courts to reach the merits of a claim. The United States made no reservation to

3

Article 2 (3) and it is binding on this court as the ‘law of the land” and as international law. (See

David Sloss, The Domestication of International Human Rights: Non-Self-Executing

Declarations and Human Rights Treaties, pages 156-157).

D. Intent of President Bush and the Senate

The Senate Committee on Foreign Relation issued a report after considering a

request by President Bush for the Senate’s advice and consent to the Covenant. (U.S. Senate

Executive Report 102-23 (102nd Cong.,2d Sess.). The Senate Committee specifically addressed

the intent and purpose of both the Covenant and the reservations, understandings and

declarations that were provided by the President. When considering the intent and purpose of the

Covenant, the Senate Committee Report recognized the intent to provide immediate rights and

protections, and specifically stated:

The Covenant guarantees a broad spectrum of civil and political rights, rooted in basic democratic values and freedoms, to all individuals within the territory or under the jurisdiction of the State Party without distinction of any kind, such as race, gender, ethnicity, et cetera. The Covenant obligates each State Party to respect and ensure these rights, to adopt legislative or other necessary measures to give effect to these rights, and to provide an effective remedy to those whose rights are violated.

President George Bush also indicated he intended the Covenant to provide rights

and protections to individuals in this country in his letter to the Senate Foreign Relations

Committee. (U.S. Senate Executive Report 102-23 (102nd Cong., 2d Sess. 1992). As President

Bush stated:

United States ratification of the Covenant on Civil and Political Rights at this moment in history would underscore our natural commitment to fostering democratic values through international law. The Covenant codifies the essential freedoms people must enjoy in a democratic society, such as the right to vote, freedom of peaceful assembly, equal protection of the law, the right to

liberty and security, and freedom of opinion and expression. Subject to a few essential reservations and understandings, it is entirely consonant with the fundamental principles incorporated in our own Bill of Rights. U.S. ratification would also strengthen our ability to influence the development of appropriate human rights principles in the international community and provide an additional and effective tool in our efforts to improve respect for fundamental freedoms in many problem countries around the world.

On April 2, 1992, the Covenant was discussed and ratified by the Senate. (United

States Senate, Executive Session, International Covenant on Civil and Political Rights, Political

Rights (102nd Cong.,2d Sess., Vol. 138, No. 49,138 Cong. Rec. S4781). Senate Foreign

Relations Committee Chairman Claiborn Pell addressed the Senate and stated:

The United States plays a leading role in the international struggle to promote and protect human rights. However, failure to ratify the covenant has blemished our record and cast doubt, in some quarters, about the seriousness of our commitment to human rights. Ratification will reverse this situation. It will demonstrate that our commitment is serious and sincere and strengthen our voice as a champion of human rights.

Senator Patrick Moynihan addressed his colleagues prior to ratification and

specifically stated to the Senate:

The administration has not taken a blanket, or catchall reservation. It has not said that our domestic practices, wherever they differ from the Covenant, are always superior. Rather, it has undertaken a meticulous examination of U.S. practice to insure that the United States will in fact comply with the obligations that it is assuming. This can certainly be viewed as an indication of the seriousness with which the obligations are regarded rather than as an expression of disdain for the obligations. Certainly, there was a time when the nations of the totalitarian block ratified obligations without reservation - - obligations that they had no intention of carrying out. Far better to ratify with the firm intention of living up to the covenant’s terms.It is inconceivable that President Bush and the Senate would ratify and consent to

the Covenant but intend to deny Covenant protections to everyone in this country. To the

contrary, the intent of the Senate and the President was to comply with the terms of the

Covenant, except as noted in specific reservations, understandings and declarations. The

Senate Committee Report noted the limited intent of Declaration 1 and stated, “For reasons of

prudence, we recommend including a declaration that the substantive provisions of the Covenant

are not self-executing. The intent is to clarify that the Covenant will not create a private

cause of action in U.S. courts.” (U.S. Senate Executive Report 102-23 (102nd Cong.,2d Sess.).

