A Dangerous Sovereign Nation: U.S. Avoidance of International Law
A Dangerous Sovereign Nation
U.S. Avoidance of International Law
Hailey Shapiro
The Trump administration’s sanctions are debilitating Iranian civilians. Since the U.S. first imposed sanctions on Iran in the summer of 2018, the price of food, books, and clothes has skyrocketed. Some families have resorted to buying rotting fruits; others are unable to pay rising costs of water, gas, and rent.[i] Doctors are no longer able to access some medicines and medical supplies, leaving patients with life-threatening conditions without adequate treatment.[ii] As the coronavirus ravages the country and U.S. sanctions block Iranians’ access to ventilators and other supplies, the medical shortage has evolved into a national crisis.[iii]
Seeking relief for its struggling citizens, in 2018 Iran filed a case at the International Court of Justice (ICJ), the United Nations’ principal judicial body.[iv][v] The U.S. sanctions, Iran argued, violated its 1955 Treaty of Amity, which required the U.S. to “accord fair and equitable treatment” to Iranian nationals and companies. The ICJ agreed, and ordered the U.S. to meet Iranians’ urgent needs by removing related sanctions.[vi]
Instead of complying, the U.S. withdrew from the Treaty.[vii]
The US’ withdrawal is not unprecedented in American foreign policy. The U.S. has been criticized for failing to cooperate with other countries for decades, and international legal institutions such as the ICJ have few enforcement mechanisms to pressure defiant countries to comply.[viii][ix] As a result, the U.S. has consistently withdrawn from international agreements and ignored the ICJ’s orders after unfavorable rulings.[x] U.S. officials often justify their decisions to withdraw with claims that the ICJ is unnecessary, or, as former U.S. National Security Advisor John Bolton said when the U.S. pulled out of the Treaty of Amity, “politicized and ineffective.”[xi]
These accusations are dubious, and the aim of U.S. withdrawal—to augment its sovereignty by isolating itself from international law—is dangerous. When the U.S. builds up borders between itself and international agreements and institutions, it fails to fulfill its obligations to individuals from other countries. Further, it loses powerful tools to support human rights in the U.S. and abroad, and stifles transnational criticism and accountability. Ultimately, by isolating itself from international law, the U.S. threatens the wellbeing of Americans and people around the world.
Blowing Up Agreements
American officials 50 years ago would have probably been surprised to hear their successors dismiss the ICJ as politicized and ineffective. In 1943, the U.S. was one of the main forces that spearheaded the creation of the ICJ. After the U.S. and three other countries declared that a new international organization was necessary to maintain global peace and security, representatives from 50 countries signed the UN Charter, which, based on a statue drafted by an American-led committee, established the ICJ as the “principal judicial organ of the United Nations.”[xii][xiii][xiv] Mere months after the ICJ was established, the U.S. granted the ICJ jurisdiction over its future disputes.[xv] This declaration set the U.S. apart as especially supportive of the institution; most other countries decided to only allow the ICJ to resolve disputes over treaties that explicitly grant it jurisdiction.[xvi][xvii]
In 1984, however, under the presidency of Ronald Reagan, the U.S.’ enthusiasm for the ICJ faded when the country suspected that it would lose its first major case.[xviii] That year, the CIA hired commandos to mine several Nicaraguan harbors in a failed attempt to overthrow the Sandinista government, which U.S. officials suspected had ties to the Soviet Union.[xix][xx] After the mines destroyed several ships and resulted in numerous injuries, Nicaragua brought a case to the ICJ, arguing that the CIA’s actions had violated international law.[xxi] When the ICJ concluded that it had jurisdiction over the dispute—even before it came to any final decisions—the U.S., fearing an impending loss, withdrew from the case, refusing to participate in any related proceedings.[xxii]
The U.S.’ reasoning then mirrored Bolton’s justification for exiting the Treaty of Amity two decades later. The Nicaraguan mining conflict, the U.S. State Department argued at the time, was “an inherently political problem” that was “not appropriate for judicial resolution.” Further, U.S. officials warned, the ICJ’s decision to hear the mining case suggested that the institution was becoming “more and more politicized against the interests of Western democracies.”[xxiii]
