US Withdrawal from ICJ Review of Vienna Convention Cases

The US has withdrawn from the agreement allowing the International Court of Justice to review cases involving the Vienna Convention. The court ruled last year that the US had failed to comply with the provisions of the Vienna Convention granting access by consuls of the home country to Mexicans arrested in the United States.

The decision to withdraw is a sad one for the US, since we should be leading the way in respecting law, not acting as a scofflaw. In addition, the Vienna Convention will do more to protect American citizens who are arrested overseas than it will interfere punishing with foreigners arrested in the US. Despite all the press about our treatment of some people arrested on terrorist charges (see my previous post), Americans do not routinely torture suspects arrested by the police, while other countries do, which is why I so strongly oppose the policy of rendition of US prisoners to other countries.

This is another example of the neo-cons' contempt for international law, regardless of the justifications made below by the State Department briefer. Contempt for international law is probably a self-fulfilling strategy. Law depends on tradition and precedent, and to the extent that the US asserts its sovereignty and refuses to acknowledge international law, international law ceases to function. Traditionally good, moral countries have benefited from international law, and bad countries have been hindered by it, which is not to say that international law will prevent a bad country determined to go to war with its neighbors from doing so, but it is a hindrance, and tends to show who is right and who is wrong. By snubbing its nose at international law, the US is lining up on the wrong side of the law with the bad guys.

Another neo-con objection is that opponents of the death penalty are using this international law provision to try to block executions, which is true. But, on the other hand, if the states involved, particularly Texas, had complied with the provisions of the Vienna Convention by granting Mexican consuls access to the prisoners, then this channel would not be open to the death penalty opponents. The states left themselves vulnerable by failing to abide by the Vienna Convention. Plus, the death penalty issue cuts another way: these are not cases of petty theft or shoplifting; these are cases in which the state is going to kill the accused. Therefore, it seems proper that the state should make a concerted effort to fulfill every legal requirement before it does so, including complying with the Vienna Convention.

The following is the statement made at the Department of State press briefing on March 10, 2005:

QUESTION: Adam, can you discuss a bit about the rational behind the Administration's decision to withdraw from the optional protocol through the Geneva Conventions which give the International Court of Justice and measure of jurisdiction in U.S. capital cases? There's already criticism that this is part of a continuing trend of unilateralism --

MR. ERELI: Right. Well, let me address that latter criticism first. I don't think anybody should conclude by our decision to withdraw from the optional protocol that we are any less committed to the international system or that we are in any way walking back from international commitments. To the contrary, we remain a party to the Vienna Convention, we remain committed to fulfilling its provisions and we stand by it.

Second of all, the International Court of Justice, pursuant to a dispute referred to it under the optional protocol, rendered a judgment in the Avena a case dealing with how state courts in the United States handles certain capital cases of foreign nationals' claim to consular access. That is a decision that -- the decision the ICJ handed down is a decision, frankly, that we don't agree with.

Yet, in recognition of the optional protocol and our international commitments, the President has determined that the United States will comply with the judgment of the International Court of Justice and that we will review -- our state courts will review -- the cases that ICJ responded to.

However, we would also note that when we signed up to the optional protocol, it is not anticipated that this -- that when you refer a case -- cases that would be referred to the ICJ and the ICJ would use the -- and the optional protocol would be used to review cases of domestic criminal law.

This is a development, frankly, that we had not anticipated in signing up to the optional protocol and that we, frankly -- we -- and I would note, you know, 70 percent of the countries that are signatories to the Vienna Convention also decided not to sign up to the optional protocol so it's not just the United States going against everybody else. I mean, we are in a sense joining an existing majority in not participating in the optional protocol and the reason is because we see the optional protocol being used by people or developing in -- going in directions that was not our intent in getting involved.

I mean, so the bottom line is we believe in the international system, we are a committed participants in the international system, as reflected by our continued commitment to the Vienna Convention and its provisions, as well as our decision to comply with the judgment. But at the same time, we see that in this specific case, and in the use of optional protocol, frankly, the way it's being interpreted, the way it's being used, go against the ideas -- the original ideas -- that we signed up for.

QUESTION: But protocol came in handy for the United States during the Iran hostage crisis. Then there's criticism that we're now cherry-picking the provisions that we like and don't like, that this might be short-sighted in the long-run.

MR. ERELI: Well, again, I don't think we're cherry-picking. I think that this is a really unexpected and unwelcome precedent where people who don't like decisions of our state courts can use an international court as a court of appeal. And that doesn't make any sense at all. And so what we're talking about is, we've got a system of justice that works in the United States and I don't think you should compare it to other countries, like Iran in 1979. We have a system of justice that works. We have a system of justice that provides people with due process and review of their cases. And it's not appropriate that there be some international court that comes in and can reverse decisions of our national courts.

QUESTION: A follow-up?

MR. ERELI: Yeah.

QUESTION: But why does the United States on the one hand decide to, you know, go along with this ruling to review these cases and then just days later decide to pull back?

MR. ERELI: Because, precisely because, we respect the international system, because we respect the authorities and the jurisdictions of international institutions when we sign up to those international -- when we sign up and submit ourselves to those jurisdictions. So it shows that, look, even though we don't like something, even though we think it's wrong, if we submitted ourselves to that jurisdiction freely and according to international obligations, then we will honor those international obligations. And that's why we are complying with the case.

But we're also saying in the future we're going to find other ways to resolve disputes that come under the Vienna Convention other than submitting them to the ICJ. We'll do something else. So we're still committed to the Vienna Convention. We're still committed to upholding its principles and fulfilling our obligations under that convention. What we are saying is when there are questions about that, we'll seek to resolve them in a venue other than the ICJ. Given that the ICJ is in this case, as well as the Lagrand case, establish a precedent of using this mechanism to affect our domestic legal system.