Name and briefly discuss some of the World Courts recent dec

Name and briefly discuss some of the World Court\'s recent decisions.

Solution

In the quest for less destructive ways to resolve conflicts between states, one of the more enduring and idealistic solutions advocated has been the expansion of the International Court of Justice\'s (‘ICJ’ or ‘the Court’) adjudicatory jurisdiction. From its inception early in the 20th century, international lawyers envisaged judicial settlement under the ICJ\'s auspices as a fundamental mode of international dispute settlement, and potentially among the strongest mechanisms for the effective enforcement of international law, mirroring the role domestic courts play intrastate. Judge Hersh Lauterpacht was of the view that the ‘primary purpose of the International Court … lies in its function as one of the instruments for securing peace in so far as this aim can be achieved through law’,1 and that ‘[t]he very existence of the Court, in particular when coupled with the substantial measure of obligatory jurisdiction already conferred upon it, must tend to be a factor of importance in maintaining the rule of law’.2 If the ICJ was unable to contribute more towards overall peace and security, it was because, by not adhering to its compulsory jurisdiction, ‘[g]overnments have not availed themselves of these potentialities of international justice’.3

The United Nations has been the primary exponent of a robust ICJ. In 1974, the General Assembly expressed the desirability of having states submit to the compulsory jurisdiction of the ICJ,4 and of providing in treaties for the submission of future disputes to the Court.5 In 1992, former UN Secretary-General Boutros-Ghali described the ICJ as an ‘under-used resource for the peaceful adjudication of disputes’6 and rather quixotically recommended that ‘[a]ll Member States should accept the general jurisdiction of the International Court under Article 36 of its Statute, without any reservation, before the end of the United Nations Decade of International Law in the year 2000’.7 Most recently, at the 60th anniversary celebration of the ICJ in 2006, Secretary-General Kofi Annan made a renewed call for ‘all states that have not yet done so to consider recognizing the compulsory jurisdiction of the Court’.8

The notion that greater acceptance of ICJ compulsory jurisdiction9 has occurred or is forthcoming is, of course, hopelessly utopian, especially in light of the last 60 years of the Court\'s experience. States are understandably reluctant to consent to the adjudication of conflicts by the ICJ ex ante, considering the important political issues that may be at stake.10 Thus, few states have consented to the Optional Clause of the ICJ without evisceratory caveats,11 and with no perceptible trend towards greater adherence,12 it is tempting to dismiss the Court\'s compulsory jurisdiction as illusory. Believing this to be both true and an indicator of deeper problems, one scholar has gone so far as to characterize the ICJ as being in ‘long term decline’.13

Interestingly, however, actual practice belies this conclusion; the last few decades have shown that compulsory jurisdiction is far from dead letter, as the overwhelming majority of the Court\'s case docket has been initiated through unilateral invocation by applicant states of compulsory jurisdiction (whether through the ICJ Statute\'s Optional Clause or, as is increasingly the case, through compromissory clauses in bilateral or multilateral treaties).14 Relatively few cases are ever instituted through Special Agreement.15 Moreover, the ICJ has been getting exponentially busier in the last few years – its docket of contentious cases continues to expand,16 and resort to the Court largely through compulsory jurisdiction continues.17

While some scholars have considered its escalating docket a sign of both progress and growing respect for the Court,18 others have expressed concern at the reliance on compulsory jurisdiction to fuel this increase. In 2000, Judge Shigeru Oda, still a member of the Court at that time,19famously questioned the efficacy of compulsory jurisdiction. Judge Oda was intensely sceptical of compulsory jurisdiction; he did not believe that ‘wider acceptance of the compulsory jurisdiction of the Court can achieve anything concrete’,20 and maintained that despite the growing caseload (all of which satisfied formal jurisdictional requirements under the Statute), most of these cases lacked any genuine will on the part of both parties to seek judicial settlement through the ICJ, and would thus lead to intensely difficult compliance incidents. After a statistical overview of the Court\'s docket and the disposition of its cases at the turn of the millennium, he concluded:I am of the view that not a great deal can be expected in terms of meaningful development of the international judiciary from such an appeal … unless the parties in dispute in each individual case are genuinely willing to obtain a settlement from the Court. I wonder whether it is likely, or even possible, that States will one day be able to bring their disputes to the Court in a spirit of true willingness to settle them.21

Judge Oda\'s pessimism stemmed from a belief that cases unilaterally instituted by Applicant States through the Court\'s compulsory jurisdiction22 usually resulted in vehement objection by the Respondent State, which would then result in non-compliance with the final judgment. Defiance of ICJ judgments, in turn, would have a corrosive effect both on the ICJ itself and upon broader efforts to institute meaningful settlement of international incidents through adjudicatory means. In Armed Activities on the Territory of the Congo (DRC v. Uganda), Judge Oda warned that ‘the repeated disregard of the judgments or orders of the Court by the parties will inevitably impair the dignity of the Court and raise doubts as to the judicial role to be played by the Court in the international community’.23Conversely, he believed that cases instituted by special agreement, where the states party agreed to have the ICJ adjudicate over that specificdispute, would readily be complied with.

While the argument that a causal relationship exists between the modes of jurisdiction and levels of compliance with ICJ judgments is compellingly logical, it remains largely intuitive due to the lacunae in scholarship testing the link between compulsory jurisdiction and state compliance with judgments rendered thereby. ‘It is ironic’, according to Judge Jennings, ‘that the Court\'s business up to the delivery of judgment is published in lavish detail, but it is not at all easy to find out what happened afterwards’.24 Aware of this, Judge Oda appealed to future scholars to undertake research on what he considered a subject ‘missing from contemporary studies’ on the ICJ: ‘a pragmatic examination … of whether a judgment, once handed down, has actually been complied with by the parties to the dispute’.25

