Vol. 15 No.4 (April 2005), pp.282-285
COMPLIANCE WITH DECISIONS OF THE INTERNATIONAL COURT OF JUSTICE, by Constanze Schulte. New York: Oxford University Press, 2004. 500pp. Hardback. £75.00 / $150.00. ISBN 0-19-927672-2.
Reviewed by David Schultz, Graduate School of Public Administration and Management, Hamline University. Dschultz@gw.hamline.edu
These are heady days for international law and lawyers. Despite protests from critics, for example, that the United States went to war in Iraq premised upon faulty evidence, the Bush Administration did at least on one level seek to justify its actions by appeal to international law or norms, or by seeking United Nations approval. Similarly, the birth of the International Criminal Court and the rising importance of the European Court of Justice and the European Court of Human Rights also attest to the growing importance and power of international tribunals in structuring and affecting state and non-state actor behavior in the world.
Similarly, the International Court of Justice (ICJ) is also a major player in world politics. Created in 1945 under the Charter of the United Nations, it was conceived as the principal judicial body entrusted with adjudicating international law disputes. It is the successor to the Permanent Court of International Justice (1922 -1946), created by the League of Nations. As of 2004, the ICJ was busy, with more than 20 cases on its docket, addressing issues ranging from territorial questions, criminal cases, to treaty disputes. While critics often argue that the ability of international law and the ICJ to bind state actors is weak, and that the dualist nature of many legal regimes limits the enforcement of international norms, Constanze Schulte seeks to set the record straight and investigate the history of compliance with this tribunal. One of the major surprises to emerge is that the ICJ actually has a great record of securing compliance, despite some notable failures.
To study compliance with decisions of the ICJ, Schulte examines all of the final judgments and interim orders issued by the Court from 1946 until 2003. Chapter One describes her methodology. Excluded from the study are advisory opinions and interlocutory decisions. Chapter Two is a detailed discussion of the legal framework surrounding the ICJ, mandatory compliance, and enforcement. The basis for mandatory compliance with decisions (final judgments) of the ICJ was first located in Article 13 (4) of the League of Nations Covenant. Schulte describes the process of how Australia and Cuba took the original language of 13 (4) and fashioned it into Article 94 of the current UN Charter, mandating that parties, both member states as well as non-members to the UN under 93 (2)—if the latter wish—are to comply with orders of the ICJ. Similarly, interim orders are considered decisions under Article 94 and are also binding upon UN member states and upon non-members who opt to resolve their disputes with the ICJ.
Primary enforcement of ICJ orders is covered by Article 94 (2), giving the [*283] Security Council a range of options to compel or encourage compliance. These options, as Schulte points out, are recommendations for specific measures that may include simple appeals for compliance and other peaceful options—a request to the World Bank to withdraw funds from a country, for example. The author also argues that the Security Council’s enforcement options are purely peaceful, such that it would appear to rule out authorizing the use of force. Hence, had the United States sought an ICJ directive to Iraq to comply with orders to let UN inspectors in, Bush would not have been able to rely upon Security Council authority to use military force to enforce the court’s decision.
In addition, the enforcement options of the General Assembly, the Secretary-General, the winning party in the case, and third parties are also examined. In light of Iraq, one wishes the author had spent more time examining these issues, but they were beyond the scope of the book’s project. Finally, Schulte’s Security Council-ICJ discussion also provides an interesting analysis of whether the former could modify or refuse to enforce the decisions of the latter.
How might losing parties avoid compliance with ICJ orders? The author offers some suggestions that include feigning compliance or delaying it. But otherwise, strictly speaking, ICJ orders are binding, and parties who ascent to its jurisdiction must comply with its directives. This means that the only effective way to defeat compliance resides in a party’s modifying its ascent to the jurisdiction of the ICJ under Article 36 of the Statutes of the Court. This is exactly what the United States did in 1984 when it refused to recognize the ICJ’s authority to hear the dispute brought by Nicaragua, contesting the legality of the CIA’s activities against it, including the mining of its harbors and the aiding of the Contras. Eventually, the United States lost its argument that the ICJ lacked jurisdiction to hear the case, it refused to participate in arguments on the merits, and finally lost. Efforts to secure compliance proved futile, and it was only with the change of regime in Nicaragua with the 1991 election of President Chamorro and her decision to withdraw the complaint from the Court, that the matter was settled.
