-
WASHINGTON UNDERGRADUATE
LAW REVIEW
VOLUME IV ISSUE IAUTUMN 2010
Catherine Bratic
The Rooney Rule: A Soft Affirmative Action with Tremendous
Results
Gabriel Herman
Wyatt Sassman
Michael Sharp
William Shotzbarger
ARTICLES
Legal Sociology and Equality Before the Law: The Implications of
Legal Variance due to Social Factors
Struggling to Adapt: Climate Change, the Clean Air Act, and
Citizen Suit Standing
Internet Contracts: A History of Browse-wrap and Click-wrap
Contracts
Democratic Compliance with Decisions of the International Court
of Justice
-
Lisa CastilloKevin CrozierTiffany Chu
Bernard ElloukRachel Greenlee
Ashley LindseyJessica LouieDaniel RiojasAlison Tong
Sara AlaviAlicia Arnold
Marie Curatolo
Scott HardyTak MatsushitaClair Phillips
Masthead
Senior Editors
Associate Editors
Editor-in-ChiefTeresa A. Teng
Executive EditorsBrooke E. HowlettEmma L. Mayberry
Emilee A. SahliVanessa M. Stone
-
Democratic Compliance with Decisions of the International
Court of JusticeBy Catherine Bratic*
* Catherine Bratic is a first-year law student at Columbia Law
School. She graduated in May 2010 from Rice University, where she
majored in political science and French studies. She plans to
practice law in multiple international jurisdictions, focusing on
the European and American relationship and its implications for
both governmental and private sector actors.
Volume IV Autumn 2010 Issue 1
ARTICLES
Although traditional compliance theory predicts higher rates of
compliance with international law 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 ICJs 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 who seem willing to offer concessions toward dispute
resolution can prime their electorates to accept a third-party
resolution of a dispute.
-
2 WULR Vol VI, Issue I Autumn 2010
Table of
ContentsIntroductIon.................................................................................2I:
HIstory of tHe IcJ and complIance wItH Its
Judgments...................4II: contrIbutIons of tradItIonal
complIance researcH............6III: complIance specIfIc to tHe
IcJ................................................11IV:
argument..................................................................................13V:
HypotHeses.................................................................................14VI:
desIgn.......................................................................................15VII:
data.........................................................................................16VIII:
abbreVIated case
studIes...................................................20conclusIon.........................................................................31
IntroductIon
Trends of compliance with the rulings of the International Court
of Justice, 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, compliance with the International Court of
Justice (ICJ) has also bucked trends on some issues, confounding
researchers and escaping a complete explanation. The gaps in
comprehension that exist so far indicate that the 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
-
3Braticpaper 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 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 oarder 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
-
4 WULR Vol VI, Issue I Autumn 2010offering of future concessions
that compliance might require. In this paper, it is hypothesized
and found 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 throughout 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 reintegration
of ICJ compliance theory with traditional knowledge of state
compliance, and have the potential to inform measures intended to
increase compliance with international law.
part I: 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
-
5Braticones, 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 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.
1 Colter Paulson, Compliance with Final Judgments of the
International Court of Justice Since 1987, 98 Am. J. Intl L.
434-461 (2004).2 Contanze Shulte, Compliance with Decisions of the
International Court of Justice (2004).
-
6 WULR Vol VI, Issue I Autumn 2010ICJ 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 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.
part II: 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
3Markus Burgstaller, Amenities and Pitfalls of a Reputational
Theory of Compliance with International Law, 76 Nordic J. Intl L.
39-71 (2007).
-
7Braticreflecting its own self-interest when it complies.
However, this is not a 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. Professor George Downs of New York
University; Professor David Rocke of 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 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 political science professor at Stanford, would call
a large shadow of the future.5 The more likely a states future
interaction in a community
4 George W. Downs, David M. Rocke & Peter N Barsoom, Is the
Good News About Compliance Good News About Cooperation? 50 Intl
Org. 379-406 (1996). 5 James D. Fearon, Bargaining, Enforcement,
and International Cooperation, 52 Intl Org. 269-305 (1998).
-
8 WULR Vol VI, Issue I Autumn 2010is, 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 sufficient 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,
Professor Michael Scharf of Case Western Reserve University School
of Law 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 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
6 Andrew Guzman, A Compliance-Based Theory of International Law,
90 Cal. L. Rev. 1823-1887 (2002).7 Michael Sharf, International Law
in Crisis: A Qualitative Empirical Contribution to the Compliance
Debate, 31 Cardozo L. Rev. 45-97 (2009). 8 Guzman, supra note
6.
-
9Braticillustrated 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 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
9 Judith Kelley, Who Keeps International Commitments and Why?
The International Criminal Court and Bilateral Nonsurrender
Agreements, 101 Am. Pol. Sci. Rev. 573589 (2007). 10 Robert
Axelrod, Robert Axelrod, An Evolutionary Approach to Norms, 80 Am.
Pol. Sci. Rev. 10951111 (1986).11 Martha Finnemore & Kathryn
Sikking, Martha Finnemore & Kathryn Sikking, International Norm
Dynamics and Political Change, 52 Intl Org. 887-917 (1998).
-
10 WULR Vol VI, Issue I Autumn 2010a factor in many ICJ
compliance cases particularly the ones of states who routinely and
unhesitatingly comply with ICJ judgments it 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.
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.16
12 Abram Chayes & Antonia Chayes, Abram Chayes & Antonia
Chayes, On Compliance, 47 Int. Org. 175-205 (1993). 13 James D.
