Foreign Nationals

Overview

Some of those on death row in the U.S. are citizens of other countries. Most nations of the world, including the U.S., are parties to a treaty (Vienna Convention on Consular Relations) governing the treatment of one nation’s citizens when they are arrested in another country that is a party to the treaty. Among other protections, the treaty requires that the arresting authorities inform all foreign detainees without delay of their right to have their consulate promptly notified of the arrest so that legal aid and other forms of assistance can be provided.

The U.S. has not always abided by the provisions of this treaty, particularly when the foreign national is being held by state authorities. The Supreme Court has permitted numerous executions to go forward despite violations of the treaty, saying that federal courts lack the power to address the issue if the lawyer appointed to represent the prisoner failed to timely raise it in the state courts. At least 34 foreign nationals have been executed in the modern era of the U.S. death penalty. Most had raised a claim that they had not been advised of their right to consular notification and that the resulting lack of consular assistance harmed their defense. Nevertheless, progress has been made in informing law enforcement authorities of their obligations under the treaty.

At Issue

International courts and tribunals—including the International Court of Justice (ICJ) and the Inter-American Commission on Human Rights—have found that the United States has violated international law in the cases of death-sentenced foreigners by failing to comply with this treaty. As a remedy, the ICJ ruled that the United States must provide effective judicial review of Vienna Convention violations in death penalty cases. However, while the U.S. is bound under international law to comply with the ICJ judgment, the U.S. Supreme Court has ruled that requiring states to comply with the treaty requires an act of Congress. The position of the U.S. in this matter has raised concerns about reciprocity: will U.S. citizens in foreign countries be able to effectively invoke their Vienna Convention protections when arrested?

What DPIC Offers

Through the work of Human Rights Research, DPIC has lists of all foreign nationals on U.S. death rows and all foreign nationals executed in the modern era. DPIC has issued a report on the international implications of its death penalty and keeps track of court decisions on this matter both in the U.S. and internationally.