The Capital Punishment of Foreign Nationals: Is the United States in Violation of the Vienna Convention on Consular Relations?

The United States has executed thirty-four foreign nationals in the “modern era of the U.S death penalty.”[1] This has been a topic of international concern as authorities within the United States have not informed inmates of their right to have their consulate notified.[2] This has been especially concerning for the Mexican Government because Mexico abolished the death penalty in 2005.[3] Yet, as of 2011, there are currently fifty-one Mexican nationals on death row in the United States.[4] The Mexican Government argues the United States has repeatedly violated the rights of Mexican nationals by not providing consular notification, which is a requirement under Article 36 of the Vienna Convention.[5] Do foreign nationals have the individual right to be notified of their right under Article 36 of the Vienna Convention?

What is Article 36 of the Vienna Convention on Consular Relations?

The Vienna Convention is made up of 79 articles that primarily “provide for the operation of consulates; outline the functions of consular agents; and address the privileges and immunities granted to consular officials when posted to a foreign country.”[6] The United Nations adopted the Vienna Convention of Consular Relations in 1963 and it was later ratified by the United States in 1969.[7] Article 36(1)(b) of the Vienna Convention requires “authorities of the receiving State to inform detained or arrested foreign nationals of their right to contact their national consul.”[8] This provision of the Vienna Convention on Consular Relations has proven extremely controversial within the United States, specifically regarding the imposition of capital punishment on foreign nationals without providing notice to consulates. The interpretation of Article 36 of the Vienna Convention on Consular Relations (“the Convention”) has been the topic of three U.S Supreme Court cases, a decision by the International Court of Justice (“ICJ”) and has garnered much attention from the Mexican Government.

How has the U.S. Supreme Court interpreted Article 36 of the Vienna Convention on Consular Relations?

As mentioned above, the U.S Supreme Court has interpreted Article 36 of the Vienna Convention on three occasions. However, in each case, the Supreme Court has blatantly avoided the question of whether an individual has the right to consular notification.[9]

The Supreme Court interpreted Article 36 for the first time in  Breard v. Greene.[10] Angel Breard, a citizen of Paraguay, was convicted of attempted rape and capital murder.[11] Breard filed a motion for habeas relief in which he alleged that the authorities did not notify him of his right under the Convention to contact the Paraguayan Consulate.[12] The Supreme Court ultimately held that Breard could not receive a stay of execution merely because Breard did not raise his claim to the right to contact the Paraguayan Consulate in state proceedings.[13]

Eight years later, the Supreme Court decided the case of Sanchez-Llamas v. Oregon similarly. Sanchez-Llamas was a Mexican national arrested for the attempted murder of a police officer.[14] He too was not informed of his right to notify his consulate by authorities.[15] The Supreme Court held that evidence obtained in violation of the Convention does not have to be suppressed because it was not an evidence related violation.[16] However, the Court refused to answer the ultimate question of whether the Convention creates individual rights which would be enforceable in court.[17]

Finally, two years after Sanchez-Llamas v. Oregon, the Supreme Court ruled on the case Medellin v. Texas.[18] Medellin was convicted for participating in the gang rape and murder of two teenage girls.[19] Medellin similarly argued that authorities did not instruct him of his right to contact the Mexican Consulate.[20] His argument was based around a recent ICJ  case, Avena and Other Mexican Nationals, which held that “the United States had failed to comply with its obligations owed to Mexico and its foreign nationals under the Vienna Convention on Consular Relations.”[21] The ICJ instructed the United States to reconsider the convictions of those that were denied their rights under the Convention.[22] Medellin also cited President George W. Bush’s memorandum that ordered states to follow the decision of the ICJ.[23] However, the Supreme Court did not require Texas to comply with the decision of the ICJ or President Bush’s memorandum since the United States recently “withdrew from the Optional Protocol to the Vienna Convention on Consular Relations, which gave the International Court of Justice jurisdiction over Vienna Convention claims.”[24] After the execution of Medellin, the ICJ ordered the United States to review its cases with foreign nationals that were not informed of their right to consular notification and stated that the execution of Medellin was a violation of the IJC’s recent ruling against the United States.

How has the Mexican Government Attempted to Combat the United States’ Violation of Article 36 of the Vienna Convention on Consular Relations?

