Volume IV Issue I

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WASHINGTON UNDERGRADUATE LAW REVIEW VOLUME IV ISSUE I AUTUMN 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

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Fall 2010

Transcript of Volume IV Issue I

  • 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.

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    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.

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    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.

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    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.

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    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.

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    is analogous to how both browse-wrap and click-wrap contracts operate. The computer disc distributed by ProCD is similar to click-wrap c