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Title Pages University Press Scholarship Online Oxford Scholarship Online Compliance with Decisions of the International Court of Justice Constanze Schulte Print publication date: 2004 Print ISBN-13: 9780199276721 Published to Oxford Scholarship Online: January 2010 DOI: 10.1093/acprof:oso/9780199276721.001.0001 Title Pages International Courts and Tribunals Series International Courts and Tribunals Series Compliance with Decisions of the International Court of Justice General Editors: Philippe Sands, Ruth Mackenzie, and Cesare Romano COMPLIANCE WITH DECISIONS OF THE INTERNATIONAL COURT OF JUSTICE A distinctive feature of modern international society is the increase in the number of international judicial bodies and dispute settlement and implementation control bodies; in their case-loads; and in the range and importance of the issues that they are called upon to address. These factors reflect a new stage in the delivery of international justice. The International Courts and Tribunals series has been established to encourage the publication of independent and scholarly works which address, in critical and analytical fashion, the legal and policy aspects of the functioning of international courts and tribunals, including their institutional, substantive and procedural aspects. THE PROJECT ON PICT INTERNATIONAL COURTS AND TRIBUNALS Page 1 of 4 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2014. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: OUP - Marketing; date: 19 December 2014 Title Pages This series has been developed in cooperation with the Project on International Courts and Tribunals (p.iv) Great Clarendon Street, Oxford OX2 6DP Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide in Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries Published in the United States by Oxford University Press Inc., New York © C. Schulte The moral rights of the author have been asserted Database right Oxford University Press (maker) First published 2004 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, or under terms agreed with the Page 2 of 4 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2014. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: OUP - Marketing; date: 19 December 2014 Title Pages appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this book in any other binding or cover and you must impose this same condition on any acquirer British Library Cataloguing in Publication Data Data available Library of Congress Cataloging-in-Publication Data Schulte, Constanze. Compliance with decisions of the International Court of Justice / Constanze Schulte. p. cm. — (International courts and tribunals series) Includes bibliographical references and index. ISBN 0-19-927672-2 (hard cover : alk. paper) 1. International Court of Justice. 2. International law. I. International Court of Justice. II. Title. III. Series. KZ6275.S38 2004 341.5’52–de22 2004023573 ISBN 0-19-927672-2 1 3 5 7 9 10 8 6 4 2 Typeset by Kolam Information Services, Pvt. Ltd., Pondicherry, India Printed in Great Britain on acid-free paper by Biddies Ltd., King’s Lynn Page 3 of 4 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2014. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: OUP - Marketing; date: 19 December 2014 Title Pages Access brought to you by: OUP - Marketing Page 4 of 4 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2014. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: OUP - Marketing; date: 19 December 2014 General Editors’ Preface University Press Scholarship Online Oxford Scholarship Online Compliance with Decisions of the International Court of Justice Constanze Schulte Print publication date: 2004 Print ISBN-13: 9780199276721 Published to Oxford Scholarship Online: January 2010 DOI: 10.1093/acprof:oso/9780199276721.001.0001 (p.vii) General Editors’ Preface The most striking feature of the pattern of use of the International Court of Justice since 1946 is its irregularity. The history of the ICJ, indeed, is rich with accounts of states that have given the institution a cold shoulder or left the courtroom slamming the door spectacularly. In turns, all regions of the world or political groupings of states seem to have found in a decision of the Court a reason to refuse to implement the ruling, or violently attack it. The communist countries had the Corfu Channel case, and the advisory opinions on the Interpretation of Peace Treaties and the Reservations to the Genocide Convention; the Latin Americans the Asylum and Hay a de la Torre cases; the Asians the Temple of Preah Vihear and Right of Passage cases; the Africans the South West Africa cases; the United States the Nicaragua case; and France the Nuclear Tests cases. Other decisions that were not persuasive and which were read as a reason to utilize the Court sparingly were the Icelandic Fisheries Jurisdiction cases and, more recently, the advisory opinions on Nuclear Weapons. By and large this is the relatively short list of the defeats suffered by the World Court. Yet, it is also a fact that the ICJ has been around for almost sixty years, holding its ground through radical changes in the fabric of the international community (for example, decolonization, the Cold War, the demise of communism, and the dawn of a yet-to-be- Page 1 of 3 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2014. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: OUP - Marketing; date: 19 December 2014 General Editors’ Preface labeled tormented era). Over this period it has been submitted slightly more than a hundred disputes and has been requested advisory opinions a little more than two dozen times. Despite those widely publicized slaps, it has enjoyed many more hushed victories, playing a crucial role in settling for good some delicate disputes, to the point that nowadays it is as busy as it has ever been in its history. The Court’s reputation is held high around the world, as witnessed by its widely diversified “clientele,” including states of all regions and of all kinds, from the tiny (Liechtenstein) to superpowers (the U.S.). This book is a careful, pragmatic, and dispassionate account not only of the cases handled by the ICJ to date but also, crucially, of their aftermath. Dr. Constanze Schulte, indeed, has followed the parties out of the courtroom and looked at whether they eventually complied with the ruling. This is something that typically, but wrongly, lawyers and legal scholars disdain to do. Once the case has been gaveled, follow-up of the judgment is left to political bodies, and the study of its consequences is usually the business of historians and political scientists. The judgment, those dozens of printed pages, seems to be the only thing that matters to way too many legal scholars, always anxious to find the law but little concerned with the impact that those words have on the real world. (p.viii) However, since the ICJ is the