Walking Away from the World Court

Scott R. Anderson
Friday, October 5, 2018, 4:24 PM

This past Wednesday, Oct. 3, proved to a busy day in the world of international law.

Source: Alex Brandon/Associated Press

Published by The Lawfare Institute
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This past Wednesday, Oct. 3, proved to a busy day in the world of international law. That afternoon, national security adviser John Bolton announced that the United States intends to withdraw from the Optional Protocol on Compulsory Jurisdiction to the Vienna Convention on Diplomatic Relations (VCDR), a treaty that provides the International Court of Justice (ICJ) with compulsory jurisdiction over VCDR-related disputes. Bolton’s remarks followed closely on the heels of an earlier announcement by Secretary of State Mike Pompeo that the United States intended to respond to an ICJ order released earlier that morning by withdrawing from the 1955 U.S.-Iran Treaty of Amity, which similarly provides for ICJ jurisdiction over relevant treaty violations.

Bolton linked both withdrawal decisions to ongoing claims before the ICJ by both Iranian and Palestinian officials, asserting that, “The United States will not sit idly by as baseless politicized claims are brought against us.” Yet, in a rare moment of candor, Bolton conceded that “[t]his really has less to do with Iran and the Palestinians than with the continued consistent policy of the United States to reject the jurisdiction” of the ICJ, which he derided as “politicized and ineffective.” Consistent with this policy, he announced that the Trump administration would also be “commenc[ing] a review of all international agreements that may still expose the United States to [the ICJ’s] purported binding jurisdiction.”

In many ways, these developments reflect the themes of President Donald Trump’s recent speech before the U.N. General Assembly, which rejected the “unelected, unaccountable, global bureaucracy” of international institutions in favor of a “doctrine of patriotism” emphasizing national sovereignty above all else. While the practical consequences of both treaty withdrawals are likely to be limited—even for the Iranian and Palestinian claims pending before the ICJ—this broader American hostility to the ICJ and other international institutions has the potential to be more damaging. In a time of increasing inter-state competition, for the United States to refuse to engage with international law and institutions is to throw away a substantial advantage.

A Conscious Uncoupling

Wednesday’s withdrawals continue a decades-long trend toward U.S. disengagement from the ICJ. While the United States initially accepted the general compulsory jurisdiction of the ICJ, it withdrew this consent in 1985 after the ICJ issued an unfavorable jurisdictional decision in a case relating to U.S. military intervention in Nicaragua. At this point, ICJ jurisdiction over the United States became contingent on specific treaty provisions—creating a limited exposure that the United States has generally sought to avoid, particularly in more recent years. In 2005, the United States responded to another series of unfavorable ICJ decisions by similarly withdrawing from the Optional Protocol for the Vienna Convention on Consular Relations (VCCR), which are closely related to the VCDR and its Optional Protocol.

These actions by the United States are largely consistent with international law. The Statute of the ICJ makes the court’s jurisdiction contingent on state declarations of consent, allowing states to set conditions and time limits on those declarations as they see fit. In the case of the United States, the initial U.S. declaration provided for withdrawal with six months advance notice, a timeline to which it abided when it withdrew. Many treaties that provide for ICJ jurisdiction similarly allow for withdrawal, though generally from the treaty as a whole, not just the provisions regarding ICJ jurisdiction. The Treaty of Amity, for example, allows either party to withdraw from the treaty as a whole with one year’s advance written notice to the other party—a notice that the United States will presumably provide to Iran shortly, if it has not done so already.

The Optional Protocols to the VCDR and VCCR, however, do not expressly address withdrawal. While the United States appears to have taken the position that this makes withdrawal effective immediately upon notification, this is not necessarily the case. As Julian Ku wrote in relation to the United States’s 2005 withdrawal from the VCCR Optional Protocol, the Vienna Convention on the Law of Treaties (VCLT) establishes that treaties without express terms governing withdrawal only permit it when intended by the parties or implied in the treaty’s terms—and even then only after 12 months’ advance notice. While the United States is not a party to the VCLT, it recognizes many provisions in the VCLT as binding under customary international law. Following this logic, Wednesday’s withdrawal from the VCDR Optional Protocol may either be impossible or, more likely, only effective after one year’s notice. Perhaps due to this ambiguity, the United Nations’ treaty office still lists the United States as a party to the VCCR Optional Protocol, even as it acknowledges the 2005 U.S. statement of withdrawal.

As Bolton made clear in his remarks, withdrawal from the VCDR Optional Protocol does not affect U.S. rights and obligations under the VCDR itself, which remains binding on the United States and continues to provide legal protection to U.S. diplomatic staff and facilities located overseas. (This is in contrast to the Treaty of Amity, which the United States is withdrawing from in its entirety, including it substantive provisions.) Absent the Optional Protocol, the United States will simply no longer be able to bring or be subjected to claims regarding violations of these protections before the ICJ. Instead, it will have to resolve any such disputes diplomatically.