But these accusations were dubious then, and are dubious now. Courts are not prohibited from resolving “political” problems; all courts, in fact, deal with important issues that impact political disputes. Additionally, there is little evidence that ICJ judges are predisposed to ruling against the US. ICJ judges base their decisions off of international law, not their personal preferences or home countries’ advice.[xxiv] And even if the ICJ has any political bias, it probably leans in favor of Western democracies because Western lawyers dominate international legal practice.[xxv]
Nonetheless, U.S. officials, afraid that an anti-Western political bias had “infect[ed]” the ICJ, announced that they were “compel[led] to clarify [the US’] 1946 acceptance of the Court’s compulsory jurisdiction.”[xxvi] And clarify they did. A few months later, in October 1985, the U.S. made a decision that would transform its relationship with the ICJ: it withdrew its declaration that had granted the ICJ wide-ranging jurisdiction.[xxvii] In 1986, when the ICJ ordered the U.S. to pay reparations to the Sandinistas, the U.S. refused.[xxviii]
Treaty Abandonment
Over the next 35 years, the U.S. continued to encounter unfavorable ICJ rulings. These rulings pushed the U.S. to abandon more agreements, including the Treaty of Amity and the Vienna Convention on Consular Relations—even after they had served the U.S. favorably in the past.
The VCCR requires that countries immediately notify arrested foreign nationals of their consular rights.[xxix][xxx] Consular rights ensure that people arrested outside of their countries can contact their embassy representative, who can provide legal advice, translation, and help transferring documents and notifying family.[xxxi] These services are especially important for foreign nationals arrested in the U.S., where defendants can be sentenced to death.
The U.S. has used the VCCR and the Treaty of Amity to support its own claims at the ICJ. In 1979, the U.S. used both after Iranian demonstrators seized the U.S. embassy and took 52 American diplomats hostage.[xxxii][xxxiii] The U.S. brought a case to the ICJ, arguing that Iran had violated the VCCR and the Treaty of Amity by failing to stop the demonstrators. The ICJ ruled in favor of the U.S. and required Iran to give the U.S. the hostages, the embassy, and reparations.”[xxxiv]
However, when the U.S. received unfavorable rulings for violating these treaties, it conveniently forgot their past utility. The VCCR met its end in 2005 after Mexico filed a case at the ICJ accusing the U.S. of sentencing 54 Mexican citizens to death without informing them of their consular rights.[xxxv] Two other countries had already filed cases against the U.S. for violating the VCCR—Paraguay in 1998 and Germany in 1999—but, in both cases, the U.S. refused to abide by the ICJ’s preliminary orders to stay the executions, and killed both men before the ICJ released its final decision.[xxxvi] In the Mexican citizens’ case, however, the ICJ came out with its final decision before the U.S. could follow through with the executions: in 51 of the 54 cases, the ICJ determined, the U.S. had violated the VCCR and needed to reconsider the men’s sentences.[xxxvii]
In response, in March 2005, the U.S. withdrew from the section of the VCCR that gives the ICJ jurisdiction.[xxxviii] The U.S. also ignored the ICJ’s demands; today, nearly 20 years after the ICJ decision, Congress has yet to pass legislation mandating compliance with the ICJ’s rulings, and several of the 51 Mexican nationals have been executed.[xxxix][xl] According to the U.S. State Department, the US’ decision to withdraw was motivated by its desire to “protect[t] against future International Court of Justice judgments that might… disrupt [the American] domestic criminal system.”[xli] This explanation appeared to contradict the US’ position in 1979, when it advocated for the international community to disrupt the Iranian criminal justice system to save American citizens. When questioned about this apparent contradiction, a State Department spokesperson explained that it was inappropriate for the ICJ to interfere with U.S. domestic justice because the US, unlike “other countries, like Iran in 1979” had a “system of justice that works.”[xlii] (The spokesperson, however, failed to explain how a “system of justice that works” could fail to inform 51 arrested men of their right to consular assistance.)[xliii]
Sovereignty and Suffering
The Nicaragua mining case, the VCCR, and the Treaty of Amity are not isolated incidents of withdrawal; rather, they reflect the U.S.’ demonstrated habit of withdrawing from international agreements after receiving unfavorable rulings. In some of these cases the U.S. has withdrawn not only from the treaties themselves, but from the entire international legal system by ignoring ICJ rulings.
