Consular Rights, Foreign Nationals and the Death Penalty

Under Article 36 of the 1963 Vienna Convention on Consular Relations (VCCR), local authorities must inform all detained foreigners “without delay” of their right to have their consulate notified of their detention and to communicate with their consular representatives. At the request of the national, the authorities must then notify the consulate of the detention without delay; they must also facilitate consular communication and grant consular access to the detainee. Consuls are empowered to arrange for their nationals’ legal representation and to provide a wide range of humanitarian and other assistance, with the consent of the detainee. Local laws and regulations must give “full effect” to the rights enshrined in Article 36. The USA ratified the VCCR without reservations in 1969; so fundamental is the right to consular notification and access that the U.S. Department of State considers it to be required under customary international law in all cases, even if the detainee’s home country has not signed the VCCR. As of February 9, 2009, 172 countries were parties to the VCCR.

In March of 2004, the International Court of Justice determined in the Avena case (Mexico v. USA) that advisement of consular rights “without delay” means “a duty upon the arresting authorities to give that information to an arrested person as soon as it is realized that the person is a foreign national, or once there are grounds to think that the person is probably a foreign national.” In most cases, police in the United States would become aware of a suspect’s probable nationality through routine identity confirmation and background checks, done either during the initial investigation, upon arrest, or very shortly thereafter. The State Department has interpreted the term “without delay” to mean as soon as practicable (i.e., without undue delay) and normally by the time the detainee is booked for detention. While not all of the reported foreign nationals currently on death row were deprived of their consular rights by arresting authorities, there is overwhelming evidence that prompt notification of these rights remains highly sporadic across the United States. No comparative study has yet been done, but the available data indicates that timely consular assistance significantly reduces the likelihood that death sentences will be sought or imposed on foreign nationals facing capital charges.

Even applying the less stringent definition of prompt notification used by the State Department, only 7 cases of complete compliance with Article 36 requirements have been identified so far, out of more than 160 total reported death sentences (including those executed, reversed on appeal or exonerated and released). In most of the remaining cases, detained nationals learned of their consular rights weeks, months or even years after their arrest, typically from attorneys or other prisoners and not from the local authorities. As a consequence, consular officials were often unable to provide crucial assistance to their nationals when it would be most beneficial: at the arrest and pre-trial stage of capital cases. For example, Arizona authorities did not formally inform German nationals Karl and Walter LaGrand of their Article 36 rights until 17 years after their arrest— and just weeks before their execution.

Although not a capital case, evidence from a lawsuit indicates the extent to which police departments in the USA may have breached their consular notification obligations. In Sorensen v. City of New York , a Danish national sought punitive and compensatory damages for the failure of the NYPD to inform her upon arrest in 1997 of her right to consular notification. Official records produced by the plaintiff revealed that over 53,000 foreign nationals were arrested in New York City during 1997, but that the NYPD Alien Notification Log registered only 4 cases in which consulates were notified of those arrests—a failure rate well in excess of 99 per cent (even presuming that a majority of the detainees might have declined consular notification). Another example is the recent finding by the International Court of Justice in Avena and Other Mexican Nationals that the United States had violated its Article 36 obligations in 51 of 52 reviewed cases of Mexican nationals resulting in death sentences (a 98% failure rate, in the most serious of all possible circumstances).

Research to date indicates that a large majority of death-sentenced foreign nationals were lawfully present in the United States and were thus not “illegal aliens.” For example, of the 54 Mexican nationals whose cases were initially brought before the International Court of Justice in Avena, only 5 were alleged by the United States to have entered the country illegally at any time prior to their arrest on the charges resulting in their death sentences.