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Democratic Compliance with Decisions of the International Court of Justice

Catherine Bratic

Rice University

Poli 475: Dr. Ashley Leeds

Presented 22 April 2010

Abstract: Although traditional compliance theory predicts higher rates of compliance with internationallaw in democracies, studies of compliance with decisions of the International Court of Justice does not

uphold such a correlation. However, the two areas of study can be reconciled by considering how a

democratic leaders political posturing in the lead-up to the courts ruling can polarize or tame a domestic

electorate, greatly influencing a countrys ability to offer concessions required to comply with the final

decision. While leaders who engage with and encourage a divisive political atmosphere appear unable to

backtrack from this politicization without risking an electoral backlash, it is also observed that leaders


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I. Introduction

Trends of compliance with the rulings of the International Court of Justice, (ICJ) the

United Nations court with jurisdiction to resolve disputes among member states, pose a

perplexing subject of study. Although compliance patterns for this world court conform in many

ways to traditional theories about state compliance with international law, ICJ compliance has

also bucked trends on some issues, confounding researchers and escaping a complete

explanation. The gaps in comprehension that exist so far indicate that our current understanding

of why states choose to comply with or defy ICJ judgments is limited.

One area that is particularly puzzling in current research is the role of democracy in

influencing compliance levels. Although traditional compliance research has consistently shown

that democratic states are more likely to comply with international law, ICJ compliance histories

have not reflected this correlation. This paper puts forward a theory that could explain why

democracies do not necessarily exhibit higher compliance levels than non-democracies. In short,

the unique domestic pressures which democratic leaders are subject to under electoral patterns

change the considerations that leaders make when deciding whether or not to comply with an ICJ

judgment. A leaders political posturing in either a hostile or favorable direction prior to the

decision of a case may irrevocably commit a leader to action before the final judgment is even

issued.

Traditional theories of compliance with international law do not necessarily extend

themselves to ICJ compliance issues. Other studies have found democracies to be more likely to

comply with international law than autocracies are. In the case of the ICJ, democratic predictors

do not apply; a democratic regime does not predict higher levels of compliance with ICJ rulings.

However, other findings of traditional compliance theory can still be useful as explanatory


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factors here. Due to the fact that the relationship between these two fields is complex, it is

important to first understand the unique questions posed over ICJ compliance. Once laid out, this

paper will consider the ways in which traditional compliance theory can contribute to the debate,

and in what ways its findings must be disregarded in order to examine other criteria that impact

ICJ compliance levels. It is found, in fact, that basic theory of compliance law continues to be

able to offer much insight to behavior in response to ICJ judgments. Although initial democratic

determinants do not hold true in this case, the behavior of democratic leaders that weigh

domestic electoral concerns when acting internationally offers an explanation of why the

behavior of democratic states is not so easily predictable.

Two hypotheses about disparate behavior of democratic leaders will be examined. First,

there are those democratic leaders who seek to engage with an electorate whose heated emotions

have led them to solidly espouse a radicalized view of the debate. In a second category are those

democratic leaders who try to distance themselves from any such domestic groups by presenting

and fostering a favorable view of the court that lends itself to the offering of future concessions

that compliance might require. I hypothesize and find it to be the case that leaders who

find themselves in the former situation are more likely to defy the courts judgments, while

leaders in the latter cases comply more often, more fully, and more eagerly.

Also encountered in this papers research was an unanticipated third set of cases, which

are marked by the absence of a polarized electorate, and one in which a leaders lack of public

political rhetoric imply a tacit acceptance of the courts activity. Taken together, these three

findings allow re-integration of ICJ compliance theory with traditional knowledge of state

compliance, and have the potential to inform measures intended to increase compliance with

international law.


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II. History of the ICJ and compliance with its judgments

The International Court of Justice at The Hague has developed an exceptional track

record since its inception in 1945. The Court, which is charged with settling legal disputes

between states and offering advisory opinions on legal matters, has boasted high levels of

compliance with its judgments, despite the contentious nature of its subject matter. All United

Nations member states are automatically under the jurisdiction of the Court due to stipulations in

the treaties they must sign to join the United Nations. Once party, states may call upon the Court

to resolve disputes with other states through a number of paths.

There are three procedural paths by which an issue or case may be brought to the ICJ.

Under the first procedural path, two states willingly present themselves before the court, seeking

resolution of a conflict. This first approach is typically considered to be most highly associated

with compliance, as states voluntarily accept the courts jurisdiction. The second procedure

through which cases can be put before the ICJ is clausal stipulation of compulsory ICJ

jurisdiction in international treaties. Although the inclusion of such clauses is becoming less

common as it is replaced by civil arbitration clauses that favor private civilian forums rather than

governmental ones, such cases still provide regular material for the ICJ. Lastly, the ICJ can be

called upon by states to provide advisory opinions on legal issues. Although compliance with

these opinions is not compulsory, their acceptance reflects the states view of the wisdom and

impartiality of the court.

As is inevitable in all contentious issues, states may frequently find themselves subject to

ICJ decisions with which they disagree or which are in some way viewed as unfavorable to the

state. Historically, states receiving such judgments from the ICJ have still exhibited relatively


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high compliance levels, suggesting the existence of a more complex calculation on the part of the

state than simply immediate self-interest.

Enforcement of ICJ judgments is notably difficult. The United States withdrew from the

ICJs compulsory jurisdiction in 1987. Rejection of the courts authority by such a major world

power has weakened the courts reputation and influence.1 Furthermore, the court lacks robust,

independent monitoring and enforcement mechanisms to reinforce its judgments, relying instead

on the arguably weak and political United Nations Security Council for such ends. In cases of

binding judgments, failure to comply can result in reprimands and sanctions doled out by the UN

Security Council. However, the Council is a non-neutral body, and one members veto can

prevent enforcement actions from proceeding. The reality is that most states have no reason to

fear that they will be subject to sanctions if they fail to comply immediately and fully with an ICJ

decision; the Council has not made it a practice to monitor compliance in the post-adjudication

phase, much less to go about determining culpability and penalties.

