¹ Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A) (1989), reprinted in 11 Eur. Hum. Rts. REP. 439 (1989), 28 ILM 1063 (1989) [hereinafter Soering Case].

² 4 Va. Code Ann. §18.2-10(a) (1988).

³ European Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 3, opened for signature Nov. 4, 1950, Europ. TS No. 5, 213 UNTS 221 (entered into force Sept. 3, 1953) [hereinafter European Convention]. Article 3 reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

⁴ Unless otherwise indicated, the facts set out in this discussion are taken from the Court’s judgment, note 1 supra, or from the report of the European Commission on Human Rights, Soering v. United Kingdom, Eur. Comm’n H.R., slip op. (Jan. 19, 1989), reprinted in part (slip op. at 15–39) in Soering Case, 161 Eur. Ct. H.R. (ser. A) at 54–83 [hereinafter Soering Comm’n Rep.]. For a vivid account of the events that gave rise to the Soering case, see K. Englade, Beyond Reason (1990).

⁵ Extradition Treaty, United States-United Kingdom, June 8, 1972, 28 UST 227, TIAS No. 8468 (entered into force Jan. 21, 1977). Murder heads the list of offenses for which extradition shall be granted under a schedule annexed to the Treaty.

⁶ Extradition Act, 1870, 33 & 34 Vict., ch. 52, §8.

⁷ The report of a consultant forensic psychiatrist submitted on Soering’s behalf defined folie à deux as follows: “ ‘a well-recognised state of mind where one partner is suggestible to the extent that he or she believes in the psychotic delusions of the other.’ ” Soering Case, supra note 1, para. 21.

⁸ The Extradition Act now provides:

[T]he Secretary of State may decide to make no order for the return of a person accused or convicted of an offence not punishable with death in Great Britain if that person could be or has been sentenced to death for that offence in the country by which the request for his return is made.

Extradition Act, 1989, ch. 33, § 12(2)(b) (emphasis added).

Since Great Britain has abolished the death penalty for all but a handful of exceptional crimes, R. Hood, The Death Penalty 169–70 (1989), this provision gives it considerable discretion with respect to the extradition of persons sought for capital crimes. While in effect reaffirming the incorporation of Article IV of the U.S.-UK Treaty into the law of Great Britain, note 9 infra, it also makes the discretionary approach applicable to similar extradition requests from other countries.

⁹ U.S.-UK Extradition Treaty, supra note 5, Art. IV (emphasis added). Extradition arrangements between the United States and Great Britain were incorporated into British law by the United States of America (Extradition) Order, S.I. 1976, No. 2144. For the way Great Britain implements Article IV administratively, see text at note 11 infra.

¹⁰ See note 9 supra.

¹¹ Soering Case, supra note 1, para. 37.

¹² Id., para. 15.

¹³ Id., para. 20.

¹⁴ Id., para. 22.

¹⁵ Id. The divisional court considered the affidavit to be

“nothing more than an undertaking to make representations on behalf of the United Kingdom to the judge. I cannot believe that this is what was intended when the Treaty was signed. But I can understand that there may well be difficulties in obtaining more by way of assurance in view of the federal nature of the United States Constitution.”

Id.

¹⁶ Id. As a supplementary reason for his decision, Lord Justice Lloyd opined that “ ‘even if a decision to regard the assurance as satisfactory had already been made by the Secretary of State, then on the evidence currently before us I am far from being persuaded that such a decision would have been irrational in the Wednesbury sense.’ ” Id. The reference to Wednesbury is to the case of Associated Provincial Picture Houses, Ltd. v. Wednesbury Corp., [1948] 1 K.B. 223, where the court looked to principles of reasonableness to determine when it might review the Secretary of State’s exercise of discretion in making a decision. “The test in an extradition case would be that no reasonable Secretary of State could have made an order for return in the circumstances.” Soering Case, supra note 1, para. 35.

¹⁷ Id., para. 23.

¹⁵ Id., para. 24.

¹⁹ Id.

