The United States' Withdrawal from International Court of Justice Jurisdiction in Consular Cases: Reasons and Consequences

Quigley, John, Duke Journal of Comparative & International Law

INTRODUCTION

In 2005, the United States withdrew from the Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes. The Optional Protocol provides for jurisdiction in the International Court of Justice (ICJ) when any state party to the Vienna Convention on Consular Relations (VCCR) (1) seeks to sue another state party for violating it. (2)

Controversy over VCCR Article 36, which allows a foreign national under arrest to contact a home state consul, prompted the withdrawal. The United States had just lost two cases in the ICJ arising out of situations in which police in the United States had failed to observe consular access for arrested foreign nationals. The withdrawal was a response to those ICJ decisions.

The withdrawal raised questions about the intent of the United States to comply with its obligations under the VCCR. For a number of years, the United States has taken a view of the consequences of non-compliance with VCCR Article 36 that is at odds with the views of other states party to the VCCR. The United States reads VCCR Article 36 as affording less protection for a foreign national whose consular access was not respected than do other states.

Many view the withdrawal as a significant reversal of U.S. policy regarding U.S. participation in international dispute resolution mechanisms, particularly the ICJ, since the United States was an early and strong proponent of compulsory dispute settlement for violations of the VCCR. (3)

The withdrawal limited the ability of the United States to sue other states party to the VCCR for violations of the rights of U.S. consuls and U.S. nationals. Lacking the Optional Protocol as a jurisdictional basis, the United States is not likely to establish jurisdiction over other states for violations of consular access rights or any other aspect of consular law. (4)

The withdrawal also raised legal issues, the most significant of which deals with the validity of the withdrawal. Under international law, it is unclear whether states are free to withdraw from a treaty that does not expressly provide for withdrawal in a so-called "denunciation clause." (5) The Optional Protocol contains no such clause.

At the policy level, the withdrawal fueled charges that the United States takes a unilateralist approach to international law. The United States has been at odds with other nations in recent years on issues ranging from military action to environmental protection. (6) The withdrawal from the VCCR Optional Protocol seemed to some as one more example of a go-it-alone approach by the United States.

This Article examines the reasons for the 2005 withdrawal from the VCCR Optional Protocol, why the United States deemed it appropriate to change course from its earlier position, what the withdrawal means for U.S. compliance with consular access obligations, whether the withdrawal is legally valid, and what it may mean for U.S. compliance with international law and participation in international dispute settlement processes.

I. THE U.S. WITHDRAWAL FROM THE VCCR OPTIONAL PROTOCOL

States that are party to the VCCR have the choice of adhering to the Optional Protocol. (7) By becoming a party to the Optional Protocol, a state that is already a party to the VCCR gains jurisdiction in the ICJ to sue any other state party for any violation of the VCCR, but at the same time, such a state opens itself up to being sued by other states party to the VCCR for any violation of the VCCR. (8) The operative provision of the Optional Protocol reads:

   Disputes arising out of the interpretation or application of the
   [Vienna] Convention [on Consular Relations] shall lie within the
   compulsory jurisdiction of the International Court of Justice and
   may accordingly be brought before the Court by an application
   made by any party to the dispute being a Party to the present
   Protocol. (9)

By adhering to the VCCR and the Optional Protocol, as it did in 1969, the United States gained a right to sue other states for VCCR violations and conversely exposed itself to being sued for VCCR violations by other states that are party to both the VCCR and the Optional Protocol.

The VCCR Optional Protocol provides the principal jurisdictional base whereby the United States sues and can be sued for consular law violations. This is so because the United States is not currently subject to the ICJ's so-called compulsory jurisdiction, under which states that file a declaration with the ICJ may sue other states that have filed such a declaration and, in turn, can be sued by them. (10) Hence, the withdrawal, if valid, effectively insulated the United States from future consular lawsuits but also deprived it of the possibility of suing other states.