Given this background, it is surprising that the court has enjoyed very high compliance

levels in response to its judgments and even its non-binding advisory opinions. Most

estimates place compliance levels with binding rulings above eighty percent.2 Such a figure

should be unexpected, given that states face no negative (namely, punitive) incentives to abide

by decisions.

ICJ compliance poses two particular and complementary dilemmas. The first is the

question of why states ever comply with ICJ judgments, considering the almost complete

absence of enforcement mechanisms. The second question posed, which acts as the impetus for

1ColterPaulson, Colter.2004. Compliance with Final Judgments of the International Court of JusticeSince 1987,.

98 The American Journal of International Law. 98: 434-461 (2004).2, CONSTANZE SCHULTE, CONSTANZE. 2004 , . COMPLIANCEWITH DECISIONSOFTHE INTERNATIONAL COURTOF JUSTICE (2004) .

Oxford: Oxford University Press.


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this papers research, is that of why states ever defy ICJ judgments, given that they have agreed

in advance to be subject to the courts jurisdiction. Why would a state willingly refer a case to

the ICJ, only to defy the decision once it is reached? Though it is around this second question

that this paper is centered, it cannot be considered in absence of its stated counterpart.

III. Contributions of traditional compliance research

Traditional compliance theory has focused on a limited number of reasons why states

might be motivated to comply with international law. These explanations can be applied to both

of the previous questions: why states comply with judgments and why they defy them. When the

conditions of compliance theory motives are met, states are presumed to have motives to comply,

and when the conditions are not met, states are presumed to have motivation to defect.

Traditional compliance theory is useful to first consider here because it has proposed and

presented consistent findings that offer solid explanations of when states comply with

international law. Many of these explanations also apply to the ICJ. However, in the realm of

correlations between democratic forms of governance and compliance, there is a sharp

divergence. The examination of traditional compliance theory and the extent to which it can be

applied to the ICJ offer suggestions for how the democratic paradox of compliance can be

understood.

Markus Burgstaller, a scholar of international law and a legal adviser to Austria,

advances three reasons that might drive states to obey international law. Perhaps the most basic

reason is out of fear of punishment.3 If defiant behavior is subject to sanctions whose costs would

exceed the immediate benefits of defecting from an agreement or flouting an international ruling,

the state may still be reflecting its own self-interest when it complies. However, this is not a

3Markus Burgstaller, Markus,. 2007.Amenities and Pitfalls of a Reputational Theory of Compliance with

International Law,.76Nordic Journal of International Law. 76: 39-71 (2007).


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likely motivation in the case of the ICJ, as shown by the fact that mechanisms for enforcing its

judgments are virtually nonexistent.

Burgstallers second rationale for obedience is that a state may hold the belief that

compliance is in its best interest. Though this evaluation has many facets, it is essentially based

around the realist perspective that states are rarely induced to behave in ways that do not

correlate with their own best interests and those of the most powerful states.

George Downs, a professor at New York University, David Rocke, a professor at the

University of California Davis and Peter Barsoom, a PhD student at Princeton University take an

extreme view of this theory, suggesting that states only enter into shallow agreements with which

they already have motivation to comply.4 While this theory might explain why a state with a

strong case would proceed to the ICJ, it is certainly not a compelling explanation of compliance

with all of the cases that are found before the ICJ. After all, by nature, every case must have a

winner and a loser, so not all states can consistently receive favorable judgments. The very fact

that there are losers in ICJ rulings proves Downs, Rocke, and Barsooms assertions do not

provide a complete explanation of the behavior observed.

Another variation, deeply rooted in the theory that states always act in their own rational

interest, revolves around game theory. Although states may have material incentives to defect

from their obligations under international law, they may view that it is in the overall best interest

of themselves and the international community as a whole if everyone abides by their

commitments, even when the immediate effects of this compliance are negative.Because the UN

is the basis for the ICJ, states have a reasonable expectation that they will often interact with the

international community after the case has concluded. This demonstrates what James Fearon, a

4George W Downs, George W., David M. Rocke, and Peter N. Barsoom.1996.Is the Good News About

Compliance Good News About Cooperation? 50(3) International Organization. 50(3): 379-406 (1996).


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political science professor at Stanford, would call a large shadow of the future.5 The more

likely a states future interaction in a community is, the greater the incentive that the state has to

maintain a good standing in that organization. Since the enforcement mechanisms of

international law are horizontal rather than vertical that is to say that punishments are doled

out by other states more often than by supranational organizations reputational concerns are

of increased salience. Andrew Guzman, a professor at the University of California Berkeley

school of law fully develops a theory of how reputational concerns impact the decision to abide

by international commitments, concluding: If a country violates international law, other states

may refuse to enter into future agreements, demand greater concessions when entering into such

agreements, or lose faith in the strength of existing agreements.6

Reputational concerns are not a sufficiently motivating factor in all decisions, however,

as evidenced by occasional defections. Burgstaller finds that these incentives only act at the

margins of the decision to defect or not. When stakes are higher and states have significant

inducements to defect based on their own rational and material self-interest, reputational

concerns are simply not enough.

But reputational concerns are always a factor to some degree. In a study of the USs

historical decision-making processes, Michael Scharf finds a distinct reliance on international

law as real legal doctrine, in a partial rejection of realism. The United States has been historically

defiant toward the ICJ, so its motivations are particularly relevant. Scharf recounts how even in

cases that terminated in noncompliance, reciprocity and reputational costs of non-compliance

5James D Fearon, James D. 1998.Bargaining, Enforcement, and International Cooperation,.52 (2) International

Organization. 52 (2): 269-305 (1998).6Andrew Guzman, Andrew. 2002.A Compliance-Based Theory of International Law,.90 (6) California Law

Review. 90 (6): 1823-1887 (2002).


