Compliance With Final Judgments

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American Journal of International Law

July, 2004
*434 COMPLIANCE WITH FINAL JUDGMENTS OF THE INTERNATIONAL COURT OF JUSTICE SINCE
1987
Colter Paulson [FNa1]
Copyright © 2004 by American Society of International Law; Colter Paulson
Commentators on the International Court of Justice (ICJ) note that cases of noncompliance with final judgments
are very rare. [FN1] The ICJ registrar Philippe Couvreur, however, recognized that compliance is often hard to de-
termine because judgments are varied, declarations may not reflect actual conduct, effects may only become apparent
long after the judgment is given, and the legal or political situation may substantially change after the judgment.
[FN2] In this vein, Judge Jennings asked:
The judgments of the Court are binding in law, but do they, in fact, resolve the matter? More work needs
to be done here. It is ironic that the Court's business up to the delivery of judgment is published in lavish de-
tail, but it is not at all easy to find out what happened afterwards. [FN3]
Understanding how states comply with judgments of the Court is essential to understanding its role in the settle-
ment of disputes. This article assesses compliance with final judgments of the International Court of Justice in the
past fifteen years. [FN4] Part I reviews previous empirical studies on conformity with ICJ decisions and sets out a
definition of compliance. Part II examines state compliance with each final judgment on the merits since 1987, in-
cluding five cases of partial compliance and seven cases of full compliance. Part III presents an empirical analysis of
factors that influence compliance. Finally, part IV compares recent performance with the pre-1987 results and sug-
gests further directions for analysis and assessment of the Court's record.
I. COMPLIANCE WITH ICJ JUDGMENTS
Past Studies of State Compliance and Effectiveness
Jonathan Charney conducted an empirical study of state compliance with final decisions in 1987 in the wake of
Military and Paramilitary Activities in and Against Nicaragua, [FN5] when the United States withdrew from the
Court's compulsory jurisdiction. [FN6] He found that ICJ decisions *435 (especially final judgments) were generally
accorded a large amount of deference. [FN7] Cases with contemporaneous consent or submitted by special agree-
ments received a high degree of compliance. [FN8] In an increasing number of cases, however, a party refused either
to appear or to participate in stages of the proceedings, and unwilling participants were less likely than others to ac-
cept the Court's judgment. [FN9] He concluded that the ICJ should avoid cases where a judgment was likely to be
resisted, as in Military and Paramilitary Activities, and instead establish a record of success in cases where the
parties would probably live up to their obligations. [FN10]
In the same volume as the Charney study, Leo Gross broadly assessed the extent to which final judgments had
solved the underlying disputes in certain specific cases, although his observations were limited in both scope and
purpose. [FN11] Of the fifteen cases involving significant conflicts that Gross reported on, six resolved, five signific-
antly helped, and four did little to resolve or were of little significance to the underlying dispute. [FN12] He found
© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