U.S. officials offer only unfounded justifications for the country’s withdrawals, such as its accusation that the ICJ is politicized. They ignore the fundamental issue at hand: the US’ withdrawal is dangerous. Withdrawal aims to strengthen American sovereign power by weakening the country’s connections to international legal institutions. This approach robs the U.S. of powerful tools to fight human rights violations, weakens accountability measures on U.S. officials, and cuts off transnational criticism of U.S. policy—ultimately threatening human rights around the world.
For one, Americans are harmed when the U.S. withdraws from international law. Based on the golden “what goes around comes around” rule of international politics, other countries will be less likely to fulfill their obligations to Americans if the U.S. fails to fulfill its obligations to foreign nationals.[xliv] In the past, the U.S. has used treaties to support Americans under threat, such as during the Iran hostage crisis.[xlv] By throwing away international agreements and dismissing the ICJ, the U.S. loses valuable tools to help Americans in the future, including the thousands of Americans working as diplomats abroad and the 3,000 Americans arrested in foreign countries each year.[xlvi][xlvii]
But foreign policy is about more than just Americans. U.S. foreign policy will inevitably either harm or protect people in other countries—and, by withdrawing from international law, American policies risk harming more and protecting less. When the U.S. ignores the ICJ’s demands, it fails to fulfill its legal obligations to people from other countries, who will continue to suffer. In Nicaragua, the Sandinistas are still uncompensated for the destruction that the CIA’s mines inflicted. Some of the 51 Mexican nationals have been wrongly executed without being notified of their consular rights, and many of the tens of thousands of foreign nationals arrested each year are speculated to be unaware of their protections due to U.S. authorities' ignorance of their duty to inform.[xlviii][xlix][l] The ICJ has yet to release its final decisions for the cases involving the Treaty of Amity case, but if the U.S. follows its habit of ignoring ICJ rulings, Iranians will continue to suffer under accelerating U.S. sanctions.
Beyond these specific cases, U.S. withdrawal threatens global human rights more broadly. When the U.S. dismisses ICJ rulings and throws away inconvenient treaties, it loses legitimacy to peacefully pressure other countries into abiding by international agreements or ICJ rulings.[li] Additionally, by choosing strategic whim over international agreements and global principles, the United States sends the message that it is above criticism and accountability, both from international actors like the ICJ and the very people its policies hurt the most. When the US withdraws from international law, it impedes the ability of people who are directly impacted by American policies--such as Iranian citizens suffering under sanctions--to demand recourse through the ICJ or diplomatic pressure.[lii]
The Trump administration has made clear that the country will continue to build up borders against international law. Bolton recently announced that U.S. officials are planning to “commence a review of all international agreements that may still expose the United States to purported binding jurisdiction.”[liii] Withdrawing from international law may strengthen U.S. sovereignty, but it threatens global human rights. By continuing down this lonely path to sovereignty, the U.S. will suffocate global criticism and accountability of its policies, and lose powerful tools to fight human rights abuses around the world.
Illustration by Mena Attia.
[i] Ramin Mostaghim and Metlissa Etehad, “Middle-Class Iranians Resort to Buying Rotting Produce as U.S. Sanctions Take Toll,” Los Angeles Times, August 28, 2019, https://www.latimes.com/world-nation/story/2019-08-27/iran-trump-sanctions-economy-food-medicine-shortage.
[ii] “‘Maximum Pressure.’”