Morrow, James D. Morrow, When Do States Follow the Laws of War?,
101 Am. Pol. Sci. Rev. 559589 (2007). 14 Todd L. Allee & Paul K
Huth, Todd L. Allee & Paul K Huth, Legitimizing Dispute
Settlement: International Legal Rulings as Domestic Political
Cover, 100 Am. Pol. Sci. Rev. 219-234 (2006). 15 Brett Ashley
Leeds, Brett Ashley Leeds, Alliance Reliability in Times of War:
Explaining State Decisions to Violate Treaties, 57 Intl Org.
801-827 (2003). 16 Id.
-
11BraticSimilarly, 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,17 and 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, Leeds,
Morrow, Allee and Huth offer a very clear picture of the different
situations that democratic leaders face in the decision to comply.
Yet like a few of the other findings of general compliance theory,
this democratic conclusion cannot be easily extended to compliance
with ICJ rulings.
part III: complIance specIfIc to tHe IcJ
After being neglected by academics for many years, the study of
compliance with international court judgments has recently begun to
receive increased attention. Previous studies have been able to
identify certain conditions that make compliance more likely.
However, these studies have focused primarily on the conditions of
the judgment rather than the conditions of the state. For example,
one study by Colter Paulson, who has studied the ICJ extensively,
showed that land boundaries (as opposed to maritime boundaries),
questions of political strategy, and a history of armed conflict
predict lower levels of compliance.20 Other research shows that
joint referrals of cases by both parties are more likely to be
17 Kelley, Kelley, supra note 9. 18 Morrow, Morrow, supra note
13. 19 Allee & Huth, Allee & Huth, supra note 14. 20
Paulson, Paulson, supra note 1.
-
12 WULR Vol VI, Issue I Autumn 2010complied with than if one
state drags another before the Court.21 22 While the procedural
path that a case takes to the ICJ docket has little effect on
compliance levels,23 24 self-removal from the process once it has
begun an outright refusal to participate in the proceedings is
another early predictor of defiance.25
While research specific to the ICJ has delved more specifically
into the intricacies of compliance particular to the Court, it has
not offered a lot of solid conclusions. Certainly none of the
findings that have emerged from this field are universally
applicable. More importantly, none of these findings have 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.26 These 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,28 and 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.
21 Schulte, Schulte, supra note 2.22 sHabtaI rosenne, tHe law
and practIce of tHe InternatIonal court, 1920-2005: Volume I: tHe
court and tHe unIted natIons (Martinus Nijhoff Publishers 2006)
(2006). 23 Paulson, supra note 1. Paulson, supra note 1.24 Aloysius
Llamzon, Aloysius Llamzon, Jurisdiction and Compliance in Recent
Decisions of the International Court of Justice,18 Eur. J. Intl. L.
815-853 (2008).25 Schulte, Schulte, supra note 2.26 Schulte,
Schulte, supra note 2.27 Sarah Mclaughlin Mitchell & Paul R.
Hensel, Sarah Mclaughlin Mitchell & Paul R. Hensel,
International Institutions and Compliance with Agreement, 51 Am. J.
Pol. Sci. 721737 (2007). 28 inyuan Dai, inyuan Dai, The Conditional
Nature of Democratic Compliance, 50 J. Confl. Resol. 1-24
(2006).
-
13BraticExamining 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 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.
part IV: 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
29 James D. Fearon, James D. Fearon, Domestic Political
Audiences and the Escalation of International Disputes, 88 Am. Pol.
Sci. Rev. 577592 (1994).
-
14 WULR Vol VI, Issue I Autumn 2010relations, 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.
part V: 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
-
15Braticscientist 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 can take
advantage of a rally-round-the-flag effect to rouse support for
both defection and political campaigns. Conversely, support for the
ICJ may also prove to be an intractable position.
Hypothesis 2 (H2): States whose leaders publicly express
favorable views of the ICJ prior to the Courts judgment will be
more likely to offer compliance.
Democratic states are known for their tendency to have a greater
regard for the rule of law. As previous general compliance studies
have shown, norms make an important contribution to a countrys
domestic views. If a leader has played up respect for the Court,
publicly stating that the country in question holds the ICJ in high
esteem and is willing to comply with the ICJs informed judgment in
order to resolve a dispute, that leader may be both reflecting and
enforcing domestic norms in his or her state. Posturing of this
sort is just as powerful as the posturing of politicization, and
leaders are likely to have an equally difficult time retreating
from such remarks while preserving their domestic standing.
One is then left with a variable that aims at the core of what
the leader thinks of the Court: is his or her attitude respectful
or defiant? Fortunately, the task at hand is not to determine the
leaders true beliefs; rather, since this paper has hypothesized
that leaders posture themselves in such a way as to cater to a
specific domestic audience, it is only the leaders public remarks
that must be considered in this regard.
part VI: desIgn
There is no official compendium of ICJ compliance data.
Therefore, determining whether or not a state has complied with an
ICJ judgment is a difficult process.31 Thankfully, researchers
whose
30 Michael Colaresi, Michael Colaresi, When Doves Cry:
International Rivalry, Unreciprocated Cooperation, and Leadership
Turnover, 48 Am J. Pol. Sci. 555-570 (2004). 31 Schulte, Schulte,
supra note 2.
-
16 WULR Vol VI, Issue I Autumn 2010work has preceded this paper
have already analyzed individual cases to make this determination.
This paper does not seek to impose any judgment over theirs, so it
will combine and utilize both Paulson and Schultes analyses of
historical data for determining compliance. The research put forth
in this paper 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.
part VII: 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 democracy,
as judged by data from the Polity IV data set, which measures the
type of governance
-
17Braticsince 1800 in all world nations.32 The final set of
fourteen cases is shown in Table 1.
