The Limits of International Law: Efforts to Enforce Rulings of the International Court of Justice in U.S. Death Penalty Cases

Abstract

Since the Supreme Court reinstated the death penalty in 1976, the United States has executed twenty-eight foreign nationals from fifteen different countries. Most of those foreign nationals were never informed of their rights to consular notification and access under Article 36 of the Vienna Convention on Consular Relations, a treaty the United States ratified in 1969. Violations of Article 36 in capital cases have caused consternation in foreign capitals and endless litigation in domestic courts and international tribunals. Mexico, which has the largest number of foreign nationals on death row, established the Mexican Capital Legal Assistance Program in 2000 to assist its nationals facing the death penalty and to ensure that Vienna Convention claims were aggressively litigated. Several foreign governments have filed briefs in state and federal courts describing the nature of the assistance they could have provided if their nationals had been promptly notified of their consular rights. In dozens of cases, appellate lawyers have argued that consular assistance could have made the difference between life and death. Yet, even in the wake of favorable judgments from the Inter-American Commission of Human Rights, the Inter American Court on Human Rights, and the International Court of Justice (ICJ),o national courts have persistently refused to grant any measure of relief to condemned foreign nationals, even in cases in which the violation was undisputed. As of September 2011, domestic courts have overturned death sentences on the basis of Article 36 violations in only two cases.'

Keywords: international law, death penalty