The Trump administration has made clear from the outset that it views many international agreements entered into by previous administrations with suspicion and even disdain. From the announced intent to withdraw from the Paris Climate Change Agreement, to the announced withdrawal from the Joint Comprehensive Plan of Action (JCPOA), to the withdrawal from the Trans-Pacific Partnership (TPP), to the renegotiation of the North American Free Trade Agreement (NAFTA), the Trump administration’s actions have put pressure on the stability treaties provide for conducting international relations regardless of domestic regime change—both in terms of actual continuity in legal obligations, and in terms of perceived adherence to the basic principle of pacta sunt servanda (“agreements must be kept”). To be fair, it is better to withdraw from a treaty than to ignore or willfully violate it—a point sometimes lost on critics of the U.S. failure to join some multilateral treaties. That said, resorting to treaty withdrawal in response to adverse actions by other parties or decisions by international courts sets a destabilizing precedent in an international order that has endeavored to substitute adjudication for the use of force as the preferred method of dispute resolution when negotiations fail.
Against this backdrop, I tweeted the following upon learning of the Trump administration’s decision to withdraw from the Optional Protocol to the Vienna Convention on Diplomatic Relations (VCDR).
https://twitter.com/KeitnerLaw/status/1047578380650995712
POLITICO’s Blake Hounshell also tweeted:
This is a big deal that will get overlooked https://t.co/SAT6UQLi91
— Blake Hounshell (@blakehounshell) October 3, 2018
The VCDR came into force in 1964. The principle of diplomatic immunity, under which diplomats are generally immune from proceedings in the host (“receiving”) country’s courts unless that immunity is waived by their own (“sending”) country, has existed for centuries. The VCDR codifies that principle as a matter of treaty law, under which states parties to the treaty spell out in detail their mutual obligations regarding diplomatic personnel and premises on each other’s territory. Just as domestic contracts often include a forum selection clause specifying applicable dispute resolution procedures in case of future disagreement, so too do many international treaties. In the case of the VCDR, a separate treaty, called the Optional Protocol, gives countries the option to agree in advance to have disputes arising out of the interpretation or application the VCDR adjudicated by the International Court of Justice (ICJ), if those disputes involve states that have also joined the Optional Protocol.
The U.S. withdrawal from the Optional Protocol was a direct response to Palestine’s institution of proceedings in the ICJ under the Optional Protocol. The United States joined the Optional Protocol in November 1972, and the “State of Palestine,” which had joined the VCDR in 2014, joined the Optional Protocol in March 2018. In September 2018, Palestine filed an application in the ICJ arguing that the decision to move the U.S. embassy in Israel from Tel Aviv to Jerusalem violates U.S. obligations under the VCDR.
Although the United Nations General Assembly accorded Palestine the status of “non-member observer state” in 2012, the United States has never recognized or treated Palestine as a state. The U.S. position on Palestine’s international legal status has prompted more symbolic actions such as objecting to the use of a “State of Palestine” placard in the Security Council, in addition to more substantive filings with the depositaries of treaties to which Palestine has acceded, or purported to accede, indicating that the United States does not believe that the “State of Palestine” qualifies as a sovereign state that can accede to a treaty whose membership is limited to states, and that the United States does not consider itself to be in a treaty relationship with the “State of Palestine” under such treaties. The U.S. made this position clear with respect to what it views as Palestine’s invalid accession to both the VCDR and its Optional Protocol.
Setting aside the plausibility of Palestine’s novel VCDR argument, jettisoning the Optional Protocol simply because Palestine filed a document instituting ICJ proceedings is like tearing up a contract just because someone has alleged a breach. Moreover, because the United States doesn’t consider itself to be in a treaty relationship with Palestine, it’s like tearing up a contract with other parties just because someone not party to that contract has attempted to claim a breach. To be sure, this move is not entirely unprecedented; after all, the Bush administration withdrew from a similar Optional Protocol providing for ICJ jurisdiction over disputes arising under the Vienna Convention on Consular Relations (VCCR), and the language the Trump administration just used in its communication to the U.N. Secretary-General about our VCDR Optional Protocol withdrawal repeats verbatim the notification previously sent in 2005 regarding the VCCR Optional Protocol. However, the previous withdrawal followed years of ICJ litigation involving collateral challenges to death sentences imposed by U.S. courts on foreign defendants who claimed they had not been notified of their right to contact their consulate upon their arrest, as required by VCCR Article 36. In both cases, the United States has affirmed its continued commitment to the underlying substantive obligations—which are also essential to the protection of U.S. persons abroad and to the conduct of U.S. diplomacy—alongside its rejection of automatic ICJ jurisdiction to resolve disputes about the interpretation and application of those obligations. (Of course, states can always agree to refer a particular dispute to the ICJ, and to accept the ICJ’s resolution of that dispute as binding.)