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were given great consideration.7 The case may be then, as Guzman believes, that although

reputational concerns are constantly in play, the stakes of certain disputes may be too high to be

affected by these considerations.8

These high-stakes issues are the ones which most interest the study of compliance with

ICJ judgments. Low-stake and low-salience issues have no compelling reason to incite defection.

(As illustrated by this very research, there are cases where the low domestic investment in the

dispute made no compelling demands upon leaders to engage in any way other than the tacit

expression of complicity.) Researchers of the court find themselves examining, over and over,

the cases in which the issue was just too important for a country to give in and comply with an

unfavorable ICJ ruling.

Lastly, Burgstaller says states may fully ignore a calculation of whether defection would

serve their interests because the norm of conforming to international law has become internalized

within the state. When fear of sanctions or a damaged reputation are not enough to motivate

compliance, states may nonetheless choose to comply with a ruling because the norms of

international law have been accepted and incorporated into the national psyche.

International cooperation scholar Judith Kelleys analysis of states responses to the US

demand for a nonsurrender agreement attached to the International Criminal Court provides

proof that the jurisdiction of international courts has been embraced as a norm in the

international community.9 In devising the implementation of this agreement, the US approached

other countries, pressuring them to sign an agreement to refrain from surrendering American

citizens to international courts without US consent. The debates within each country approached

7Michael Scharf, Michael. 2009.International Law in Crisis: A Qualitative Empirical Contribution to the

Compliance Debate, 31. Cardozo Law Review. 31: 45-97 (2009).8

Guzman.9Judith Kelley, Judith. 2007. Who Keeps International Commitments and Why? The International Criminal Court

and Bilateral Nonsurrender Agreements,.101 (3) American Political Science Review.101 (3): 573589 (2007).


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by the US over whether or not to sign are interesting because they were based almost entirely on

principles; the nonsurrender agreement was unlikely to be enforceable, so states would not hurt

the courts power by signing on. However, the vast majority of states refused, valuing the norm

of international justice above their immediate self-interests of avoiding punishment from the US.

Kelley shows that states valued adherence to commitments to the international court for their

own sake, absent of any tangible benefits., This value given to adherence itself conforms

perfectly with the traditional definition of a norm. 10,11 While this is unquestionably a valid

proposition that is likely a factor in many ICJ compliance casesparticularly the ones of states

who routinely and unhesitatingly comply with ICJ judgmentsit fails to explain the cases of

defection, where clearly norms are not internalized enough to ensure compliance. The cases of

defiance that are examined are ones in which norms if they even exist in the states were

clearly overruled by other considerations.

More generally, the fundamental norm that governs states actions in international law is

pacta sunt severanda, meaning that commitments must be fulfilled. International legal scholars

Antonia Chayes and Abram Chayes find that states value policy continuity above all as the most

efficient strategy.12 Any treaty that has been negotiated between states inherently represents each

states national interests, as they are formed further in the negotiating process. Demonstrating

continuity with these interests is useful both domestically in order to present an unwavering

policy record as well as internationally, as states feel obligated to maintain good standing in

international organizations by upholding their agreements.

10Robert Axelrod, Robert. 1986.An Evolutionary Approach to Norms,.80 (4) American Political Science Review.

80 (4): 10951111 (1986).11

Martha Finnemore, Martha and Kathryn Sikkink, Kathryn. 1998.International Norm Dynamics and Political

Change,. 52 (4) International Organization. 52 (4):887917 (1998).12

Abram Chayes,Abram and Antonia Chayes, . 1993. On Compliance,.47 (Spring) International Organization.47

(Spring): 175205 (1993).


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Assuming that these three influences are constant within a system, there is still an

observable difference in compliance rates between democratic and non-democratic countries.

Clearly there is something unique about a democratic state. These regimes are much more likely

to cooperate with international law, and this correlation between cooperation and democratic

governance has been found time and time again.13,14,15 Scholars have identified a handful of

explanations for this correlation, namely the importance of rule of law, accountability, and

domestic pressures within democracies. International legal scholar Brett Ashley Leeds has found

that democracies are able to make more credible commitments in negotiation processes because

they are held accountable by domestic interests that oppose any attempt to renege on past

commitments.16Similarly, American political scholar James D. Morrow has found that domestic

interests can also exert considerable political pressure on leaders to comply with international

norms. Because of their political structure, democracies tend to have a greater respect for the rule

of law,17and this domestically-established norm makes it politically costly for a leader to openly

defy international agreements.18 International legal scholars Todd Allee and Paul Huth found this

effect to often be overwhelming for a democratic leader, and suggested that there are cases in

which a democratic leader would like to offer concessions but is constrained by the publics

investment in the issue. In order to shelter oneself from domestic political backlash, a democratic

leader may instead choose to offer the case up to an international court.19 Through their research,

13James D. Morrow, James D. 2007. When Do States Follow the Laws of War? 101 (3) American Political Science

Review. 101 (3): 559589 (2007).14

Todd L Allee, Todd L. and Paul K. Huth. 2006.,Legitimizing Dispute Settlement: International Legal Rulings asDomestic Political Cover,r.100(2) American Political Science Review.100(2): 219234 (2006).15

Brett Ashley Leeds, Brett Ashley. 2003.Alliance Reliability in Times of War: Explaining State Decisions to

Violate Treaties,57(4). International Organization 57(4): 801827 (2003).16

Leeds.17

Judith Kelley, Judith. 2007.Who Keeps International Commitments and Why? The International Criminal Court

and Bilateral Nonsurrender Agreements,.101 (3) American Political Science Review. 101 (3):573589 (2007).18

Morrow.19

Allee and Huth.


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of these findings has even attempted to answer the question of why the established theory of

higher levels of democratic compliance cannot be extended to the ICJ.

Constanze Schulte, a scholar of the ICJ, has found that democratic states are no more

likely to be receptive to unfavorable ICJ judgments.26These findings are further supported by the

work of Sarah McLaughlin Mitchell and Paul Hensel, two scholars of international

cooperation .27 The lack of correlations found by Schulte and Mitchell and Hensel occur despite

the fact that studies of compliance in general have found the type of government to greatly

influence responses to legal rulings,28and serve an important reminder of the way that ICJ

judgment compliance records differ from compliance records of treaties and regulations.

