Is the Bush Administration Repudiating International Law?
Its Withdrawal from the Vienna Convention's Optional Protocol and Other Recent Developments Suggest the Answer is Yes

By NOAH LEAVITT
Monday, Mar. 14, 2005

The Bush Administration has now at least partially repudiated its notorious "torture memos" -- suggesting the President need not heed the Geneva Conventions. Yet a series of events over the past few weeks indicates that this repudiation hardly suggests an intent on the Administration's part to begin complying with international law.

To the contrary, these events - like many others that have occurred over the past five years -- reveal the Bush Administration's core view of international law: In the Administration's eyes, it is a purely political, and therefore, fluid, system. It does not impose fixed rules and responsibilities; to the contrary, the President can choose to ignore it - including treaties the U.S. has signed - at will.

In sharp contrast, the U.S. Supreme Court is increasingly noting the importance of international law and opinion.

For example, on March 1, in its ruling in Simmons v. Roper, the Supreme Court took note of international opinion and law. There, the Court held that it is unconstitutional to sentence anyone to death for a crime he or she committed at an age below 18. Justice Kennedy, writing for the Court, noted that the overwhelming weight of international opinion against such death sentences "provides respected and significant confirmation" of the Court's own findings, and noted also that the decision would put an end to the U.S.'s international isolation on this issue.

Meanwhile, the Bush Administration had taken a position very different than that of the Supreme Court --thus putting the two on a possible collision course. Rather than listening to international opinion, it ignores it. Rather than taking foreign and international law as relevant, it dismisses them.

As I will explain, this attitude of the Executive Branch puts U.S. citizens at great risk - for if our country refuses to heed international or foreign law, other countries will not feel compelled to adhere to it when it is our citizens they have in custody.

The Administration's Position in the Medellin Case Initially Gave Reason for Hope

Just a few weeks after Simmons was handed down, in a brief to the Supreme Court, then-Acting-U.S. Solicitor General Paul Clement- on behalf of the Bush Administration - finally seemed to be heeding international law and opinion. Unfortunately, however, those who said so turned out to have spoken too soon.

Many thought the President's apparent change of heart would help soothe the way for a successful summit with Mexico's President Fox in Texas later this month. That hope, too, was soon dashed.

The brief at issue was submitted in Medellin v. Dretke, a case for which the Supreme Court will hear oral argument March 28. There, a Mexican man being held in Texas argues that his death sentence is invalid because American officials failed to notify the Mexican consulate of his arrest and sentencing in the United States.

Because of this failure, Medellin argues, the consulate was not able to help him. Yet, he points out, the Vienna Convention on Consular Relations, to which the U.S. is a signatory, guarantees his right to consular help. Moreover, with consular help, he says, he would not have been convicted and sentenced to death.

In 2004, the International Court of Justice (ICJ) ruled in favor of Medellin on his Vienna Convention Claim. It also ruled in favor of 50 other Mexican defendants in similar situations.

The U.S.'s recently-submitted brief took the position that the state courts that convicted the Mexicans ought to hold hearings on whether they were deprived of their Vienna Convention rights to access their consulates after arrest. In other words, it took the position that the courts ought to respect, and abide by, the decision of the ICJ.

But this small inroad toward renewed U.S. regard for international law was followed by a huge setback on the same issue.

The Vienna Convention Optional Protocol Withdrawal: A Major Mistake

One of the primary reasons for the success of the Vienna Convention is its Optional Protocol. That protocol mandates that signatories - including the U.S. -- must allow the ICJ to have the final determination in claims raised under the Convention, such as in the case that Medellin is asking the Supreme Court to enforce.

In 1963, the U.S. itself proposed the Protocol. In 1969, it ratified the Protocol, along with the rest of the Convention. And in 1979, the U.S. was also the first nation to bring a suit to the ICJ under the Protocol: It was a successful charge against Iran for capturing more than 50 Americans and holding them hostage.

Given this history, it came as a surprise when on March 7, just a few days after it filed the brief ordering state courts to give effect to the Vienna Convention, the Bush Administration announced that it was withdrawing from the Optional Protocol. According to the State Department, the withdrawal was necessary in order to protect against future ICJ judgments "that might disrupt our criminal system" in ways not anticipated when the U.S. joined the Convention.

Among other nations, Britain, Germany, Japan and Australia - all close U.S. allies - are parties to the Optional Protocol. Now even their citizens may not be guaranteed full observance of their Vienna Convention rights by the U.S.: The U.S. has chosen to alienate even its allies once again.

Why did the U.S. choose this moment to withdrawal from the very Protocol it proposed, ratified, and invoked in its own favor? Perhaps - recalling Simmons - it seeks to prevent a broad Supreme Court ruling after the March 28th oral argument in the Medellin case. Certainly, it seeks to avoid compliance with future ICJ judgments.

Why might the U.S.'s withdrawal affect the ruling in the Medellin case? Besides the 51 Mexican citizens, almost 70 other foreigners are also on death row here. In addition, cases brought by Paraguay and Germany have also challenged U.S. practice under the Vienna Convention before the ICJ. The U.S. seems to want to confine Medellin to its parties, and ensure that any other foreign nationals who have not yet received ICJ judgments in their favor can be executed whether or not their Vienna Convention rights were honored.