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that cases initiated by special agreements held more promise of being effective than those brought under the optional
clause or compromissory clauses (where one of the parties is more likely to be an unwilling participant). [FN13]
Besides Charney and Gross, few commentators have focused on the details of compliance in more than a handful
of cases. [FN14] In a paper on the Court's jurisprudence regarding territorial disputes, J. G. Merrills discusses some
problems of implementation. [FN15] Another article asserts, without going into detail, that states generally comply
less often in cases that matter to them. [FN16] This article updates and expands the empirical analyses by Charney
and Gross on the details of compliance with judgments on the merits.
Defining Compliance
For the purposes of this article, compliance with ICJ final judgments consists of acceptance of the judgment as fi-
nal, and reasonable performance [FN17] in good faith of any binding *436 obligation. [FN18] Compliance in good
faith includes a duty to give effect to the judgment with a view to avoiding its superficial implementation or other-
wise circumventing it. [FN19] This is a practical measure of compliance and has been implied in some of the Court's
opinions. [FN20] The Court does not usually consider questions of post-adjudicative compliance. [FN21]
Although compliance looks at the resolution of disputes in their political context, it should not be confused with
the overall effectiveness of the ICJ, however measured. [FN22] Many cases are settled before a final judgment is
reached and the Court has had an important “pacifying effect” on disputes at all stages of litigation. [FN23] Measur-
ing effectiveness, apart from the resolution of the individual disputes, is beyond the scope of this article. Finally, the
compliance assessment in each case should not be seen as indisputable. Legal obligations are often unclear and the
conduct of states intentionally ambiguous. Concepts such as undue delay, good faith negotiation, and a state's duty in
a changing political situation cannot be precisely measured. [FN24]
II. THE RECORD
In the past fifteen years, fourteen contentious cases resulted in final judgments on the merits before the ICJ.
[FN25] Of these judgments, five have met with less compliance than the others, *437 although no state has been dir-
ectly defiant. [FN26] The cases of partial noncompliance will generally be discussed in substantially more depth than
those of compliance. [FN27]
Cases Involving Some Noncompliance
Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening). When the ICJ ruled
in Land, Island and Maritime Frontier Dispute between El Salvador and Honduras, which concerned six “pockets” of
land totaling about 440 square kilometers and a maritime boundary including a number of islands, the boundary had
been contested for over a century. [FN28] The dispute was a contributing factor to the 1969 “Soccer War,” which
killed thousands of people, [FN29] and provoked hostilities again in 1976, although intervention by the Organization
of American States (OAS) prevented large-scale armed conflict. [FN30] The OAS also played a part in inducing El
Salvador and Honduras to submit the case to a Chamber of the Court by special agreement in 1986. [FN31]
The 1992 final Judgment split the various disputed land areas, assigning about 300 square kilometers to Honduras
and 140 square kilometers to El Salvador. [FN32] The ruling assured Honduran access to the Pacific, and gave El
Salvador two of the three islands at issue. [FN33] Both countries immediately announced that they would accept the
decision but foresaw problems working out the details. [FN34] Immediately after the ruling, President Alfredo Cristi-
ani of El Salvador said, “The human aspect of the solution to the problem is going to be our number one priority ....
[T]he primary issue ... [is to] respect the human rights ... of all those who now find themselves on either Honduran or
Salvadoran territory.” [FN35] An estimated six to fifteen thousand people live on the land the ICJ apportioned.

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[FN36] El Salvador wanted dual nationality for the affected people, but the Honduran Constitution did not allow it
and also prohibited noncitizens from owning land within forty miles of the border. [FN37] Such problems are not
novel. Merrills has shown that implementing boundary decisions involves complicated technical issues, and that
states may require outside support to complete the demarcation. [FN38]
Many (mostly minor) disputes and problems have arisen between the two countries in the border regions delim-
ited by the ICJ. In 1996 President Calderón Sol of El Salvador downplayed incursions by Salvadoran police into land
awarded to Honduras, calling them “surmountable” *438 and exaggerated by the Honduran press. [FN39] In 1997 a
Honduran official said that Salvadorans were crossing the border with timber felled in now-Honduran forests and
there were also reports of armed Salvadoran groups in the newly delimited areas. [FN40] El Salvador was apparently
issuing logging permits for areas granted to Honduras. [FN41] Honduras sent police and military units to reinforce
the border, which raised fears of conflict when nearly one thousand Salvadorans protested their deployment. [FN42]
Salvadorans accused Honduras of kidnappings and forced evictions of peasants from their own land. [FN43] Militar-
ized conflict on the border, in part due to these problems, has occurred nearly every year since 1992. [FN44]
In the face of these ongoing difficulties, many agreements were made to demarcate the border officially, although
only 120 miles of the 233-mile border were completed as of 2002. [FN45] Official agreements to fix the boundary
and resolve issues of nationality and ownership were concluded in 1995, 1997, 1998, and 2002. [FN46] In November
2000, Honduras urged El Salvador to comply with the Judgment in a letter submitted to the United Nations secretary-
general for circulation as a Security Council document, stating that it was implementing plans to respect the rights of
nationality and ownership of Salvadorans living in Honduran territory. [FN47] Honduras followed up in January
2002 with a formal accusation of noncompliance; it asked the Security Council to make recommendations to induce
Salvadoran compliance and, if that failed, to “dictate the measures it deems appropriate in order to ensure that the
judgment is executed.” [FN48] Honduras alleged unjustifiable delays in the demarcation of the land boundary and re-
fusal to comply with the ICJ's Judgment on joint ownership of the Gulf of Fonseca. [FN49] However, both countries
appear to have fully accepted the ICJ's ruling on the gulf islands. It is interesting that El Salvador consented to adju-
dication on the Gulf of Fonseca at all, as it had worked previously to exclude the gulf from compulsory arbitration or
adjudication under the Convention on the Law of the Sea. [FN50]
El Salvador denied the accusations of undue delay, saying that it had repeatedly stated its intention to request a
review of the Judgment and that a dispute with Honduras over Salvadoran compliance therefore did not exist. [FN51]
One day short of the ten-year limit on such requests to the Court, El Salvador filed an application for revision based
on new information *439 on the river boundary leading to the Gulf of Fonseca, claiming that it would have been a
decisive factor in the case had it been available. [FN52] Shortly afterward, both countries again agreed to begin de-
marcation of the areas not affected by the application for revision. [FN53] The new demarcation regime began on
October 30, 2002, with a ceremonial unveiling of the first marker; it is scheduled to be completed in 2004. [FN54]
Unfortunately, even this latest attempt has met with resistance, which stopped work in one area in January 2004.
[FN55]
Although it appears that all three states bordering the Gulf of Fonseca have accepted the verdict on its status as
shared space subject to a further delimitation, armed conflicts have persisted in the gulf's waters. [FN56] The uncer-
tainty left by the Judgment about jurisdiction seaward has also led to a few problems. At least for a time, both
Nicaragua and El Salvador appeared to take the position that Honduran waters ended at the mouth of the gulf, [FN57]
and Nicaragua was detaining (and fining) fishermen who ventured beyond that point. [FN58] The Chamber said the
Judgment was not binding on Nicaragua because it had intervened as a nonparty. [FN59] As the Court stated that the
condominium arrangement resulted in shared jurisdiction seaward from the gulf, [FN60] El Salvador, if not
Nicaragua, was bound to accept this reasonable consequence of the Judgment.
Although both countries accepted the Judgment as final and binding, the Honduran allegations, the repeated fail-
ure of demarcation agreements, and the continuing border problems suggest that El Salvador may not be completely