Most multilateral treaties, however, do not use side agreements like the Optional Protocol to provide for ICJ jurisdiction. Instead, such jurisdiction is written directly into the treaty—a fact that may complicate the Trump administration’s forthcoming review. While some multilateral treaties expressly allow parties to opt out of such provisions, others do not. And while the United States has generally rejected ICJ jurisdiction through reservations when joining the latter, there is a risk that such reservations will be seen invalid as a matter of international law. These treaties—which include such foundational agreements as the Genocide Convention or the International Convention on the Elimination of All Forms of Racial Discrimination—seem most likely to raise concerns. But unless the Trump administration is willing to withdraw from or somehow renegotiate them, there is little it can do. For this reason, the Trump administration seems more likely to focus its future efforts on antiquated bilateral treaties like the Treaty of Amity that are more easily withdrawn from or renegotiated.

Two Red Herrings

To the extent Wednesday’s developments break from past patterns of U.S. disengagement, it is because the Trump administration chose to act while the Iranian and Palestinian ICJ cases it claims to be responding to are still in their early stages, rather than withdrawing in response to clearly negative decisions as it has done in the past. Indeed, there are signs that the United States would be likely to prevail on the merits in both matters, a prospect that neither withdrawal is likely to improve upon.

The Iran claim is a recent challenge to the re-imposition of U.S. sanctions following the U.S. withdrawal from the Iran nuclear deal, formally known as the Joint Comprehensive Plan of Action. As Elena Chachko has written in Lawfare, Iran contends that such sanctions violate the Treaty of Amity, while the United States has argued that the Treaty of Amity neither gives the ICJ jurisdiction over these claims nor prohibits U.S. sanctions. In the order issued Wednesday morning, the ICJ held that it does have jurisdiction over Iran’s claims—a decision with ramifications for a second claim that Iran has also pursued in relation to U.S. treatment of certain of its assets. On the merits, however, the ICJ rejected Iran’s request that all of the sanctions be suspended pending the final resolution of the case. Instead, the court found that only the import of certain humanitarian goods and services could “plausibly” be protected by the Treaty of Amity so as to warrant such provisional measures. As Pompeo acknowledged in his remarks, this suggests that the United States is likely to prevail on the merits. And because the U.S has already provided assurances that it would provide Iran with access to such goods and services, he noted, the ICJ order does not require major changes to the U.S. sanctions regime. Nonetheless, Pompeo went on to announce the U.S. withdrawal from the Treaty of Amity.

The Palestinian claim is at an even earlier stage: the application was only submitted to the ICJ on Sept. 28. Filed on behalf of the “State of Palestine”—which purportedly accepted compulsory ICJ jurisdiction in 2014, but whose capacity for doing so remains in dispute—contends that the 2017 decision to relocate the U.S. Embassy in Israel to Jerusalem violates the VCDR, which requires that a state’s capital be on its territory. The ICJ has already expressed the view that Jerusalem is not the sovereign territory of the state of Israel, a longstanding position reaffirmed by the U.N. Security Council as recently as 2016. Yet as Marko Milanovic has described, the Palestinians’ claim is likely to encounter a host of other fatal legal issues, including their capacity and standing to pursue such a claim, the questionable merits of their VCDR interpretation and the propriety of proceeding without Israel’s involvement. As a result, it’s highly unlikely they will prevail.

The irony is that neither withdrawal will clearly have an impact on either case, as the ICJ has previously declined to cease ongoing proceedings where the basis for jurisdiction is revoked. Thus, while the ICJ’s disposition of the Iranian and Palestinian cases is unknown, the United States may need to keep litigating them—and even if it refuses, the proceedings may continue in its absence. On the merits, the U.S. withdrawal from the Treaty of Amity will at least eliminate the substantive international legal basis for most of Iran’s claims once it goes into effect in 2019. Yet Bolton was clear that the United States intends to remain a party to the VCDR, leaving the substantive basis for the Palestinian claim in place.

In sum, Bolton appears to be referencing these claims primarily as political cover—and perhaps to further increase political pressure on both claimants, which has separately been an administration policy priority. As John Bellinger wrote earlier today in Lawfare, neither claim appears to present a serious enough threat to warrant such a dramatic response. And even if they did, it’s not clear how exactly withdrawal improves the U.S. position. For these reasons, when Bolton suggests that the United States’ actions have less to do with the specific ICJ claims at issue and more to do with the Trump administration’s broader policy agenda, we should take him at his word.

Some Practical Consequences

While the immediate consequences of the Trump administration’s actions are likely to be limited, the broader policy agenda they represent has the potential to be more damaging.