²⁰ The European Convention, supra note 3, Art. 2(1), reads as follows: “Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.” On the other hand, Article 1 of Protocol 6 to the European Convention, ratified by 14 state parties (but not Great Britain) as of January 1, 1990, categorically abolishes the death penalty in time of peace. Protocol No. 6 to the European Convention Concerning the Abolition of the Death Penalty, opened for signature Apr. 28, 1983, Europ. TS No. 114, reprinted in 22 ILM 538 (1983) (entered into force Mar. 1, 1985). The Protocol, which introduces “a new obligation to abolish capital punishment,” Soering Case, supra note 1, para. 103 (emphasis added), is compelling evidence that the state parties do not regard the Convention itself as prohibiting the death penalty.

²¹ Indeed, in Soering the Court reaffirmed its jurisprudence in this regard, stating that neither the intention of the drafters of the Convention nor the subsequent practice of the state parties justified such an expansive interpretation of Article 3. See text at notes 81–88 infra.

²² Soering advanced two other arguments that are not considered elsewhere in this Note: (1) that his extradition to the United States would violate Article 6(3)(c) of the European Convention because legal aid was not available in Virginia to fund various appeals; and (2) that he had no effective remedy under English law in respect of his Article 3 complaint, as required by Article 13 of the Convention.

As to the first argument, the Commission unanimously held that Great Britain could not be held directly responsible for the lack of public legal aid in Virginia to fund collateral challenges before state or federal courts; nor could Soering’s proposed extradition give rise to British responsibility under Article 6(3)(c), which mandates free legal assistance to criminal defendants “when the interests of justice so require.” Soering Comm’n Rep., supra note 4, paras. 155–57. The Court also unanimously held that, under the facts of the case, there was no question of an Article 6(3)(c) violation. Soering Case, supra note 1, paras. 112–13. However, it left the door open to finding such violations in future extradition cases “in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country.” Id., para. 113.

With respect to the second argument, the Commission examined the three remedies available to Soering in Great Britain—habeas corpus, petition to the Secretary of State and judicial review—and concluded, by seven votes to four, that none of them were an effective remedy for purposes of Article 13, which guarantees persons whose Convention rights are violated “an effective remedy before a national authority.” Soering Comm’n Rep., supra, paras. 164–69. The Court, however, noting that Soering’s application for judicial review had failed only because it had been premature, Soering Case, supra, para. 122, and text at note 16 supra, concluded that “[t]here was nothing to have stopped Mr Soering bringing an application for judicial review at the appropriate moment and arguing ‘Wednes-bury unreasonableness’ on the basis of much the same material that he adduced before the Convention institutions in relation to the ‘death row phenomenon.’ ” Soering Case, para. 122. Based upon this appreciation of English law, the Court unanimously concluded that Soering had had an effective remedy in relation to his complaint under Article 3 and that, accordingly, there had been no breach of Article 13. Id., para. 124.

The Court’s review of English administrative law jurisprudence has been called “highly contentious” by a British writer, who finds this aspect of the Court’s judgment “very odd” for another reason as well. Robertson, Extradition, Inhuman Treatment and the Death Penalty, 154 Just. Peace 231, 232 (1990). “If it were true,… it would mean that Soering had a remedy in England which he had failed to exhaust. It is a basic principle of the Convention [found in Art. 26] that local remedies must be exhausted before an applicant turns to the European system.” Id. The Court did not discuss this matter.

²⁵ Soering Case, supra note 1, para. 77. The Commission subsequently prolonged this request until the case was referred to the Court. Id. See text at note 72 infra.

²⁴ Soering Case, supra note 1, para. 78.

²⁵ Soering Comm’n Rep., supra note 4, para. 154.

²⁶ European Convention, supra note 3, Art. 1 (emphasis added).

²⁷ Soering Comm’n Rep., supra note 4, para. 96.

²⁸ Altun v. Federal Republic of Germany, 36 Eur. Comm’n H.R., Decisions & Rep. [hereinafter Eur. Comm’n H.R. D. & R.] 209 (1984) (extradition); Kirkwood v. United Kingdom, 37 id. at 158 (1984) (extradition); M. v. France, 41 id. at 103 (1985) (deportation).