That deficiency in the scholarship remains, but has at least to some extent been addressed by recent studies specifically devoted to the issue of compliance with ICJ judgments.26 Building upon those studies, this article examines the relationship between the ICJ\'s compulsory jurisdiction and state compliance with its decisions through an analysis of recent judgments in which non-compliance was alleged by the prevailing state. Advisory Opinions, which are non-binding by nature, will not be discussed.27 Temporally, the article will also limit itself to an examination of final judgments that have occurred following Nicaragua v. US.28 As perhaps the single most controversial case in the ICJ\'s history (judging from the volumes written on it), the contentious nature of the Court\'s assertion of jurisdiction in Nicaragua, coupled with the non-appearance of the United States at the merits phase and its subsequent defiance of that judgment, is well covered and need not be repeated here. Much less examined is the relationship between jurisdiction and compliance post-Nicaragua, which in the account of one commentator ‘marked a paradigm shift as the last in a series of instances of open defiance and non-appearance’.29

Post-Nicaragua cases of non-compliance should lead to a better understanding of contemporary issues facing the Court. As will be seen, while occasions of non-compliance with final judgments are relatively infrequent, whether before or after Nicaragua,30 and some recent ICJ cases continue to experience compliance problems, decreased hostility towards judgments rendered by virtue of compulsory jurisdiction is perceptible. To be sure, not all of the ICJ\'s pronouncements have met similar appreciation: compliance with provisional measures, most notably, has been relatively weak.31 One can hardly fault states for equivocating in the latter instances, however, as the binding nature of provisional measures was an unresolved question where international lawyers disagreed considerably32 until LaGrand,33 wherein the ICJ finally stated that ‘[o]rders on provisional measures under Article 41 [of the Statute] have binding effect’.34 Until then, the textual determinacy of Article 41 could still reasonably be interpreted as non-binding, and no state is bound to comply with obligations that are indeterminate.35 Given the fact that respondent states have assiduously argued this uncertainty as the basis for the lack of binding effect on them,36 a focus on final judgments may be more revealing, as the obligatory character of the decision per seis not in dispute.

Given below are the Recent Decisions been made:-

1. The Politics of Compliance: UN Charter Processes to Ensure Adherence to ICJ Judgments-:

Before examining specific cases, it is useful at the outset to step back and recall the theoretical compliance framework originally envisaged by the United Nations (‘UN’) Charter (the ‘Charter’). Article 94(1) of the Charter places the obligation of member states straightforwardly:[e]ach member of the United Nations undertakes to comply with the decisions of the International Court in any case to which it is a party.

The provision appears in the Charter, and not the Statute of the ICJ, apparently to highlight the difference between the adjudicative and post-adjudicative phases in international relations. According to Professor Rosenne, non-compliance may give rise to new political tensions, and the efficacy of the post-adjudicative phase is not determined by another judicial examination, but rather by immediate political action.37

Under the framework of the Charter, therefore, responsibility for ensuring compliance is not within the ICJ\'s mandate, but rather, with the principal political organ for maintaining peace and security – the Security Council. Article 94(2) thus provides:[i]f any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.

This clearly manifests the strong link between the ICJ and the Security Council as institutions with related but decidedly different competencies in the settlement of international disputes – the ICJ is tasked with allocating rights and responsibilities and assessing competing legal claims among states party, and the Security Council is tasked, upon judgment, to give effect to that decision, should the debtor state refuse to comply.

A number of subtle points are discernible from the text: first, only ‘judgments’ of the ICJ are subject to Article 94 enforcement. Secondly, only the judgment creditor state has the right to seek recourse from the Security Council; this was not the case with the League of Nations and Permanent Court.38 Thirdly, the Security Council appears to retain discretion both as to whether it shall act to enforce at all and, if so, what concrete measures it decides to take. Clearly, therefore, the enforcement of ICJ judgments involves quintessentially political acts by both parties and the Security Council, in which the Court itself has little involvement and over which it has no power. It is thus at least partly improper to blame the ICJ (as some commentators sometimes do) when states do not comply with its decisions, as the Charter assigns the responsibility to enforce to the Security Council.

2. Compliance, Non-compliance, and Defiance: Recent Incidents

A Operative Definitions of ‘Compliance’ and ’Defiance’: The Subjectivity Dilemma

Before specific non-compliance incidents are surveyed, parsing out the factors necessary for one to conclude that compliance has indeed occurred is critical. What does it mean to ‘comply’ with an ICJ judgment?

Compliance connotes many things, but to be meaningful it should consist of acceptance of the judgment as final and reasonable performance in good faith of any binding obligation.40 Good faith, in turn, has been defined by the ICJ in one context as a duty ‘to give effect to the Judgment of the Court’, 41 which undoubtedly precludes superficial implementation or attempts at circumvention.42 A judgment debtor\'s conception of what good faith is may, of course, be strikingly different from that of the judgment creditor, who may then complain of non-compliance. Barring a deceitful claim of compliance (i.e., where the debtor claims to have complied while knowingly contravening the judgment), most conflicts of this nature will be likely to occur because the judgment itself is vague and subject to reasonably divergent interpretations. It is also possible for the debtor state to express its respect for the opinion, or even openly acknowledge its legal obligation to comply, but be unable to do so because of circumstances precluding state responsibility, such as the actual existence of a state of necessity. In each of these scenarios, the authority of the ICJ and of its judgment is not directly attacked, as the parties in principle acknowledge the binding nature of the judgment and their obligation to comply as mandated by Article 94(1) of the Charter.43Non-compliance is thus a matter of increment and degree.

Defiance, on the other hand, involves wholesale rejection of the judgment as invalid coupled with a refusal to comply. As discussed previously, the last instance of open defiance was Nicaragua. While initial verbal rejections or disapproval of particular ICJ judgments have occurred in subsequent instances, these statements are of little relevance if the debtor state subsequently acts in conformity with the decision.44

These practical (albeit admittedly subjective) criteria invite considerable room for discretion on the part of the researcher, and may explain some of the divergence of opinion in the literature concerning the gravity of non-compliance with ICJ judgments. With that in mind, the succeeding sections will concentrate not so much on initial statements expressing dissatisfaction or rejection of the Court\'s authority or judgement (of which there are many), but rather on subsequent actions by the debtor state – the degree to which that state\'s actions were controlled by the judgment, as evidenced by facts. As the fostering of international peace and security is the ICJ\'s ultimate raison d\'être, if the judgment succeeds politically in reducing tensions and resolving the source of the dispute, compliance will have been achieved, regardless of defiant rhetoric aimed to assuage domestic audiences.