Case Date States involvedRights of Nationals of the USA in
Morocco
1952 France (Morocco), USA
Ambatielos 1953 Greece, UKMinquiers and Ecrehos 1953 France,
UKSovereignty over Certain Frontier Land
1959 Belgium, Netherlands
North Sea Continental Shelf 1969 Germany, Denmark,
NetherlandsFisheries Jurisdiction 1974 UK, Iceland, FRGDelimitation
of the Maritime Boundary in the Gulf of Maine Area
1984 Canada, USA
Military and Paramilitary Activities in and against
Nicaragua
1991 Nicaragua, US
Land, Island, and Maritime Frontier Dispute
1992 El Salvador, Honduras
MaritimeDelimitation Greenland and Jan Mayen
1993 Denmark, Norway
Gabcikovo-Nagymaros Project 1997 Hungary,
SlovakiaKasikili/Sedudu Island 1999 Botswana, NamibiaLaGrand 2001
Germany, USArrest 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),
32 Monty G. Marshall, Polity IV Project: Monty G. Marshall,
Polity IV Project: Political Regime Characteristics and
Transitions, 18002002, unIVersIty of maryland, college park (2002),
http://www.nd.edu/~mcoppedg/crd/PolityIVUsersManualv2002.pdf. 33
The determination of the losing state was made after reading the
judgments issued directly 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.
-
18 WULR Vol VI, Issue I Autumn 2010the 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.
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 Loser Compliance level
Rights of Nationals of the USA in Morocco France (USA)
HighAmbatielos UK HighMinquiers and Ecrehos France HighSovereignty
over Certain Frontier Land Netherlands HighNorth Sea Continental
Shelf Denmark,
NetherlandsHigh
Fisheries Jurisdiction Iceland LowDelimitation of the Maritime
Boundary in the Gulf of Maine Area
US, Canada High
-
19Bratic
Military and Paramilitary Activities in and against
Nicaragua
US Low
Land, Island, and Maritime Frontier Dispute El Salvador
MediumMaritime Delimitation Greenland and Jan Mayen
Denmark (Norway)
High
Gabcikovo-Nagymaros Project Hungary MediumKasikili/Sedudu Island
Namibia HighLaGrand US MediumArrest 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.
Case Compliance level
Attitude of leader
Rights of Nationals of the USA in Morocco
High Support of court
Ambatielos High Support of court
-
20 WULR Vol VI, Issue I Autumn 2010
Minquiers and Ecrehos High Support of courtSovereignty over
Certain Frontier Land
High Support of court
North Sea Continental Shelf High Support of courtFisheries
Jurisdiction Low Rejection of courts
legitimacyDelimitation of the Maritime Boundary in the Gulf of
Maine Area
High Support of court
Military and Paramilitary Activities in and against
Nicaragua
Low Hostile to all International actions
Land, Island, and Maritime Frontier Dispute
Medium Support of court
Maritime Delimitation Greenland and Jan Mayen
High Support of court
Gabcikovo-Nagymaros Project Medium Pandering, hostile to
resolution
Kasikili/Sedudu Island High Support of courtLaGrand Medium
Indifference to
proceedingsArrest Warrant of 11 April 2000 High Support of
court
Table 3: Compliance and attitude of leaders
part VIII: 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
34 contanze scHulte, complIance wItH decIsIons of tHe
InternatIonal court of JustIce (2005).
-
21Braticobjections 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 with
the United States38 and 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
35 Bin Cheng, Bin Cheng, Rights of United States Nationals in
the French Zone of Morocco, 2 Intl & comp. l.Q. 354, 354-67
(1953). 36 Rights of Nationals of the United States of America in
Morocco (Fr. V. U.S.), 1952 I.C.J.93, Rights of Nationals of the
United States of America in Morocco (Fr. V. U.S.), 1952 I.C.J.93,
157 (Aug. 27) (reports of judgement, advisory opinions, and
orders). 37 Richard Young, Richard Young, The End of Amreica
Consular Jurisdiction in Morocco, 51 am. J. Intl l., 402, 402-06
(1957). 38 Kurt H. Nadelmann, Kurt H. Nadelmann, Reprisals Against
American Judgements?, 65 HarV. l. reV. , 1184, 1184-91 (1952). 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, N.Y. Times, July 13, 1952
at 5. 40 Paris Says U.S. Hurts Moroccan Interests, N.Y. Times, July
17, 1952 at 3. 41 D. H. N. Johnson D. H. N. Johnson , The
Ambatielos Case, 19 mod. l. reV. 510, 510-17 (1956). 42 World Court
Gets 34-Year Ship Case; Greek Buyer Of 1919 Surplus Vessels Is
Backed By Athens In His Suit Against Britain, N.Y. Times, March 31,
1953, at 19.
-
22 WULR Vol VI, Issue I Autumn 2010Channel. 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 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.44 Referral to the ICJ represented not an escalation,
but another procedural path working toward inevitable final
resolution.45
4. Sovereignty over Certain Frontier Land: Much like the
Minquiers and Ecrehos case, the dispute between the Netherlands and
Belgium over a shared border was one in which local emotions
dominated. Tensions were even higher between the locals living at
the mutual 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 domestic
leaders acted as though vital national interests were at stake,46
in the merits of the case the dispute was frequently described as
ridiculous.47 The ICJ ruled overwhelmingly in Belgiums favor, and
the Dutch fully complied.