²⁹ The Commission cited two decisions of the Swiss Federal Tribunal. Soering Comm’n Rep., supra note 4, para. 97. German courts apparently have taken a similar approach. Soering Case, supra note 1, para. 82.

⁵⁰ The Commission quoted Article 3(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec. 10, 1984, GA Res. 39/46, 39 UN GAOR Supp. (No. 51) at 197, 198, UN Doc. A/39/51 (1985) (entered into force June 26, 1987), which provides: “No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Soering Comm’n Rep., supra note 4, para. 97. Note that Article 3(1) specifically limits a state’s obligation not to return a person to situations involving “torture”; the drafters of the Convention did not accept the original proposal that it also cover “cruel, inhuman or degrading treatment or punishment.” Thus, a more relevant treaty for the Commission to have cited would have been the Inter-American Convention to Prevent and Punish Torture, adopted Dec. 9, 1985, reprinted in 25 ILM 519 (1986) (entered into force Feb. 28, 1987); Article 13 provides, inter alia: “Extradition shall not be granted nor shall the person sought be returned when there are grounds to believe that … he will be subjected to torture or to cruel, inhuman or degrading treatment …” (emphasis added).

Two extradition treaties that speak directly to the death penalty issue might have been marshaled by the Commission to support its position. Article 11 of the European Convention on Extradition (to which Great Britain is not a party), a precursor of Article IV of the U.S.-UK Extradition Treaty, note 9 supra, provides that when the offense is punishable by death under the law of the requesting party but not that of the requested party, or the death penalty is not normally carried out by the latter party, “extradition may be refused unless the requesting Party gives such assurance as the requested Party considers sufficient that the death-penalty will not be carried out.” European Convention on Extradition, signed Dec. 13, 1957, Europ. TS No. 24, 359 UNTS 273 (entered into force Apr. 18, 1960). The Inter-American Convention on Extradition would have been even more supportive of the Commission’s position. Article 9 provides:

The States Parties shall not grant extradition when the offense in question is punishable in the requesting State by the death penalty, by life imprisonment, or by degrading punishment, unless the requested State has previously obtained from the requesting State, through the diplomatic channel, sufficient assurances that none of the above-mentioned penalties will be imposed on the person sought or that, if such penalties are imposed, they will not be enforced.

Inter-American Convention on Extradition, Feb. 25, 1981, reprinted in 20 ILM 723 (1981).

All the above provisions find their inspiration in optional Reservation Number One to the Harvard Draft Convention on Extradition, 29 AJIL 21, 30 (Supp. 1935), which provides that “[a] requested State may make the extradition of any person conditional upon the receipt of satisfactory assurance that, in case of conviction, neither the death penalty, nor any cruel or unusual punishment, will be imposed upon him by the requesting State.”

On the death penalty and cruel and unusual punishment as grounds for denial of extradition, see generally 1 M. Bassiouni, International Extradition: United States Law and Practice 491–96 (2d rev. ed. 1987).

³¹ Soering Comm’n Rep., supra note 4, para. 96.

³² Id.

³³ Id., para. 102. See text at notes 20–21 supra.

³⁴ 37 Eur. Comm’n H.R. D. & R. 158 (1984).

⁵⁵ Soering Comm’n Rep., supra note 4, para. 102.

³⁶ Id., para. 107.

³⁷ The Commission explained:

This approach is dictated both by the serious nature of the complaint made and by considerations relating to the effectiveness of the Convention system. If the Convention bodies could only examine such a complaint after the extradition had actually taken place, the protection of the applicant, by way of the right of individual petition, from harm that may be irremediable in nature would not be effective.

… Since the Convention bodies were set up to protect the individual, the Convention must be applied in a manner which serves to make the system of individual applications efficacious ….

Id., paras. 108–09.

³⁸ Id., paras. 111–13.

³⁹ Id., para. 118.

⁴⁰ Id., para. 119.

⁴¹ Id., para. 120.

⁴² Id., para. 122.

