I am told that the following letter to the UN Secretary-General dated March 7, 2005 has been signed by the Secretary of State and is to be announced in the UN Journal later this week.
Dear Mr. Secretary-General:
I have the honor on behalf of the Government of the United States of America to refer to the Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes, done at Vienna April 24, 1963.
This letter constitutes notification by the United States of America that it hereby withdraws from the aforesaid Protocol. As a consequence of this withdrawal, the United States will no longer recognize the jurisdiction of the International Court of Justice reflected in that Protocol.
Sincerely,
Condoleezza Rice
This raises a couple of interesting legal questions – and a huge political question or two. Today I'll do the legal questions. Tomorrow – unless other blogs beat me to it – I'll tackle the political issues.
Legal Questions
- Can the US withdraw from the Optional Protocol when that document is silent as to the possibility of withdrawal?
- If so, when is the withdrawal effective?
Political Questions
- What does this mean for the ICJ?
- What does this mean for the US?
- Why now?
For now, just a hint about the politics: Recently the US has lost three death-penalty-related cases before the International Court of Justice (ICJ)concerning failure to ensure that foreign citizens arrested here have a prompt opportunity to seek assistance from their consulate. The Supreme Court is about to hear arguments in the Medellin case about a US state's duty to comply with an ICJ decision. The manouvering in advance of that case has been nothing short of amazing; excellent coverage of the issues can be found at the SCOTUS Blog.
The US's decision to withdraw now is thus on the one hand a blow against the very idea of international law with binding effect, an attempt to take some issues off the table before oral argument, and a crude attempt to let states go on violating our international obligations. But on to the technical legal stuff…
Background: Vienna Convention on Consular Relations of 24 April 1963 [hereinafter “Consular Convention”] governs the operation of consular missions and is itself a cognate treaty to the Vienna Convention on Diplomatic Relations of 1961.
The Optional Protocol to the Consular Convention is a short companion document to the Consular Convention; states which adopt the Optional Protocol accept the compulsory jurisdiction of the International Court of Justice. (I've quoted the full text of the Optional Protocol at the end of this document.)
Can the US withdraw from the Optional Protocol when that document is silent as to the possibility of withdrawal? If so, when is the withdrawal effective?
The US letter seems to say that the US considers its withdrawal to have immediate effect:
This letter constitutes notification by the United States of America that it hereby withdraws from the aforesaid Protocol. As a consequence of this withdrawal, the United States will no longer recognize the jurisdiction of the International Court of Justice reflected in that Protocol.
I think this pretty clearly reads as an assertion of an immediate withdrawal, effective upon notice.
It's not at all clear to me that this instant withdrawal can be effective.
International law as to treaty withdrawal is a blend of customary law and the Vienna Convention on the Law of Treaties. The US is not a party to the Vienna Convention on the Law of Treaties, but accepts most of it as being declaratory of customary law. (So far as I am aware, the US has not claimed that the convention differs from the customary rule as regards treaty termination, but I'll return to that below.)
The Vienna Convention on the Law of Treaties has several potentially relevant articles in Section 3, which relates to the “Termination and Suspension of the Operation of Treaties”:
Article 54
Termination of or withdrawal from a treaty under its provisions or by consent of the partiesThe termination of a treaty or the withdrawal of a party may take place:
(a) in conformity with the provisions of the treaty; or
(b) at any time by consent of all the parties after consultation with the other contracting States.
This doesn't apply: neither the Optional Protocol, nor the Consular Convention itself speak about withdrawal. So that takes us to Article 56:
Article 56
Denunciation of or withdrawal from a treaty containing no provision regarding termination, denunciation or withdrawal1. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless:
(a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or
(b) a right of denunciation or withdrawal may be implied by the nature of the treaty.
2. A party shall give not less than twelve months' notice of its intention to denounce or withdraw from a treaty under paragraph 1.
I am not familiar with the travaux préparatoire for the Consular Convention, much less the Optional Protocol, but I'd be very surprised to learn the parties discussed withdrawal. It's also very hard to argue seriously that the Consular Convention itself implies a right of withdrawal to something almost as fundamental as the Vienna Convention on Diplomatic Relations. The argument regarding the Optional Protocol is a little more complicated. The Protocol doesn't say that withdrawal is impossible, and I'd think it could be argued that, given it's a separate and optional agreement, a right of withdrawal could be – if you look real hard – implied.
If the US has a right of withdrawal under the Vienna Convention on the Law of Treaties, then under Article 56 the US has to give twelve months' notice.
