Foreign Nationals

Table of Contents

Foreign Nationals



Foreign Nationals

In certain countries with large numbers of foreign guest workers, foreign nationals make up a sizeable percentage of those on death row. Foreign nationals are vulnerable to discriminatory treatment and deprivations of due process as a result of cultural and linguistic barriers. In countries in which Islamic law is applied, foreign guest workers often lack the financial resources to pay diyat, or blood money, to the victim’s family, which could result in commutation of their death sentence.

The presence of foreign nationals on death row also raises issues regarding the right to consular assistance under article 36 of the Vienna Convention on Consular Relations (“VCCR”). Article 36(1)(b) of the VCCR requires that when a foreign national is detained, the country detaining him must give him immediate notice of his right to see and communicate with his consular representative:

“(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph.”

Repeated violations of the VCCR in capital cases in the United States has led to extensive litigation in national and international courts. In December 1997, faced with increasing numbers of Mexicans on death rows across the country and widespread violations of article 36, the Government of Mexico sought an advisory opinion from the Inter-American Court on Human Rights regarding the application of article 36 of the VCCR. The court observed that Article 36 provides one of the “minimum guarantees essential to providing foreign nationals the opportunity to adequately prepare their defense and receive a fair trial,” a right embodied in Article 14(3)(b) of the ICCPR. The court concluded that the execution of an individual who had been afforded no opportunity to exercise his rights to consular notification and access would constitute an arbitrary deprivation of life in violation of article 6 of the ICCPR.

The United States refused to adhere to the decision of the Inter-American Court. Executions of foreign nationals continued, despite proven violations of their rights to consular notification and access.

Then, on June 27, 2001, the International Court of Justice (“ICJ”) issued its judgment in the LaGrand Case.1 LaGrand involved two German nationals executed in the state of Arizona. Arizona had violated their VCCR rights, but refused to grant any remedy for the violation. Germany subsequently initiated proceedings in the ICJ under the Optional Protocol on the Compulsory Settlement of Disputes to the VCCR, which provides that disputes “arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction” of the ICJ. In its final judgment in LaGrand, the ICJ held that in any case involving prolonged detention or severe penalties, “it would be incumbent upon the United States to allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the Convention. This obligation can be carried out in various ways. The choice of means must be left to the United States.”

In 2003, Mexico initiated proceedings in the ICJ against the United States on behalf of 54 Mexican nationals on death row in the United States. Mexico argued that the United States had failed to comply with the ICJ’s mandate in LaGrand, and was obligated to provide a legal remedy in each and every death penalty case that involved a violation of Article 36. Among other issues, the Government of Mexico asked the Court to adjudge and declare that the United States violated its international legal obligations by failing to comply with article 36 of the VCCR, and that the convictions and sentences of its nationals should be vacated. In addition, Mexico asked the Court to declare that the United States may not apply procedural default rules in such a manner to preclude merits review of VCCR violations.

The ICJ issued its final judgment in the Avena case on March 31, 2004. By a vote of fourteen to one, the Court found that, for 51 Mexican nationals, the United States had failed to inform the detainee of his right to consular notification without delay, in violation of Article 36 (1) (b) of the VCCR. In 49 cases, the Court also found that the United States had violated its corresponding obligation to notify the Mexican consulate of the detention without delay, as well as Mexico’s right to communicate and have access to its nationals. In 34 of the cases, the United States was also found to have deprived Mexico of its right to arrange for legal representation of those nationals in a timely manner, in breach of Article 36, paragraph 1 (c).

The Avena Court reaffirmed and strengthened its prior holdings in LaGrand, finding that in all 51 cases, the United States was obligated to provide judicial review and reconsideration of the convictions and sentences in light of the violations of Article 36. The Court held that clemency review alone would not fulfill this obligation, although the ICJ found that clemency procedures could supplement judicial review in the cases of three Mexican nationals who had already exhausted their appeals. Judicial review must be effective, and must give “full weight” to the violation of the rights set forth in the Vienna Convention, “whatever may be the actual outcome of such review and reconsideration.” The Court declined to adopt Mexico’s position that the convictions and sentences of all 52 nationals must be vacated, while leaving open the possibility that such remedies could be provided by the United States’s courts.

Second, the Court emphatically reaffirmed that procedural default rules may not be invoked to prevent meaningful review and reconsideration of cases in which violations of Article 36 have occurred. The United States had argued that the application of procedural bars was harmless in these cases, since each Mexican national was entitled to challenge the fairness of his trial under the United States Constitution. The Court rejected these arguments, and emphasized that the review and reconsideration process must “guarantee that the [VCCR] violation and the possible prejudice caused by that violation will be fully examined and taken into account in the review and reconsideration process.”