⁴³ Id. (quoting Kirkwood, 37 Eur. Comm’n H.R. D. & R. at 189).

⁴⁴ Id., para. 123. With respect to the fifth factor, Soering was a German national, and German criminal law applies to acts by German nationals committed abroad if the act is liable to punishment at the place where the offense is committed, as the acts were in this case. Strafgesetzbuch [StGB] §7(2). Accordingly, after a local court in Bonn issued an arrest warrant for Soering for the alleged murder of the Haysoms, the German Government, on March 11, 1987, requested his extradition pursuant to its 1872 Extradition Treaty with Great Britain. (Data about the treaty, amendments thereto, and its incorporation into the law of Great Britain may be found in Soering Case, supra note 1, para. 31.) On May 20, 1987, the British Government informed the German Government of the U.S. extradition request and its intention to consider this earlier request in the normal way. Id., para. 19.

Under German law, murder is punishable by life imprisonment, StGB §211(1), the death penalty having been abolished by the Constitution. Grundgesetz Art. 102. In the case of young adult offenders, the judge may pass a sentence of 10–15 years’ imprisonment instead of life. StGB §106(1). Moreover, if the offenders’ mental state renders them incapable of appreciating the wrongfulness of the offense, no culpability exists and they may not be punished, id. §20, although an order may be made placing them in a psychiatric hospital indefinitely. Id. §63. Where diminished responsibility is found, punishment in homicide cases shall be reduced from life imprisonment to imprisonment of not less than three years, id. §49(1)(1), or confinement in a psychiatric hospital. Id. §63. See generally Soering Case, supra, paras. 72–74.

Finally, since the evidence submitted with the German extradition request consisted solely of admissions made by Soering, and there was no means of compelling U.S. witnesses to appear in a German criminal court, it was at least doubtful whether Soering could have been successfully tried and convicted of the murder of the Haysoms if he had been extradited to Germany. Id., paras. 16–17. For all these reasons, it is not surprising that the United States pressed for Soering’s extradition to the United States rather than to Germany, id., para. 17, or that Soering, in a declaration submitted to the Court on March 20, 1989, stated that “should the United Kingdom Government require that he be deported to the Federal Republic of Germany he would consent to such requirement and would present no factual or legal opposition against the making or execution of an order to that effect.” Id., para. 26.

⁴⁵ Soering Comm’n Rep., supra note 4, para. 126.

⁴⁶ Id., para. 125.

⁴⁷ Id., para. 126.

⁴⁸ Kirkwood, 37 Eur. Comm’n H.R. D. & R. at 190.

⁴⁹ Soering Comm’n Rep., supra note 4, para. 128.

⁵⁰ Id.

⁵¹ Id., para. 130. In reaching this conclusion, the Commission also attached “great importance to the fact that it would be open to the applicant to raise before United States and Virginia courts the complaint that the ‘death row phenomenon’ constitutes cruel and unusual punishment contrary to the Eighth Amendment of the United States Constitution.” Id., para. 129 (citing Kirkwood, 37 Eur. Comm’n H.R. D. & R. at 189).

⁵² Id., para. 133.

⁵³ Id., para. 134.

⁵⁴ Id., para. 135.

⁵⁵ Id., paras. 35–43.

⁵⁶ Id., para. 138.

⁵⁷ Id., paras. 139–40.

⁵⁸ Id., para. 141.

⁵⁹ Id., para. 143.

⁶⁰ Id., para. 142.

⁶¹ Id., para. 143.

⁶² Id., paras. 144–45.

⁶³ Id., para. 146.

⁶⁴ Id., para. 147. “To interpret Article 3 otherwise would mean that the finding of a violation could depend on such extraneous matters as the nationality of the person whose extradition is sought and the preparedness of his Government to seek his extradition or to prosecute him if deported.” The Commission concluded that “[s]uch an interpretation could result in a dual standard which affords protection to one applicant while refusing it to another in the same position.” Id.

⁶⁵ Id., para. 149.

⁶⁶ Id.

⁶⁷ Id.

⁶⁸ Id., para. 150.

