Was the US’ ‘Withdrawal’ from the Optional Protocol Valid?

It is of course correct that the Optional Protocol is, by its name, optional. However, it does not

include a ‘denunciation clause’ giving an express right to withdrawal.435 _{This therefore leads}

to the question of whether a state is legally able to withdraw from the Optional Protocol, as the US has intended to do.

430 _{Optional Protocol to Vienna Convention on Consular Relations (adopted 24 April 1963,entered into force 19 March 1967) 596}

UNTS 487.

431 _{Corbett, ‘From Breard to Medellin II: The Vienna Convention on Consular Relations in Perspective’ (n 405) 812.}

432 _{Letter from US Secretary of State to UN Secretary-General (7 March 2005)}

<www.state.gov/documents/organization/87288.pdf> accessed 24 August 2018.

433 _{Charles Lane, ‘U.S. Quits Pact Used in Capital Cases’ Washington Post (10 March 2005) <www.washingtonpost.com/wp-}

dyn/articles/A21981-2005Mar9.html> accessed 24 August 2018.

434 _{Laurence R. Helfer, ‘Exiting Treaties’ (2005) 91 Va L Rev 1579, 1624 ‘[b]y remaining outside these treaties through non-entry}

or exit, the United States has, according to many observers, cast doubt on its commitment to multilateral cooperation. A significant part of the negative reaction to the United States' non-participation in these treaty regimes can be attributed to resentment of its unique status as a world hegemon and the disproportionate military and economic power it possesses relative to other nations. But another component of the dissatisfaction relates to the perception that the United States, by failing to participate in treaty after treaty, is reaping the benefits of cooperation by others without incurring any corresponding burdens’.

435 _{John Quigley, ‘The United States’ Withdrawal from International Court of Justice Jurisdiction in Consular Cases’ (2009) 19}

136

No state party other than the US has purported to withdraw from the Optional Protocol, so

there is no precedent as to its validity.436 _{To muddy the waters further, in 2008 when Mexico}

requested that the ICJ provide an interpretation on its judgment in Avena, it did not provide its

view on the validity of the US’ purported withdrawal from the Optional Protocol.437

Therefore, what must initially be considered is how a state withdraws from a treaty when there is no denunciation clause. By their very nature, ‘exit clauses create a lawful, public mechanism

for a state to terminate its treaty obligations’.438 _{While the omission of a denunciation clause}

can ‘rais[e] the possibility that exit may be implicitly precluded as a matter of international

law’,439 _{it does not automatically mean there is no right to withdraw. Instead, the VCLT must}

be consulted.440

Article 56 VCLT provides as follows:

1. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless:

(a) It is established that the parties intended to admit the possibility of denunciation or withdrawal; or (b) A right of denunciation or withdrawal may be implied by the nature of the treaty.

2. A party shall give not less than twelve months' notice.441

In terms of Article 56(1)(a), Quigley noted that the travaux préparatoires of the Optional

Protocol made no mention of a denunciation clause during the drafting.442 _{In fact, the US itself}

‘viewed [compulsory dispute settlement] as central to the entire enterprise of concluding a consular treaty’,443 _{suggesting that the parties, and especially the US, did not intend for a}

withdrawal from the Optional Protocol. This indicates that Article 56(1)(a) is not satisfied. In terms of Article 56(1)(b), the VCCR protects the right to access consular assistance and protection, which does not imply that there would be a right to denunciation as a way of avoiding ensuring consular protection for a detained foreign national. Furthermore, Reisman and Arsanjani have noted that ‘there are now problems with the denunciation of treaty

436 _{John Quigley, William J. Aceves & S. Adele Shank, The Law of Consular Access: A Documentary Guide (Routledge 2010)}

207.

437 _{Request for an Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals}

(Mexico v. United States of America).

438 _{Helfer, ‘Exiting Treaties’ (n 434) 1582.} 439 _Ibid.

440 _{Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force on 27 January 1980) 1155 UNTS 331; 8}

ILM 679 (1969).

441 _{Ibid Article 56.}

442 _{Quigley, ‘The United States’ Withdrawal from International Court of Justice Jurisdiction in Consular Cases’ (n 435) 298.} 443 _{Ibid 294.}

137

provisions on jurisdiction where substantive rights have been provided for individuals’.444 _{It is}

widely considered that the VCCR confers individual rights, the ICJ held as such in LaGrand

and Avena,445 _{as has the IACHR,}446 _{the Committee,}447 _{and even in Breard v. Greene SCOTUS}

held that the VCCR ‘arguably confers on an individual the right to consular assistance following

arrest’,448 _{although SCOTUS overruled this decision in Medellín.}449 _{This suggests that Article}

56(1)(b) is not satisfied either.