B The ICJ\'s Docket from 1946–2004: Compliance Statistics

One of the more interesting revelations arising from Judge Oda\'s study is how few ICJ cases actually arrive at final judgment relative to their docket. Of the 98 cases in the Court\'s docket from 1946–1999, 90 were considered distinct ‘contentious cases’,45 of which only 47 were fit for examination.46 Among those 47, 11 were submitted by special agreement,47 while the remaining 36 were brought before the Court by means of unilateral application.48 Within this subset of 36, furthermore, no objection was given to the unilateral application by the respondent state in eight cases, which, put differently, means thatout of the total of 47 cases already disposed of by the Court, in only 19 cases was there consent – either prior or tacit – to the Court\'s jurisdiction. In the other 28 cases, the respondent States were regarded as not being ready to settle willingly their disputes which had been brought before the Court unilaterally by the applicant States.49

Among the 28 cases that arose from unilateral application to which jurisdictional objections were raised, the Court actually handed down judgment in only 13 cases.50 Because four of those judgments ‘lost their object’ almost immediately, 51 in the period until 1975 (when Judge Oda joined the ICJ), ‘a meaningful result – in terms of the effectiveness of judgments – was achieved only in seven cases’.52 From 1976 until the end of 1999, during his tenure as Judge, ‘there have been only two cases brought by unilateral application where a judgment on the merits has been handed down: No. 64, United States Diplomatic and Consular Staff in Tehran, and case No. 70, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America)’. In both cases, ‘the Court\'s decision went against the respondent States [and] the judgments were not complied with as such, although in both cases the court\'s judgment did have long-term effect’.53 Judge Oda\'s decidedly pessimistic finding that only seven judgments arising from unilateral application to the Court\'s compulsory jurisdiction achieved a ‘meaningful’ and ‘effective’ result is tempered somewhat by the absence of discussion about the compliance record of cases instituted by special agreement.

A more comprehensive treatment is found in Dr Schulte\'s examination of the compliance record for all ICJ judgments from 1946 to 2003. Her conclusions are more positive – of the 27 distinct cases as of the end of 2003 that reached a judgment on the merits,54 a ‘generally satisfactory compliance record for judgments’55 was achieved. While there were indeed a number of well-publicized instances of defiance in the past,56Nicaragua marked, in her opinion, the turning point as ‘the last in a series of instances of open defiance and non-appearance’.57 After Nicaragua, ‘there is no sufficient evidence suggesting non-compliance with subsequent judgments’.58 Paulson\'s study of the Court\'s judgments from 1987 to 2003 yielded a generally consistent, although slightly less buoyant, conclusion: while ‘no state has been directly defiant’,59 in his opinion, ‘five [judgments] have met with less compliance than others’.60

To avoid being overly anecdotal, the next section will briefly revisit each of these five judgments, and will attempt to reconcile, whenever possible, Schulte and Paulson\'s factual appreciation of compliance by the debtor states. Whenever relevant, more recent facts (such as those relating to theAvena and Cameroon v. Nigeria judgments below) will be integrated.

C Non-compliance in Practice: Five Recent Incidents

1 Land, Island, and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua Intervening)

Antecedents. A boundary dispute between El Salvador and Honduras dating back to the 19th century, involving six ‘pockets’ of land totalling about 440 sq. km and a maritime boundary encompassing three islands,61 contributed to the ‘soccer war’ of 1969, which resulted in thousands of casualties and provoked further hostilities in 1976. Large-scale conflict was averted, however, through the Organization of American States\' (OAS) intervention, which resulted in a 1980 peace treaty.62 The treaty created a commission charged with delimitation, and at the end of its five-year existence the commission successfully apportioned much of the disputed areas. Those not delimited were, by virtue of the treaty, to be resolved at the ICJ by a special agreement to be negotiated at that time.

Basis for Jurisdiction. With OAS assistance in the negotiations, Honduras and El Salvador submitted the dispute, by special agreement, to a Chamber of the ICJ in 1986.63

Judgment. The ICJ handed down final judgment in 1992, resulting in about two-thirds of the disputed area (about 300 sq. km) being held to belong to Honduras and 140 sq. km given to El Salvador. As for the maritime boundary, the judgment ensured Honduran access to the Pacific while giving El Salvador two of the three disputed islands.64

Post-judgment. Although problems in implementation were foreseen from the outset, both states immediately announced that they would accept the ICJ judgment. El Salvador\'s President Cristiani stated that ‘[t]he human aspect of the solution to the problem is going to be our number one priority …. [T]he primary issue … [is to] respect the human rights … of all those who now find themselves on either Honduran or Salvadoran territory.’65 An estimated 15,000 people were living on the apportioned land at that time.66 To address the displacement, El Salvador sought dual nationality for the affected people; however, the Honduran Constitution prohibited both dual nationality and ownership of land by non-citizens within 40 km of the boundary. An agreement was reached in 1998 which provided that the residents in the border areas had the right to choose their nationality and guaranteed acquired rights regardless of the choice made.67

Other relatively minor disputes have arisen between the two states across the delimited border. In 1996, President Calderón Sol of El Salvador played down Honduran press reports of incursions by Salvadoran police into land awarded to Honduras, calling them exaggerated.68 In turn, a Honduran official stated in 1997 that Salvadorans were crossing the border with timber felled from now-Honduran forests, and that there were also reports of armed Salvadoran groups in delimited Honduran areas.69 Apparently, El Salvador had been issuing logging permits for areas granted to Honduras.70 Honduras sent police and military units to reinforce the border, which raised fears of conflict when nearly 1,000 Salvadorans protested their deployment. Salvadorans accused Honduras of kidnappings and forced evictions of peasants from their own land. Militarized conflict on the border, due in part to these incursions and use of forest resources, has occurred nearly every year since 1992.71