5. North Sea Continental Shelf: Germany faced Denmark and the
Netherlands in two distinct disputes over a shared maritime
boundary. In the course of delimitation of the boundary between
43 Papal Monition on Piracy: To Bolster Claim to Oyster-Beds,
The Manchester Guardian, September 17, 1953. 44 Royal Appetites For
Channel Islets: French Case at The Hague, The Manchester
Guardian September 29, 1953. 45 D.H.N. Johnson, D.H.N. Johnson,
The Minquiers and Ecrehos Case, 3 Intl comp. l. reV. 189,
189-216
(1954). 46 Walter H.Waggoner, Walter H.Waggoner, A Tax-Free
Enclave of 30 Acres Contested by Belgians and Dutch;
Question of Monarchy Status Is Slated to Be Argued. Before Hague
Tribunal, N.Y. Times, August 10, 1957 at 3.
47 J. H. W. Verzijl, J. H. W. Verzijl, tHe JurIsprudence of tHe
world court, a case by case commentary. (leyden, Vol. 2 1966)
-
23Braticthe three countries, the criteria for measurement became
a contested issue. The Court was thus asked to decide the
applicable formula under international law rather than to judge a
need for demarcation or the actual line to be followed. The case
was characterized by a strong common desire of the parties to
settle the dispute and have the disputed principles clarified by
the court, according to Schulte; The matter was of important,
though not vital, interest. All sides supported the decision to
call upon the Court, believing it to be a useful tool in resolving
a procedural roadblock in negotiations.48 After the Court agreed
with Germany that the originally proposed criteria were unfair,
Denmark and the Netherlands easily accepted the ruling and
continued toward productive negotiations, which ultimately
culminated in new treaties.
6. Fisheries Jurisdiction: The Fisheries Jurisdiction cases,
between the United Kingdom, Iceland, and the Federal Republic of
Germany, are marked by a very different attitude in public politics
from that seen in the cases that preceded them. In a series of
conflicts that became known as the cod wars, 49 Iceland withdrew
from fishing treaties established with the UK and the FRG,
extending exclusive fishing rights in shared waters. Iceland
refused to participate in any of the proceedings, objecting to the
courts jurisdiction despite prior treaty agreements. When the ICJ
ruled that Icelands actions were illegal, the state responded with
predictable, continued disinterest, completely ignoring the
judgment and at times actively defying it. The Fisheries
Jurisdiction case is puzzling to those who accept traditional
compliance theory because it presents the unusual circumstance of
non-compliance by a state that was without doubt in general
committed to rule of law and democracy.50 However, Icelands hostile
rhetoric foreshadowed dangers from the start. Members of the
newly-elected Icelandic government repeatedly referred to the
dispute as being a matter of life or death 51 for the country, and
encouraged the passage of laws referring to the need
48 Wolfgang Friedmann, Wolfgang Friedmann, The North Sea
Continental Shelf Cases A Critique, 64 am J. Intl 229, 229-40,
(1970)
49 The High Seas: Now, the Cod Peace, tIme, June 14, 1976, at
37.50 contanze scHulte, complIance wItH decIsIons of tHe
InternatIonal court of JustIce 156
(2005).51 The High Seas: The War for Cod, tIme, Dec 29,
1975.
-
24 WULR Vol VI, Issue I Autumn 2010for exceptional measures to
benefit conservation needs.52 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.53
Compliance 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,54 so, as Shulte
states, 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.55 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 resolve the
issue. In referring the matter to the ICJ, both states made efforts
to ramp up the courts legitimacy as much as possible, encouraging
domestic legislative bodies to involve themselves in the
process56
52 Alona E. Evans, Alona E. Evans, Fisheries Jurisdiction Case
(United Kingdom v. Iceland). ICJ Reports, 1974, p. 3, 69 am. J.
Intl l. 154, 15474 (1975).
53 R. R. Churchhill, R. R. Churchhill, The Fisheries
Jurisdiction Cases: The Contribution of the International Court of
Justice to the Debate on Coastal States Fishery Rights, 24 Intl
& comp. l.Q. 82, 82105 (1975).
54 Michael Knight. U Michael Knight. 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 and Quotas Retaliatory Bars, n.y. tImes July 5,
1979, at A12.
55 contanze scHulte, complIance wItH decIsIons of tHe
InternatIonal court of JustIce 174 (2005).56 Around the World;
Senate Approves Treaty On Sea Border With Canada, reuters, April
30, 1981.
-
25Braticand making a joint submission. When the verdict was
reached, both states offered full and immediate compliance. No
subsequent conflict has arisen on the issue.
8. Military and Paramilitary Activities in and against
Nicaragua: This case between the United States and Nicaragua is
legendary for the United States display of complete defiance of the
Court, which some worried would pose challenges to the ICJs
legitimacy for decades afterwards. (Fortunately, the USs behavior
seems to have had no such effect.) Nicaragua applied unilaterally
to the ICJ in response to a series of suspicious behaviors
conducted by the United States, which Nicaragua charged as attempts
to overthrow its government, which is a clear violation of
international laws against interference in other states politics.
The US flatly denied all such charges, and objected further by
rejecting the courts jurisdiction and legitimacy, refusing to
participate in the proceedings,57 directly flouting the judgment
set against it, and ultimately withdrawing from the courts
compulsory jurisdiction. From the outset, the American response was
suspect: the Reagan administration responded to the Nicaraguan
filing not with a counterclaim, but with a declaration of a state
of national emergency and a series of harsh retaliatory sanctions
against Nicaragua.58 In addition to these sanctions, Reagan also
ordered an escalation of the very same military efforts to which
Nicaragua had filed objections.59 The Reagan administration made it
very clear that they viewed the court as an impediment to their
goals of military and political coercion in Nicaragua, and even US
ambassador to the United Nations Jeane Kirkpatrick dismissed the
court as a semi-legal body that did not deserve full respect.60
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 UN Security Council to block any
attempts to
57 United States decides not to participate in World Court case
initiated by Nicaragua, 22 un cHron. (1985).58 Taylor, Stuart.