⁶⁹ Kirkwood, 37 Eur. Comm’n H.R. D. & R. at 190.

⁷⁰ Soering Comm’n Rep., supra note 4, para. 154. Of the five dissenters, Mr. H. Danelius, joined by Mr. G. Jorundsson and Mr. H. Vandenberghe, agreed with a large part of the majority’s report but distinguished the case from Kirkwood on the grounds of “the applicant’s young age in combination with his mental state at the time when the crimes were committed.” Dissenting Opinion of Mr. H. Danelius, Soering v. United Kingdom, Eur. Comm’n H.R., slip op. at 35, 37 (Jan. 19, 1989), reprinted in Soering Case, 161 Eur. Ct. H.R. (ser. A) at 78, 79. Mr. J. Frowein, on the other hand, believed that

the decision to extradite the applicant to the United States, without receiving a formal assurance that the death penalty would neither be sought nor imposed—a possibility specifically foreseen in Article IV of the British/US Extradition Treaty—amounts, in view of the possibility of extradition to the Federal Republic of Germany and in the absence of compelling reasons against it,… to treatment in violation of Article 3.

Id. at 32, 33, 161 Eur. Ct. H.R. (ser. A) at 73, 74. Finally, Mr. S. Trechsel, while not disagreeing with the views expressed in the other dissenting opinions, preferred “to base the finding of a violation [of Article 3] on an evaluation of all the circumstances of the case as opposed to one particular element.” Id. at 33, 161 Eur. Ct. H.R. (ser. A) at 75. As aggravating circumstances he identified the “death row phenomenon,” the applicant’s age and mental condition at the time of the deed, and the fact that the British Government could “extradite the applicant to a State Party to the Convention where he does not incur the risk of being sentenced to death and executed.” Id., 161 Eur. Ct. H.R. (ser. A) at 75.

⁷¹ Soering Case, supra note 1, para. 1.

The reference by the German Government was made pursuant to paragraph (b) of Article 48 of the European Convention on Human Rights, which enables a State whose national is alleged to be a victim of a violation of the Convention to bring a case before the Court. This is the first occasion on which a Government that was not associated in the earlier proceedings before the Commission has had recourse to this provision.

Council of Europe Press Communiqué, European Court of Human Rights: Human Rights News, C (89) 13 (Feb. 7, 1989).

⁷² Soering Case, supra note 1, paras. 4, 24.

⁷³ Id., para. 88.

⁷⁴ Id., para. 86.

⁷⁵ Id., para. 87.

⁷⁶ Id., para. 88. “It is also to be found in similar terms in other international instruments such as [Article 7 of] the 1966 International Covenant on Civil and Political Rights and [Article 5(2) of] the 1969 American Convention on Human Rights and is generally regarded as an internationally accepted standard.” See generally Lillich, Civil Rights, in 1 Human Rights in International Law: Legal and Policy Issues 115, 126–30 (T. Meron ed. 1984).

⁷⁷ See note 30 supra.

⁷⁸ Soering Case, supra note 1, para. 88.

⁷⁹ See text at note 32 supra.

⁸⁰ Soering Case, supra note 1, para. 91.

⁸¹ Id., para. 101.

⁸² Amnesty International, Comments Submitted to the European Court of Human Rights on the Soering Case 2–16 (Apr. 12, 1989).

⁸⁵ Soering Case, supra note 1, para. 101.

⁸⁶ See note 20 supra.

⁸⁵ See text at note 75 supra.

⁸⁶ Soering Case, supra note 1, para. 103.

⁸⁷ See text at note 33 supra.

⁸⁸ Judge De Meyer, in his concurring opinion, took the view that Soering’s extradition to the United States “would not only expose him to inhuman or degrading treatment or punishment. It would also, and above all, violate his right to life.” Soering Case, 161 Eur. Ct. H.R. (ser. A) at 51.

⁸⁹ See text at notes 34–35 supra.

⁹⁰ Soering Case, supra note 1, para. 104. To which the judgment adds: “Present-day attitudes in the Contracting States to capital punishment are relevant for the assessment whether the acceptable threshold of suffering or degradation has been exceeded.” Id.