judicial authority of an international society made of equals, and since it lacks its own enforcement powers, the only way it has to ensure actual compliance with its decisions is persuading the parties of the worth of its decisions. Rulings that are not legally sound will likely not go a great length. Knowing when and why decisions of the ICJ have been complied with is essential to understand properly not only international relations but also, ultimately, what international law is. This book is a welcome addition to a regrettably small literature on the topic of compliance with decisions of international judicial bodies, and a very authoritative and determinative one, for that matter. It is to be hoped that this series will one day host also a book on compliance, so to speak, with advisory opinions of the ICJ, for that is a field where the Court’s suasion powers face an even greater test, as the recent issue of the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory clearly shows. Cesare P. R. Romano New York University 4 July 2004 Page 2 of 3 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2014. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: OUP - Marketing; date: 19 December 2014 General Editors’ Preface Access brought to you by: OUP - Marketing Page 3 of 3 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2014. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: OUP - Marketing; date: 19 December 2014 Preface University Press Scholarship Online Oxford Scholarship Online Compliance with Decisions of the International Court of Justice Constanze Schulte Print publication date: 2004 Print ISBN-13: 9780199276721 Published to Oxford Scholarship Online: January 2010 DOI: 10.1093/acprof:oso/9780199276721.001.0001 (p.ix) Preface The idea of this project was born in the aftermath of the provisional measures orders of the International Court of Justice (ICJ) in the Breard and LaGrand cases. The failure of the Court’s orders to prevent the execution of Angel Francisco Breard and Walter LaGrand triggered a huge controversy as to the binding force of ICJ provisional measures and their alleged general inefficacy to provide actual interim protection. The Court was seized of cases with potential impacts for the domestic criminal system, raising the question whether states are ready to defer to the Court in such matters and obey its decisions. At the same time, the Court had a record number of cases on its docket, some of which were of a highly political character, which gave rise to fears as to possible non- compliance. All these issues made the question of the actual track record of the ICJ decisions appear a natural one—one frequently addressed, but never made the subject of a contextual study systematically exploring the state practice in relation to compliance with ICJ decisions. This study was submitted as a Ph.D. thesis to the Faculty of Law of the University of Munich in the summer term 2003 under the supervision of Professor Bruno Simma, who was elected Judge to the International Court of Justice whilst the manuscript was being finalized. The present publication contains updated references to cover literature and Page 1 of 3 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2014. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: OUP - Marketing; date: 19 December 2014 Preface jurisprudence up to the end of 2003; the decisions covered are all cases giving rise to an obligation of compliance and concerning matters sufficiently in advance so as to provide a reasonable factual basis for assessing compliance. Many persons deserve credit for helping me to turn this project into a success. First of all, I wish to express my gratitude to His Excellency, Judge Bruno Simma, for tutoring my Ph.D. thesis as well as for his continuous support and inspiration during the seven years in which I worked at the Institute of Public International Law at the University of Munich. Already during my law studies and for several years thereafter, he gave me the opportunity to participate in challenging projects. Much more than only a working place, the Institute of Public International Law became the ideal place for me to live and explore my passion for public international law. It gave me a warm and collegiate as well as inspiring atmosphere to work in, and my particular thanks go to Daniel-Erasmus Khan and Andreas L. Paulus as well as all present and former members of the institute. My thanks also go to Professor Dietrich Rauschning at the University of Gottingen, Judge at the Human Rights Chamber for Bosnia and Herzegovina, who supported me in the early days of my studies and offered me interesting opportunities to take my first steps in public international law during my time as a research assistant at the University of Göttingen. He also enabled me to broaden my (p.x) horizons and get acquainted with alternative, non-European perspectives to public international law through a stay as a special student at the University of Singapore in 1994. The research for this study was mainly carried out at Harvard University and New York University, where I had the honor and privilege to work and study from January 2000 to June 2001 (Harvard Law School) and in fall 2001 (New York University School of Law) as an Emile Noel fellow and research associate of Professor Joseph H. H. Weiler. I am greatly indebted to Professor Weiler, not only for giving me wonderful research opportunities, but also for the multiple intellectual and human experiences which I encountered during those fellowships and for the many things I learned from working with him, in particular, an integral approach to law in context. My times at Harvard Law School and New York University School of Law were a gift for life and I am grateful to all who made this possible. During a visit to the ICJ in March 2002, I had the honor to discuss my research results with several judges and clerks of the Court, which deepened my understanding of the matter. My warm thanks go to all who were ready to meet with me and discuss my research results. With more enthusiasm, thought, and diligence than I could have reasonably expected, Steven Bartels assisted me in editing and revising the manuscript and developed as much passion for this project as myself. Lasia Bloss contributed inspiring discussions and readily helped out in reply to many last-minute requests for material. Peter Schramm deserves credit for helping me in the final preparation of the thesis for submission; Imogen Fowler kindly advised on linguistic questions. Finally, my thanks go to Verena von Bomhard and Andreas Renck of Lovells Alicante for making it possible to find time and space for completing this project. This thesis is dedicated to my parents, whose loving support and confidence in myself Page 2 of 3 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2014. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: OUP - Marketing; date: 19 December 2014