Unfortunately, the current analyses of domestic conditions fail to consider why a single

state may comply with one ICJ judgment but not another, although its democratic status remains

unchanged. Because a constant, democratic form of government is unable to explain this

variation, other shifting domestic considerations must be examined, and the type of governance

changes to a control variable. Examining only the cases of democracies, where no predicting

effect has been observed, the cases must be separated to find what factors do indeed distinguish

the democratic leaders who choose to comply from the democratic leaders who do not choose to

comply.

States accepting the ICJs jurisdiction do not have full information about how their future

interests will affect their ability or desire to comply, because their commitment is an agreement

to be bound by any range of judgments that might occur at unspecified times and against

26Schulte.

27Sarah McLaughlin Mitchell,Sarah McLaughlin and Paul R. Hensel. 2007. International

Institutions and Compliance with Agreements. 51 (4) American Journal of Political Science. 51(4): 721737 (2007).28

Xinyuan Dai, Xinyuan. 2006.The Conditional Nature of Democratic Compliance,.50 (October) Journal of

Conflict Resolution. 50 (October): 124 (2006).


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unspecified parties. In this sense, compliance with the rule of the ICJ demands a lot from states.

These states must agree to fully comply with any judgment the court will make in the future,

regardless of which country hales them before the court or what judgment the court will make.

Without the full knowledge of the circumstances they will face, states must make a leap of faith

in accepting the ICJs jurisdiction.

V. Argument

In the selected cases of judgments which were unfavorable to the party not exhibiting full

compliance, states clearly received a judgment that they were not hoping for. In cases of

noncompliance, the threat of international punishment and reputational concerns were clearly not

enough to induce compliance. Particularly in democracies, political leaders must think about

domestic support for all of their actions. If leaders lose that domestic support, they risk losing

political power and their offices. Under what conditions, then, will democratic leaders have

domestic incentives to comply with an unfavorable judgment?

According to international legal scholar James Fearon, a states prior posturing can exert

one of the greatest influences on behavior.29 Fearon finds that backing down from prior rhetoric

is surprisingly costly. In addition to the standard price that leaders must pay for concession on

the issue itself, they also face additional costs: physical costs for any backtracking that must

occur, such as the demilitarization of areas and the restoration of damaged bilateral relations, and

audience costs for engaging the national honor only to abandon it. When leaders raise an issue to

national consciousness, clearly positioning the state in one direction or another, they give their

opponents the chance to bemoan the loss of international face when they retreat from this

position.

29James D. Fearon, James D. 1994.Domestic Political Audiences and the Escalation of International Dispute,s.88

(3)The American Political Science Review. 88 (3). 577592 (1994).
http://www.jstor.org/action/showPublication?journalCode=amerpoliscierevihttp://www.jstor.org/action/showPublication?journalCode=amerpoliscierevihttp://www.jstor.org/action/showPublication?journalCode=amerpoliscierevi


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VI. Hypotheses

This paper expects to find that, for leaders who have raised the particular dispute to the

level of the national consciousness, retreating from the strong positions initially put forth in order

to offer required concessions may be too costly to consider.

The attitude of a states leader can have impressive effects on a countrys psyche as

determined by the powerful electorate. Leaders particularly democratic ones can risk

becoming so buried in political rhetoric that they are unable to backtrack from a combative

stance in order to offer the concessions necessary for compliance.

Hypothesis 1 (H1): States whose leaders have used extreme political rhetoric to

tie their political reputations to the outcome of the dispute will be less likely to

offer compliance to ICJ demands for concessions.

The degree of political entrenchment can be measured by the leaders remarks, but also

through material threats unrelated to the Court itself. If a leader has previously threatened

military escalation of the conflict or has otherwise expressed that the state is willing to take any

means necessary to defend its position, the leader may be said to be more politically entrenched

in the conflict. This effect is ever the more increased if the leader has expressed hesitance in the

ICJs discriminating abilities.

Leaders are of course free to backtrack from combative or divisive remarks. However,

they may risk their electoral backing when doing so, in an over-cooperation effect examined by

political scientist Michael Colaresi.30 In fact, dovish leaders who are more willing to offer

cooperation can be easily ousted by hawkish leaders who will not make such concessions, and

30Michael Colaresi, Michael. 2004.When Doves Cry: International Rivalry, Unreciprocated Cooperation, and

Leadership Turnover, 48(3) . American Journal of Political Science. 48(3): 555570 (2004).


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This papers research will expand upon these pronouncements by considering the difference

between the cases of compliance and defiance already established.

The majority of the data needed to make the distinctions needed to test H1 and H2 can be

gained from a leaders public remarks. Since one can assume that the leader does indeed have a

message to convey, the tone of that leader should be readily discernible. Rhetoric that is

favorable to the Court expressing confidence in its judiciousness and reiterating the states

eagerness to comply with the Court in order to receive a fair resolution of a conflict can be

interpreted as preparing the electorate to accept the Courts legitimacy and offer any needed

concessions. Through the examination of news reports, articles published around the time of the

judgment, and public statements issued before and after the Courts ruling, this paper will verify

whether cases of compliance and noncompliance differ according to the conditions of its

hypotheses.

VIII. Data

This paper has drawn from the cases and compliance studies performed by Schultz in

Compliance with Decisions of the International Court of Justice, which include a full list of

contentious cases that have come before the court since it began its work in 1946 and which

examined substantive legal issues and issued binding decisions. This paper determines that the

only applicable international procedures to consider are those cases which demanded substantive

compliance, and so eliminates cases which asked instead only that parties continue negotiations.

Finally, as the hypotheses being considered relate only to the official responses of democratic

states, the cases considered were further reduced to those in which the losing state was a


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democracy, as judged by data from the Polity IV data set, which measures the type of

governance since 1800 in all world nations.32 The final set of fourteen cases is shown in Table 1.

