The Vienna Convention on Consular Relations (Vienna Convention), to which the United States is a party, requires signatories to notify the consulates of and to grant consular officers physical access to foreign criminal defendants. While the treaty has mostly functioned well for its states parties, the United States has recently encountered substantial problems—and international ill will—for its failure to comply with these requirements.
The language of the Vienna Convention reflects the historical and geopolitical landscape that existed in 1963—one in which the pace of immigration was at a relative lull and Cold War spy games, not state-level capital offenses, were top priority. Not long after the Vienna Convention’s drafting, changes in U.S. immigration policy drastically increased the number of noncitizens and, in turn, foreign criminal defendants. Yet because the consular notification and access requirement applies to each foreign criminal defendant in the United States, no matter the severity of the crime, American authorities today cannot feasibly enforce its provisions.
The United States must preserve its reputation for observing its international obligations if it intends to invoke the Vienna Convention when its own citizens are detained abroad. This Comment proposes that the United States and high-priority partner countries enter into a series of bilateral modifications to the Vienna Convention that limit the scope of the notification requirement to foreign criminal defendants charged with capital offenses. This solution would lessen the administrative and logistical costs of American compliance with the Vienna Convention while granting consular officials access to their foreign nationals detained in U.S. custody—including the 143 noncitizens on death row across the country.60-5-5