Reagans Power Wide under Emergency Law. May 2, 1985. Taylor,
Stuart. Reagans Power Wide under Emergency Law. May 2, 1985. The
New York Times. 59 Id. 60 Stuart Taylor, Stuart Taylor, Nicaragua
Tells World Court that Reagans statements convict the US, n.y.
tImes, May 7, 1985, at A16.
-
26 WULR Vol VI, Issue I Autumn 2010force 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 for the worse. 61 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 El Salvador and
Honduras were publically supportive of the courts jurisdiction,
though they disagreed on the exact issues to be examined. While the
ICJ proceedings continued without problems, 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.62 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 Salvadorian 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.63 The courts ruling
did not fall completely evenly on both parties Honduras received
two-thirds of the disputed land and El Salvador was 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
61 A Win in the World Court, n.y. tImes, October 6, 1992. 62 Id.
63 Excerpts from Latin Leaders Agreement, n.y. tImes, December 13,
1989.
-
27Braticbetween 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 advantage. From the start of proceedings, both
parties expressed strong respect for the court. Since the islands
in contention were uninhabited, there was little risk of stoking
local emotions.64 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 to the project
in Hungary became overwhelming. Hungary decided to unilaterally
abandon its portion of the project, leaving Slovakia with a
partially-completed structure and a defunct 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.65 When speaking to or in reference
to the European Community, each country made itself 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.66 The environmental attention to
the issue demanded by Hungarian protestors thus became a test of
the success of democratic government in the state,67 while
64 Jonathan I. Charney, Jonathan I. Charney, Maritime
Delimitation in the Area between Greenland and Jan Mayen, 88 am. J.
Intl l. 105, 105-09 (1994).65 John Palmer, John Palmer, Hungary and
Slovakia agree to take dam row to world court, guardIan, Apr. 8,
1993 at 12.66 Nick Thorpe Nick Thorpe, On the Danubes banks,
villages dry up: Asvanyraro, Apr. 11, 1993 obserVer at 20. 673
Celestine Bohlen, 3 Celestine Bohlen, GABCIKOVO JOURNAL; On The
Danube, Unbuilt Dams But Pent-Up Anger, n.y. tImes, Dec. 5,
1990.
-
28 WULR Vol VI, Issue I Autumn 2010the dam project itself
represented the faulty ways of old Communist governance.68 In
Slovakia, the government set up a propaganda website in support of
its perspective,69 and took to the international press to plead its
cause.70 Although leaders of both countries later backed down from
these extremist perspectives,71 the citizenry remained polarized.72
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 considerable common ground: the states agreed both on
the applicable treaty and on the interpretation of its language;
however, they disagreed over which branch of the river that acted
as a dividing line between the two territories was considered its
main (and thus relevant) branch. The leaders of the two countries,
while maintaining strong relations, called upon a third party,
Zimbabwe, to mediate. The matter was jointly submitted to the ICJ,
and the court was asked to definitively determine the boundary. The
states investment in the island arose from its potential as a
tourist destination. The island was uninhabited, and therefore
locals had no investment in the outcome of the decision. The case
was decided on mostly scientific grounds, with each country calling
upon expert witnesses and scientific data rather than political
rhetoric to make its case.73 Based on this evidence, the court
ruled that the island was under Botswanas jurisdiction, and Namibia
complied, dropping all claims to the territory.
68 Hungary Moves to Abandon Dam Project on the Danube, ap, May
13, 1989. 69 Available at
www.gabcikovo.gov.sk/tlac.htm#googtrans/sk/en 21 April 201070
Hungary Participates In Danube Project, n.y. tImes, November 21,
1992.71 Hungarians Ease Stand Over Dam, n.y. tImes, August 29,
1991.72 Accord Signed to Dam Danube; Protest Rally Is Held in
Budapest, n.y. tImes, March 1, 1998. 73 W. J. R.Alexander, W. J.
R.Alexander, Science, history and the Kasikili Island dispute,95
s.afr. J. scI. 321, 32125 (1999).
-
29Bratic13. LaGrand: After facing down the court in 1987 in
proceedings initiated by Nicaragua, the United States had a
chance to redeem itself in the LaGrand case. The dispute was
brought to the ICJ unilaterally by Germany, which alleged violation
of the Vienna Convention on Consular Relations in the case of two
of its citizens, who were sentenced to death in the US without
being informed of their rights to consular support as foreign
citizens. The United States noted from the outset that its federal
structure posed particular obstacles to the case the death sentence
was issued by an Arizona court, not a federal one yet never
contested either the ICJs jurisdiction or the fact that a treaty
breach did indeed occur. In fact, the US appeared ashamed of this
violation, and had taken public steps such as the distribution of
pamphlets emphasizing the guideline before the case was even
brought before the ICJ. Germany filed its case immediately before
the two defendants were to be executed. Although the court issued
an interim measure of protection ordering the US to stay the
executions, it was not honored. 74 Germany and the rest of Europe
were outraged by this act. Although it was not explicitly
considered by the court, the legality of the death penalty in the
United States added to the polarizing nature of the case in Europe.