As both Bolton and Pompeo implied, withdrawal from the Treaty of Amity will curtail future ICJ legal challenges by Iran—though Iran may now be motivated to initiate additional cases over the next year before U.S. withdrawal is completed. While withdrawal will also remove certain treaty protections and keep the United States from bringing related claims against Iran before the ICJ, the United States does not seem concerned about either. For political, not legal, reasons, withdrawal may complicate the ongoing operation of the Iran-U.S. Claims Tribunal still working to adjudicate certain bilateral claims dating from the Iranian revolution, as well as any ongoing efforts to settle those claims or otherwise resolve bilateral disputes. That said, such efforts appear to be of substantially less interest to the Trump administration than its predecessor, and any resulting harm to U.S.-Iranian relations is likely to pale compared to that resulting from other Trump administration policies.

The consequences of withdrawal from the Optional Protocol are somewhat more difficult to gauge. Like most states, the United States relies heavily on the rights and protections provided by the VCDR and VCCR, which are integral to its diplomatic activities overseas. And the VCDR and VCCR Optional Protocols—as well as the Treaty of Amity—proved instrumental in U.S. efforts to secure the favorable 1980 Iran hostages decision, in which the ICJ vindicated U.S. claims that Iran had violated international law through its role in the hostage crisis, robustly reinforcing those international legal protections in turn. Nonetheless, states very rarely resort to the ICJ over VCDR and VCCR disputes, which are more commonly addressed through diplomacy and related treaty mechanisms, such as the ability to expel foreign diplomats as persona non grata. Indeed, most parties to the VCDR are not even parties to the Optional Protocol. So while, as John Bellinger argues, U.S. withdrawal from the Optional Protocol does deprive the United States of an avenue through which it may seek to vindicate its VCDR protections in some future crisis, it seems unlikely to have a major impact on current day-to-day U.S. conduct.

Broader disengagement from the ICJ, however, could have longer term consequences. The United States has traditionally been elected to a seat on the ICJ, which has enhanced its ability to shape the development of international law. Nothing official guarantees this arrangement, however, and disengagement may make other member states less inclined to support U.S. candidates the future. Declining to participate in ICJ proceedings likewise deprives the United States of yet another opportunity to articulate and persuade others of its international legal views. In many scenarios, the United States’ unwillingness to articulate and defend the international legal basis for its actions could create the impression that U.S. actions are less legally justifiable than they are, contributing to narratives that seek to delegitimize them. This reflects the double-edged sword of withdrawal from international institutions: walking away may limit a state’s exposure to criticism, but it also deprives that state of a seat at the table in shaping the institution’s views and those of the broader international community.

At the present moment, such a seat seems particularly desirable. The United States is currently entering into a new period of global competition with two near-peer rivals, China and Russia. In such times, international law and institutions can prove particularly useful in reinforcing rules of the road and organizing other states to act collectively in opposing actions that threaten international peace and security—a fact that Trump’s own National Security Strategy acknowledges. Instead, the Trump administration is focused on dismantling and discrediting those institutions. This may marginally expand the United States’ freedom of action but will do the same for China and Russia—as well as for other, even less savory national leaders who would be happy to shed international institutions to avoid any associated scrutiny of their domestic conduct arising from human rights treaties and related instruments. Engaging international restrictions might entail accepting some restrictions, but it would better equip the United States to successfully navigate the international community through these challenges, preserving a global order that—despite its many flaws—has improved quality of life around the world and made the United States the premier super power. Instead, by going it alone, the United States risks bringing this system down.

More than anything, however, Wednesday’s actions underscore the hypocrisy of the Trump administration’s “doctrine of patriotism.” In his speech to the U.N. General Assembly, Trump painted a characteristically dark picture of global governance as a form of “coercion and domination” hostile to state sovereignty and autonomy. But in reality, international law and institutions are firmly grounded on state consent—a fact underscored by the Trump administration’s ability to pursue Wednesday’s withdrawals within the framework of international law. When states choose to participate in the ICJ or with other international institutions, they are exercising, not undermining, their sovereignty, accepting some compromises while benefiting from the international cooperation that such arrangements facilitate. In openly venting its hostility towards such institutions, the Trump administration is as much assaulting other states’ sovereignty as defending it. And despite Trump’s rhetoric celebrating the “beautiful constellation of nations . . . each shining brightly in its part of the world,” very few foreign states are likely to be persuaded to the contrary.

Scott R. Anderson is a fellow in Governance Studies at the Brookings Institution and a Senior Fellow in the National Security Law Program at Columbia Law School. He previously served as an Attorney-Adviser in the Office of the Legal Adviser at the U.S. Department of State and as the legal advisor for the U.S. Embassy in Baghdad, Iraq.

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