Scott Horton Posts Six Questions for Mary Ellen O’Connell

Over at the Harper’s blog, Scott Horton has posted a Q& A with Mary Ellen O’Connell about her book “The Power & Purpose of International Law.”  (OJ hosted a discussion of Professor O’Connell’s book last month, accessible here.)   Among the interesting exchanges is this discussion of the U.S. relationship to the ICJ and rejoining the Optional Protocol of the Vienna Convention on Consular Relations:

Assuming that the Obama Administration wants to begin to move the nation back into compliance with its international law obligations and smooth over the ruptures surrounding the ICJ, what can you suggest as a first step?

America should recommit to ICJ enforcement of the Vienna Convention on Consular Relations. Secretary Rice pulled us out of the Protocol providing for that enforcement. All Americans should want this because it is the means of assuring that the U.S. embassy will be notified if we are arrested in a foreign country. Rice threw away America’s right to enforce the Convention in the ICJ, which is astounding since the United States was the first country to use the Protocol. We won a unanimous ICJ order to Iran to release our hostages in 1979. That order underpinned the successful campaign that eventually led to the safe homecoming of the hostages and the peaceful resolution of billions of dollars of claims.

Bellinger fully supported leaving the Protocol because the United States has lost cases at the ICJ over our own treatment of foreigners arrested in this country. We deserved to lose those cases. We do a poor job of informing non-Americans of their right to contact their consul or embassy. We could easily add a line to the Miranda warnings: “If you are not a U.S. national, you may have the right to have your consul notified.” Rather than doing this or otherwise improving our compliance, we refuse to be answerable to the ICJ. Leaving the Protocol was characterized by the same hubris that tainted so many Bush Administration foreign policy decisions.

Elihu Root, Teddy Roosevelt’s Secretary of State, helped draft the statute of the International Court of Justice. He believed in courts—all courts—as the sensible way to resolve disputes. He was a pragmatist, as is our new president. I believe a return to the Protocol could be an important first step back to acceptance of the ICJ’s compulsory jurisdiction, which we rejected when we lost another case we deserved to lose in the 1980s, for mining the harbors of Nicaragua and other unlawful acts.