dissenting:
The International Covenant on Civil and Political Rights, to which the United States is a “party,” forbids imposing the death penalty on children under the age of eighteen. International treaties of this kind ordinarily become the “supreme law of the land.” Under the majority’s interpretation of the treaty, the United States, at least with regard to executing children, is a “party” to the treaty, while at the same time rejecting one of its most vital terms. Under Nevada’s interpretation of the treaty, the United States will be joining hands with such countries as Iran, Iraq, Bangladesh, Nigeria and Pakistan in approving death sentences for children. I withhold my approval of the court’s judgment in this regard.
Rose, J.,dissenting:
Following a brief hearing, the district court summarily concluded that the death sentence was facially valid in spite of an international treaty signed by the United States which prohibits the execution of individuals who were under eighteen years of age when the crime was committed. I believe this complicated issue deserved a full hearing, evidentiary if necessary, on the effect of our nation’s ratification of the ICCPR and the reservation by the United States Senate to that treaty’s provision prohibiting the execution of anyone who committed a capital crime while under eighteen years of age.
The penultimate issue that the district court should have considered is whether the Senate’s reservation was valid. Article 4(2) of the treaty states that there shall be no derogation from Article 6 which includes the prohibition on the execution of juvenile *787offenders. ICCPR, 999 U.N.T.S. at 174. Furthermore, there is authority to support the proposition that the Senate’s reservation was invalid. See, e.g., Restatement (Third) of the Foreign Relations Law of the United States § 313 (1987); Ved P. Nanda, The United States Reservation to the Ban on the Death Penalty for Juvenile Offenders: An Appraisal Under the International Covenant on Civil and Political Rights, 42 DePaul L. Rev. 1311, 1331-32 (1993).
If the reservation was not valid, then the district court should determine whether the United States is still a party to the treaty. If the reservation was a “sine qua non” of the acceptance of the whole treaty by the United States, then the United State’s ratification of the treaty could be considered a nullity. 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, 318-19 (1995). But, if the United States has shown an intent to accept the treaty as a whole, the result could be that the United States is bound by all of the provisions of the treaty, notwithstanding the reservation. Id.
These are not easy questions and testimony about the international conduct of the United States concerning the subjects contained in the treaty, in addition to expert testimony on the effect of the Senate’s reservation may be necessary. A federal court that deals with federal law on a daily basis might be better equipped to address these issues; however, the motion is before the state court and it should do its best to resolve the matter. Accordingly, I would reverse the district court’s denial of Domingues’ motion and remand the case for a full hearing on the effect of the ICCPR on Domingues’ sentence.