U.S. vs. Treaty Law, Part II

In this section we review the optional protocol to the VCCR granting the ICJ jurisdiction over disputes arising under that treaty. The Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes provides that by signing on, parties are:

"Expressing their wish to resort in all matters concerning them in respect of any dispute arising out of the interpretation or application of the Convention to the compulsory jurisdiction of the International Court of Justice, unless some other form of settlement has been agreed upon by the parties within a reasonable period."

Until recently, we were one of those parties, but our government's attitude towards the VCCR suggests that our "un-signing" is merely a reflection of our de facto disdain for the protocol. It's like a couple who have been separated for years finally deciding to seek an official divorce, but that's really more of a matter for Part III, isn't it?

What the optional protocol in question does is not uncommon, either in the abstract or as specifically pertaining to the ICJ. It's basically a forum selection clause, like the one you agree to when you fill out the registration card for your toaster (it's in the tiny print that you didn't read). The trick, though, is that when it comes to individuals or businesses, there is generally a way to get taken into court somewhere even if you didn't consent to the forum. The same is not true of countries, who by virtue of their sovereignty, can pretty much decide when to consent to a court's jurisdiction. The Statute of the ICJ is a perfect example of how this works.

A quick reading of Article 36 shows that basically, the ICJ has jurisdiction only with the prior consent of the litigant State. This consent can be secured in three ways, which are brilliantly explained by the ICJ itself:

States may manifest their consent in three different ways:
A special agreement: two or more States in a dispute on a specific issue can agree to submit it jointly to the Court and to conclude a special agreement to that end;
A clause in a treaty: some 300 treaties contain clauses (known as jurisdictional clauses) by which a State party undertakes in advance to accept the jurisdiction of the Court should a dispute on the interpretation or application of the treaty arise in the future with another State party;
A unilateral declaration: the States parties to the Statute of the Court may opt to make a unilateral declaration recognizing the jurisdiction of the Court as compulsory, in relation to any other State accepting the same obligation (Article 36, para. 2, of the Statute). This so-called "optional clause" system has led to the creation of a group of States who mutually have conferred jurisdiction on the Court to decide disputes between them that may arise in future. Each State belonging to this group has in principle the right to bring any one or more other States belonging to the group before the Court. The declarations may be limited in time and may contain reservations or exclude certain categories of disputes. They are deposited with the Secretary-General of the United Nations. The declarations of 65 States are currently in force.

It should be becoming apparent that the ICJ has quite extensive jurisdictional reach, despite the fact that technically speaking it is tremendously limited. It would also seem perfectly legal for a State that voluntarily submitted to ICJ jurisdiction under this framework to withdraw from such jurisdiction... but things are not always as they seem!

Without getting too far into the realm of the much anticipated Part III, it is problematic for a State to withdraw from ICJ jurisdiction for various reasons, some political and some legal. There is always the matter of the Vienna Convention on the Law of Treaties and its pesky Articles 18 (States can't take action that would defeat the purpose of a treaty they've signed) and 54 (how to withdraw from a treaty). Although the U.S. has never ratified the VCLT, it is generally accepted as customary international law, and even if it weren't, the U.S. has signed it, so Article 18 sort of limits our ability to ignore it. More on that in a second... The VCLT entered into force in 1980, so there has been plenty of time to hammer out its effect on pre-existing treaties, besides, Article 64 voids pre-existing texts that contradict a new peremptory norm (such as itself). I believe there is ample support for the notion that withdrawal from a treaty or protocol cannot legally proceed without addressing the VCLT, even for a non-ratifying State.

Another related issue was raised at the time that we rescinded our signature from the Rome Statute, and that is the claim that the U.S. is not bound by the Vienna Convention on the Law of Treaties. At the time, as now, the Administration relies on Article 18's wording, that a State not act in violation of the treaty "until it shall have made its intention clear not to become a party to the treaty." They interpret this as meaning that the drafters at Vienna contemplated precisely the course of action that the Administration is taking. My reading of the traveaux preparatoires is different, that arguably the withdrawal from the Rome Statute, as it was entering into force, was comtemplated, but not the withdrawal from a 40 year old treaty with which the State has dealt extensively.

It is also worth noting that a sort of estoppel argument could be made in light of the fact that the U.S. has, in prior litigation at the ICJ, used the VCCR in its arguments. In Consular Staff in Tehran, for instance, the ICJ noted that the U.S. was correct in its claim that jurisdiction was proper because of the very optional protocol now in question! It seems suspect, at best, for a State to rely on the provision of a treaty and then later argue that the treaty is invalid.

So now that we're all up to speed on the international law regarding what the U.S. has done, we can move on to Part III, where I explain why we did it, and why we were wrong to do it... stay tuned!