St. Mary's Law Journal


Foreign nationals arrested in the United States confront the disadvantage of mounting a criminal defense in several ways. In most cases, they are unfamiliar with U.S. customs, police policies, and criminal proceedings. Although U.S. courts strive to prevent bias against accused based on alienage, discrimination does occur. To minimize the disadvantages experienced by accused foreigners, international law guarantees the right of consular access. Under internationally accepted norms applicable in the United States, an accused foreigner is entitled to contact his home-state consult office for assistance. Furthermore, mere involvement of a consul may encourage local government to follow procedural norms and minimize discrimination against a foreigner. Because a foreigner may be unaware of the right of consular access or afraid to demand it, international norms require police and prosecutors to inform the accused of this right. Death penalty cases call for scrupulous observance of rights. In the United States, a number of procedures specific to capital cases have been devised to ensure the ultimate penalty is not wrongly imposed. International standards for rights have assumed great importance in the era of the United Nations. In this context, the right of consular access assumes a key role. If a foreigner detainee is denied that right, the proceedings may be tainted, and the suspect convicted unjustly. In the United States, the right of consular access is not enforced effectively. This omission leads to substantial injustice. To correct the situation, legislative, administrative, and judicial action should be taken to enforce Article 36 of the Vienna Convention, which encompasses the right of consular access. The United States has long defended the rights of its own nationals when charged with a crime in another country and should comply with the same international standards it seeks to impose on others.


St. Mary's University School of Law