As for demarcation, while the parties agreed in 1998 to demarcate within a 12-month timeframe, as of 2002, only 120 miles of the 233-mile border was completed.72 In November 2000, Honduras urged El Salvador to comply with the ICJ Judgment in a letter submitted to the United Nations Secretary-General for circulation as a Security Council document,73stating that it was implementing plans to respect the rights of nationality and ownership of Salvadorans living in Honduran territory. After over a year, Honduras followed up on January 2002 with a formal accusation of non-compliance under Article 94(2) of the Charter, asking the Council to make recommendations to induce Salvadoran obedience and, if that failed, to ‘dictate the measures it deems appropriate in order to ensure that the judgment is executed’.74 Honduras alleged that unjustifiable delays in the demarcation of the land boundary, attributable to El Salvador, had occurred, along with refusal to comply with the ICJ\'s judgment on joint ownership of the Gulf of Fonseca, which ‘poses a challenge to the authority, validity and binding nature of the decisions of the main judicial organ of the United Nations’.75 However, both countries appear to have fully accepted the ICJ\'s ruling on the gulf islands.76

Responding to the Security Council on October 2002, El Salvador denied the accusations of undue delay, claiming that it had repeatedly declared its intention to request a review of the ICJ judgment and that a dispute with Honduras over Salvadoran compliance was thus non-existent.77Accordingly, one day short of the 10-year limit on such requests, El Salvador filed an application for revision to the ICJ based on the alleged discovery of alterations on the ancient map used by Honduras wrongly to win a 72 sq. km portion of the river boundary leading to the Gulf of Fonseca, claiming that it would have been a decisive factor had it been available.78 The application was rejected.79 Both states then agreed to demarcate the areas unaffected by the application for revision.80Although not without incident, the new demarcation regime began on 30 October 2002.

While it appears that the three states bordering the Gulf of Fonseca – Nicaragua, Honduras, and El Salvador – have accepted the ICJ\'s judgment regarding its status as shared space subject to a further delimitation, armed conflicts persisted in the gulf\'s waters.81 The uncertainty left by the ICJ judgment about jurisdiction seaward has also led to some issues.82 All things considered, while both Honduras and El Salvador accepted the ICJ\'s Judgment as final and binding, the Honduran allegations of Salvadoran misconduct, repeated failure of demarcation agreements, and the continuing border problems suggest that El Salvador may not be completely fulfilling its obligations to execute the judgment reasonably and in good faith. Having said that, because most of the problems of implementation stem from failures to negotiate, perhaps it is more accurate to say that mutual non-compliance or failed good faith negotiation persists.

Nevertheless, the fact that the Judgment has already been complied with to a considerable extent, that the demarcation regime is ongoing, and that El Salvador\'s application for revision has been rejected83 (thus foreclosing further legal avenues to contest the judgment) suggest that the ICJ judgment has had a significant, almost outcome-determinative effect on the ground, succeeding in reducing political tensions significantly. The parties state their contentment with the judgment, despite compliance problems.84 Indeed, the judgment has evidently fostered so much confidence in the region that Honduras professed its pleasure at Nicaragua taking their dispute about their maritime border to the ICJ, saying it now views the ICJ as a favourable alternative to ‘methods that have placed regional security and integration efforts at risk’.85

2 Territorial Dispute (Libya/Chad)

Antecedents. The case arose from a longstanding territorial dispute between Libya and Chad over a region covering 330,000 square miles, including the 114,000 sq. km Aouzou Strip, a resource-rich area occupied by Libya in 1973. Throughout the 1970s and 1980s, thousands died in skirmishes over the Strip.86 Conflict erupted into war in 1986–1987, and Libya sustained particularly heavy casualties. Libya then extended an olive branch through recognition of the Habré government and by offering to help rebuild Chad.87 In return, while maintaining legal claim over the area, President Habré of Chad seemed to acquiesce to Libya\'s de facto control of the Aouzou Strip. He was apparently content to stop the fighting because of Libya\'s support of his regime.88 This implicit understanding enabled Qaddafi to secure Libya\'s long-contested southern border, thus gaining control over the area\'s supposed (but unproven) uranium reserves.89 Col. Qaddafi also had a security motive – he was afraid that Libya\'s southern border was especially vulnerable without the Aouzou acting as a buffer zone.90 Close ethnic and cultural ties to the local populace of the Aouzou, along with State succession from the Ottoman empire and Italy, were also asserted by Libya.91

Jurisdictional Basis. When both states sought peace in 1989, a framework agreement on the peaceful settlement of the territorial dispute was concluded. The parties undertook to submit the dispute to the ICJ in the absence of political settlement within a period of approximately one year.92 That understanding, coupled with diplomatic efforts by the Organization of African Unity, led to a special agreement that the ICJ was notified of on 31 August (Libya) and 3 September 1989 (Chad).93

Contemporaneous Facts during Proceedings. Soon after the joint submission, significant political change occurred in Chad. In December 1990, Idriss Déby overthrew President Habré with strong Libyan support,94 notably in the form of arms. This brought about an immediate improvement in relations between Chad and Libya.95 Believing that Chad had become a friendly state, Col. Qaddafi began to withdraw troops from Sudan along the Chadian border. He was taken by surprise, however, when Déby publicly announced during a 1991 reception in Tripoli that Chad would continue with its territorial claim to the Aouzou before the ICJ. Déby may have done this in order to convince the populace of Chad that he was a nationalist and independent of Qaddafi.96 With ICJ proceedings well underway under a special agreement that had ended the war with Habré,97 Qaddafi may have been under considerable political pressure to allow the case to proceed. Moreover, Libya\'s history with the ICJ was generally positive, having achieved good results in two maritime delimitation disputes,98 so he may have felt that Libya\'s position was strong under international law.99

Judgment. The ICJ handed down judgment in February 1994, awarding the entire Aouzou Strip to Chad.100

Post-judgment. Libya initially rejected the judgment, and reportedly began reinforcing troops in the Aouzou area. After a month of negotiations, however, Qaddafi indicated that he would accept the decision,101 and on 13 April 1994, Libya and Chad informed the UN Secretary-General and President of the Security Council that they had reached an agreement on the implementation of the Order.102 In an October 1994 address to the UN General Assembly, ICJ President Mohammed Bedjaoui paid tribute ‘to [Libya] and [Chad] which spared no effort to implement the Court\'s Judgment without delay, and in a spirit of friendly understanding’. 103

