Death Penalty and the Rights of Foreign Nationals
Twenty-six foreign nationals have been executed in the United States since 1988. Virtually none had been informed, upon arrest, of their right to communicate with their consular representatives. In most of these cases, the consular notification issue was raised on appeal and dismissed, allowing the execution to proceed.
- The Vienna Convention on Consular Relations (VCCR), Article 36
"...if he so requests, the competent authorities of the receiving State shall...inform the consular post of the sending State if...a national of that State is arrested or committed to prison.... The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph." Ratified by the U.S. in 1969.
Among other crucial functions, consular assistance serves to protect a defendant's legal right to a fair trial, including the right to prepare an adequate defense, to understand the nature of the charges, to have the assistance of an interpreter, and the right not to be compelled to confess or to testify against oneself.
Around 125 foreign nationals are currently on death row in 16 jurisdictions. nearly half of all foreign nationals on death row are from Mexico, which has been abolitionist for ordinary crimes since 1937.
- International Court Rulings
In October 1999, the Inter-American Court of Human Rights found that the executions of foreign nationals who were not informed of their consular rights constitute an "arbitrary deprivation of life," requiring a remedy under international law.
In March 2004, the International Court of Justice (ICJ) ruled that the United States had violated the rights of 51 Mexicans on death row and ordered their cases to be reviewed. In Spring 2005, President George W. Bush signed a memorandum to the U.S. Attorney General affirming that the United States would comply with the binding decision of the ICJ and announced that state courts would be required to review and reconsider the effect of violations of the VCCR in the cases of those Mexican nationals who were subsequently sentenced to death.
At the same time, in March 2005, President Bush withdrew the United States from an Optional Protocol to the VCCR that required governments to accept ICJ decisions in Vienna Convention disputes.
- Medellin v. Texas
- In November 2006, the Texas Court of Criminal Appeals, in the case of Medellin v. Texas, determined that the President did not have the authority to impose ICJ mandated requirements on state courts, and dismissed Medellin's appeal for relief based on VCCR violations. In March 2008, the U.S. Supreme Court agreed with Texas that the President did not have authority to impose ICJ requirements, and, further, that the VCCR had not been implemented by Congress and so was not binding federal law. Congress is now considering legislation that would implement the Convention. Medellin's appeal was rejected, and the consular rights of foreign nationals in the United States, including those facing the death penalty, were severely curtailed. Medellin was executed in Texas on August 5, 2008.
Read: USA: Government must ensure meaningful judicial review of Mexican death row cases