Another Baleful Development: Choosing the Anti-International-Law John Bolton

The very same day that it announced its withdrawal from the Optional Protocol - March 7 - President Bush nominated Undersecretary of State John Bolton to be the U.S. Ambassador to the UN. A longtime State Department staffer, Bolton has shown a consistent disdain for the international legal order. Even some Republican leaders, such as Senator Richard Lugar (IN), advised the Administration against nominating Bolton because it would harm America's diplomatic relations. Apparently, they were ignored.

The two concurrent events of the Protocol withdrawal and the Bolton nomination sent a clear message: The U.S. does not care about, and does not feel any pressure to comply with, international law, unless doing so furthers America's foreign policy interests.

In a 1997 column for the Wall Street Journal, Bolton wrote "Treaties are 'law' only for U.S. domestic purposes… In their international operation, treaties are simply 'political' obligations."

Crucially, this is the very point of view that underlay the recent "torture memos" - the ones the Administration has supposedly repudiated. The argument in the memos was that the President's Article II powers make compliance with international treaties optional. That is the very same argument Bolton made; his argument suggests the Geneva Conventions, too, are only "political obligations," and thus that torture contrary to the Conventions is permitted.

How sincere can the repudiation of the torture memos be, when the choice of Bolton, and the U.S.'s withdrawal from its own Protocol, have followed upon its heels?

Importantly, that candid editorial told the truth: It was no anomaly. Throughout his career, Bolton has behaved consistently with his "political obligations only" view of treaties the U.S. has signed. In the past few years, for instance, Bolton engineered the U.S.'s withdrawal from the anti-ballistic missile (ABM) treaty; destroyed a protocol on enforcing the biological weapons convention; and ousted the head of the Organization for the Prohibition on Chemical Weapons.

Most famously, Bolton also led the campaign to renounce the 1998 statute creating the International Criminal Court (ICC). President Clinton had signed the treaty, but Bolton wanted to renounce that Presidential signature - a move nearly unprecedented in U.S. diplomatic history.

In 2000, Bolton - in testimony before the U.S. House of Representatives Committee on International Relations - scoffed at ICC supporters' "emotional appeals to an abstract ideal of an international judicial system." But these supporters weren't citing just an abstract ideal, and their arguments were legal, as well as emotional: The U.S. had signed the ICC treaty. Now it was reneging on it.

Make no mistake: Bolton has been not only consistent but adamant in his contempt for international law. The day he wrote to UN Secretary General Kofi Annan announcing the decision to "unsign" the treaty, Bolton said, was "the happiest moment of my government service."

Why Americans Abroad Are Now at Much Greater Risk

Bolton's argument is wrong from a standpoint of law and morality. But it is also wrong because it is against Americans' interests, and directly puts us at risk.

For instance, the Vienna Convention also protects American citizens who are arrested abroad and gave them access to the ICJ - or, at least, it used to before the U.S. withdrew from the Optional Protocol. It is estimated that about 6,000 Americans are arrested overseas every year. Many of these depend on their access to American consulates for legal help. Now, that consular access may not necessarily be guaranteed. Even our allies may not guarantee it - especially if we do not do the same for their nationals, and remember, we have openly reneged on that promise.

As the Washington Post has pointed out, sacrificing our protections for Americans abroad seems a very high price to pay for keeping up our tradition of ignoring the full Vienna Convention rights, and for protecting those death sentences that resulted from those rights-violations.

As the case of the Vienna Convention makes clear, Americans are safer when the U.S. lives up to our international agreements. As then-Acting Solicitor General Clement stated in the brief supporting review of the 51 Mexican citizens' cases, "Consular assistance is a vital safeguard for Americans abroad."

Bolton Versus Clement on the Need (Or Lack of It) For Reciprocity

Clement, at least, seems to understand that part of the value of participating in the international legal order is reciprocity: As we treat other nations' citizens, so too will our citizens be treated abroad.

Good will results from nations mutually complying with a public set of rules; conversely, bad will is bred when one nation arrogantly refuses to comply with the rules others must follow.

This good will - or this bad will - could not be more crucial now. Because the international system has very few central enforcement mechanisms, its effectiveness is dependent, to some extent, on nations' commitment to abide by their promises. Every step necessary in the U.S. system to make our Vienna Convention Optional Protocol promise binding was taken. Yet still, we have reneged.

Bolton's view, of course, is that international goodwill is virtually worthless in the face of U.S. foreign policy interests. And his nomination signals that the Bush Administration agrees - and will continue to move aggressively to simply cancel America's participation in agreements that might lead to an outcome critical of U.S. practices.

Let's hope Clement meant what he said in his brief - and that he will provide at least one voice of reason within the Administration. Last Friday, President Bush nominated Clement to become the country's new Solicitor General - a position in which he will represent the United States in all cases before the Supreme Court.


Noah Leavitt, an attorney and author, is the Advocacy Director for the Jewish Council on Urban Affairs. Leavitt assisted the German legal team in the LaGrand Case. The views expressed here are his alone. Leavitt can be contacted at nsleavitt@hotmail.com.

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