The court ruled against the US after proceedings in which the US
fully and productively participated, and ordered the state to pay
reparations, conduct a full review of the case, and take actions in
order to prevent future breaches. Although the US has since made
great efforts to improve conduct in the future, it has neither paid
reparations nor conducted a review of the case to see if the
omission of informing the defendants of their consular rights would
have affected the outcome of the case.75 In fact, the judgment has
largely been ignored, neither complied with nor defied. This may
stem both from the federal structure of the US judicial system and
the timing of the judgment, which was issued just months before
September 11, 2001. 76 Caught up in other international matters,
the US seems to have made an error in omission by failing to
encourage Arizona
74 Roger Cohen, Roger Cohen, U.S. Execution of German Stirs
Anger, n.y. tImes marcH 5, 1999. 75 Colter Paulson, Colter Paulson,
Compliance with Final Judgments of the International Court of
Justice Since 1987, 98 Am. J. Intl L. 434-461 (2004).76Martin
Mennecke & Christian J. Tams, Martin Mennecke & Christian
J. Tams, Lagrand Case (Germany v United States of America). 51 Intl
l. & comp. l.Q. 449, 449-55 (2002).
-
30 WULR Vol VI, Issue I Autumn 2010to take action on the
international stage.
14. Arrest warrant of 11 April 2000: Following the passage of a
controversial and revolutionary new law, Belgium claimed
jurisdiction to prosecute those who committed international war
crimes in its domestic courts. One of the countrys first targets
was the foreign minister of the Democratic Republic of Congo (DRC),
Abdoulaye Yerodia Ndombasi, who was charged with genocide crimes
perpetrated privately before he took office. However, the DRC and
much of the international community argued that traditional
international dealings exempted prosecution of current government
leaders. The DRC applied unilaterally to the ICJ, and the court
ruled that Belgium must withdraw the arrest warrant and suspend any
prosecutions until after the foreign ministers term of office
ended.
The ruling was a windfall to Belgium, which complied immediately
and fully. The law was passed by the Belgian parliament, but it was
criticized by members of the Belgian executive, who viewed at as
too reaching and of questionable international legitimacy. Thus,
these leaders had been searching for an excuse to distance the
country from the radical new law since its passage. After courts
were immediately inundated with claims from around the world, many
began to reconsider the law.77 Foreign minister Louis Michel
decried the law as opportunistic, and many others were embarrassed
by the image of Belgium that was presented by the law.78 As leaders
quickly found out, the law also posed problems in international
relations. First, 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.79 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
77 Marlise Simons, Marlise Simons, Human Rights Cases Begin to
Flood Into Belgian Courts, n.y. tImes, December 27, 2001.78 Belgium
bans Sharon war crimes trial, BBC, June 26, 2002.79 Belgiums
diplomatic storm with Congo, BBC, July 11, 2000.
-
31Braticscope of the law or eliminate it entirely.80 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.
conclusIon
These case studies reveal that the majority of cases fall into
particular categories of leadership behavior, whose differences
have a determining effect on compliance in each case. It is evident
in 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-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.
These case histories strongly support the correlations described
in both of the hypotheses: that a leaders post-judgment posturing,
whether positive or negative, can be predictive of the countrys
response to an unfavorable ICJ judgment. 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 not been proposed as of yet.
80 Richard Bernstein, Richard Bernstein, Belgium Rethinks Its
Prosecutorial Zeal, n.y. tImes, April 1, 2003.
-
32 WULR Vol VI, Issue I Autumn 2010In 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 specific cases, leaders
had no motivation either to lend support or attempt to counteract
the emotions of a domestic constituency. Leaders felt a natural
desire to resolve the issue and comply with international law
perhaps 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.
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 or her
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 exacerbating these emotions
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 its responses in
order to find the most accessible solution for the country one that
may possibly allow a leader in a politicized situation to preserve
a favorable image with the electorate. In other cases, the
international community can rest assured that compliance is likely
to be offered. From a scholarly perspective, this finding allows
for a reconciliation of the disparate images that had previously
been perpetuated of general compliance theory, 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 in general.
-
Internet Contracts:A History of Browse-wrap and
Click-wrap Contracts
By Gabriel Herman*
* Gabriel Herman is a 2010 graduate from American Universitys
Honors College. Gabriel graduated Magna Cum Laude with a Bachelor
of Arts in Interdisciplinary Studies: Communications, Legal
Institutions, Economics, & Government. Upon graduation, Gabriel
will pursue a year of intense study of Jewish text, commentary, and
philosophy at Yeshiva Machon Yaakov in Jerusalem, Israel. Gabe
plans to ultimately resume his legal studies at Villanova Law
School.
Electronic contracting has ballooned in both volume and
complexity over the last two decades. The Internet, arguably the
greatest contemporary tool for communication, has facilitated the
creation of commonplace contracts that dictate marketplace
transactions. Today, online contracts are identified within two
categories of Click-Wrap and Browse-Wrap agreements. This paper
identifies how these two forms of contracts are unique and the
historical developments that led to their creation. This article
will most importantly explore how electronic contracts affect all
segments of American society. The articles discussion will indicate
what contractual qualities are most dangerous for society and where
safeguards need enactment.
-
34 WULR Vol IV, Issue I Autumn 2010
IntroductIon
The internet is arguably the most significant global technology
to succeed in the last twenty years. Current internet technologies
facilitate instantaneous communication, allow for the dissemination
of unlimited information, and provide an economic marketplace for
goods the entire world has to offer. Proof of the internets
widespread impact can be understood in terms of its growth. Between
the year 2000 and 2009, the internet expanded by 380.3% with an
estimated one in four global citizens currently having access.1 As
the internet continues to develop and reach more people, so too,
will a greater portion of the world population feel the internets
effects.
