The Politics of the Withdrawal from the Optional Protocol to the Consular Convention

Yesterday I blogged the legal issues relating to the US's decision to withdraw from the Consular Convention. Today I want to explore the politics of it. And they're somewhat strange.

I don't of course know what the administration is thinking, and my ability to build a working mental model of the political and legal thinking of the crazed royalists in and around the White House is, I trust, somewhat limited. Nevertheless, from my perch very far outside the Beltway it seems much more likely than not that this move is primarily driven by the Medellin case and the more general problem that foreign states are bringing and winning cases in the ICJ charging failure to inform foreign nationals of their rights under the Consular Convention. These losses, most recently a very quick decision on provisional remedies, interfere with some of our states' desires to execute foreigners convicted of serious crimes, just as those states execute our own citizens.

The US's decision to withdraw from the mandatory jurisdiction of the ICJ over violations of the consular convention is a poke in the eye to the ICJ. It adds its mite to the US's increasing isolation among the civilized and cooperative nations of the world. It – quite intentionally – sets back the cause of the rule of law in the international system. These other effects were probably features, not bugs, in the eyes of the Administration. But they were, I suspect, fundamentally mere side-effects, bonuses..and it is the very casualness with which the administration tolerates such side effects which will magnify the damage they cause.

It's not hard to understand how this administration might think it scores points with the base – or even the masses – by acting in away that it can describe as both pro-death penalty and anti-world government. But in fact the act of withdrawal from the Optional Protocol (presuming it is even valid) is formally neither. The ICJ, unlike the WTO or the ICC, is about as far from world government as you can get. And were the administration committed to the rule of law domestically, the removal of the ICJ's ability to beat us over the head with words is also of almost no significance. Because our law instructs our courts (and other government officials) to beat themselves over the head when needed.

Article VI of the U.S. Constitution states that “all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land.” International customary law is also part of federal law: as the Supreme Court reminded us over 100 years ago, in the Paquete Habana case, “International law is part of our law.” And, under the Supremacy Clause of the Constitution, it follows that if the nation is bound to follow international law, that obligation must somehow be communicated to and adhered to by the states. The precise means by which that happens in the absence of legislation may be uncertain; the role of the President and of the federal courts in making that stick may be controversial; but it is clear that the obligation exists in some form. Taking away the compulsory jurisdiction of the ICJ that arises from the Optional Protocol of the Consular Convention will not change that formal obligation, nor so long as the US remains a party to the Consular Convention will our legal obligations under it be diminished in any way.

The decision to walk away from the Optional Protocol is thus revealed as being only one of three things: (1) It could be an act of simple petulance; (2) It could be a studied move of retaliation against the ICJ for other decisions in other areas, a retaliatory act whose subtlety would seem to exceed the capacity of the people who wish to make paleoconservative John Bolton our ambassador to the UN; or (3) most likely, it is an invitation to the states to take it easy on compliance with our legal obligations under the Consular Conventions, obligations which endure past our withdrawal from the Optional Protocol.

That third option is of course another poke in the eye, a destructive thrust aimed not at international system, but at the domestic commitment to the rule of law. That it emanates from people who do not, in their hearts, speech and writings really consider international law to be law in any binding way, and who see the basic sinews of international legality – the Geneva Conventions, for example – as at most annoyances, only makes it worse. And it further calls into question their belief in domestic law.

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9 Responses to The Politics of the Withdrawal from the Optional Protocol to the Consular Convention

  1. w says:

    L’etat, c’est moi.

  2. Bricklayer says:

    Our move is by no means an indication that any political group in our country doesn’t believe in the domestic rule of law. To conclude as such is a failure to see the issue with any perspective, but to merely analyze it from a heads-down literal interpretation of pieces of paper.

    We have: more lawyers in this country than any other in the world, more law schools, more law publications, we’ve seen tremendous outrage over the recent slayings of judges here, unique among our common law bretheren we still maintain defendant-biased rules like hearsay and exclusion.