Case Date States involved

Rights of Nationals of the USA in Morocco 1952 France (Morocco),USA

Ambatielos 1953 Greece, UK

Minquiers and Ecrehos 1953 France, UK

Sovereignty over Certain Frontier Land 1959Belgium,Netherlands

North Sea Continental Shelf 1969Germany,Denmark,Netherlands

Fisheries Jurisdiction 1974 UK, Iceland, FRG

Delimitation of the Maritime Boundary in the Gulf ofMaine Area

1984 Canada, USA

Military and Paramilitary Activities in and againstNicaragua

1991 Nicaragua, US

Land, Island, and Maritime Frontier Dispute 1992El Salvador,Honduras

Maritime Delimitation Greenland and Jan Mayen 1993 Denmark, Norway

Gabcikovo-Nagymaros Project 1997 Hungary, Slovakia

Kasikili/Sedudu Island 1999 Botswana, Namibia

LaGrand 2001 Germany, US

Arrest Warrant of 11 April 2000 2002 Belgium, DRC

Table 1: Cases considered

In the majority of the cases, the ICJ issued a ruling which indicated a clear loser in the

dispute, in which one state was required to make concessions that were either unilateral or

significantly greater than those demanded of the other state.33 In a select few cases (Rights of

Nationals of the USA in Morocco, Delimitation of the Maritime Boundary in the Gulf of Maine

Area, Denmark, weak), the judgment weighed heavily enough on both parties that full and

complete compliance could only be accomplished through the cooperation of the parties. In these

cases, both sides are considered to be losers in the dispute, noting if one side was slightly more

disadvantaged by the ruling.

32M. G. MARSHALL,M. G. AND & K. JAGGERS,. 2004. POLITY IV PROJECT: POLITICAL REGIME CHARACTERISTICSAND

TRANSITIONS, 18002002 (2004).. University of Maryland, College Park.33

The determination of the losing state was made after reading the judgments issued directly by the ICJ, which

can be accessed at www.icj-cij.org/docket/index.php?p1=3&p2=2. 22 April 2010. Unknown source type?


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Actual compliance with the judgment was taken from Schultes case descriptions. Past

studies of compliance show that a countrys response is best viewed not as a dichotomous

measure of total compliance or outright defiance, but as a spectrum of cooperative behavior.

However, such a measure is of course not conducive to a research endeavor such as the one at

hand. As Paulson did in his studies of compliance, this paper includes a third option of medium

compliance between high compliance and low compliance in order to balance these two

extremes. The highest valuation was assigned to countries who immediately moved to comply

fully with the judgment, and whose compliance was eventually fully achieved. The medium

compliance level was assigned to countries that publicly stated their acceptance of the courts

judgment, but whose compliance was not fully achieved in a timely manner, due to either to

problems of implementation or internal hesitance on the states part. Finally, the lowest

compliance rating was assigned to countries that explicitly rejected the validity of the decision

and/or made no efforts to comply with its terms. The compliance assessments for each of the

losing states are shown in Table 2.

Case LoserCompliancelevel

Rights of Nationals of the USA in Morocco France (USA) High

Ambatielos UK High

Minquiers and Ecrehos France High

Sovereignty over Certain Frontier Land Netherlands High

North Sea Continental ShelfDenmark,Netherlands

High

Fisheries Jurisdiction Iceland Low


US, Canada High


US Low

Land, Island, and Maritime Frontier Dispute El Salvador Medium

Maritime Delimitation Greenland and Jan MayenDenmark(Norway)

High

Gabcikovo-Nagymaros Project Hungary Medium

Kasikili/Sedudu Island Namibia High


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LaGrand US Medium

Arrest Warrant of 11 April 2000 Belgium High

Table 2: Compliance by losing states

Finally, the leaders responses through publicly issued statements and other expressions

of the countrys opinion of the court were collected and measured. Whenever possible, these data

were gathered through news reports that were published at the time of the dispute. This task was

much more easily accomplished in recent cases, as the role of the international press has

increased and been facilitated by increased technological exchanges. When news reports

containing a leaders remarks were not available, papers written on the dispute and the courts

decision in the years surrounding the cases were referenced. This endeavor was limited in some

respects by language barriers; coverage in English-language press often hinged on the publishing

countrys interest in the countries involved in the dispute, and research did not extend to any

foreign-language press. Contemporary references to historical cases were avoided in order to

preserve the historical context as much as possible.

The countrys official response has been assessed as either positive or negative in each

case, for the purposes of simplification of measures. However, additional notes have been

included and abbreviated case studies have also been produced in order to more fully

communicate the variance and details of the position espoused.

CaseCompliancelevel

Attitude of leade

Rights of Nationals of the USA in Morocco High Support of court

Ambatielos High Support of court

Minquiers and Ecrehos High Support of court

Sovereignty over Certain Frontier Land High Support of court

North Sea Continental Shelf High Support of court

Fisheries Jurisdiction LowRejection of courtlegitimacy


High Support of court


LowHostile to allInternational actio


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Land, Island, and Maritime Frontier Dispute Medium Support of court

Maritime Delimitation Greenland and Jan Mayen High Support of court

Gabcikovo-Nagymaros Project MediumPandering, hostileresolution

Kasikili/Sedudu Island High Support of court

LaGrand Medium Indifference toproceedings

Arrest Warrant of 11 April 2000 High Support of court

Table 3: Compliance and attitude of leaders

IX. Abbreviated case studies34

1. Rights of Nationals of the United States of America in Morocco: This case concerned

itself with the special privileges claimed for American citizens in Morocco, which was still

controlled by France at the time, as part of extended consular jurisdiction established by the

United States. Also at issue were certain economic policies of France that seemed to unfairly

advantage French citizens over American ones. The two countries had unsuccessfully attempted

to negotiate a settlement, and France filed unilaterally before the ICJ to attempt a diplomatic

resolution. The United States never objected to the application to the Court. Although the United