The emergence of the internet as the predominant social and
financial marketplace has been coupled with the expansion of
internet law. Legal codes, such as the Uniform Electronic
Transactions Act (UETA) and the Uniform Computer Information
Transactions Act (UCITA), have been implemented to confront
1 Internet World Stats, Usage and Population Statistics,
http://www.internetworldstats.com/stats.htm (last visited Nov. 16,
2009).
Table of
ContentsIntroductIon.........................................................34I:
Background............................................................35II:
HIstory..................................................................37a.
Shrink-wrap and Browse-wrap Agreements.........37b. Click-Wrap
Agreement........................................40III: relevant
PrIncIPles In contract law
andenforceaBIlIty................................................42a.
Notice......................................................................42b.
Assent.....................................................................44c.
The Unconscionability
Doctrine............................45conclusIon.................................................................47
-
35Hermannew issues created by internet agreements. Despite a
variety of existing webpages, almost all share a common bond: the
users and providers contract at some point. Also, compared to other
growing legal fields, internet contracts are said to affect average
individuals the most.2 Today, the American legal system identifies
two basic forms of online contracts click-wrap and browse-wrap
agreements as a means of characterizing the primary methods by
which contracts are presented.3 Both forms of contract may or may
not deal with monetary transactions.
Part I: Background
Click-wrap agreements require users to actively click on a
dialogue box that indicates acceptance of terms before the website
provides its portion of the contract.4 Typical click-wrap
agreements require that a user click an I accept icon in order to
gain access to a webpage or gain the ability to download electronic
data. Such icons are generally located on home or entrance screens,
or at the conclusion of a scroll-down agreement.5 Courts have
traditionally upheld click-wrap agreements because users are
required to actively consent to terms prior to forming a
contract.6
In contrast, browse-wrap agreements are fundamentally different
from click-wrap contracts. Users are able to obtain service or
agree to contracts without explicitly clicking on an I accept
dialogue. Users bind themselves to browse-wrap agreements through
assent that often takes the form of browsing an interior website
page.7 Browse-wrap websites provide their licensing terms on a
separate webpage that is accessible through a hyperlink.
Unfortunately, legal precedent explaining what qualifies as legal
assent and notice during browse-wrap agreement is not
2 James J. Tracy, Browse wrap Agreements: Register.com, Inc. v.
Verio, Inc., 11 B.U. J. Sci. & Tech. L. 164.3 ryan J.
casamIquela, v. BusIness law: a. electronIc commerce: contractual
assent and enforceaBIlIty In cyBersPace, 17 Berkeley tecH. L.J.
476.4 Ty Tasker & Daryn Pakcyk, Cyber-Surfing on the High Seas
of Legalese: Law and Technology of Internet Agreements,18 Alb. L.J.
Sci. & Tech. 79.5 casamIquela, supra note 3, at 476.6 Tracy,
Supra note 2, at 165. 7 Tarra Zynda, Ticketmaster Corp. V.
Tickets.com, Inc.: Preserving Minimum Requirements of Contracts on
the Internet, 19 Berkeley Tech L.J. 504.
-
36 WULR Vol IV, Issue I Autumn 2010
definitive. Thus, browse-wrap agreements have comparatively been
the subject of less legal clarity and remain shrouded with legal
questions.
The characterization of a contract as browse-wrap or shrink-wrap
is increasingly important in understanding issues of legality and
anticipating court decisions. The ability to identify a contract as
one form or the other implies certain fundamental characteristics
that have been justified or remain unanswered in court. Amongst
growing and substantial uncertainty stemming from online contracts,
contemporary scholars question what is necessary for an enforceable
contract. Specific questions include what is sufficient notice of
terms, what impact unconscionability has on enforceability, and
what qualifies as an assent. Specific concern has been raised that
online deals are contracts of adhesion and pose a risk of including
non-negotiable onerous terms.8
The rest of this paper will continue with an investigation of
click-wrap and browse-wrap agreements in Part II. Discussing the
two contract forms in concert is an effective means of explaining
general practices of online contracting and understanding the
substantive differences between the two types of agreements.
Section III will explore the legal history of click-wrap and
browse-wrap agreements and provide needed background to properly
analyze and understand associated cases. This section will explore
what law is applicable and how legal theory has developed from
early cases up to today. Section IV will explore the three most
discussed areas of uncertainty that courts have recently considered
or are likely to confront in the near future. Lastly, Section V
will offer a brief conclusion with perspectives regarding how our
American legal system may effectively handle issues that arise from
online contracts. This paper will devote more attention to
browse-wrap agreements because there is more case law and more
uncertainty regarding the browse-wrap agreements.
8 natHan J. davIs, Presumed assent: tHe JudIcIal accePtance of
clIckwraP, 22 Berkeley tecH. l.J. 580.
-
37Herman
Part II: HIstory
IIa. Shrink-wrap and Browse-wrap Agreements
Current legal theory on browse-wrap contracts directly developed
from court opinions involving shrink-wrap agreements. Judges
addressing early cyberspace contracts applied shrink-wrap rulings,
believing that sufficient similarities between the forms of
contracts existed.9 Like typical browse-wrap and click-wrap
contracts, shrink-wrap agreements present consumers with a
unilateral list of terms on a take-it or leave-it basis.10 During
the early 1990s and continuing today, many software companies
licensed their product exclusively through shrink-wrap agreements.
In a typical shrink-wrap contract, a printed list of terms would be
placed inside a CD sleeve and a consumer would be confronted with
additional terms on their computer monitor during usage.11
Shrink-wrap agreements purport to bind users to contracts upon
opening or using their product. In addition, software companies
continue to place contracts within a CD sleeve or packing boxes
that purport to bind the purchaser upon removing the covering
cellophane.12 It is important to recognize the development of
shrink-wrap contracts in order to understand the precedent
supporting browse-wrap agreements.