A broad reading of Declaration 1 was rejected by the executive branch. On

March 29, 1995, a representative of the United States appeared before the U.N. Human Rights

Committee to discuss U.S. implementation of the Covenant. (Comments reprinted in Marian

Neich, U.S. Practice: International Covenant on Civil and Political Rights: U.S. Presentation

before the Human Rights Committee (1995) 89 A.J.I.L. 589). This representative, Legal Advisor

to the Department of State, Conrad K. Harper, made the following statements concerning the

executive branch interpretation of the Covenant:

We have taken no “general” reservations to the Covenant. We have not, for example, subjected our adherence to unidentified provisions of the U.S. Constitution. As a matter of domestic law, we have declared the substantive provisions of the Covenant to be “non-self-executing.” This declaration is not a reservation and does not affect our international obligations under the Covenant. Rather, it means that the Covenant does not, by itself, create private rights enforceable in U.S. courts; that can only be achieved by Federal legislation.

Additional comments indicated the United States knew the Covenant would

impact criminal procedures and “narrow reservations” were drafted when needed to limit

application of the Covenant. As stated by Mr. Harper:

Other covenant provisions, while not touching on constitutional issues, vary from existing U.S. law in certain respects, requiring us to condition U.S. adherence either on a narrowly-tailored reservation or on a statement of our understanding of what the Covenant in fact requires. Most of these concern the workings of our criminal justice system.

The intent of the Senate and the President was not to limit Covenant protections in

a capital prosecution but to limit an explosion of litigation. This position is supported by recent

case law. (United States v. Duarte-Acero, supra, 208 F.3d 1282; Maria v. McElroy, supra, 68 F.

Supp.2d 206; United States v. Benitez, supra, 28 F. Supp.2d 1361).

E. Additional Judicial Factors Support Self-Execution

The additional factors listed in Islamic Republic of Iran and Frolova should be

considered by this Court and pose no barrier to self-execution. The courts regularly interpret

similar statutory and constitutional provisions and are the most appropriate institutions for the

direct implementation of the rights and protections of the Covenant. There are virtually no

alternative methods for enforcing Covenant rights and protections in the United States except the

courtroom. The “immediate and long range consequences” of finding the Covenant “self-

executing” would be to provide Covenant protection to capital defendants in this country. It

would demonstrate to the world that the United States is serious about human rights and

was honorable when it signed this treaty. Based on this analysis, the Covenant is self-

executing to the extent that it grants a judicial remedy to enforce Covenant rights and protections

to capital defendants.

III

A BROAD INTERPRETATION OF DECLARATION 1

RAISES CONSTITUTIONAL CONCERNS

As previously discussed, the U.S. Senate cannot usurp the power of this Court and

declare the Covenant is not self-executing without violating the separation of powers doctrine.

(See Marbury v. Madison (1803) 5 U.S. 137, 177-178 [2 L.Ed. 60, 2 Cranch 137]). In addition,

the Constitution specifically avoided granting any power to control a treaty to the House of

Representatives. (U.S. Const. Article II, section 2, and Article IV, section 2). Simply declaring

the Covenant to be “non-self-executing,” and thus require further legislation to implement treaty-

granted rights and protections, creates an unconstitutional veto power over treaties for the House

of Representatives. In Clinton v. City of New York (1998) 524 U.S. 417, 448-449 [141 L.Ed. 2d

393, 118 S.Ct. 2091] the United States Supreme Court declared the “line item veto”

unconstitutional on the ground that the Constitution did not authorize the President to “enact,

amend or repeal statutes.” The Supreme Court specifically noted, the “constitutional silence on

this profoundly important issue [is] equivalent to an express prohibition.” (Id. at 448-449).

Based on this same analysis, the “non-self-executing” declaration of the U.S. Senate, if broadly

interpreted by this Court, is also unconstitutional.

This Court must not interpret Declaration 1 in a manner that violates international

law. In Kim Ho Ma v. Reno (9th Cir. 2000) 208 F.3d 81, the Ninth Circuit interpreted federal

law to prohibit the indefinite detention of a deportable alien. Looking to the Covenant, the Court

held, “we should apply the well-established Charming Betsy rule of statutory construction which

requires that we generally construe Congressional legislation to avoid violating international

law.” (Murray v. The Schooner Charming Betsy (1902) 6 U.S. 64 [2 L.Ed. 208, 2 Cranch 64).

Article 27 of the Vienna Convention of the Law of Treaties states that “a party

may not invoke the provisions of its internal law as justification for its failure to perform a

treaty.” (Vienna Convention on the Law of Treaties, May 23, 1969, 155 U.N.T.S. 331, 339).

Interpreting Declaration 1 in a manner that denied any remedy to a capital defendant for

Covenant violations would violate this provision of the Vienna Convention and Article 5,

paragraph 2, of the Covenant. (See William Schabas, Invalid Reservations to the International

Covenant on Civil and Political Rights: Is the United States Still A Party?, supra, at 284-286.)