Formal recognition is one thing, of course; compliance in fact is quite another. Libya formally recognized the ICJ judgment\'s delimitation of its border at the Aouzou area on numerous occasions104 and, together with Chad, sought and received Security Council assistance to monitor the full withdrawal of Libyan troops, which ended on 30 May 994 after the last departure of Libyan forces.105 In a real sense, the ICJ decision effectively ended Libyan occupation of the Aouzou Strip.106

Despite all these positive events and the conclusion by commentators that compliance was achieved,107 reports of continued Libyan presence in the Aouzou Strip have surfaced, both through Libyan nationals and Libyan-supported Chadian rebels. One observer reported in 1997 that Libya was holding parts of the Aouzou and that ‘[t]here has still not been a definitive solution to the Aouzou problem. It is doubtful whether Libya has indeed terminated its occupation totally’.108 The US Congressional Research Service has also noted that Libyans may have been fighting in the Aouzou in 1996.109 On 30 January 1997, the Chadian Ministry of Foreign Affairs formally protested Libya\'s publication of the ‘1997 Islamic Diary’ for containing a map placing the Aouzou Strip within Libya; Chad threatened to take the matter to the Security Council.110 The next month, however, Déby called for peace, and later that year he and Qaddafi visited each other\'s capitals, signalling a ‘definitive reconciliation of the two countries’.111 The réconciliation définitive of 1998 did not last, however. In January 2001, Deby declared that Libya had been supporting the rebel Movement for Democracy and Justice in Chad (MDJT) in the Aouzou region. Chad had been fighting MDJT rebels in the Aouzou region since 1998, and it was believed that the rebels had Libyan support. Qaddafi denied this, and assured Chad that neither Libya nor forces inside Libya would support Togoimi.112 Qaddafi led negotiations that resulted in a peace agreement signed by the security minister of Chad and a rebel leader in January 2002.113 Although Libya played an important role as arbiter between the Chadian government and the MDJT, there is evidence of Libyan support for the rebels as recently as 2003.114

The ICJ judgment is important for having settled the issue of political and legal sovereignty over the Aouzou,115 and for having marked the conclusion of widespread military activity.116 Nevertheless, full good faith compliance may not have been achieved, given the evidence that Libya has not fully relinquished political and military dominion over the area (manifested by recent support of rebel movements therein).117 As respect for Chad\'s territorial sovereignty over the Strip includes ‘withdrawing … military and police forces and administration’ from the areas lost in the judgment,118 support for the MDJT is troubling.

Nevertheless, it bears emphasizing that the judgment was important in securing peace between Libya and Chad. Acceptance of the Court\'s ruling as legally binding has concretely meant that Libya could not claim sovereignty over the region without risking regional and international consequences. Accordingly, it has given up all formal pretence of sovereignty over the Aouzou. Despite possible continued support for the rebels, Libya has managed to keep relations fairly cordial with Chad\'s government. Large-scale war over the Aouzou Strip, as seen in the 1970s and 1980s, currently appears out of the question. Overall, the system worked as intended, with the Security Council, at the instance of both parties, ensuring that Libyan troops withdrew after judgment. Notably, Paulson posits that greater compliance may have been achieved if the international community had praised Libya more as a law-abider,119which may have caused far greater reputational injury to Qaddafi for circumventing the judgment. In any case, the lack of any true dispute over sovereignty, coupled with the unclear nature of Libya\'s support for the rebels, makes further Security Council enforcement action appear unnecessary.

3 Gabcíkovo-Nagymaros Project (Hungary/Slovakia)

Antecedents. In 1977, Hungary and the then Czechoslovakia signed a treaty jointly to build the Gabcíkovo-Nagymaros Project, a system of locks and dams on the Danube River. While Czechoslovakia\'s portion was at an advanced state of completion by 1989, Hungary elected to abandon the project, apparently for fear of damaging Budapest\'s water supply, as well as other environmental concerns.120 Negotiations between the two states having failed, Slovakia completed work on a variant of the proposed system and, in 1992, began damming the river.121

Jurisdictional Basis. Hungary and Slovakia (successor to Czechoslovakia) submitted the dispute to the ICJ by special agreement in 1993.122

Judgment. The ICJ\'s 1997 judgment upheld Slovakia\'s contention that the 1977 treaty remained valid and binding, notwithstanding the rebus sic stantibus and state of necessity arguments propounded by Hungary concerning the environmental damage that would purportedly occur due to the Project. The Court refrained from making any specific orders, and imposed instead a duty on the parties to negotiate the ‘modalities’ of implementing the judgment in good faith,123 noting that the environmental consequences brought up by Hungary may affect treaty compliance.124

Post-judgment. Consistently with the 1997 judgment, negotiations started anew, with experts from both states preparing a framework agreement for continued operation and construction at alternative sites. However, negotiations broke down in 1998, and Slovakia filed a request for additional judgment before the ICJ due to the purported ‘unwillingness of Hungary to implement the judgment’ and sought a declaration that Hungary was not negotiating in good faith.125 A change in Slovakia\'s government after its September 1998 elections prompted renewed negotiations and no further ICJ proceedings were pursued. Recent negotiations have been continuous but unproductive. There was some talk in 2002 and 2003 that Slovakia would return the dispute to the ICJ;126nevertheless, both were confident that the dispute would remain a technical (or legal), and not a political, problem.127 More recent events seem to affirm this conclusion: in 2004, after a two-year hiatus, talks resumed between both states as to how the ICJ decision would be implemented,128 with both sides announcing willingness to continue negotiations, but ‘apparently accomplished little more’.129