The first case to test the legality of shrink-wrap contracts was
Step-Saver Data Systems, Inc. v. Wyse Technology.13 In Step-Saver,
two merchants agreed over the phone to the purchase of software at
a discussed price, set description, and all other necessary
contract terms. When the product was delivered, a label was present
on top of the software box describing additional terms.14 The
question in this case was whether a warranty printed
9 melIssa roBertson, Is assent stIll a PrerequIsIte for contract
formatIon In todays economy, 78 wasH. l. rev. 2 10 casamIquela,
supra note 3, at 477.11 roBertson, supra note 9, at 276. 12 mo
ZHang, contractual cHoIce of law In contracts of adHesIon and Party
autonomy, 41 akron l. rev. 127.13 mIcHael J. madson, rIgHts of
access and tHe sHaPe of tHe Internet, 44 B.c. l. rev. 452.14 mark
andrew cerny, : u.c.c. sectIon 2-207s role In tHe enforceaBIlIty of
arBItratIon agreements Included wItH tHe delIvery of Products, 51
ala. l. rev. 833.
-
38 WULR Vol IV, Issue I Autumn 2010
on top of the computer software packaging referred to as a
box-top license and representing a shrink-wrap agreement was
enforceable. The courts decision that the software was a good and
within the jurisdiction of Article 2 of the Uniform Commercial Code
(UCC) was key in making the contract subject to
offer-and-acceptance correspondence described in UCC section
2-207.15 Due to this distinction, the label on top of the box was
an additional sales proposal, but it did not become part of the
agreement.16
Moreover, the most important key to the history of wrap
agreements is Step-Saver found that shrink-wrap contracts were not
enforceable because of a lack of consumer assent.17 Following the
Step-Saver case, courts generally found shrink-wrap licenses
unenforceable because contracted terms were not part of the
bargained-for exchange.18 The belief in Step-Saver was that assent
did not occur; this issue, however, remains a fundamental concern
with browse-wrap agreements.
In 1996, the Court of Appeals for the Seventh Circuit reversed
the Step-Saver decision by upholding the legality of shrink-wrap
agreements in ProCD v. Zeidenberg. ProCD sold an organized list of
telephone numbers at different prices for professional and personal
use. Included in the package was a shrink-wrap agreement rendering
the redistribution of the phone numbers illegal. The defendants
purchase and redistribution of the numbers motivated ProCD to sue
for breach of contract.
In ProCD v. Zeidenberg, the Seventh Circuit established a new
precedent that consumers could assent to shrink-wrap contracts and
that electronic assent could occur through browse-wrap.19 The court
held that contracts do not have to be formed at the moment a buyer
purchases a box of software.20 Rather, a contract can be formed at
the moment a buyer uses the software and after having the
opportunity to read the license at leisure.
15 madson, supra note 13, at 454.16 Brian Covotta and Pamela
Sergeef, A Copyright: 1. Preemption: b: Contract Enforceability:
ProCD, Inc. v. Zeidenberg, 13 Berkeley Tech. L.J. 35. 17
casamIquela, supra note 3, at 477.18 Covotta and Sergeef, supra
note 16, at 36.19 casamIquela, supra note 3, at 480.20 ZHang, supra
note 12, at 128.
-
39Herman
In ProCD, the court ruled that opening a product and retaining
the good is sufficient indication of assent.21 Unlike Step-Saver,
the court identified the existence of a consumer and vendor
relationship and refused to apply UCC section 2-207. Instead, the
court ruled that consumer assent had occurred citing UCC section
2-204.22 The Seventh Circuit concluded that the vendor was the one
making the offer and could subsequently propose a specific method
of acceptance that could occur after purchase. The alternative
means of acceptance discovered in ProCD opened the door for the
legality of browse-wrap contracts.
Hill v. Gateway 2000 upheld the legality of shrink-wrap
agreements and expanded the scope of the ProCD determination.23
Hill purchased a computer from Gateway over the phone and agreed to
the terms, price, and all necessary provisions. When the computer
was delivered, the box contained Gateways boilerplate form
describing the return policy and arbitration clause. The judge
ruling on Hill noted the number of contracts that operate in a
pay-first, terms-later approach and the impracticability for
Gateway and other retailers to recite all their terms over the
phone.24 The judge stressed that layer contracts in this case being
in the form of review-and-return method, avoids the inefficiency of
telephone contracting to provide consumers with a better
opportunity to review the terms to which they are asked to
submit.25 The court made the comparison between ProCD and Gateway
because both firms gave users the same accept-or-return offer. The
idea of layered contracts and online efficiency are essential
arguments made by individuals attempting to prove the
enforceability of browse-wrap contracts.
ProCD remains one of most relevant precedents for individuals
addressing consumer assent in click-wrap and browse-wrap
agreements. The form and functionality of ProCD
21 roBertson, supra note 9, at 72. 22 casamIquela, supra note 3,
at 479. 23 Id. at 479. 24 saJIda a maHdI, gateway to arBItratIon:
Issues of contract formatIon under tHe ucc and tHe enforceaBIlIty
of arBItratIon clauses Included In standard form contracts, 96 nw.
u.l. rev 4025 Id. at 420.
-
40 WULR Vol IV, Issue I Autumn 2010
is analogous to how both browse-wrap and click-wrap contracts
operate. The computer disc distributed by ProCD is similar to
click-wrap c