While many hailed the ICJ’s judgment as an unequivocal win for Mexico, the legal community was skeptical that it would lead to concrete results for Mexican nationals facing execution in the United States. At the time the ICJ issued its judgment, a May 17 execution date had already been scheduled for Osbaldo Torres Aguilera. His attorneys, supported by Mexico’s legal team, simultaneously presented a clemency petition and a post-conviction application in the Oklahoma Court of Criminal Appeals. Both documents fully described the violation of the Vienna Convention and argued that the Avena judgment was binding on United States’s courts.

On May 13, 2004, the Oklahoma court issued an unprecedented stay of execution in Mr. Torres’s case. While the court’s decision is brief, the majority “at least implicitly” recognized that the ICJ judgment was binding. Judge Chapel’s special concurrence elaborates on the majority’s reasoning, and explicitly holds that the Avena judgment binds the United States courts:

“There is no question that this Court is bound by the Vienna Convention and Optional Protocol… At its simplest, this is a matter of contract. A treaty is a contract between sovereigns. The notion that contracts must be enforceable against those who enter into them is fundamental to the Rule of Law… Avena is the product of the process set forth in the Optional Protocol, under which Mexico brought a suit against the United States for alleged treaty violations. This process is promulgated by the treaty itself and exists between states as a result of international law well within the State Department’s definition of an appropriate remedy for violations of the Vienna Convention.”

Two hours after the Oklahoma court issued its historic decision, Oklahoma Governor Brad Henry decided to commute Osbaldo Torres’s death sentence to life imprisonment without the possibility of parole. Significantly, the Governor’s press release stated that “[u]nder agreements entered into by the United States, the ruling of the ICJ is binding on U.S. courts.”

In the wake of the Torres victory, other courts have addressed the implications of the ICJ’s judgment. In the case of Rafael Camargo, a Mexican national sentenced to death in Arkansas, prosecutors agreed to reform his death sentence to life imprisonment after learning of the Avena judgment. In response to media inquiries, they characterized the Avena judgment as the “primary motivation” for their decision to stipulate that Mr. Camargo was intellectually disabled and therefore ineligible for the death penalty. The federal district court for the Western District of Arkansas subsequently issued a decision finding that the agreement to modify Camargo’s sentence to life imprisonment remedied “any and all potential prejudice caused by the denial of petitioner’s rights under the Vienna Convention.”

In Medellín v. Texas, however, the U.S. Supreme Court later concluded that “neither Avena nor the President’s Memorandum constitutes directly enforceable federal law that pre-empts state limitations on the filing of successive habeas petitions.” However, both the majority and the dissent in Medellín emphasized the compelling nature of the interests at stake in finding a means by which the Avena Judgment could be honored. As Chief Justice Roberts explained for the Court, “In this case, the President seeks to vindicate United States interests in ensuring the reciprocal observance of the Vienna Convention, protecting relations with foreign governments, and demonstrating commitment to the role of international law. These interests are plainly compelling.” The Court also unanimously recognized the binding nature of the Avena Judgment, finding it undisputed that compliance with the decision “constitutes an international law obligation on the part of the United States.” Although the Medellín Court was deeply divided on the questions presented, the Justices were in unanimous agreement on one crucial issue: Congress possesses the clear constitutional authority to implement the requirements of Avena.

In the wake of the United States Supreme Court’s decision in Medellín v. Texas, the ICJ reiterated that the United States has an ongoing international legal obligation to provide review and reconsideration to the remaining Mexican nationals identified in Avena. The ICJ further held the duty of the United States to provide review and reconsideration in cases such as Mr. Maldonado’s is an “obligation of result which must be met within a reasonable period of time.” The ICJ further noted that the means of implementation could include “the introduction within a reasonable time of appropriate legislation, if deemed necessary under domestic constitutional law.”

The Obama administration openly recognized this ongoing obligation and expressed its commitment to securing full compliance. For example, the United States Government informed the United Nations Human Rights Council that, as part of its goal of achieving “fairness and equality in law enforcement,” the Administration “is committed to ensuring that the United States complies with its international obligations to provide consular notification and access for foreign nationals in U.S. custody, including the obligations arising from the Avena decision of the International Court of Justice.”