IV

RESERVATION 2 ONLY APPLIES TO JUVENILE EXECUTIONS

Reservation 2 was only intended to preserve the right to execute children between

the ages of 16 and 18 and was never intended to be a general reservation to all the provisions of

Article 6 that limit capital punishment. The President and the Senate never, under any

circumstances, intended the language of Reservation 2 to eliminate every right and protection

granted to a capital defendant by the Covenant.

All five Reservations to the Covenant make specific reference to articles of the

Covenant except Reservation 2, which only discusses “persons subject to execution.” As

Reservation 2 states:

That the United States Reserves the right, subject to its Constitutional constrains, to impose capital punishment on any person (other than pregnant women) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age.

The explicit intention of the Reservation 2, as demonstrated by the Senate Foreign

Relations Report (U.S. Senate Executive Report 102-23 (102nd Cong.,2d Sess., 1992) and the

Congressional Record (102nd Cong.,2d Sess., Vol 138, No. 49, 138 Cong. Rec. S4781), was to

fully inform all Covenant signatories that the United States reserved the right to execute

juveniles between the ages of sixteen and eighteen. As continually stated in the Congressional

Record, every effort was made by the United States to make its reservations as narrow as

possible. A limited interpretation of Reservation 2 is consistent with the explicit language of the

reservation, the statements made by the President and the Senate when it was ratified, and the

statements made when it was clarified by the United States representative to the Human Rights

Committee on March 29, 1995. (David P. Stewart, U.S. Ratification of the Covenant on Civil

and Political Rights: The Significance of the Reservations, Understandings and Declarations, 14

Hum. Rts. L.J. 77, 82 (1993)).

The Senate Committee Report only focused on Article 6, paragraph 5 of the

Covenant and the “persons,” specifically juveniles and pregnant women, who might be executed

when it considered Reservation 2. The Committee Report made no reference to Article 6,

paragraph 1, and its prohibition against arbitrary execution, or to any other specific paragraph in

Article 6. As the Senate Committee Report stated:

2. Capital punishmentArticle 6 limits the circumstances in which capital punishment may be imposed. Article 6 specifically prohibits the imposition of the death sentence for crimes committed by persons below 18 years of age and on pregnant women. The Administration accepted the obligations with respect to pregnant women. However, it proposed a reservation clarifying that the United States does not accept the prohibition on executing people for crimes committed while they were 16 or 17 years of age. The execution of people for crimes committed while they were under the age of 16 has been ruled unconstitutional by the Supreme Court. The reservation proposed by the Bush Administration is significantly narrower than that proposed by the Carter Administration.

The Senate Committee Report later stated:

2. Article 6 (capital punishment)Article 6, paragraph 5 of the Covenant prohibits imposition of the death sentence for crimes committed by persons below 18 years of age and on pregnant women. In 1978, a broad reservation to this article was proposed in order to retain the right to impose capital punishment on any person duly convicted under existing or future laws permitting the imposition of capital punishment. The

Administration is now prepared to accept the prohibition against execution of pregnant women. However, in light of the recent reaffirmation of U.S. policy towards capital punishment generally, and in particular the Supreme Court’s decisions upholding state laws permitting the death penalty for crimes committed by juveniles aged 16 and 17, the prohibition against imposition of capital punishment for crimes committed by minors is not acceptable. Given the sharply differing view taken by many of our future treaty partners on the issue of the death penalty (including what constitutes “serious crimes” under Article 6 (2)), it is advisable to state our position clearly.

U.S. Representative Conrad Harper clearly indicated the limited focus of

Reservation 2 when he stated to the Human Rights Committee, “The most significant of these

[i.e., reservations], and perhaps the most controversial, is our reservation to the prohibition in

Article 6 against the imposition of the death penalty for crimes committed by persons below 18

years of age.” (Comments reprinted in Marian Neich, U.S. Practice: International Covenant on

Civil and Political Rights: U.S. Presentation before the Human Rights Committee (1995) 89

A.J.I.L. 589).

This Court must not expand Reservation 2 beyond its intended purpose of

carefully preserving the right of this country to execute juveniles. Petitioner must not be

precluded from Covenant rights and protections by an over-broad and erroneous interpretation of

this reservation.

