09 Mar U.S. Withdraws From ICJ Jurisdiction Over Consular Relations Claims
I noted rumors/reports of this below, and now the New York Times confirms that the U.S. has withdrawn from the Optional Protocol to the Vienna Convention on Consular Relations. The Optional Protocol is the provision granting the International Court of Justice compulsory jurisdiction over disputes under the consular relations treaty and the basis for Mexico’s (and Germany’s) applications to the ICJ. If the U.S. has indeed legally withdrawn from the Optional Protocol, then the ICJ can no longer hear future cases brought by other countries with foreign nationals similarly situated to Mexico’s nationals. (Update: Marty Lederman, as usual, was first to notice this article and the first to comment. Michael Froomkin has the text of the withdrawal and more comments about the timing of the withdrawal)
A couple of insta-observations:
(1) The ICJ might find that the U.S. withdrawal itself was not in conformity with international law. In particular, the Vienna Convention on the Law of Treaties (if it is accepted as customary international law) seems to prevent countries from withdrawing from a treaty unless that treaty specifies that withdrawal is permitted. Even if withdrawal is permitted (because the parties intended to allow withdrawals), the U.S. might be obligated to give at least 12 months notice before withdrawing. If so, other countries who have nationals facing execution in the U.S. could (and very well might) file cases in the next 12 months seeking to get an ICJ judgment before the U.S. government’s withdrawal takes effect. More work for my former colleagues at Debevoise & Plimpton (who currently represent Medellin and also worked for earlier ICJ cases involving Mexico and Paraguay)…
(2) A U.S. court might find that the President lacks the authority to unilaterally withdraw from a treaty and that he must get senatorial consent to any withdrawal. This has never been definitively decided by any court with the Supreme Court avoiding the question back in 1979 with several justices calling this a “political question.” So, assuming the ICJ is willing to continue to hear cases (maybe for just 12 months), this case might indeed come back to U.S. courts where the question of the legality of the President’s withdrawal could be considered again. I think if it is considered, the U.S. court will likely find that the President can indeed withdrawal unilaterally as recent practice (remember that ABM treaty?) seems to confirm.
(3) The U.S. is still party to similar Optional Protocols granting the ICJ jurisdiction over disputes involving the Vienna Convention on Diplomatic Relations and about 19 Friendship, Commerce, and Navigation Treaties. Assuming the U.S. withdrawal is effective, these appear to be the only self-executing treaties over which the ICJ continues to maintain binding jurisdiction over the United States. The United States already has withdrawn from the ICJ’s general compulsory jurisdiction. If so, the ICJ’s relevance (at least to the United States) will continue to fade and decline.
(4) My former colleague Peter Spiro has an amusing reaction in the NYT. “It’s a sore-loser kind of move. If we can’t win, we’re not going to play.” This is a fair point. On the other hand, when other countries have had real interests at stake, many of them have also withdrawn or limited the ICJ’s jurisdiction. See, e.g., France (Nuclear Tests) and Australia (seabed boundaries with East Timor). So maybe we are sore losers. But so is everyone else…