    And yet, from where you sit, the political implication (or as you see it perhaps intent) of withdrawl from an international protocal is to undermine our own domestic commitment to the rule of law? How you connect A to B is beyond me. Do you also feel we are lawless nation because most of us drive over the speed limit and jaywalk?

    You said this post was about politics, so lets talk politics. The fact of the matter is that no international judicial body has the political independence a judicial assembly should have, such as our Supreme Court (which given the politcal nature of appointments isn’t perfect either). Thus there is potential for a “court” like the ICJ to be a political instrument to harass the boogeyman of the week (apparently that’s us) rather than seek wise, reasoned, and reflective Justice.

    It is hardly barbaric or uncivilized to have serious reservations about the viability of international laws and courts. This is particularly true when these courts will be asked to adjudicate cases involving war crimes. One culture’s hero is another’s devil. At a practical level, the complete incompetence and corruption displayed by modern international bodies and beaurocracies ought to frighten anyone called before such “courts.” The power of a judiciary derives not from pieces of paper, but in the faith of those who will be subject to its decree. Thus we see our own Supreme Court decline cases it might have jurisdiction over for reasons of “political questions”. A court ought not meddle in questions that are more political than legal. Our wise justices understand the interplay of law and politics, but many liberal law professors do not. When an international court goes poking its nose into whether or not a Rumsfeld, Sharon or Arafat is a criminal its legitimacy is severely threatened and it will loose its potency to handle the Melosivic’s and Hussein’s of the world. It also reflects a deeper lack of understanding towards what criminal law is.

    I find your conclusions hard to reconcile with the deeper philosophical foundations of law and governance. I find them easy to reconcile with the leftist tendancy to worship all things continental and elitist. Your blog has been woefully silent on recent UN scandals and corruption, I find it very odd that these events did not capture your attention enough to inspire you to share your thoughts with your readership. You were quick to attack the Abu Gharib soldiers, but where is the outrage over UN sex crimes in Africa? Sure, you can write about whatever you wish and bury whatever you wish. But don’t hold out international bodies as any more capable than our own enlightened system of checks and balances. Without putting international bodies into their proper perspective, it is totally inappropriate reasoning to assume that our rejection of one indicates a lack of respect for the rule of law.

    All that is written and signed is not the Law. That is why law school lore includes the old addage that it is the B students who become the judges.

  3. Michael says:

    That the US breached its obligations under the consular convention is not seriously doubted by any scholars of whom I’m aware, from left to right — with the possible exception of the Yoo’s of the world, whom I consider the lunatic fringe. Thus, the implication that the ICJ has to date been unreasonably political strikes me as not well founded (although the potential does indeed exist).

    Much of your comment seems directed at something other than what I wrote. I said, quite simply, that since our obligations under the treaty continue, the import of the administrations action in renouncing the optional protocol is to attempt to make it impossible for people to enforce this obligation. Since under our Constitution (have you read it all the way to the end?) our treaty obligations are the highest law of the land, the obvious consequence of an attempt to make our obligations unenforceable is to greenlight violations of the obligation (or our highest law). That does violence to the idea of the rule of law domestically. [All this is given that the administration argues that the Convention is non-self-executing, a complex issue in itself.] This is not a complex argument and seems to me to be quite easy to reconcile with almost any theory I know of “foundations of law and governance” other than America uber alles.

    I write primarily about things for which I feel the greatest personal responsibility or in which, idiosyncratically, I happen to have an interest. Thus, for example, I tend to write much more about what the US government does than what other governmental bodies do. If the US government takes up a policy of torture, I think we in the US all share in the moral duty to criticize and oppose it, and to seek to change it. I know of no government in the world that is without sin, but I rarely address the acts of other governments — what our government does is much more up close and personal. “You start where you are,” as the late great Saul Alinsky reminded us.