V

THE OBJECT AND PURPOSE OF THE

COVENANT MUST BE HONORED

The International Court of Justice recognized that, in the absence of a provision in

the treaty to the contrary, reservations to multilateral treaties are permissible if they do not

conflict with the “object and purpose” of the treaty. (Reservations to the Convention on the

Prevention and Punishment of the Crime of Genocide, 1951, I.C.J. 15 (May 28, 1951). This

position was codified in the Vienna Convention on the Law of Treaties, Article 19 (1155

U.N.T.S. 331, 339), and is accepted as precedent in the United States. (S.Exec.Doc.L.92d Cong.,

1st Sess. (1971) p.1). It is consistent with the Restatement (Third) of Foreign Relations Law of

the United States, sec.313(1)(c)(1987), and has been adopted by the International Court of

Justice and the General Assembly. (1951 I.C.J. 15 (May 28, 1951); Accepted by General

Assembly, G.A. Res. 598 (VI), U.N. GAOR, 6th Sess.,360 plen. Mtg. at 84, U.M.Doc. A/L 37

(1952)).

The “object and purpose” of the Covenant are best expressed in the Senate

Foreign Relations Committee (“The Covenant guarantees a broad spectrum of civil and political

rights, rooted in basic democratic values and freedoms, to all individuals within the territory or

under the jurisdiction of the State Party . . . “) and by the language of Article 2 (1) of the

Covenant (“Each State Party to the present Covenant undertakes to respect and to ensure to all

individuals within its territory and subject to its jurisdiction the rights recognized in the present

Covenant . . . ”). The treaty text and statements by the United States indicate an intention to

grant the rights and protections of the Covenant to individuals confronted by the state, especially

in a capital case. (See Article 2 and Article 6 (2)).

A broad reading of Declaration 1 and Reservation 2 would raise substantial issues

that these reservations must either be excluded or the United States could be viewed as a non-

signatory party.4Belilos v. Switzerland, 132 Eur. Ct. H.R. (Ser.A) (1988). In Belilos, the

European Human Rights Court ruled invalid a Swiss reservation to a multiparty treaty, even

4

though there had been no objections filed by other party states. The U.S. reservation regarding

juvenile executions received objections from 11 European Party States. See William Schabas,

Invalid Reservations to the International Covenant on Civil and Political Rights: Is the United

States Still A Party?, supra, at 310-311, 317. Even when the scope of Reservation 2 was

limited to Article 6, paragraph 5, the 1995 Human Rights Committee found it violated the

“object and purpose” of the Covenant. (Human Rights Committee, Comments on the United

States of America, U.N. Doc. CCCPR/C/79/Add.50 (1995). As the Committee stated, at note 15:

The Committee is also particularly concerned at reservations to Article 6, paragraph 5, and Article 7 of the Covenant, which it believes to be incompatible with the object and purpose of the Covenant.

The Committee added, in pertinent part, at note 27:

The Committee recommends that the State party review its reservations, declarations and understandings with a view to withdrawing them, in particular reservations to Article 6, paragraph 5, and Article 7 of the Covenant.

The United States may “enter a reservation to a multilateral international

agreement unless reservations are prohibited by the agreement.” (Restatement (Third) of

Foreign Relations Law of the United States, section 313(1)(a)). The Covenant specifically

prohibits any derogation to Article 6 even “in time of public emergency which threatens the life

of the nation and the existence of which is officially proclaimed” (Article 4, paragraphs 1 and 2).

The Human Rights Committee has noted that, “while there is no automatic correlation between

reservations to non-derogable provisions, and reservations which offend against the object and

purpose of the Covenant, a State has a heavy onus to justify such a reservation.” (General

Comment No. 24 (52) relating to Reservations, U.N. GAOR, Hum. Rts. Comm., 52 Sess., 1382d

mtg. paragraph 3, U.N. Doc. CCCPR/C/21/Rev.1/Add.6 (1994)). The United States could not

justify such a massive reservation if its stated intent is to uphold the Covenant.

The Human Rights Committee declared that provisions in the Covenant that are

also norms of customary international law may not be the subject of reservations. (Id. at

paragraph 8). The International Court of Justice has ruled, in essence, that the arbitrary taking of

human life violates customary law. (Military and Paramilitary Activities (Nicar. V. U.S.) 1986

I.C.J. 14 (June 27, 1986). Interpreting Declaration 1 and Reservation 2 to include Article 6 (1),

which prohibits the arbitrary taking of human life, would violate this rule of international law.