However, Anthony Aust has argued that ‘[i]t will usually be possible to withdraw from a general treaty for the settlement of disputes between the parties even when it has no withdrawal

provision’ on the basis that states must consent to be subject to an international jurisdiction.450

Aust cited the US withdrawal from the VCCR Optional Protocol when asserting that ‘states have withdrawn from such optional protocols on dispute settlement to several UN treaties

without (at least legal) objection, even when they contain no provision for this’.451 _{However, as}

Quigley noted in 2009 and this thesis has found in 2018, there have been no other withdrawals from similar treaties, meaning that Aust could rely on no other examples to substantiate this assertion and, further, ‘there is no established procedure for reacting to a denunciation by another state party’.452

Another issue to consider was raised by Reisman and Arsanjani, who found that:

It appears likely that the [US] felt that states, and, increasingly, non-governmental organizations committed to abolitionism, would be able to continue to bring cases allegedly arising under Article 36 of the VCCR to an international tribunal that could well prove to be increasingly abolitionist in its orientation.453

However, as Quigley correctly stated, this is ‘no excuse for failing to comply with a treaty

obligation’.454 _{Quigley went on to argue that ‘[e]ven if Reisman and Arsanjani are correct in}

their assessment that the ICJ is abolitionist in orientation, the ICJ would have no jurisdiction

to deal with capital punishment as such’.455 _{Indeed, the death penalty is not the issue at hand}

in the VCCR cases adjudicated upon by the ICJ, the key issue was whether or not there had

444 _{W Michael Reisman & Mahnoush H Arsanjani, ‘No Exit? A Preliminary Examination of the Legal Consequences of United}

States’ Notification of Withdrawal from the Optional Protocol to the Vienna Convention on Consular Relations’ in Marcelo G. Kohen (ed), Promoting Justice, Human Rights and Conflict Resolution through International Law (Brill 2007) 904.

445 _{LaGrand Judgment (n 353) para 77; Avena Judgment (n 387) para 40.}

446 _{The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law Advisory}

Opinion OC 16/99 (n 339) para 24.

447 _{General Comment 36 2015 (n 120) para 44.} 448 _{Breard (n 349) 376.}

449 _{Medellín (n 398) FN3.}

450 _{Anthony Aust, Modern Treaty Law and Practice (2nd edn, CUP 2007) 291.} 451 _Ibid.

452 _{Quigley, ‘The United States’ Withdrawal from International Court of Justice Jurisdiction in Consular Cases’ (n 435) 296, 297.} 453 _{Reisman & Arsanjani, ‘No Exit’ (n 444) 925.}

454 _{Quigley, ‘The United States’ Withdrawal from International Court of Justice Jurisdiction in Consular Cases’ (n 435) 288-89.} 455 _{Ibid 289.}

138

been a breach of a multilateral treaty, with the case being expedited due to the finality an imminent execution presents.

If the US’ withdrawal is invalid, the US will still be bound by the Optional Protocol, and will therefore remain under the ICJ’s jurisdiction. Alternatively, if the withdrawal from the Optional Protocol is valid and, given that the US withdrew from the ICJ’s general compulsory jurisdiction

in 1986,456 _{this indicates that regarding consular disputes the US cannot sue or be sued. There}

are severe implications from this. Foreign nationals on death row across the US will be further negatively impacted as the scope for ensuring their Article 36 rights are afforded to them will be narrowed substantially. Moreover, from the US government’s perspective, it lessens the consular protections that can be afforded to its own citizens. For example, in ‘the well-known cases of the three American hikers…arrested in 2009 on charges of spying in Iran, or Amanda

Knox, who was arrested and tried for murder in Italy’.457

Quigley concluded that the US’ ‘position that the VCCR Optional Protocol can be freely

denounced is difficult to sustain on the basis of VCLT Article 56 and international practice’.458

Given that there is no denunciation clause in the Optional Protocol, and considering the finding that the requirements of Article 56 have not been satisfied, this thesis takes Quigley’s assertions further, and directly argues that the US’ purported withdrawal from the Optional Protocol was invalid.459 _{Therefore, although the US is not a party to the ICJ’s compulsory}

jurisdiction, from the analysis above, the US continues to be under the ICJ’s VCCR jurisdiction, notwithstanding the purported withdrawal by the US Secretary of State. To substantiate this point, in the 2010 UPR, the OHCHR was cited in the Compilation Report as having concerns about the execution of Medellín ‘despite an order to the contrary by the International Court of

Justice’,460 _{particularly as the ‘OHCHR recalled that the [US] has a legal obligation to comply}

with decisions of the International Court of Justice’.461 _{This assertion from the OHCHR that the}

US’ legal obligation under the VCCR is still in place came three years after the US purported to withdraw from the Optional Protocol, indicating that its belief is also that the withdrawal was invalid.