    Given the limits of time and human capacity I categorically reject the suggestion, indeed find it juvenile, that my failure to condemn an act by party X or government Y or the UN or anyone else in any way whatsoever casts doubt on the moral validity of my critiques of what MY government does. (If we must talk about the barbarisms alleged against the UN, let us at least note that there the claim is of a pattern an practice of indifference to barbarity rather than a centrally directed policy. Very evil, yes; worth criticizing, absolutely; but in the case of the higher-ups it is indifference, perhaps deliberate, rather than what seems to be or have been be an actual activist policy of war crimes or near war crimes.) Furthermore, I also believe that at least as an abstract matter the content of an argument is more important than the speaker. Thus, even if I were wrong about my moral claim regarding prioritization, mentioning is an irrelevance, a distraction, a trick or a self-delusion, an attempt for political or psychological purposes to avoid having to confront the moral requirements imposed by the apparently barbaric acts of our own government, acting in our name.

    Remember how we now recall the ‘good Germans’ of the 1930s & 40s who stayed silent about concentration camps and went on with their lives. Government-sponsored torture is not a “liberal” issue. And, although the concerns it raises are deeply, deeply, rooted in our oldest political traditions it’s not a “conservative” issue either. It’s an American issue. It’s a human issue.

  4. Basharov says:

    Thus there is potential for a “court” like the ICJ to be a political instrument to harass the boogeyman of the week (apparently that’s us) rather than seek wise, reasoned, and reflective Justice.

    There’s always the potential that any court will be used as a political instrument, but I don’t know of any instance in which the ICJ, which is a court of very limited jurisdiction and whose judges are some of the most respected figures in world law, has been used to harass “the boogeyman of the week”. The ICJ takes very few cases, and the ones it does take it accepts because the countries involved have agreed to its jurisdiction. The U.S. has a habit of picking up its marbles and running off in a huff when the Court issues a ruling it doesn’t like (as in 1984 when it upheld Nicaragua’s claim that the U.S. had illegally mined its harbors and committed acts of war against it, a decision that was solidly based in overwhelming evidence that the U.S. had committed egregious crimes against the people of Nicaragua, including hiring thugs to kill 30,000 of them), but I defy you to find anyone other than the crackpots at the Heritage Foundation or the Hoover Insitute who can make an argument that the opinions of the ICJ are not founded in “wise, reasoned, and reflective Justice.” Michael is right — the determination of this administration to reject international law and treaty obligations it feels no need to observe is part and parcel of its obvious belief that it can also ignore domestic law whenever it wants to. The major difference is that under our Constitution we still have a few independent judges who are willing to tell this Administration that it cannot lock up anyone it wants for as long as it wants and torture them with impunity merely by waving a paper around that calls the person an “enemy combatant.” This lawless bunch can ignore international law because there are no effective enforcement mechanisms to implement the decisions of international courts, but it still can be hamstrung by the domestic courts. I see the day coming, however, when a federal court orders the release or trial of the people we’ve been torturing in Gitmo, and Bush says (like Andrew Jackson in another case), “The Court has made its order, now let it enforce it.” Nothing these people do surprises me, and since they have a lot to lose if what’s been going on in Gitmo (and in their other secret prisons) gets a fair hearing in an independent court, they will do whatever they can to prevent the day of reckoning. Unfortunately, in what has become a One-Party-State, they just may get away with it.

  5. Bricklayer says:


    You inject too much of your own pessimism into the analysis. You also inject too much of your own acceptance of the ICJ. The fact is that the ICJ (and lately all international bodies) lacks the aura of legitimacy with most Americans, regardless of whatever case you make for it. Since you bring it up, surely you can see a difference between snubbing the ICJ and snubbing the Supreme Court as it pertains to the snubber’s respect for the domestic rule of law.

    I say pessimism, because I find your analysis flawed in the sense that it applies after-the-ruling interpretations to actions that were not indisputably lawless before the ruling. Using your reasoning for example, post-Miranda you would conclude that all domestic arrests that failed to read a defendant his rights prior to Miranda were “lawless” and our police had “disdain for the rule of law”. Surely such a conclusion would not be a fair portrayal of pre-Miranda law enforcement, as there was disagreement as to the extent (if any) an arestee needed to be informed of his rights. Now Miranda is a household word, and fairly rigorously obeyed. Applied to that similar scenario, your reasoning leads to false conclusions about police respect for the rule of law.

