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.