However, in order to test the argument that the US’ purported withdrawal from the VCCR’s Optional Protocol is invalid, another state must initiate proceedings against the US under the

456 _{When Nicaragua brought a case against the US before the ICJ in 1985, the US invoked the ‘right’ under a reservation it had}

lodged to withdraw from the Statute of the Court, hence removing itself from the compulsory jurisdiction of the ICJ, Restatement (n 379) §903 Reporters Note 3.

457 _{Cindy Galway Buys, ‘Reflections on the 50}th _{Anniversary of the Vienna Convention on Consular Relations’ (2013) 38 S Ill U L}

J 57, 63.

458 _{Quigley, ‘The United States’ Withdrawal from International Court of Justice Jurisdiction in Consular Cases’ (n 435) 298.} 459 _Ibid.

460 _{Compilation Report 2010 (n 145) para 25.} 461 _{Ibid para 26. Emphasis added.}

139

Optional Protocol. The ICJ, by way of Article 36(6) of the Statute of the International Court of Justice, deems itself to be the deciding body when determining a dispute over whether the ICJ

has jurisdiction.462 _{Therefore, should a state wish to bring action against the US over a breach}

of the VCCR, an application should be made to the ICJ invoking Article 36(6) and relying upon the lack of a denunciation clause and no grounds under Article 56 VCLT, to prove that the US has not withdrawn from the Optional Protocol. The ICJ would then be able to adjudicate on the validity of the withdrawal through its decision on whether it had jurisdiction or not. This has yet to be carried out, despite the withdrawal being thirteen years ago, there being 136 foreign nationals on US death row, made up of thirty-five nationalities,463 _{and there being twelve}

executions of foreign nationals since the purported withdrawal in 2005.464 _{This is likely due to}

the potentially negative diplomatic repercussions from initiating proceedings against the US in the ICJ, particularly when the US has purported to withdraw from the ICJ’s jurisdiction. However, this thesis has concluded that the withdrawal is invalid and suggests this theory should be tested by a state party with a sound diplomatic relationship with the US, and the means to bring a case before the ICJ. A prime candidate to do this would be the UK using the case of Linda Carty. Carty holds dual US and UK citizenship and has been on death row since

2002 after being convicted of the kidnap and murder of her neighbour in Texas in 2001.465

Carty was not afforded her Article 36 rights and, as such, raised this in her State habeas

appeal in 2003, which was denied.466 _{This would be of particular interest to the UK as it is one}

of the few member states that has raised the issue of consular assistance in both US UPRs,467

indicating that the UK considers it to be a serious human rights issue.

Additionally, this issue can be further considered through the UPR. To date, the UPR has not been utilised to consider the US’ withdrawal from the Optional Protocol, but it would provide a more diplomatic, and possibly effective, platform for doing so. Through the UPR, UN member states could raise the purported withdrawal as an issue and put forward their views on its validity during the advance questions and interactive dialogue, then provide recommendations as to the best way forward for the US to protect and promote the consular rights of both foreign nationals in the US and US nationals abroad. This would be particularly relevant for those states with nationals on US death row and abolitionist states. To encourage member states to

462 _{Statute of the International Court of Justice (n 347) Article 36(6).}

463 _{Mark Warren, ‘Foreign National and the Death Penalty in the US’ (Death Penalty Information Center updated 29 June 2018)}

<www.deathpenaltyinfo.org/foreign-nationals-and-death-penalty-us#Reported-DROW> accessed 24 August 2018.

464 _{Mark Warren, ‘Confirmed Foreign Nationals Executed Since 1976’ (n 93). Correct as at 24 August 2018.} 465 _{Carty v Thaler 583 F 3d 244, 246 (5}th _{Cir La 2010).}

466 _{Ibid 251.}

467 _{UNHRC, ‘Advance Questions to the United States of America Addendum 1’ (2010) (n 284); Report of the Working Group 2010}

(n 148) paras 92.223; UNHRC, ‘Advance Questions to the United States of America Addendum 1’ (2015) (n 198); Report of the Working Group 2015 (n 106) paras 176.237.

140

provide recommendations on this, Stakeholders should, at the very least, provide information

in their individual submissions for member states to consult.468

In document An Assessment of the Effectiveness of the UN Universal Periodic Review: Towards the Abolition of the Death Penalty in the United States of America (Page 135-140)