Author Archives: Michael Froomkin

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.