Assessing compliance in Gabcikovo-Nagymaros is especially complicated largely because of the ambiguity inherent in the Court\'s requirement of further negotiations, which did little to resolve the underlying dispute and arguably left the parties in the same position they were in before the case. As observed by one commentator:[i]t is curious that the Court was upholding the parties to a bargain which both regarded was at an end, and no longer wanted to apply in its original terms. Principle would suggest that a contract repudiated by both parties was a dead letter, and the Court should have been concerned only with delineating the legal consequences of its termination. The decision can only be defended as a pragmatic one. The very serious financial and political implications of a finding that the contractual regime had been frustrated was not lost on the Court. Slovakia had already expended huge sums of money on the project and did not want it abandoned. On the other hand, completion of the project in its original form was utterly unacceptable to Hungary and genuinely imposed serious environmental threats. By asking the parties to negotiate a solution, possibly with the help of a third party, it is arguable that the Court was abdicating the very responsibility that the parties had assigned to it.130

If one is to view an ICJ decision as a stabilization of expectations around an adjudicated solution, the most one can point to in Gabcikovo-Nagymaros is that a positive obligation of negotiation in good faith was mandated. The available facts on current negotiations are too sparse to assess compliance with that obligation with finality, but if the test of good faith is a whether negotiated resolution has been achieved, then the parties are not fulfilling their duty by refusing to compromise. Slovakia has taken the ICJ judgment as wholesale justification to insist on implementation of the 1977 treaty. Probably prompted by domestic opposition to the project as an outdated and harmful communist leftover, Hungary\'s interpretation of the ICJ judgment is that it is not obliged to build a dam. The judgment\'s dicta certainly gave Hungary considerable normative environmental language to support it in that position.131Conversely, it seems at least equally plausible to argue that the duty of good faith negotiation has been met in this case, as agreement does not fall within the ambit of negotiation.132 In any case, the fact is that the parties have thus far been unable to use the ICJ\'s judgment to resolve their differences.

4 Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria; Equatorial Guinea Intervening)

Antecedents. Sovereignty over the Bakassi Peninsula and areas in the Lake Chad Basin was the source of this long-running territorial dispute between Nigeria and Cameroon. With estimated populations of 37,500 and 60,000, respectively,133 and significant resources located therein, both states had claimed the Bakassi Peninsula and Lake Chad basin for at least 20 years and, despite years of bilateral negotiations, no diplomatic progress had been achieved.134 Armed clashes throughout the region continued. The stalemate caused increasing frustration on the part of Cameroon; indeed, just before its 1994 application to the ICJ, 34 of its soldiers had died in a border skirmish.135

Jurisdictional Basis. Cameroon submitted the case unilaterally, and invoked the ICJ\'s jurisdiction pursuant to both states\' declarations adhering to Article 36(2) of the ICJ Statute. Upon commencement of the case, Nigeria initially contested jurisdiction, arguing that both states had already agreed to settle the dispute through existing bilateral channels.136 Despite its initial resentment, Nigeria later participated fully throughout the ICJ proceedings.137 On the ground, armed conflict continued while the case was pending.138

Judgment. The ICJ\'s October 2002 judgment awarded Cameroon the Lake Chad boundary it sought, and allocated around 30 villages to Cameroon and a few to Nigeria.139 The Court also awarded Cameroon the Bakassi Peninsula. Nigeria won the maritime-related rulings contained in the Judgment and much of the boundary between Lake Chad and Bakassi. The Court explicitly obligated both parties to withdraw their military, police, and administration from the affected areas ‘expeditiously and without condition’.140 As for Equatorial Guinea, the intervenor, the ICJ drew the maritime boundary in a manner favourable to it.

Post-judgment. Soon after the ICJ judgment, Nigeria issued an official statement which appeared to accept parts of the decision it considered fair or favourable, while rejecting other parts it found ‘unacceptable’.141Nigeria pleaded its Constitution\'s principles of federalism as a reason for non-compliance: since ‘all land and territory comprising the nation of Nigeria is specified in the Constitution’, the federal government could not give up Bakassi until the requisite national and state assemblies amended the Constitution.142 President Obasanjo of Nigeria explained their position thus: ‘[w]e want peace, but the interest of Nigeria will not be sacrificed …. [W]hat may be legally right may not be politically expedient.’143 Nigeria\'s official position is one of deliberate indifference – it neither accepts nor rejects the verdict.144

Nigeria\'s recalcitrance is troubling when one considers that both countries had agreed in advance to respect whatever decision the ICJ arrived at. President Paul Biya of Cameroon reported that he and President Obasanjo had agreed to abide by the ICJ judgment in a meeting with UN Secretary-General Kofi Annan on 5 September 2002, and the United Nations issued a press statement to that effect.145 Nigeria contested the existence of any such agreement, contending that they had merely ‘discussed confidence-building measures to reduce tensions on the border and mandated Annan\'s staff to issue a statement’.146 To some extent, however, the Nigerian government\'s position is understandable when one considers that it was under tremendous internal political pressure not to respect the judgment, especially with regard to Bakassi, as various large Nigerian groups have opposed it and called for war, if necessary.147 Ethnic Nigerians in the area also feared unequal treatment and persecution by Cameroon.

The international community has taken interest in ensuring compliance with the ICJ\'s judgment, and has subjected Nigeria to substantial diplomatic pressure. While the United States and France have pressured Nigeria to accept the ruling, the United Kingdom took the lead – the British High Commission to Nigeria stated: ‘[ICJ] judgments are binding and not subject to appeal. Nigeria has an obligation under the United Nations charter to comply with the judgment.’148 The British Foreign Minister for Africa then met with the Nigerian ambassador to remind him that President Obasanjo had promised to abide by the Judgment.149 This hard line softened considerably, however, to asking that Nigeria ‘establish a dialogue with Cameroon to find a political way forward’, possibly because of the possibility that Nigeria was indeed ready to resort to war.150 More recently, international observers from Niger and Libya were also involved in the peaceful resolution of the dispute.151

The UN has played a pivotal role in the easing of tensions and renewing cordiality between Cameroon and Nigeria. At the request of both states, the United Nations set up a commission to consider the implications of the verdict, protect the rights of the people in the affected areas, and propose a workable solution.152 The commission\'s recommendations with respect to Lake Chad appear to be successful, with Cameroon taking control of the area, and both states trading villages across their long mutual border.153Indeed, a public statement from the Nigerian Boundary Commission on 17 January 2006 affirmed that ‘both countries had agreed on the implementation of the decision on the Lake Chad Region, the land boundary from the lake to the sea and their maritime boundary’, and that ‘[f]ield work on the land boundary, including mapping and identification of pillar site in accordance with that decision was also ongoing’.154