⁹¹ Id., paras. 93, 94.

⁹² Id., para. 98.

⁹³ See text at notes 38–41 supra.

⁹⁴ Soering Case, supra note 1, para. 99.

⁹⁵ See text at note 44 supra.

⁹⁶ See text at notes 51, 53, 59 and 61 supra.

⁹⁷ See text at note 68 supra.

⁹⁸ Soering Case, supra note 1, para. 105 (emphasis added).

⁹⁹ id.

¹⁰⁰ Id. (emphasis added).

¹⁰¹ See note 70 supra.

¹⁰² Soering Case, supra note 1, paras. 106–10.

¹⁰³ Id., para. 109.

¹⁰⁴ Id., para. 110.

¹⁰⁵ Id., para. 111.

¹⁰⁶ Id.

¹⁰⁷ Soering’s guilt ‘never in doubt,’ Daily Progress (Charlottesville, Va.), June 23, 1990, at Al, cols. 3–4.

¹⁰⁸ See text at notes 28, 32 supra.

¹⁰⁹ See text at note 80 supra.

¹¹⁰ “It is unclear … whether the United Kingdom would actually violate Soering’s human rights if it extradited him, or if it would be only indirectly responsible for facilitating a violation by Virginia.” Quigley & Shank, Death Row as a Violation of Human Rights: Is It Illegal to Extradite to Virginia?, 30 Va. J. Int’l L. 241, 251 (1989). See text at notes 112–13 infra.

¹¹¹ See text at note 27 supra and the British argument before the Court that “extradition does not involve the responsibility of the extraditing State for inhuman or degrading treatment or punishment which the extradited person may suffer outside the State’s jurisdiction.” Soering Case, supra note 1, para. 83.

¹¹² See text at note 32 supra.

¹¹³ Soering Case, supra note 1, para. 91.

¹¹⁴ Id., para. 88. See text at note 78 supra.

¹¹⁵ Soering Case, supra note 1, para. 91. See text at note 80 supra. The Commission had used much the same language in reaching a similar conclusion. See text at note 32 supra.

¹¹⁶ Soering Case, supra note 1, para. 86. See note 30 supra.

¹¹⁷ Soering Case, supra note 1, para. 86 (emphasis added).

¹¹⁸ European Convention, supra note 3, Art. 1 (emphasis added). The reference to Article 1 is found in Soering Case, supra note 1, para. 86.

¹¹⁹ Soering Case, supra note 1, para. 86.

¹²⁰ See Quigley & Shank, supra note 110, at 250–51. For the impact of the Soering case in the United States, see text at note 107 supra and at notes 152–69 infra.

¹²¹ M. v. France, 41 Eur. Comm’n H.R. D. & R. 103 (1985).

¹²² See, e.g., text at note 32 supra.

¹²³ See note 22 supra.

¹²⁴ See Quigley & Shank, supra note 110, at 267–68.

¹²⁵ “The purpose for which his removal to the United States was sought, in accordance with the Extradition Treaty between the United Kingdom and the United States, is undoubtedly a legitimate one.” Soering Case, supra note 1, para. 110.

¹²⁶ Transnational Terrorism: Conventions and Commentary (R. Lillich ed., 1986 Supp.).

¹²⁷ See, e.g., Robertson, supra note 22, at 232:

In political and diplomatic terms, [Soering] is a disaster for the UK. In recent years, considerable effort has been expended to obtain the extradition to the UK from the USA of wanted IRA suspects. The issue of their extradition has aroused considerable publicity in the US and our diplomats have had to fight against the weight of the Irish-American lobby. Soering’s case has also achieved publicity in the US owing to the horrific nature of the murders which are the subject of the case. The reaction of the average American to this decision can well be imagined. If we are not going to extradite their murderers, why should they extradite ours?

¹²⁸ See text at note 84 supra.

¹²⁹ See text at note 86 supra.

¹³⁰ See text at note 88 supra.