Chapter Three is over 300 pages long! This is the heart of the compliance study, where the author undertakes a detailed examination of all the final orders and interim measures. A total of 27 cases with final orders are examined, as well as 11 provisional measures. The discussion in is historically rich in detail and law, producing some surprises and questions. First the surprise: Only one case where the ICJ issued a final order is listed as one where non-compliance occurred. This is the 1949 Corfu Channel case, growing out of a 1946 incident where two British destroyers struck land mines off of Albania. The UK held Albania responsible, the ICJ ruled for the former, and ordered compensation to be paid. Albania refused, and the case was unresolved for more forty years. It was only in 1992—after the fall of its communist regime—that Albania agreed to terms, eventually resolving the case in 1996. With that resolution, Schulte considers compliance to have been secured—47 years later!
For most readers, two other cases of [*284] dubious compliance with final orders stand out. First, as noted above, is the United States-Nicaragua dispute. Schulte places this case in the unresolved category; whereas most might consider it a clear instance of non-compliance. Second, she considers the 1979 ICJ decision arising out of the taking of American embassy personnel by Iran as one eventually resulting in compliance. Schulte supports that conclusion by noting how the two countries in the long run reached agreement on the return of the hostages and for a settlement regarding US freezing of Iranian assets. Many might argue that Iran did not comply with the decision, but Schulte notes that the noncompliance was with an interim measure and not the final order. In fact, of the 11 provisional measures, only one secured compliance. Thus, unlike the final orders, provisional ones seem to be ignored with relative impunity.
What do we learn from this analysis? First, the Nicaragua case is seen as a turning point for the ICJ. Schulte argues that simply refusing to participate in ICJ proceedings became the favorite tool of noncompliance. Second, delaying is another tool frequently invoked to defeat acquiescence. Third, highly political cases were those most likely to involve noncompliance. But surprisingly, form of government—democratic or not—was not a significant variable in determining compliance, and the same was true with UN membership. Instead, Schulte argues that the attitude of the parties toward the Court was the single most important factor affecting compliance. If countries wanted to resolve a dispute and turned to the ICJ for decision, they complied, almost whatever the political repercussions or costs. For the interim measures, greater noncompliance may, as Schulte argues, rest simply in the fact that they were provisional and that a party to the dispute saw disobeying as perhaps a way of gaining leverage prior to a final judgment. Overall, Schulte’s conclusion is that there is relatively high compliance with the ICJ, and such a record deserves to be publicized and noted.
COMPLIANCE WITH DECISIONS OF THE INTERNATIONAL COURT OF JUSTICE fills a major void in the scholarly literature in international law. It provides rich legal detail on the ICJ and the issues of enforcement, and it also offers a wealth of historical information on the decisions it has issued and reaction to them by the parties and the international community. Finally, the assessment of variables affecting compliance is an important contribution to the international law literature, yet the conclusion that attitude toward the tribunal is the critical variable in determining compliance might not impress critics. But to show that the ICJ has a high record of compliance success is surely a surprise, and suggests that more studies of compliance with other international bodies are in order.
Yet, I do have some concerns with the how cases are classified. As noted above, to list the Iran and Nicaragua cases as unresolved or as having achieved compliance will strike many as incorrect. Similarly, a settlement agreement in the Corfu Channel case 47 years late also questions whether this case should be considered one of fulfillment. Schulte should have provided more specification regarding what is considered compliance, with a time frame for obedience included. [*285] Definitions of compliance, moreover, should also clarify how post ICJ activities, such as UN action, negotiations with principal parties, and other observations, are to be assessed. In many cases, the ICJ decision may not itself have led to compliance, but instead facilitated negotiations or actions that produced a resolution to the dispute. Some refinements in what compliance means may in fact lead to a less favorable assessment of the efficacy of ICJ decisions. Finally, what the book sets up is the potential for a more quantitative analysis of variables affecting ICJ compliance. It does that by already identifying many of the critical factors needed to examine the ICJ, including those affecting the litigants and character of the dispute.
© Copyright 2005 by the author, David Schultz.
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