In an effort to persuade the United States to abandon the death penalty, currently a criminal punishment in 38 states, lawyers and human rights activists have argued that the practice is, at least in some cases, illegal under international law. These arguments usually focus on the executions of two types of offenders: Those who were under the age of 18 at the time of their crime, and foreign nationals.

Juveniles
Since the United States Supreme Court reinstated the death penalty in 1976, states have executed 21 men who were under 18 when they committed their crime. This practice is prohibited by the 1966 International Covenant on Civil and Political Rights (ICCPR), which the United States ratified in 1992, with a reservation.

The ICCPR states in Article 6 that a “sentence of death shall not be imposed for crimes committed by persons below eighteen years of age.” The United States’ reservation to Article 6 states that it reserves the right “to impose capital punishment on any person (other than a pregnant woman) duly convicted…including such punishment for crimes committed by persons below eighteen years of age.” In the view of the U.N. Human Rights Committee, the United States' reservation is incompatible with the object and purpose of the treaty, is invalid, and should be withdrawn. For more information on reservations to treaties and their validity, see the resources provided by the American Society of International Law.

Two other international treaties, to which the United States is not party, also ban the execution of juvenile offenders. The American Convention on Human Rights ratified by 25 countries, states that "capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age." The U.N. Convention on the Rights of the Child, states in Article 37(a) that “neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age." U.S. presidents signed both of these treaties but they were not ratified.

Because a ban on executing underage offenders is widely recognized internationally, some scholars argue that it constitutes a norm of customary international law, and therefore supersedes specific laws and treaties.

• American Convention on Human Rights
• Convention on the Rights of the Child
• International Covenant on Civil and Political Rights
• Universal Declaration of Human Rights
• U.S. Constitution: Article VI
• Vienna Convention on Consular Relations
• U.S. 9th Circuit Court of Appeals Decision affirming a lower court's denial of Walter LaGrand’s petition for a writ of habeas corpus.
• U.S. Supreme Court Ruling denying a stay of execution to Paraguayan national Angel Francisco Breard

• Phyllis Bennis, UN Sets its Sights on US Arrogance, The Baltimore Sun, (May 13, 2001).
• Jennifer Brown and Connie de la Vega, Can A United States Treaty Reservation Provide a Sanctuary for the Juvenile Death Penalty?, 32 U.S.F.L. L. Rev. 735 (1998).
• Claes Cronstedt, International Law, Human Rights and the Death Penalty, Paper for the Duke Law School Conference on International Law, Human Rights and the Death Penalty, (Geneva, July 19-20, 2002).
• Richard C. Dieter, International Perspectives on the Death Penalty: A Costly Isolation for the U.S., Death Penalty Information Center (October 1999).
• Richard C. Dieter, The U.S. Death Penalty and International Law: U.S. Compliance with the Torture and Race Conventions, Presentation to the Ford Foundation Symposium, (November 12, 1998).
• Thomas M. Frank, Are Human Rights Universal?, Foreign Affairs, (February 2001).
• Ryan Goodman, Human Rights Treaties, Invalid Reservations and State Consent, A.J.I.L. (July 2002).
• Harold Koh, Paying ‘Decent Respect’ to World Opinion on the Death Penalty, 35 U.C. Davis L. Rev 1085 (May 2002).
• John Quigley, Human Rights Defenses in U.S. Court, 20 Hum. Rts. Q. 555 (1998).
• 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).
• Edward Sherman, The U.S. Death Penalty Reservation to the International Covenant on Civil and Political Rights: Exposing the Limitations of the Flexible System Governing Treaty Formation, 29 Tex. Int'L L.J. 69, 86 (1994).
• Carol S. Steiker, Capital Punishment and American Exceptionalism, Paper for the Duke Law School Conference on International Law, Human Rights and the Death Penalty, (Geneva, July 19-20, 2002).
• John Quigley, Human Rights Defenses in U.S. Court, 20 Hum. Rts. Q. 555 (1998).
• Richard J. Wilson, Defending a Criminal Case with International Human Rights Law, 24 Champion 28, 30 (2000).

• Roger G. Hood, The Death Penalty: A World-Wide Perspective, 2nd ed., (Oxford, UK: Clarendon Press; New York: Oxford University Press, 1996).
• William Schabas, The Abolition of the Death Penalty in International Law, 2d ed., (New York: Cambridge University Press, 1997).
• William Schabas, The Death Penalty As Cruel Treatment and Torture: Capital Punishment Challenged in the World's Courts (Boston: Northeastern University Press, 1996).

• American Civil Liberties Union
• Breard Links
• Campaign to End the Death Penalty
• Citizens United for Alternatives to the Death Penalty
• Cornell Death Penalty Project
• The Death Penalty – a Defence
• Death Penalty Focus
• Death Penalty Information Center
• International Court of Justice

Written March 13, 2003; Last updated May 15, 2007.