¹³¹ R. Hood, supra note 8, at 170–71. Moreover, “[s]ince 1965 at least 54 countries have increased the number of crimes liable to the death penalty … . Id. at 35.

¹³² Ford & Binyon, Hurd extradition bid blocked over ‘Death Row phenomenon,’ The Times (London), July 8, 1989, at 1. cols. 4–7.

¹³³ “[T]’he European Court of Human Rights in Strasbourg has found the so-called ‘death row phenomenon’ to constitute ‘cruel, inhuman and degrading treatment or punishment.’ ” Convention Against Torture: Hearing Before the Senate Comm. on Foreign Relations, 1O1st Cong., 2d Sess. 7,11 (1990) (prepared statement of Abraham D. Sofaer) [hereinafter Hearing].

¹³⁴ “[w]e know that mental pain is an inseparable part of our practice of punishing criminals by death, for the prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of sentence and the actual infliction of death.” Furman v. Georgia, 408 U.S. 238, 288 (1972) (Brennan, J., concurring). Accord People v. Anderson, 6 Cal.3d 628, 493 P.2d 880 (1972). For an excellent argument that what is now called the “death row phenomenon” constitutes cruel and unusual punishment in violation of the Eighth Amendment, see Note, 57 Iowa L. Rev. 814 (1972).

¹³⁵ See text at notes 65–68 and 105 supra.

¹³⁶ See text at note 67 supra.

¹³⁷ Soering Case, supra note 1, para. 89.

¹³⁸ Robertson, supra note 22, at 232.

¹³⁹ It has been suggested, however, that in view of “the Court’s strong language about death row conditions, it is unlikely that it will so limit its holding.” Quigley & Shank, supra note 110, at 270.

¹⁴⁰ That issue did not arise in Soering since Great Britain had not ratified the Protocol. See note 20 supra.

¹⁴¹ “One suspects … that the attitude of the Court is leaning towards not allowing the extradition of prisoners from Convention States to States where the death penalty still exists.” Robertson, supra note 22, at 231. Accord Quigley & Shank, supra note 110, at 267.

¹⁴² Dec. 16, 1966, 999 UNTS 171 (entered into force Mar. 23, 1976).

¹⁴³ Opened for signature Nov. 22, 1969, reprinted in 9ILM673(1970), Organization of American States, Basic Documents Pertaining to Human Rights in the Inter-American System 25, OEA/Ser.L/V/II.7l, doc. 6, rev.l (1988) (entered into force July 18, 1978).

¹⁴⁴ Adopted June 27, 1981, OAU Doc. CAB/LEG/67/3/Rev.5, reprinted in 21 ILM 59 (1982), 27 Rev. Int’l Comm’n Jurists 76 (1981) (entered into force Oct. 21, 1986).

¹⁴⁶ Communications Nos. 210/1986 and 225/1987, Earl Pratt and Ivan Morgan v. Jamaica, UN Doc. CCPR/C/35/D/210/1986 and 225/1987, Annex at 1, 10 (Apr. 7, 1989).

In principle prolonged judicial proceedings do not per se constitute cruel, inhuman or degrading treatment even if they can be a source of mental strain for the convicted prisoners. However, the situation could be otherwise in cases involving capital punishment and an assessment of the circumstances of each case would be necessary. In the present cases the Committee does not find that the authors have sufficiently substantiated their claim that delay in judicial proceedings constituted for them cruel, inhuman and degrading treatment under article 7.

¹⁴⁶ The Paquete Habana, 175 U.S. 677, 700 (1900).

¹⁴⁷ GA Res. 217A (III), UN Doc. A/810, at 71 (1948).