Now things get a bit more complicated. The US is not a signatory to the Vienna Convention on the Law of Treaties. The US generally takes the view that the Convention is declaratory as to customary law – by which the US remains bound – but that view doesn't apply to every word of every clause. And the twelve-month rule is one which may be more specific than the less-specific rules of reasonableness one generally finds in customary law. Even so, however, I don't see how the US's withdrawal can be effective immediately. [I do not know, however, whether there is any relevant state practice regarding the Consular Convention that might argue for any fixed amount of time – if there is, then that likely would control.]
Ironically, were another state to attempt to invoke the compulsory jurisdiction of the ICJ under the Optional Protocol against the US during the next twelve months, the body that would have to decide when (if ever) the US withdrawal became valid is … the ICJ itself.
OPTIONAL PROTOCOL TO THE VIENNA CONVENTION ON CONSULAR RELATIONS CONCERNING THE COMPULSORY SETTLEMENT OF DISPUTES. DONE AT VIENNA, ON 24 APRIL 1963
The States Parties to the present Protocol and to the Vienna Convention on Consular Relations, hereinafter referred to as “the Convention”, adopted by the United Nations Conference held at Vienna from 4 March to 22 April 1963,
Expressing their wish to resort in all matters concerning them in respect of any dispute arising out of the interpretation or application of the Convention to the compulsory jurisdiction of the International Court of Justice, unless some other form of settlement has been agreed upon by the parties within a reasonable period,
Have agreed as follows:Article I
Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol.Article II
The parties may agree, within a period of two months after one party has notified its opinion to the other that a dispute exists, to resort not to the International Court of Justice but to an arbitral tribunal. After the expiry of the said period, either party may bring the dispute before the Court by an application.Article III
1. Within the same period of two months, the parties may agree to adopt a conciliation procedure before resorting to the International Court of Justice.
2. The conciliation commission shall make its recommendations within five months after its appointment. If its recommendations are not accepted by the parties to the dispute within two months after they have been delivered, either party may bring the dispute before the Court by an application.Article IV
States Parties to the Convention, to the Optional Protocol concerning Acquisition of Nationality, and to the present Protocol may at any time declare that they will extend the provisions of the present Protocol to disputes arising out of the interpretation or application of the Optional Protocol concerning Acquisition of Nationality. Such declarations shall be notified to the Secretary-General of the United Nations.Article V
The present Protocol shall be open for signature by all States which may become Parties to the Convention as follows: until 31 October 1963 at the Federal Ministry for Foreign Affairs of the Republic of Austria and, subsequently, until 31 March 1964, at the United Nations Headquarters in New York.Article VI
The present Protocol is subject to ratification. The instruments of ratification shall be deposited with the Secretary-General of the United Nations.Article VII
The present Protocol shall remain open for accession by all States which may become Parties to the Convention. The instruments of accession shall be deposited with the Secretary-General of the United Nations.Article VIII
1. The present Protocol shall enter into force on the same day as the Convention or on the thirtieth day following the date of deposit of the second instrument of ratification or accession to the Protocol with the Secretary-General of the United Nations, whichever date is the later.
2. For each State ratifying or acceding to the present Protocol after its entry into force in accordance with paragraph 1 of this Article, the Protocol shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification or accession.Article IX
The Secretary-General of the United Nations shall inform all States which may become Parties to the Convention:
(a) of signatures to the present Protocol and of the deposit of instruments of ratification or accession, in accordance with Articles V, VI and VII; (b) of declarations made in accordance with Article IV of the present Protocol; © of the date on which the present Protocol will enter into force, in accordance with Article VIII.Article X
The original of the present Protocol, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations, who shall send certified copies thereof to all States referred to in Article V.
IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly authorised thereto by their respective Governments, have signed the present Protocol.
DONE at Vienna, this twenty-fourth day of April, one thousand nine hundred and sixty-three.
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Unfortunately I think the administration’s response to another country objecting on international legal grounds would be “What are you gonna do about it?”
I guess we’ll see if that’s their response to a U.S. court.
First of all thanks for the details. As punctilious as I am I’m interested in them.
But I have to agree with the last comment. The ICJ doesn’t have any power to compel actions.
What’s to stop Bush from saying what Andrew Jackson so famously did:
“They have made their ruling. Now let us see them enforce it?”
According to the legal theory under which this administration operates, it is the WH’s privilege to ignore law that restrains the ability of the government to wage the GWOT. We’ve seen this already happen with respect to torture and detentions. This withdrawal from consular convention seems yet another indication that Bush’s legal theory is alive and well.