States initially filed a series of objections to the merits of the case, it demonstrated a deep-seated

respect for the courts judgment by withdrawing these objections once the court had rejected

them procedurally.35 The United States executive branch engaged in favorable court rhetoric36

and took action domestically to soften the initially harsh reactions favored by the US Senate.37

France, for its part, tread lightly and tried to present itself as an advocate for Morocco rather than

as an independent party objecting directly to American actions, both fearing damage to relations

34Much of the background material is taken from the case summaries presented by Schulte in Compliance with

Decisions of the International Court of Justice. Does this need a full citation?35

Bin Cheng, Bin. 1953.Rights of United States Nationals in the French Zone of Morocco,.2 (3)The International

and Comparative Law Quarterly. 2 (3): 354367 (1953).36

US Counter-memorial, ICJ Pleadings, Rights of Nationals of the United States of America in Morocco. judicial

settlement will not only promote a just decision satisfactory for both parties, but will also contribute to the

development of the tradition of law and order of which both the United States and France desire to promote I think

this should be included in the paper and a citation placed here.37

Richard Young, Richard. 1957. The End of American Consular Jurisdiction in Morocco,.51 (2) The American

Journal of International Law. 51 (2): 402406 (1957).
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with the United States38and remaining wary of stirring up pro-independence sentiments in its

African colonies.39,40 Compliance with the courts final judgment, which found fault in both of

the states actions, was swift and complete.

2. Ambatielos: At issue was whether or not the United Kingdom was obligated to submit

a dispute between its government and a Greek national to arbitration. After the ICJ ruled that

arbitration must proceed, the UK ended its objections and immediately complied. Although the

UK filed objections to the courts jurisdiction and claimed non-exhaustion of domestic remedies,

the case remained a focus of the government alone.41 As the complaint was against the actions of

the government itself and did not concern territory or rights which might have an impact on

domestic interests, this confinement of scope was easy to achieve. The lack of British domestic

investment in the dispute meant that the British government could confine its focus to legal

issues alone without allowing the case to turn political.42

3. Minquiers and Ecrehos: In the course of long-running negotiations, the United

Kingdom and France agreed to submit to the ICJ a dispute over fishing rights on islands in the

British Channel. The courts ruling, assigning exclusive rights to the UK, was in many ways

redundant, since the parties continued negotiating during the proceedings and independently

reached an agreement between submission of the case and the issuance of the courts decision.

Although the conflict in this state was longstanding, relations between the two states were

excellent; the dispute was never presented nor interpreted as a diplomatic conflict between the

38Kurt H.Nadelmann, Kurt H.Reprisals against American Judgments?65 (7)Harvard Law Review.65 (7): 1184

1191 (Year?).39

U.S. Test With France in Morocco Comes to Hearing in World Court; Washington and Paris, in Open Sessions at

The Hague, Will Both Try to Avoid Roiling North African Feelings, . THE NEW YORKTIMES, July 13, 1952. The NewYork Times.40

Paris Says U.S. Hurts Moroccan Interests. , THE NEW YORKTIMES, July 17, 1952.The New York Times.41

D. H. N. Johnson, D. H. N. 1956.The Ambatielos Case,.19 (5)The Modern Law Review.19 (5): 510517(1956).42

World Court Gets 34-Year Ship Case; Greek Buyer Of 1919 Surplus Vessels Is Backed By Athens In His Suit

Against Britain,. THE NEW YORKTIMES, March 31, 1953. The New York Times., at19.
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two nations but rather, was seen as an attempt to resolve the disagreements between individual

fishermen of each country. It was a purely local problem, as Schultz said, and the UK itself

referred to the islands in contention as only a few rocks.43 The French concurred, saying they

had no risk to wish difficulties with Britain just for the sake of two islands.44Referral to the

ICJ represented not an escalation, but another procedural path working toward inevitable final

resolution.45

4. Sovereignty over Certain Frontier Land: The dispute between the Netherlands and

Belgium over a shared border was, like the Minquiers and Ecrehos case, one in which local

emotions dominated.

46

Tensions were even higher between the locals living at the border of these

two nations, spilling into the greater political discourse and threatening the planned furtherance

of economic relations between the two states. Although many domestically acted as though vital

national interests were at stake,47 in the merits of the case the dispute was frequently described

as ridiculous.48 The court ruled overwhelmingly in Belgiums favor, and full compliance was

provided by the Dutch.

5. North Sea Continental Shelf: Germany faced Denmark and the Netherlands in two

individual disputes over a shared maritime boundary. In the course of delimitation of the

boundary between the three countries, the criteria for measurement became an issue. The court

43Papal Monition On Piracy :To Bolster Claim to Oyster-Beds,.THE MANCHESTER GUARDIAN,September 17, 1953.

The Manchester Guardian.44

Royal Appetites For Channel Islets: French Case at The Hague,.THE MANCHESTER GUARDIAN, September 29, 1953.

The Manchester Guardian.45D. H. N. Johnson, D. H. N. 1954. The Minquiers and Ecrehos Case,.3 (2) The International and Comparative

Law Quarterly.3 (2): 189216 (1954).46

It was a situation which received little national, but great local, attention, and it had to be solved quickly.

Schultz.47

Walter H Waggoner, Walter H. August 10, 1957.A Tax-Free Enclave of 30 Acres Contested by Belgians and

Dutch; Question of Monarchy Status Is Slated to Be Argued. Before Hague Tribunal. THE NEW YORKTIMES,.

August 10, 1957, at 3.48

Verzijl, J. H. W. 1966. The jurisprudence of the World Court, A Case by Case Commentary, Vol. 2 (The

International Court of Justice). Leyden.
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repeatedly referred to the dispute as being a matter of life or death 52 for the country, and

encouraged passage of laws referring to the need for exceptional measures to benefit

conservation needs.53 As the dispute with the UK and the FRG escalated, the Icelandic

government continued to pass numerous laws supporting its position far more than were

necessary to enshrine its views. Although the practice was carried out by a new government, it

fell into a longstanding tradition of successive administrations trying to outdo their predecessors

in the protection and promotion of the Icelandic fishing industry.54Compliance in this case was

never achieved or even attempted by Iceland.