    Therefore, given the disputable law regarding the rights of terror captives, before you jump to conclusions you must wait to see if recent rulings are followed. If you choose to be pessimestic, so be it, but pessimism is not exactly fair and certainly not reason.

    If we are going to start questioning what each other has read, then let me inquire as to your reading not of the Constitution, but the cases interpreting the Constitution with regards to executive power over foreign policy and treaties in particular. Because if you had read such cases, you’d be familiar with the Court’s aggressive use of the “political question” doctrine when faced with Constitutional interpretation of specific executive powers vis-a-vis Treaties, and general deferance to the executive for all things foreign. To imply that the executive’s use of power to achieve a political end within the context of a treaty should have any connection to the executive’s respect for domestic law displays one’s failure to understand this area of law.

    I agree its not particularly relevant what you choose to write about here. My point was merely that it is crucial to exploring the politcal aspects of the situation to put the domestic perception of international bodies into their proper perspective. Many americans see the UN as a corrupt failure, and either have no idea what the ICJ is or see no reason to subject our boys to its jurisdiction. Within that context, walking away from it is hardly a reason to be concerned for domestic rule of law. Its ironic that you mention good germans, because now all of the sudden they and their european ueberzivilisierte are the world’s arbiters of justice? I think not.

  6. michael says:

    Read the cases? My friend I teach those cases. I strongly suggest you take the introductory public international law course — I am teaching it this semester but won’t as it happens teach it next year so you are quite safe — before you opine quite so confidently on what US law is as regards treaties. (Rather than the political question doctrine, you should be meditating on the progeny of Missouri v. Holland for starters. And the many cases that reinforce the idea that ‘international law is part of our law’. The Curtis-Wright line of cases, which is the one that extols the executive’s discretionary powers in foreign affairs is founded (1) on facts where legislation gave the President discretion and (2) there was no contrary treaty and (3) there was no contrary opinion by an international tribunal to whose jurisdiction the US had consented. Those cases are thus radically different.

    I’d also caution you about the careless use of legitimacy arguments. Legitimacy is important, but it works in strange ways. Take, for example, Brown v. Board of Education. The decision may not have seemed legitimate to many citizens. That doesn’t mean it was not correct. And, if anything, the case for ‘correctness’ in the sense of fidelity to our constitutional text and traditions is stronger for the observation of treaties. And finally, the ignorance of the public — if indeed the public is as ignorant as you posit — is no excuse for us to evade our solemn international obligations. The obvious purpose of the withdrawal from the optional protocol is to make it more difficult for those obligations to be enforced, especially as the administration is arguing that the treaty is not self-executing, and that absent legislation the executive, not the courts, can unilaterally decide whether a treaty can be enforced in state court (and presumably federal court although this isn’t directly addressed in their briefs). [Have you perchance actually read the government’s briefs in Medellin?] If we have an obligation to Mexico in a treaty which, incidentally, is pretty clear whether you invoke the ICJ or not, and our Constitution says that this obligation is part of our law on par with the Constitution itself, and our administration engineers a scenario in which it is easier for states to evade that obligation, then I think it’s pretty clearly a case of disrespect for the domestic rule of law. Unless of course you subscribe to the ‘King George’ school of constitutional interpretation, which holds that the law is what the President says it is.

    [There is a subtle argument to be made that a treaty is not necessarily what the ICJ says it is for all purposes. That argument — part of a larger argument that US courts may, in fidelity to our Constitution, adopt a view for purely domestic purposes of the content of certain aspects international law which differs from what we understand the rule to be internationally — has some attractions, but it also has some serious problems. Happily, it is not relevant here: the consular obligation is not a purely internal matter, but one that we owe directly to the foreign states whose nationals we arrest, and thus to the individuals as a matter of international law.]


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