U.S. Secretary of State Condoleeza Rice effected the withdrawal in a letter to U.N. Secretary-General Kofi Annan. Annan circulated the letter to the other states party to the Optional Protocol and posted an item about the letter, which he called a "communication," on the website he maintains for activity relating to treaties. The posting read:

   On 7 March 2005, the Secretary-General received from the
   Government of the United States of America, a communication
   notifying its withdrawal from the Optional Protocol. The
   communication reads as follows:
   "... the Government of the United States of America [refers] to

   the Optional Protocol to the Vienna Convention on Consular
   Relations Concerning the Compulsory Settlement of Disputes,
   done at Vienna April 24, 1963. This letter constitutes notification
   by the United States of America that it hereby withdraws from the
   aforesaid Protocol. As a consequence of this withdrawal, the
   United States will no longer recognize the jurisdiction of the
   International Court of Justice reflected in that Protocol." (11)

The United States sent its communication to the U.N. Secretary-General because that official is designated in the Optional Protocol as the depositary agency. That means that states adhering to the Optional Protocol communicate their adherence to the U.N. Secretary-General, (12) who then notifies existing states party of new adherences. (13)

As mentioned previously, some treaties contain a denunciation clause that specifies that states have the right to denounce, or withdraw, from the treaty at their sole discretion, typically with a proviso that they provide notice prior to the date of effectiveness of the denunciation) (14) Denunciation clauses typically designate the depositary agency as the recipient to which a state would communicate its denunciation. The Optional Protocol has no denunciation clause and, hence, no provision about how to communicate a denunciation. (15) The United States nonetheless chose the Secretary-General as the recipient of its communication.

II. SUITS AGAINST THE UNITED STATES IN THE ICJ

ICJ suits against the United States were the precipitating factor in its withdrawal from the Optional Protocol. (16) The United States had been sued in 1998, in 1999, and again in 2003 by states party to the VCCR who alleged violations of VCCR Article 36, which relates to a consul's role in aiding nationals who are arrested. (17) In each case, jurisdiction was based on the Optional Protocol, and each plaintiff state alleged that the United States had failed to fulfill its consular access obligation toward one or more of its nationals. (18) In the terminology of consular law, the state in which such a person is arrested is called the "receiving state," since it "receives" a consul of another state. The national's home state is called the "sending state," since it "sends" its consul. Under VCCR Article 36, when a sending state national is arrested, the receiving state must allow the sending state national and a sending state consul to communicate with each other. VCCR Article 36 reads:

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;

(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

2. The rights referred to in paragraph I of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended. (19)

In each of the three cases filed against the United States, a state party to the VCCR alleged that its national (or nationals) had been arrested in the United States, but was (or were) not advised, as the last sentence of VCCR Article 36(1)(b) requires, of the right of consular access. (20) In all three instances, these nationals were then convicted of murder and sentenced to death. (21) These states argued before the ICJ that the violation, which in all but a few instances was not contested by the United States, necessitated some court action to provide a remedy. In two of the three cases, the plaintiff state argued that VCCR Article 36 afforded a right not only to it as a state, but as well to its foreign nationals as individuals, that the foreign national be advised of his or her right, and that this right could be asserted in a court of the receiving state in case of violation. (22) The United States took the contrary position before the ICJ, maintaining that while VCCR Article 36 creates rights and obligations between the sending and receiving states, it does not create a right that adheres to the foreign national as an individual. In its view, when a foreign national is not advised about consular access, the rights of the sending state, not the foreign individual, are violated, hence no judicial remedy is required. (23)

Courts in the United States, at the urging of the Department of State and Department of Justice, generally have interpreted VCCR Article 36 in line with the U.S. government's view. (24) Thus, when foreign nationals have sought a judicial remedy for a violation, state and federal courts in the United States have typically held either that they have no right or that, even if they have a right, they are not entitled to a remedy. (25) Other courts have rejected such claims by foreign nationals on the basis that even if they have a right and are entitled to a remedy, prejudice must be found to have flowed from the violation, and because the courts did not find prejudice, the particular foreign national was not entitled to a remedy. (26) Still other courts have rejected such claims on the basis of so-called "procedural default"--that the claim was filed beyond the stage in the criminal process by which claims of illegality must ordinarily be filed. (27)