7. Delimitation of the maritime boundary in the Gulf of Maine area: Facing a

disagreement over the maritime boundary, heightened by the high investment of fishers in both

countries, the United States and Canada agreed to jointly submit a matter of overlapping

jurisdictional claims to the ICJ. The court was given the authority to decide the boundary in the

case, and it ultimately determined that the boundary lied perfectly evenly between the two

claims. This equitable division followed the pattern of amicable relations that was sustained

throughout the proceedings. The two states both faced pressure from domestic fishing lobbies,55

so submission to the Court was a way for domestic politicians to have the matter settled without

having to bear the political responsibility for the result and to face the reproach of their

constituents.56 Although negotiations had been attempted many times before, their ultimate

success was seen as unlikely, and most agreed that additional measures would be needed to

52Comment by Icelandic Foreign minister Einar Agustsson, as quoted in The High Seas: The War for Cod.

December 29, 1975. Time.53

Evans, Alona E. 1975. Fisheries Jurisdiction Case (United Kingdom v. Iceland). ICJ Reports, 1974, p. 3.The

American Journal of International Law. 69 (1): 154174.54

Churchill, R. R. 1975. The Fisheries Jurisdiction Cases: The Contribution of the International Court of Justice to

the Debate on Coastal States Fishery Rights. The International and Comparative Law Quarterly. 24 (1): 82105.55

Knight, Michael. July 5, 1979. U.S.Canada Treaty Faces Senate Fight; Domestic Fishermen Oppose Pact Setting

Boundaries Off Maine Some Senators Listen Opposed by Booming Industry Denounced by Pell Regulation andQuotas Retaliatory Bars. The New York Times. A12.56

Schulte p. 174.
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Jeane Kirkpatrick dismissed the court as a semi-legal body that did not deserve full respect.61

After the ICJ ruled that the USs behavior violated international law and ordered that it pay

reparations to Nicaragua, the United States continued its defiance, refusing to comply and

repeatedly using its veto position on the UNs Security Council to block any attempts to force

compliance.

9. Land, Island, and Maritime Frontier Dispute: For decades, El Salvador and Honduras

found themselves locked in a dispute over a land boundary that dated back to colonial times. The

conflict, which was marked by occasional violence by citizens and even full-scale military

involvement, was called the soccer wars when it turned bad.

62

Although negotiations had

continued on and off for decades, it was not until Nicaragua intervened in the matter that the case

came before the ICJ. Both states were publically supportive of the courts jurisdiction, though

they disagreed on the exact issues to be examined. While the ICJ proceedings continued without

hiccups, the case maintained a highly political nature for a number of reasons. To begin with, the

area in question was populated by thousands of farmers who had strong views on their national

allegiance.63 Furthermore, both countries were led by recently-elected presidents who were

motivated primarily to find early boosts to their reputations in fact, when a verdict was issued,

the El Salvadorean president immediately seized upon the chance to champion his peaceful

resolution of an enduring dispute. Finally, El Salvador and Honduras were at the time embroiled

in a number of other disputes with one another, so it was difficult to refrain from contributing to

a perceived linkage between the many issues.64The courts ruling did not fall completely evenly

on both parties Honduras received two-thirds of the disputed land and El Salvador was

61Taylor, Stuart. Nicaragua Tells World Court that Reagans statements convict the US. May 7, 1985. The New

York Times.62

A Win in the World Court. October 6, 1992. The New York Times.63

Ibid.64

Excerpts from Latin Leaders Agreement. December 13, 1989. The New York Times.


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assigned one-third yet both parties were hesitant to offer full compliance. Both states dragged

their feet in compliance, citing obstacles of practicality and cost and accusing the other of

noncompliance. However, the ruling was never explicitly rejected or defied by either state, with

both choosing instead to attempt to portray their own state as the sole compliant party.

10. Maritime delimitation: Greenland and Jan Mayen: Norway and Denmarks case

before the ICJ concerned a twenty-year-old dispute over continental shelf boundaries and fishing

rights in the area around Greenland. In extending exclusive fishery zones between two

separately-controlled islands, leaders of both countries emphasized the economic dependence of

their coastal citizens on the fishing trade. Denmark appealed unilaterally to the court after

bilateral negotiations proved fruitless. Although Norway never objected to the courts

jurisdiction in the case, it expressed hesitance over any possible attempt by the court to draw

national boundaries. However, the court did indeed decide to do so, slightly to Norways favor.

From the start of proceedings, both parties expressed strong respect from the court. Since the

islands in contention were uninhabited, there was little risk of stoking local emotions.65 Strong

relations between the countries contributed to what was widely seen as an amicable case that

stayed out of public political rhetoric, and after the judgment was issued, the parties continued to

negotiate in order to reach a similar but more personalized agreement.

11. Gabcikovo-Nagymaros Project: A cooperative agreement between Hungary and

Czechoslovakia which later became Slovakia to construct locks on the Danube that would

facilitate development suddenly became highly contentious when domestic opposition in

Hungary to the project became overwhelming. Hungary decided to unilaterally abandon its

portion of the project, leaving Slovakia with a partially-completed structure and a defunct

65Charney, Jonathan I. 1994. Maritime Delimitation in the Area between Greenland and Jan Mayen. The American

Journal of International Law. 88 (1): 105109.
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agreement. Under intense pressure from the European Community, to which both countries

aspired for membership, Hungary and Slovakia jointly submitted the matter to the ICJ.66 When

speaking to or in reference to the European Community, both countries made themselves appear

supportive of the courts role. However, a different picture was painted domestically. In many

ways, the dispute between ecologists and engineers became a stand between Communism and

democracy to which Hungary was newly-converted.67 The environmental attention to the

issue demanded by Hungarian protestors became thus a test of the success of democratic

government in the state,68while the dam project itself represented the faulty ways of old

Communist governance.