Despite high tension, Nigeria and Cameroon also appear to have resolved the dispute over the Bakassi peninsula, which was always a source of greater tension because of its vast oil resources,155 coupled with strong internal opposition towards relinquishing the area in Nigeria and Nigeria\'s status as a regional power.156 The Nigerian Boundary Commission reported that, as of January 2006, implementation of the ICJ judgment was progressing. ‘Both countries [have] secured the technical assistance of the UN to undertake the field work… [and] have secured the latest satellite imagery of the border area 30 km in Nigeria and 30 km in Cameroon.’ With satellite mapping, a technical team of Nigerian, Camroonian, and UN officials reportedly commenced intense cartographic demarcation work in the field in accordance with the judgment.157

The decisive point of compliance occurred on 12 June 2006. Following intensive mediation efforts by UN Secretary General Kofi Annan, the two states entered into an agreement setting out a ‘comprehensive resolution of the dispute’ over the Bakassi peninsula in reliance upon the ICJ demarcation.158 Mr Annan considered the agreement ‘a great achievement in conflict prevention, which practically reflects its cost-effectiveness when compared to the alternative forms of conflict resolution’.159 In August 2006, both states held a joint ceremony to mark the transfer of control over the peninsula through the withdrawal of Nigerian troops from the northern part of the territory.160 Thus, despite Nigeria\'s earlier recalcitrance, its clear self-interest in retaining the resources of the Bakassi, and the wishes of many of its own people (some of whom appear poised to fight Cameroonian control),161 compliance seems, at least as of this writing, to have been achieved.

5 Avena and Other Mexican Nationals (Mexico v. US); LaGrand (FRG v. US)

Common Antecedents. LaGrand162 and Avena163 (together with its progenitor Breard)164 are ICJ cases concerning the United States of America\'s application of the Vienna Convention on Consular Relations165(‘Vienna Convention’). Under Article 36 of the Vienna Convention, which the United States ratified in 1969, local authorities are required to inform all detained foreign nationals ‘without delay’ of their right to have their consulate notified of their detention, and to unfettered consular communication. US law enforcement officials were not fully aware of this notice requirement, however, and it was not uncommon for convicted foreign nationals never to have spoken with their consulates concerning their incarceration.166

Both LaGrand and Avena involved such violations. The former concerned Walter and Karl LaGrand, two German nationals, both of whom were convicted and sentenced to death in Arizona in 1984.167 They were never informed of their Article 36 right to communicate with German consular officials;168 indeed, it was only in 1992 that Germany was notified of the detentions, at which time it began to issue diplomatic requests urging clemency.169 Karl LaGrand was executed on 24 February 1999 following unsuccessful clemency appeals.170 Germany then filed an Application before the ICJ against the United States, alleging a violation of the Vienna Convention and that the execution of Walter LaGrand should thus be stayed.171 The ICJ immediately issued a provisional order stating that ‘[t]he United States of America should take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision of these proceedings’.172 The United States Supreme Court declined to exercise original jurisdiction over Germany\'s motion to enforce the ICJ provisional order,173 and Walter LaGrand was executed later that day.174

Avena was also related to prisoners sentenced to death; this time, it was Mexican nationals.175 In an effort to prevent the execution of 54 of its citizens sentenced to death in 10 separate jurisdictions within the US, Mexico instituted a case before the ICJ in 2003, alleging failure to comply with Article 36 of the Vienna Convention.176 While such violations also occurred in non-capital cases, Mexico chose to focus on those 54 convicts because of the life-or-death nature of the penalty.177 It sought and obtained provisional measures from the ICJ prohibiting the US from executing any of the Mexican nationals involved prior to final judgment.178 None of the prisoners was indeed executed before the ICJ\'sAvena decision.

Jurisdictional Basis. Both cases were instituted unilaterally by Germany and Mexico through the Vienna Convention\'s Optional Protocol on Compulsory Settlement of Disputes,179 which the United States ratified. Article 1 of the Optional Protocol provides for compulsory jurisdiction in the ICJ over ‘disputes arising from the interpretation or application of the Convention’. In both cases, the United States never contested the Optional Protocol\'s applicability.

Judgment. The execution of Walter LaGrand in 1999 despite the ICJ\'s order of provisional measures, coupled with lingering uncertainty about their obligatory character,180 may have prompted the ICJ to declare (for the first time) in the 2001 final judgment that its orders on provisional measures are binding.181 The ICJ also ruled that by failing to inform the LaGrand brothers of their right to consular notification following their arrest, and by not permitting ‘review and reconsideration’ of their convictions and sentences in light of the treaty violation, the United States had breached its obligations under the Vienna Convention.182 The ICJ then prescribed two explicit obligations for the United States: (1) to give Germany a general assurance of non-repetition of US treaty obligations under the Vienna Convention; and (2) to review and reconsider, by taking into account any violation of rights under the Vienna Convention, the convictions and sentences of German nationals sentenced to severe penalties.183

Similarly, the ICJ\'s 2004 final judgment in Avena held that the Mexican death row prisoners in the US were entitled to a determination of whether failure to notify the Mexican consul had resulted in prejudice.184 The judgment affirmed that the Vienna Convention prescribed judicially enforceable rights and that the US was in breach thereof; in the process, the ICJ disregarded the US argument that the procedural default rule barred such reconsideration.185 Likewise rejected, however, was Mexico\'s claim that a violation of the Vienna Convention automatically annuls a criminal judgment. The Court ultimately ordered reconsideration of the sentences of the Mexican nationals, and that that review should be done by judicial, instead of executive officials,186 independent of any US constitutional claim,187 on an individual basis.188

