As was widely noted last week, the Bush administration has decided to yank the US out of the optional protocol to the Vienna Convention on Consular Relations. The convention guarantees that when states arrest one another’s nationals, they notify one another and inform the arrested person of the right to contact a consulate; the optional protocol requires that disputes between nations under the convention be resolved by the International Court of Justice in The Hague, and it makes the decisions of that court binding upon the signatory states. By withdrawing from the protocol, the United States refuses to be bound by ICJ rulings related to the convention.
At the time, the decision seemed rather out of the blue. After all, just in February, Paul D. Clement, Bush’s pick for solicitor general, wrote a brief to the Supreme Court announcing that the administration would accept a 2004 ICJ ruling that found the US in breach of the Vienna convention. The specific case at issue involved a Mexican man being held in Texas who 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.
Turns out we shouldn’t be surprised. The folks over at SCOTUSblog gave the brief a close reading and found that, in it, Clement actually hints that the US was planning to junk the protocol. “Even if a Nation decides to comply with the decision in a particular case,” he wrote, “it retains the option of protecting itself from further decisions based on the legal principles of that case by withdrawing from the Optional Protocol.” And so it was done (though there is still debate as to whether the withdrawal is either legal or effective immediately).
You may recall Clement from previous cases such as Padilla, Moussaoui, and Hamdi; he’s one of the lead lawyers behind the administration’s tricky legal strategy in the “war on terror.” As Federal Public Defender Frank Dunham Jr. recently put it, “[Clement] can make the unreasonable sound reasonable” — a skill that should serve him well — from the government’s point of view — in his new job as the administration’s top advocate in the Supreme Court.