[iii] Farnaz Fassihi, “Iran Says U.S. Sanctions Are Taking Lives. U.S. Officials Disagree.,” The New York Times, April 1, 2020, sec. World, https://www.nytimes.com/2020/04/01/world/middleeast/iran-virus-sanctions.html.
[iv] “Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights” (ICJ, October 3, 2018), https://www.icj-cij.org/en/case/175/orders.
[v] “Repertory of Practice of United Nations Organs,” UN Codification Division Publications, accessed October 25, 2020, https://legal.un.org/repertory/art92.shtml.
[vi] “Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights.” Para 66, 89-91, 98
[vii] Verma, “ U.S. Issues Additional Sanctions Against Iranian Banks.”
[viii] John Quigley, “The United States’ Withdrawal from International Court of Justice Jurisdiction in Consular Cases: Reasons and Consequences,” Duke Journal of Comparative and International Law 19, no. 263 (2009): 43.
[ix] Jacob Katz Cogan, “Noncompliance and the International Rule of Law,” The Yale Journal of International Law 31, no. 189 (n.d.): 22.
[x] Sabina Veneziano, “A Brief Criticism of the United States’ Strategic Actions in Three Pending ICJ Cases,” New York University Journal of International Law and Politics 51, no. 4 (May 24, 2019): 16.
[xi] Roberta Rampton Berg Lesley Wroughton, Stephanie van den, “ U.S. Withdraws from International Accords, Says U.N. World Court ‘Politicized,’” Reuters, October 4, 2018, https://www.reuters.com/article/us-usa-diplomacy-treaty-idUSKCN1MD2CP.
[xii] “History,” International Court of Justice, accessed October 24, 2020, https://www.icj-cij.org/en/history.
[xiii] “Frequently Asked Questions,” International Court of Justice, accessed October 24, 2020, https://www.icj-cij.org/en/frequently-asked-questions.
[xiv] “Repertory of Practice of United Nations Organs.”
[xv] Stephen P Mulligan, “The United States and the ‘World Court,’” Congressional Research Service, October 17, 2018, 3. Pp. 1-2
[xvi] Gary L. Scott and Craig L. Carr, "citationID":"CJfLWyjN","properties":{"formattedCitation":"\\uc0\\u8220{The American Journal of International Law 81, no. 1 (1987): 57of International LawnID":"CJfLWyjN"," P. 58
[xvii] “Frequently Asked Questions.”
[xviii] Abram Chayes, “Nicaragua, the United States, and the World Court,” Columbia Law Review 85, no. 7 (1985): 1445–82, https://doi.org/10.2307/1122519.
[xix] Andrew Glass, “Goldwater Condemns CIA Mining of Nicaraguan Harbors: April 10, 1984,” Politico, April 9, 2017, https://www.politico.com/story/2017/04/goldwater-condemns-cia-mining-of-nicaraguan-harbors-april-10-1984-237037.
[xx] Noreen M Tama, “Nicaragua v. United States: The Power of the International Court of Justice to Indicate Interim Measures in Political Disputes,” Penn State International Law Review 4, no. 5 (1985): 25.
[xxi] Nguyen, “Nicaragua Says CIA Orders Mining of Its Port,” UPI, March 30, 1984, https://www.upi.com/Archives/1984/03/30/Nicaragua-says-CIA-orders-mining-of-its-port/3229449470800/.
[xxii] “Text of U.S. Statement on Withdrawal from Case Before the World Court,” The New York Times, January 19, 1985, sec. World, https://www.nytimes.com/1985/01/19/world/text-of-us-statement-on-withdrawal-from-case-before-the-world-court.html.
[xxiii] “Text of U.S. Statement on Withdrawal from Case Before the World Court.”
[xxiv] Chayes.
[xxv] Kurt Taylor Gaubatz and Matthew MacArthur, “How International Is ‘International’ Law?” 22 (2001): 45. P. 277
[xxvi] “Text of U.S. Statement on Withdrawal from Case Before the World Court.”