Post-judgment. Compliance with the obligations mandated by the LaGrandfinal judgment has met mixed success. US actions seem to have adequately addressed the obligation of non-repetition, as programmes set up by the United States to promote understanding and observance of the Vienna Convention, which began as a response to Breard, continued after the LaGrand judgment.189 The US Department of State has called for strict compliance by law enforcement officials. It has extensively co-ordinated with numerous federal agencies, as well as with states having large foreign populations.190 Indeed, in the Avena final judgment itself, the ICJ stated that the ongoing US programme to improve consular notification was adequate.191

The second obligation – to review and reconsider convictions in light of the Vienna Convention – has probably not been complied with.192 A reasonable interpretation of the obligation would entail some procedure to determine whether the violation affected the substantive outcome of the case in question.193 Both the US and the ICJ have stated that the obligation should not apply to German (or Mexican) nationals alone, but to all foreign nationals.194 However, state and federal judges faced with the issue have generally ignored the re-determination requirement ofLaGrand, refusing to offer review and reconsideration in accordance with its terms either because the remedy sought for the Vienna Convention was considered inappropriate,195 or because of the procedural default rule.196

Because of their close connection in fact and law, the US\'s adherence toLaGrand should ultimately be assessed in conjunction with Avena, which has a more interesting compliance narrative. Avena\'s provisional remedies order was a direct test of whether the ICJ\'s final judgment in LaGrand(which, as stated above, ruled for the first time that provisional measures are binding) would be obeyed. Although other factors may have been at play, Avena\'s provisional measures order, unlike that of Breard andLaGrand, was respected, as none of the Mexican nationals was executed pending final judgment.197

For almost a year after the Avena judgment, there was little reason to believe that the US\'s imperfect post-LaGrand compliance record would improve significantly, given the similar normative requirements of both judgments. Some commentators certainly took on that rather pessimistic view about compliance.198 There were a few encouraging signs; the execution of an Oklahoma foreign national was stayed, for example, in reliance upon Avena.199 The decisive US act of compliance occurred, however, on 28 February 2005, when President George W. Bush declared, in a memorandum to the Attorney General:I have determined, pursuant to the authority vested in me as President by the Constitution and laws of the United States, that the United States will discharge its international obligations under the decision of the International Court of Justice in the Case Concerning Avena… by having state courts give effect to the decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision.200

While the ultimate effect of President Bush\'s determination that ‘the United States will discharge its international obligations’ under Avena, especially in terms of granting re-examinations to foreign convicts who were not afforded consular notice under the Vienna Convention, will only be clear in the coming months and years, the Memorandum alone seemed to have significant effect upon the judicial branch, as evidenced by the US Supreme Court\'s decision in Medellin v. Dretke201 and its grant of certiorari in Bustillo v. Johnson and Sanchez-Llamas v. Oregon.202

The new tone of compliance set by the Executive saw its limits tested when the Supreme Court\'s divided decision in Sanchez-Llamas and Bustillofinally came out.203 Although one may have speculated that the Supreme Court\'s grant of certiorari following Breard and Medellin may have signalled a willingness to interpret Vienna Convention protection in a manner more consistent with the ICJ’s, such did not arise, perhaps due to the by then changed composition of the Court.204 The Supreme Court\'s 28 June 2006 decision held, in essence, that even assuming arguendo that the Vienna Convention creates judicially enforceable rights, suppression of a police statement (procured from a foreign detainee not notified of his rights under the Convention) is not an appropriate remedy for the violation, and that states may apply their procedural default rules to claims under the Convention. In doing so, the Court reaffirmed Breard\'sfinding that while ICJ decisions deserve ‘respectful consideration’,205 they are not binding. The Supreme Court thus refused to comply with Avena\'sinterpretation that the Vienna Convention precluded reliance on procedural default rules where the ‘default’ was traceable to the state\'s failure to provide consular notification.206 Because the decision confined itself to very specific issues, the broader questions of a foreign national\'s right to sue directly to enforce his or her Vienna Convention rights remains unresolved, along with the Executive\'s determination of the US\'s obligations with respect to the 51 Mexican nationals named in Avena.

The saga is far from over, however. In a fascinating new series of twists, the Texas Court of Appeal brushed aside President Bush\'s executive determination and refused to review Medellin\'s conviction.207 Medellin then returned the case yet again on certiorari to the US Supreme Court; interestingly, the Bush administration has sided with Medellin and filed a brief urging the Court to grant certiorari. Solicitor General Paul Clement told the Justices that, if not reversed, the Texas Court\'s decision ‘will place the United States in breach of its international law obligation’ to comply with Avena and will ‘frustrate the President\'s judgment that foreign policy interests are best served by giving effect to that decision’.208 The Supreme Court agreed to hear the case on 30 April 2007.209

To add even further complexity to its compliance responses, the President\'s determination to ‘discharge its international obligations’ under the ICJ judgment is tempered by the United States’ decision to withdraw from the Optional Protocol of the Vienna Convention,210 effectively revoking the compulsory jurisdiction of the ICJ over the US as regards the Vienna Convention.211 Leaving aside the important question of whether unilateral withdrawal from a multilateral treaty is valid under international law,212 withdrawal from the Optional Protocol is not encouraging for future enforcement of the Vienna Convention within the United States.

3. Assessment and Implications

A The Link Between Jurisdiction and Compliance: Testing Conventional Wisdom

The orthodox understanding relates the ICJ\'s various modes of jurisdictional acquisition directly with the probability of compliance by the adjudged debtor state. While the ICJ decides cases only when all states party to the dispute have given their consent,214 it is posited that the various modes of consent yield very different compliance results. The ‘ideal’ form of consent, under this theory, is given in special agreements wherein states manifest consent to take a specific dispute before the ICJ,215 as ‘[t]he Court\'s judgments in such cases have been duly complied with’.216 At the other end of the spectrum are those unilateral applications in which the respondent state consented in advance, either through the Optional Clause of the ICJ Statute or dispute settlement (‘compromissory’) clauses in treaties to which it is party, to ICJ jurisdiction over future disputes. According to Judge Oda, the compliance record for these two forms of compulsory jurisdiction is much more problematic than that of cases instituted by special agreement.217