Indeed, a broad interpretation of Reservation 2 and Declaration 1 could exclude the United States

as a party to the Covenant. (See William Schabas, Invalid Reservations to the International

Covenant on Civil and Political Rights: Is the United States Still a Party? 21 Brooklyn J. Int’l L.

277 (1995)).

Declaration 1 and Reservation 2 must be narrowly construed to avoid offending

international law. Reservation 2 only addressed the “persons subject to execution,” and was not

intended to limit the rights and protections guaranteed to a capital defendant. Declaration 1 was

only intended to limit “private causes of action.”

VI

THE COVENANT MAY BE USED DEFENSIVELY

It must be assumed that the United States knew the Constitution would make the

Covenant “Law of the Land” that superseded state law and state constitutions unless limitations

were imposed by specific reservations, understandings or declarations. When there was Senate

or Presidential concern during the ratification process that a Covenant provision might affect

domestic law, it was addressed directly by a specific reservation or understanding. (See

statements of Conrad Harper, infra, page 18).

While the United States intended to prevent “private causes of action,” it did not

intend to deny the rights and protections of the Covenant to capital defendants. While no cases

have directly addressed the relationship between the doctrine of self-executing treaties and using

a treaty strictly for defensive purposes, the United States Supreme Court has accepted treaty-

based defenses with respect to the application of state laws that were inconsistent with

treaty agreements. (Kolovrat v. Oregon (1961) 366 U.S. 187 [81 S.Ct. 922, 6 L.Ed.2d 218];

Patsone v. Pennsylvania (1914) 232 U.S. 138 [34 S.Ct. 281, 58 L.Ed.2d 539]; Cook v. United

States (1933) 288 U.S. 102 [53 S.Ct. 305, 77 L.Ed. 64]; Ford v. United States (1927) 273 U.S.

593 [47 S.Ct. 531, 71 L.Ed. 793]; United States v. Rauscher (1886) 119 U.S. 407 [7 S.Ct. 234,

30 L.Ed.2d 425].)

These cases reflect and support the holding in United States v. Durate-Acero,

supra, 208 F.3d 1282, and the Seventh and Ninth Circuit “self-executing” tests: to the extent a

treaty intends to protect citizens from state action, is “self-executing” and should fulfill that

intended purpose. The language of Declaration 1 and Reservation 2 must not limit Petitioner’s

right to Covenant protection from state action.CONCLUSION

It is respectfully requested that a stay of Petitioner’s capital trial, set to begin on

February 14, 2001, be immediately granted and Petitioner’s Petition for Writ of Certiorari also

be granted by this Court.

The ratification of the Covenant by the United States of America was an

honorable act and a statement of its commitment to human rights. Every individual in this

country must enjoy all the rights and protections of this international treaty. The State of

California is attempting to kill Rex Allan Krebs. He must have the rights and protections of the

Covenant at his capital trial.

DATED: February 5, 2001 Respectfully submitted,

______________________________William R. McLennanAttorney for PetitionerRex Allan Krebs

PROOF OF SERVICE/ CERTIFICATE OF SERVICE

I am a member of the Bar of this Court, representing Petitioner Rex Allan Krebs. I have served the enclosed Motion for Leave to Proceed In Forma Pauperis, Application for Stay

of Petitioner’s capital trial, and the Petition for a Writ of Certiorari on each party to the above proceeding, or that party’s counsel, and on every other person required to be served on February

6, 2001, by placing the above documents in a Federal Express envelope and depositing each envelope at a Federal Express Office, properly addressed to each of them, and fully paid. The

names and addresses of those served are as follows:Representing the People of the State of California:District Attorney Gerald Shea

Deputy District Attorney John TriceDeputy District Attorney Timothy Covello

Office of the District AttorneyCounty Government Center, Room 450150 Monterey Street San Luis Obispo, California 93408

In compliance with Rule 29(4)(c):California Attorney General Bill Lockyear 300 South Spring Street, Fifth Floor, North TowerLos Angeles, California 90013

Solicitor General of the United StatesDepartment of Justice, Room 5614950 Pennsylvania Avenue, N.W.Washington, D.C. 20530

Pursuant to the Application for Stay of the Trial (February 14, 2001):The Honorable Barry LaBarbera San Luis Obispo County Superior CourtCounty Government Center, Room 220 San Luis Obispo, California 93408

_____________________________________William R. McLennan, Attorney for

Petitioner