Despite the good intentions of the executive branch, however, Congress has failed to pass the legislation necessary to implement the Avena judgment. On July 29, 2010, the Senate Appropriations Committee included legislative language to implement the Avena judgment as part of the Department of State, Foreign Operations, and Related Programs Appropriation Act for Fiscal Year 2011. The bill would have provided Federal courts with jurisdiction to review the merits of Mr. Maldonado’s Vienna Convention claim. Upon a finding of actual prejudice from the violation of Mr. Maldonado’s consular rights, the bill would have required the court to fashion “appropriate relief, including ordering a new trial or sentencing proceeding.” By the end of the 2010 congressional term, however, the appropriations bill had failed to pass. As of 2011, no new legislation had been introduced.


Gutierrez v. Nevada, 381 P.3d 617, Supreme Ct. of Nevada, Sep. 19, 2012.

Germany v. United States, 2001 I.C.J. 466, Intl. Ct. oif Justice, Jun. 27, 2001

Marquez-Burrola v. State, 157 P.3d 749, Okla. Crim. App., 2007

Medellín v. Texas, 552 U.S.491, U.S. Supreme Ct., 2008.

Mexico. v. U.S., 2004 I.C.J. 128, Intl. Ct. of Justice, Mar. 31, 2004.

Osagiede v. United States, 543 F.3d 399, 7th Cir., 2008.

Sanchez-Llamas v. Oregon, 126 S.Ct. 2669, 2674, U.S. Supreme Ct., 2006.

Torres v. State, 120 P.3d 1184, 1187, Okla. Crim. App., 2005.

Valdez v. State, 46 P.3d 703, 710, Okla. Crim. App., 2000.


William C. Aceves, The Vienna Convention on Consular Relations: A Study of Rights, Wrongs and Remedies, 31 Vand. J. Transnational L. 257, 1998.

William Aceves, The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, AM. J. Intl. L., Vol. 94, No. 3, Jul., 2000.

Sandra Babcock, The Role of International Law in United States Death Penalty Cases, Leiden Journal of Intl. Law 15, issue 2, 2002.

Lara A. Ballard, The Vienna Convention, Consular Access and Other Assistance Available to Foreign Nationals: A Guide for Criminal and Immigration Lawyers, Columbia Human Rights Law Review, 1998.

Lou Ann Bohn, Notes and Comments, Understanding the Imposition of Capital Punishment on Foreign Nationals in the United States as a Human Rights Violation, 21 Wis. Intl. L.J. 435, 2003.

Joshua A. Brook, Note: Federalism and Foreign Affairs: How to Remedy Violations of the Vienna Convention and Obey the U.S. Constitution, Too, 37 U. Mich. J. L. Ref. 573, 2004.

Linda E. Carter, Lessons from Avena: The Inadequacy of Clemency and Judicial Proceedings for Violations of the Vienna Convention on Consular Relations, 15 Duke J. Comp. & Intl. L. 259, 2005.

Congressional Research Service, Vienna Convention on Consular Relations: Overview of U.S. Implementation and International Court of Justice (ICJ) Interpretation of Consular Notification Requirements, No. RL32390, May 17, 2004.

Michael Fleishman, Note, Reciprocity Unmasked: The Role of the Mexican Government in Defense of Its Foreign Nationals in United States Death Penalty Cases, 20 Ariz. J. Intl. & Comp. Law 359, 366-374, 2003.

Klaus Ferdinand Garditz, Article 36, Vienna Convention on Consular Relations-Treaty Interpretation and Enforcement-International Court of Justice “Fair trial” Suppression of Evidence, 101 Am. J. Intl. L. 627, 2007.

Jana Gogolin, Avena & Sanchez-Llamas, Come to Germany – The German Constitutional Court Upholds Rights under the Consular Convention on Consular Relations, 8 German L.J. 261, 2007.

Mark J. Kadish, Article 36 of the Vienna Convention on Consular Relations: A Search for the Right to Consul, 18 Mich. J. Intl. L. 565, 1997.

John Quigley, The Law of State Responsibility and the Right to Consular Access, 11 Willamette J. Intl. L. & Disp. Resol. 39, 2004.

Adele Shank & John Quigley, Foreigners on Texas’s Death Row and the Right of Access to a Consul, 26 St. Mary’s L.J. 719, 1995.

Victor M. Uribe, Consuls at Work: Universal Instruments of Human Rights and Consular Protection in the Context of Criminal Justice, 19 Hous. J. Intl. L. 375, 396-402, 1997.

Last updated on October 31, 2011.

1 Germany v. United States, 2001 ICJ 104, Intl. Ct. of Justice, Jun. 27, 2001.