A tale of two realities: foreign nationals, consular assistance, and the death penalty in the USA

There are currently 125 foreign nationals from 32 nations on death row across the USA. Many of them were not advised of their right to consular assistance under Article 36(1)(b) Vienna Convention on Consular Relations (1963) (VCCR). Often, this prejudiced their cases and contributed to their death sentences, as the three examples of foreign nationals provided in this article identifies. Based upon previous decisions by the International Court of Justice (ICJ), these foreign nationals are entitled to a review and reconsideration of their cases. However, to avoid this, in 2005 the USA purported to withdraw from the Optional Protocol to the VCCR, which gives jurisdiction to the ICJ to rule upon breaches of the VCCR. This article contends that are two ?realities? at play here: the USA?s reality, which is that it cannot be held accountable for breaches of a treaty that confers individual human rights, and the international law reality, which is that the USA is still a party to the VCCR and its Optional Protocol. Through an analysis of Article 56 Vienna Convention on the Law of Treaties (VCLT), it is argued that the withdrawal was invalid and the USA remains under the ICJ?s jurisdiction regarding alleged breaches of Article 36(1)(b). Should a state wish to withdraw from such an Optional Protocol, it must withdraw from the treaty in its entirety. This article offers a solution to this problem in the form of a test case being brought before the ICJ to rule upon the validity of the withdrawal.