Three states sued the United States in the ICJ after U.S. courts rejected the claims of their foreign nationals, and in each case before the ICJ, the outcome favored the plaintiff state. In the 1998 suit filed by Paraguay over the impending execution of a national, Angel Breard, who had been convicted of murder in Virginia, Paraguay asked for an injunctive ruling, which the ICJ issued, calling on the United States to stop the execution. (28) Both Paraguay and Breard asked the U.S. Supreme Court to enforce the ICJ ruling, but it declined. (29) Breard had not raised his consular access claim in the courts of Virginia, since his lawyers apparently were not aware of consular access. The U.S. Supreme Court said that federal courts would not consider Breard's consular access claim, since it had not been raised in a Virginia court). (30) U.S. Secretary of State Madeleine Albright, stressing the U.S. need to gain consular access for U.S. nationals, asked the Governor of Virginia to postpone the execution, but she did not take the position that Virginia was legally required to do so. (31) The Governor ignored this request, and Breard was executed. The ICJ continued consideration of the case, even after Breard's execution, but Paraguay dismissed the case some months later, so no final judgment was issued. (32)

The 1999 filing by Germany did result in a final judgment. Germany sued over a failure to advise as to consular access in a case involving two German nationals--brothers named LaGrand--who were convicted of murder in Arizona and sentenced to death. (33) One of the two brothers had been executed by the time Germany filed, and the other's execution was imminent. The ICJ again issued an injunctive ruling, instructing the United States to postpone the execution while the case was pending. (34) Like Paraguay before it, Germany asked the U.S. Supreme Court to implement the injunctive ruling, but again the Supreme Court declined. (35) The second brother was executed. Germany continued with the case before the ICJ, resulting in the ICJ's first judgment in a claim relating to a violation of consular access. The ICJ concluded that VCCR Article 36 gives a right to a foreign national to be advised about consular access, and that when that right is violated, the receiving state must review the case to determine whether a remedy is required. (36) Thus, the ICJ rejected the U.S. position both as to a right and as to a remedy.

Germany also asked the ICJ to rule that the United States violated Germany's rights by failing to comply with the injunctive ruling. (37) The ICJ had never decided the question of whether such rulings are binding, and the United States argued that they were not. The ICJ agreed with Germany and held the United States liable on the additional ground of failing to comply with the injunctive ruling. (38) Hence, on two issues the ICJ found against the United States.

In 2003 Mexico sued on behalf of a much larger number of nationals. It alleged that fifty-four Mexican citizens on death rows in nine states of the United States had not been advised about consular access. (39) The ICJ, at Mexico's request, issued an injunction to stop the executions during the pendency of the case of three individuals, for whom execution dates might have been set soon. (40)

Mexico asked the ICJ to rule that the convictions be reviewed. (41) In its response, the United States conceded that, in all but two instances, advice about consular access had not been given. (42) The United States argued, responding to Mexico's claim, that review of the allegations could be handled in the executive clemency process and need not be done by a court, pointing out that the ICJ had not previously specified which forum should review potential consular access violations. (43) The ICJ ruled, however, that a judicial forum was the most appropriate and that a court in the United States should review the cases of the named Mexican nationals. (44)

Of the Mexican nationals named in the ICJ case, the first to go before the U.S. Supreme Court seeking implementation of the ICJ judgment was Jose Medellin, then on death row in Texas. (45) In February 2005, shortly before a scheduled oral argument in the Supreme Court in Medellin's case, President George W. Bush issued a memorandum to the U.S. Attorney-General relaying his position that the cases of the Mexican nationals named in Mexico's suit should be reviewed by courts of the states in which they had been convicted. The President's memorandum stated:

   the United States will discharge its international obligations under
   the decision of the International Court of Justice ... by having
   state courts give effect to the decision in accordance with
   general principles of comity in cases filed by the … 

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Publication information: Article title: The United States' Withdrawal from International Court of Justice Jurisdiction in Consular Cases: Reasons and Consequences. Contributors: Quigley, John - Author. Journal title: Duke Journal of Comparative & International Law. Volume: 19. Issue: 2 Publication date: Winter 2009. Page number: 263+. © Not available. COPYRIGHT 2009 Gale Group.

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