The primary argument for the necessity of consular notification is that foreign nationals are obtaining public defenders with little experience in death penalty cases, or who do not speak the native language of the defendant.[25] Mexico has the most at stake with the highest number of foreign nationals on death row, and the Mexican government believes its  involvement in cases could have an impact on the outcome of those cases.[26] This is most evident through an analysis of the case Leal Garcia v. Texas.[27] Humberto Leal Garcia was convicted of the rape and murder of a young woman. Even though the evidence in the case was very favorable to the prosecution, the Mexican Consulate would have been able to provide a much more experienced attorney to represent Garcia.[28] This attorney would have “challenged the prosecution’s reliance on ‘junk science’ to obtain a conviction and would have presented powerful mitigating evidence at the penalty phase, including expert testimony regarding Leal’s learning disabilities, brain damage and sexual abuse at the hand of his parish priest.”[29] The inadequacy in funding of counsel directly resulted in the execution of Leal Garcia. 

The Mexican Government created the Mexican Capital Legal Assistance Program in 2000 in order to combat the United States’ imposition of the death penalty on its citizens.[30] The purpose of the program is to teach attorneys to humanize their clients and present a defense that would discourage the jury to impose the death penalty.[31] The program pays American lawyers $220 an hour to track death penalty cases that involve Mexican nationals that are eligible for the death penalty.[32] The average budget of this program is $4 million which translates into $29,000 per case in comparison to the United States budget of $1,000 out-of-court-trial preparation. The program also allows attorneys to travel to the clients’ hometowns in Mexico in order to acquire stories and create a narrative that would make the jury feel more compelled to hand down a merciful sentence[34].

The Mexican Capital Legal Assistance Program has had multiple success stories. One such story is that of Angel Campos Nava and attorney Rebecca Thomason, who was appointed to defend Campos Nava. In this case, there was footage of Nava beating and stabbing Lesley Hope Plott.[35] Thomason was tasked with convincing an Alabama jury to find for life imprisonment rather than the death penalty. Thomason was flown to Texas and California for training under the program.[36] There she discovered that the court-appointed interpreter had been using a Spanish dialect which Nava could not understand.[37] In preparation for trial, the program flew her to Nava’s hometown where she discovered difficult living situations, including a drunken father and mother who frequently beat him, which made it obvious as to why Nava was so “desperate to leave.”[38] The mitigating evidence was presented to the victims’ family and they agreed to support the district attorney’s decision in serving a life sentence.


Article 36(1)(b) of the Vienna Convention of Consular Relations has been controversial in the United States since its ratification in 1969. The interpretation of this particular Article has been the subject of multiple Supreme Court decisions, amongst these decisions, the most impactful are Breard v. Greene, Sanchez-Llamas v. Oregon, and Medellin v. Texas. This ultimately resulted in the Supreme Court not requiring Texas to comply with the International Court of Justice or President Bush’s memorandum to reconsider the convictions of those that were denied their rights under the Convention. Nonetheless, Mexico has begun to make progress fighting for their citizens’ rights with programs like the Mexican Capital Legal Assistance Program.

  1. Foreign Nationals,, available at
  2. Id.
  3. James Michael Olivero, The Imposition of the Death Penalty on Mexican Nationals in the United States and the Cultural, Legal and Political Context (March 20, 2013), available at
  4. Id.
  5. Id.
  6. Vienna Convention on Consular Relations,, available at
  7. Mark J. Kadish, Article 36 of the Vienna Convention on Consular Relations: A Search for the Right to Consul, Michigan Journal of International Law (1997).
  8. Id.
  9. Sabrina Veneziano, The Right to Consular Notification: The Cultural Bridge to a Foreign National’s Due Process Rights, at 514, Georgetown Journal of International Law, available at
  10. Breard v. Greene, 523 U.S.371 (1998).
  11. Id.
  12. Id.
  13. Veneziano, supra note 8, at 529.  
  14. Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006).
  15. Id.
  16. Id.
  17. Id.
  18. Medellin v. Texas, 552 U.S. 491 (2008).
  19. Id.
  20. Id.
  21. Michael John Garcia, Vienna Convention on Consular Relations: Overview of U.S. Implementation and International Court of Justice (ICJ) Interpretation of Consular Notification Requirements, CRS Report for Congress (May 17, 2004).
  22. Id.
  23. Id.
  24. The Convention’s Optional Protocol was a treaty that the United States withdrew from which stated that the United States agreed to accept the jurisdiction of the International Court of Justice to settle disputes between Convention parties regarding the agreement’s convention. Supra at note 3.
  25. Id.
  26. Id.
  27. Leal Garcia v. Texas, 564 U.S. 940 (2011).
  28. Id.
  29. Id.
  30. Maurice Chammah, How Mexico saves its citizens from the death penalty in the US, Business Insider (Sep. 22 2016), available at
  31. Id.
  32. Id.
  33. Id.
  34. Id.
  35. Id.
  36. Id.
  37. Id.
  38. Id.

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