¹⁴⁸ The Restatement (Third) of the Foreign Relations Law of the United States§702(d) (1987) lists “torture or other cruel, inhuman or degrading treatment or punishment” as a violation of the customary international law of human rights. Compare Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) (torture violates customary international law), with Forti v. Suarez-Mason, 694 F.Supp. 707 (N.D. Cal. 1988) (cruel, inhuman or degrading treatment or punishment does not violate customary international law). It is unlikely that a court in the United States would adopt the argument advanced in the text, at least in the near future. For the attitude ofthe former U.S. Legal Adviser, see Hearing, supra note 133, at 39: “The decision in the Soering case which claimed it was cruel, unusual and inhumane treatment to have a prisoner waiting in death row for several years is just unreasonable, we believe, and we do not adhere to it, and we will never adhere to it.” But compare the attitude of Judge Weinstein in Ahmad v. Wigen, 726 F.Supp. 389, 414 (E.D.N.Y. 1989): “Soering constitutes an important precedent on the refusal to extradite because of anticipated torture, cruel conditions of incarceration or lack of due process at trial in the requesting country. It reflects a persuasive though non-binding international standard.”

¹⁴⁹ Zlmb. Const. §15(1) (“No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment”), reprinted in Constitutions of the Countries of the World (A. Blaustein & G. Flanz eds. 1989).

¹⁶⁰ The Supreme Court of Zimbabwe cited Article 3 and cases decided thereunder in holding that the imposition of a sentence of whipping upon an adult male offender constituted an “inhuman or degrading” punishment in violation of § 15(1) of the declaration of rights contained in its Constitution, id. State v. Ncube, [1988] 2 S. Afr. L. Rep. 702 (Gubbay, J.A.).

¹⁵¹ Such use was made of Soering by Judge Weinstein in Ahmad v. Wigen, 726 F.Supp. at 410–15.

¹⁵² See text at notes 119–20 supra.

¹⁵³ The factors marshaled by the Court were found to violate Article 3, whose norms, in turn, are considered customary international law by the Restatement. See note 148 supra.

¹⁵⁴ See the statement of the former U.S. Legal Adviser, id.

¹⁵⁵ See note 30 supra.

¹⁵⁶ Indeed, the Commission’s report noted “the similarity between Article 3 of the Convention and the Eighth Amendment.” See text at note 60 supra.

¹⁵⁷ H. Hannum, Materials on International Human Rights and U.S. Criminal Law and Procedure 59 (1989).

¹⁵⁸ Message of the President Transmitting the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, S. Treaty Doc. No. 20, 100th Cong., 2d Sess. 1, 15 (1988).

¹⁵⁹ Id. at 15–16.

¹⁶⁰ See Hearing, note 133 supra, at 11:

We would expect, therefore, that our Constitution would prohibit most (if not all) of the practices covered in Article 16’s reference to cruel, inhuman and degrading treatment or punishment. Nevertheless, we are aware that some countries give a broader meaning to this provision; for example, the European Court of Human Rights in Strasbourg has found the so-called “death row phenomenon” to constitute “cruel, inhuman and degrading treatment or punishment.”

While such decisions are not binding on our courts, it is prudent that the U.S. specify that, because the Constitution of the United States directly addresses this area of the law, and because of the ambiguity of the phrase “degrading,” we would limit our obligations under this Convention to the proscriptions already covered in our Constitution.

¹⁶¹ S. Exec. Rep. No. 30, 101st Cong., 2d Sess. 36 (1990). The language of the reservation varies slightly from that of the understanding, but the content remains the same.

¹⁶² Id. at 1.

¹⁶³ They were considered unnecessary by President Carter when he sent these treaties to the Senate in 1978. Message of the President Transmitting Four Treaties Pertaining to Human Rights, S. Exec. Docs. C, D, E & F, 95th Cong., 2d Sess. iii, xii, xviii (1978).

¹⁶⁴ S. Exec. Rep. No. 30, supra note 161, at 10.

¹⁶⁵ Hearing, supra note 133, at 11 (emphasis added).

¹⁶⁶ The former U.S. Legal Adviser admitted as much in his testimony before Congress. Id. at 10–11.

¹⁶⁷ S. Exec. Rep. No. 30, supra note 161, at 1.

¹⁶⁸ See text at note 163 supra. Actually, President Carter in 1978 had recommended somewhat similar capital punishment reservations, minus, of course, the final italicized clause above.

¹⁶⁹ W. Shakespeare, Julius Caesar, act 1, sc. 2, lines 140–41 (A. Rowse ed. 1978).