69

In Slovakia, the government set up a propaganda website in support of

their perspective,70 and took to the international press to plead their cause.71 Although leaders of

both countries later backed down from these extremist perspectives,72 the citizenry remained

polarized.73 When the court ruled that Hungary (and, to a lesser extent, Slovakia) had acted

improperly and sent them back to negotiations, leaders in both countries found it difficult to

reign in a riled up domestic political audience to support the issuance of any concessions.

Negotiations continue to this day, but no progress has been achieved.

12. Kasikili/Sedudu: The young democracies of Botswana and Namibia were given a

chance to prove their commitment to international legal principles in the case of disputed control

over an island. The two states were fortunate in their condition, which was marked by much

common ground: the states agreed both on the applicable treaty and on the interpretation of its

66

Palmer, John. April 8, 1993. Hungary and Slovakia agree to take dam row to world court. The Guardian. 12.67Thorpe, Nick. April 11, 1993. On the Danube's banks, villages dry up: Asvanyraro. The Observer. 20.

68Bohlen, Celestine. December 5, 1990. GABCIKOVO JOURNAL; On The Danube, Unbuilt Dams But Pent-Up

Anger. The New York Times.69

Hungary Moves to Abandon Dam Project on the Danube. May 13, 1989. AP.70

Still available at www.gabcikovo.gov.sk/tlac.htm#googtrans/sk/en 21 April 201071

Hungary Participates In Danube Project. November 21, 1992. The New York Times.72

Hungarians Ease Stand Over Dam. August 29, 1991. The New York Times.73

Accord Signed to Dam Danube; Protest Rally Is Held in Budapest. March 1, 1998. The New York Times.
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radical new law since its passage. The law was passed by the Belgian parliament, but it was

criticized by members of the Belgian executive. After courts were immediately inundated with

claims from around the world, many began to rethink the law.78Foreign minister Louis Michel

decried the law as opportunistic, and many others were embarrassed by the image of Belgium

that was presented by the law.79 As leaders quickly found out, the law also posed problems for

international relations. Firstly, states whose leaders were accused in Belgian courts took

particular offense; the Belgium foreign ministry had to work overtime to repair relations with the

DRC after the arrest warrant in this case was issued, and worked to publicly reiterate the

importance that Belgium placed on its membership in the international community.

80

Additionally, Belgian leaders faced external pressure from the US and other allies who were

concerned about the extended jurisdiction that the law asserted to curtail the scope of the law or

eliminate it entirely.81 The ruling thus gave Belgian leaders the perfect opportunity to abandon

the law without distancing themselves from the lofty human rights ideals that had initially

motivated its passage.Compliance was immediate and faced no challenges.

X. Conclusion

These case studies reveal that the majority of cases fall into a particular patter of leader

behavior which has a determining outcome on compliance in the case. To begin with, it is

evident such cases as Fisheries Jurisdiction, Military and Paramilitary Activities in and around

Nicaragua, and Gabcikovo/Nagymaros project that the way in which the executive engaged with

the issue as a political project increased the overall polarity of the dispute. In these cases, the

associated low compliance levels that resulted indicate a correlation between this politically-

78Simons, Marlise. December 27, 2001. Human Rights Cases Begin to Flood Into Belgian Courts. The New York

Times.79

Belgium bans Sharon war crimes trial. June 26, 2002. BBC.80

Belgiums diplomatic storm with Congo. July 11, 2000. BBC.81

Bernstein, Richard. April 1, 2003. Belgium Rethinks Its Prosecutorial Zeal. The New York Times.


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tinged rhetoric and compliant behavior. However, it is clear that an issues domestic salience

need not imply this correlation with low compliance; in other cases, the steps taken by leaders to

actively distance themselves from the political drama within their countries and increase the

perception of the courts authority were correlated instead with high compliance rates. Cases

expressing this position include Rights of Nationals of the United States of America in Morocco,

Sovereignty over Certain Frontier Land, and Arrest Warrant of 11 April 2000.

From these case histories, it is clear that the correlations described in both of the

hypotheses hold true. However, this relationship does not definitively determine causality,

leaving open the possibility that an unconsidered factor influencing compliance would inform

leaders, encouraging them to shift their rhetoric in order to align with the countrys future

position. Such a factor, however, would have to be discernible to the leaders themselves, and a

factor of this sort has to date not been proposed.

In addition to the two conditions described in the hypotheses, a third pattern was

observed: one of complete detachment of political rhetoric from court proceedings. In these cases

such as Ambatielos, Maritime Delimitation Greenland and Jan Mayen, and Kasikili/Sedudu

Island there was virtually no investment of the domestic population in the issue. In these

cases, leaders had no motivation either to lend support or attempt to counteract the emotions of a

domestic constituency. In these specific cases, leaders felt a natural desire to resolve the issue

and comply with international law a product of internalization of norms, if not fear of

international retribution. However, the leaders had no need to justify these desires to their

electorates. Equally, actions expressing hesitance to invest in the court would have been

unfounded.


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It appears to be the case, then, that the inconsistent compliance record observed in

democracies in ICJ cases is a result of a democratic leaders unique relationship with his

electorate, one that is not shared with the leaders autocratic counterparts. The risk of retributive

electoral effects force a leaders rhetoric to align with the states behavior in response to court

rulings, either by counteracting local emotions to support compliance with international law or

by stoking these fires to presage cooperative difficulties.

This correlation has important implications for those who study world courts as well as

for the courts themselves. If a democratic states behavior is capable of prediction before a ruling

is issued, the international community may be able to tailor their responses in order to find the

most accessible solution for the country, one that may possible allow a leader in a politicized

situation to save electoral face. In other cases, the international community can rest assured that

compliance is likely to be offered.

From a scholarly perspective, this finding allows us to reconcile the disparate pictures

that had previously been painted of compliance theory in general and compliance specific to ICJ

judgments. The integration of these two theoretical backgrounds contributes to a more complete

understanding of ICJ compliance and international cooperation more generally.


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