As for the 1955 Treaty of Amity between the United States and Iran, from which the Trump administration has also withdrawn the United States, it has been defunct de facto for decades. Older treaties of Friendship, Commerce, and Navigation (FCNs), which have generally been replaced by newer Bilateral Investment Treaties (BITs), serve the primary purpose of facilitating private investment by nationals and companies of one state in another state. Under a different set of international agreements, the Algiers Accords, certain bilateral claims between the two governments, and between Iranian nationals and the United States, and U.S. nationals and Iran, are still being adjudicated by the Iran-U.S. Claims Tribunal, demonstrating the value of consensual dispute resolution in situations of extreme political tension, such as that created by the November 1979 hostage crisis at the U.S. Embassy in Tehran. Given that Iran has now invoked the compromissory clause in the 1955 Treaty of Amity as the basis for filing two cases in the ICJ against recent U.S. measures taken to discourage and prevent Iran from developing nuclear weapons, it is not entirely surprising that the United States finally decided enough was enough.
The same is not true of the VCDR Optional Protocol. The United States relied on the Protocol to seek provisional measures against Iran in the midst of the Tehran hostage crisis. The ICJ found that the Iranian government was legally bound to secure the immediate release of the hostages and to restore the Embassy premises to the United States. Although fewer states are parties to the Optional Protocol than to the VCDR itself, and although dispute resolution by the ICJ is generally a second-best option to diplomatic resolution of disputes, the idea that a country should remain party to a treaty that provides an international tribunal with jurisdiction only if no claims are ever filed against it makes a mockery of the reciprocity underlying our treaty relationships.
National Security Adviser John Bolton made very clear in his speech announcing the Optional Protocol withdrawal that, if he had his druthers, the United States would withdraw from all treaty provisions providing for dispute settlement by international tribunals. (An international tribunal will not proceed to adjudicate the merits of a claim if it finds that the claim does not fall within the parameters of the treaty’s compromissory clause, but such a clause gives complainant states a foot in the door.) Bolton explained quite candidly:
Look, this is 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 International Court of Justice, which we think is politicized and ineffective. It relates, obviously, in part, to our views on the International Criminal Court and to the nature of so-called purported international courts to be able to bind the United States.
I have written elsewhere about Bolton’s hyper-charged and longstanding antagonism to the International Criminal Court (ICC), and its implications for broader U.S. policy. The fear of Bolton-as-wrecking-ball that animated opposition to his possible appointment as a senior State Department official is proving well-founded as he perpetuates misunderstandings and exaggerations about how international institutions work, and what constraints governments actually face. In the same press conference, for example, he suggested incorrectly that France and “other European governments” have arrested “accredited Iranian diplomats,” praising this as “exactly the right thing” to do. In fact, France did no such thing. A diplomat does not necessarily enjoy protection outside the country to which he or she is accredited, since the purpose of diplomatic immunity is to preserve the ability of a sending state to conduct foreign relations free from pretextual interference. With respect to the incident in question, there is no obvious reason why an Iranian diplomat accredited to the Iranian Embassy in Vienna would benefit from immunity for alleged criminal conduct in France, which led to his arrest in Germany. By suggesting irresponsibly that European countries are disregarding Iranian diplomatic immunity and arresting Iranian diplomats accredited to their countries willy-nilly, Bolton has painted a picture of lawlessness and unilateralism that reflects his own conception of how the world should work—not how it actually does.
Bolton also mischaracterized U.S. practice as allegedly reflecting a tradition that “goes back, now, close to over 30 years really, in connection with U.S. policy of rejecting jurisdiction of [international] courts.” Had Bolton been in charge of U.S. policy, with the autonomy—or lack of supervision—that he apparently now enjoys, that might well have been the case. Luckily for us, he was not. Certainly, U.S. policy has varied—the U.S. appeared before the ICJ to contest jurisdiction in a case brought by Nicaragua, but the U.S. declined to appear to defend against Nicaragua’s claims on the merits once the ICJ ruled against us on the threshold questions of jurisdiction and admissibility. The wisdom of that decision has proved a subject of intense debate. What for Bolton stands as a high water-mark of U.S. sovereignty has, among other things, deprived us of credibility in our attempts to persuade China to accept the results of arbitration initiated by the Philippines under the Law of the Sea Treaty, which China similarly disregarded.
In Bolton’s worldview, the United States can and should lead by force—an increasingly dangerous proposition in an age of asymmetric warfare, not to mention a view directly at odds with the United Nations Charter (which Bolton also regards as having been a disaster from a U.S. perspective). On treaty withdrawals and other matters, the United States would be better served by leading by example. Unfortunately, a renewed embrace of leadership by example does not seem imminent.