[xxvii] James P Rowles, “Nicaragua Versus the United States: Issues of Law and Policy” 20, no. 4 (1986): 44. P. 1248
[xxviii] Martin Cleaver and Mark Tran, “US Dismisses World Court Ruling on Contras,” The Guardian, June 28, 1986, sec. U.S. news, https://www.theguardian.com/world/1986/jun/28/usa.marktran.
[xxix] Eileen Denza, “VIENNA CONVENTION ON DIPLOMATIC RELATIONS,” n.d., 7. Pp. 1-3
[xxx] “Foreign Nationals” (Cornell Center on the Death Penalty Worldwide), accessed October 25, 2020, https://www.deathpenaltyworldwide.org/publication/foreign-nationals/foreign-nationals-html/.
[xxxi] “Amnesty International: Violation of the Rights of Foreign Nationals Under Sentence of Death,” Death Penalty Information Center, accessed October 25, 2020, https://deathpenaltyinfo.org/stories/amnesty-international-violation-of-the-rights-of-foreign-nationals-under-sentence-of-death.
[xxxii] Scott R. Anderson, “International Law and the Iranian Revolution,” Brookings (blog), April 2, 2019, https://www.brookings.edu/opinions/international-law-and-the-iranian-revolution/.
[xxxiii] Sarah Mervosh, “The 52 Iran Hostages Felt Forgotten. Here’s What They Wish Would Happen Now.,” The New York Times, January 6, 2020, sec. U.S. , https://www.nytimes.com/2020/01/06/us/iran-hostages.html.
[xxxiv] Anderson, “International Law and the Iranian Revolution.”
[xxxv] “Foreign Nationals.”
[xxxvi] Rebecca E Woodman, “International Miranda? Article 36 of the Vienna Convention on Consular Relations,” n.d., 10. Pp. 48-49
[xxxvii] “Foreign Nationals.”
[xxxviii] Liptak, “ U.S. Says It Has Withdrawn From World Judicial Body (Published 2005).”
[xxxix] “Foreign Nationals.”
[xl] Thomas Hubert, “Mexico Fights on after Texas Illegally Executes One of Its Nationals,” World Coalition Against the Death Penalty, January 23, 2014, http://www.worldcoalition.org/mexico-tamayo-execution-consular-assistance-avena-usa.html; “‘I’m Ready,’ Mexican Citizen Says before Being Executed in Texas for Killing of Wife, Kids,” CBS News, November 12, 2018, https://www.cbsnews.com/news/roberto-moreno-ramos-executed-texas-today-2018-11-14/.
[xli] Quigley, “The United States’ Withdrawal from International Court of Justice Jurisdiction in Consular Cases: Reasons and Consequences.” P. 272
[xlii] Quigley. P. 273
[xliii] Quigley. P. 273
[xliv] Erik Luna and Douglas Sylvester, “Beyond Breard,” Berkeley Journal of International Law 17 (1999), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=907361. P. 185
[xlv] Anderson, “International Law and the Iranian Revolution.”
[xlvi] “HR Fact Sheet” (American Foreign Service Association, September 30, 2017), http://www.afsa.org/sites/default/files/0917_state_dept_hr_factsheet.pdf.
[xlvii] Luna and Sylvester, “Beyond Breard.” P. 185
[xlviii] Hubert, “Mexico Fights on after Texas Illegally Executes One of Its Nationals”; “‘I’m Ready,’ Mexican Citizen Says before Being Executed in Texas for Killing of Wife, Kids.”
[xlix] Mark Motivans, “Immigration, Citizenship, and the Federal Justice System, 1998-2018,” U.S. Department of Justice, August 2019, 25.
[l] “Amnesty International.”
[li] Harold Hongju Koh, “On American Exceptionalism” 55 (n.d.): 49. P. 1487
[lii] Monica Hakimi, “Why Should We Care About International Law?,” Michigan Law Review, no. 118.6 (2020): 1283, https://doi.org/10.36644/mlr.118.6.why.
[liii] Verma, “ U.S. Issues Additional Sanctions Against Iranian Banks.”