Thus, we have the same questions as before: does law (or any obligation, for that matter) have any value or meaning when its subscribers can withdraw at their own convenience? What would happen to the economy, for instance, if I was to simply declare that I withdraw from the laws regarding payment of debts? (And this was enough to forestall any legal response by my creditors to get me to pay).
I wonder, will the WH someday do the same with the our judicial branch of government? This branch of government certainly appears to be superfluous, according to WH legal theory.
Well,
I’m mostly an ignoramus in these matters, but it seems to me that abruptly Withdrawing from an agreement previously negotiated and agreed upon is, uhm, a bad faith breach of contract.
Direct Punishment for such is, of course, out of the question. Yet, what recourse does the U.S. have if the rest of the world starts withdrawing from U.S. treaties that they likewise now find inconvenient ? Or worse yet, start pushing us out of treaties/trade agreements that we do find terribly convenient ?
If we want to isolate ourselves from the rest of the world, I’m sure that the rest of the world can find ways to accomodate us.
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This may sound like a stupid question, but did we ever ratify it? I was somewhat suprised a while back to find that people were acting as if another of the Vienna Conventions was legally binding, even though Congress had never acted on it.
Now, if it WAS ratified, I certainly agree Bush can’t withdraw us from it on his own authority. He can’t repeal treaties any more than he can make them binding, both are rights of Congress.
Just as important as the question of “if” the U.S. can legally withdraw is the question of “how” it can legally withdraw.
Certainly, under U.S. law, any subsequent treaty or domestic law can supercede a prior treaty (contrary to customary international law). But, if the Treaty was ratified by the Senate, the general rule is that the President has to faithfully carry out the laws and treaties of the United States, a general rule that would not ordinarily be met by the President simply declaring a treaty abrogated if the treaty doesn’t expressly give him that right (and this one does not). (The ABM Treaty which GWB withdrew the U.S. from was different because it expressly contemplated and provided for procedure for a nation’s withdrawal from the treaty).
Thus, this may be more of a separation of powers issue than it is an issue of the terms of the treaty (which U.S. law clearly gives Congress the power to abrogate even if the treaty by its terms forbids such action).
That’s a good question about whether it’s been ratified by the Senate. Presumably, congress would then act as the enforcer and–what–impeach?
At the same time, it’s a good question about the value or meaning of less formalized agreements that the United States enters into if we can just up and leave at any time. Unless these obligations are formally ratified, I suppose we can only assume that agreements like the consular conventions are little more than photo-ops or publicity stunts to add to a politician’s resume. I’m not sure how else to interpret this.
What’s interesting is that the US is withdrawing from the consular convention in order to defend its right to continue to execute people; just makes you think… isn’t the WH worried about US citizens that might not have access to consular support in similar cases where they might be executed? Ah, but then there are only 78 countries left that retain the death penalty for ordinary crimes, so I suppose the US figures the odds are favourable.
It strikes me that a suitable form of retaliation – if this sort of thing continues – might be a decision by other countries of this world to no longer recognize US patents and copyrights.
The USG’s withdrawal from the Vienna Convention on Consular Relations should be viewed in the context of the so-called Global War on Terror. The USG is increasingly being called upon to honor its treaty obligations — whether they involve the Vienna Convention in Avena or the Torture Convention in the multiple cases related to anti-terrorism law enforcement — which hampers executive action. Thus, the withdrawal represents the latest step in the reorientation of the USG toward international law and treaty obligations so that, according to the executive, it can deal effectively (i.e., with as little restraint as possible) with perceived threats to U.S. national security.
The whole discussion above is a sad illustration of how American liberals make themselves unpopular, something this moderate doesn’t want. A nationalist — which is what most Americans are — does not go looking diligently for legal arguments to prevent his government from doing the will of his fellow citizens against the wishes of foreign states or their citizens. (Practical arguments — e.g., expect retaliation, are a different matter.) And the very notion that “international law” formulated by law professors, diplomats and the like stands above the Constitution is surely going to stick in most people’s craws. To my mind the power to abrogate, denounce or just plain break treaties is fundamental to sovereignty. If the United States ever surrendered it, I wonder when it was that the American people decided to do that.
But the whole point of a treaty is that it is a two-way deal: you give something to get something. What we get is the same consular privilege we extend to foreigners. That’s a very valuable thing to have considering how arbitrary some foreign governments can be.
The issue isn’t the power of the US to abrogate a treaty — the issue is (1) the wisdom of it and (2) whether we’ve bound ourselves to give 12 months notice before the abrogation takes effect.
As for “international law standing above the Constitution” — it is equal to it — and that’s not a creation by law professors or diplomats, but by the Framers themselves who did it for very practical reasons — to reassure foreign countries that we would stand by our agreements.
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