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fulfilling its obligations to execute the judgment reasonably and in good faith. Since most of the problems of imple-
mentation stem from failures of negotiations, this result may amount to mutual noncompliance or simply failed good
faith negotiation. One hopes that the latest agreement (and the negative result of the Salvadoran application for revi-
sion [FN61]) will allow a demarcation to go forward. In any case, much of the Judgment has already been complied
with to a considerable extent. The parties say they are happy with the Judgment, despite the compliance problems.
Honduras professed to having been pleased when Nicaragua brought the dispute about their mutual maritime border
to the ICJ, saying it now views the ICJ as a favorable alternative to “methods that have placed regional security and
integration efforts at risk.” [FN62]
Territorial Dispute (Libya/Chad). During the 1970s and 1980s, thousands died in fighting over the Aouzou Strip
between Libya and Chad. [FN63] The war continued sporadically until 1986-*440 1987, when Libya sustained par-
ticularly heavy losses in casualties and equipment and Col. Muammar el-Qaddafi subsequently extended an olive
branch--recognition of the Habré government and help in rebuilding Chad. [FN64] In return, President Hissein Habré
seemed to accept de facto Libyan control of the Aouzou Strip. [FN65] Chad still claimed the area, but Habré was
content to stop the fighting and accept Libyan support for his regime. [FN66] This “understanding” enabled Qaddafi
to secure Libya's long-contested southern border and to control the area's (unproven) uranium reserves. [FN67] Qad-
dafi feared that Libya's southern border was particularly vulnerable without the Aouzou as a buffer zone. [FN68]
Libya also claims close ethnic and cultural ties to the people in the region. [FN69] When the parties made peace, the
decision to settle the dispute within a year or submit it to the ICJ was an “essential part of the peace agreement,”
[FN70] and partly a result of prodding by the Organization of African Unity. [FN71] Chad and Libya notified the
Court of their special agreement during August and September of 1990. [FN72]
Idriss Déby overthrew Habré with strong Libyan support in December 1990, [FN73] bringing about an
“immediate improvement in relations between Chad and Libya ... including arms for the new Déby government.”
[FN74] Believing he had a friend in Chad, Qaddafi began to withdraw troops from Sudan along the Chadian border.
[FN75] However, Déby surprised Qaddafi by publicly announcing during a celebratory reception in Tripoli in early
1991 that he would continue to press Chad's claim to the Aouzou in the ICJ. [FN76] With the proceedings already
under way in the Court (memorials and countermemorials were due a few months later [FN77]) under a special
agreement that had ended the war with Habré, [FN78] Qaddafi must have felt pressured to let the case continue, and
was probably certain he had a strong legal position. He may have been encouraged by the ICJ's previous resolution of
two of Libya's maritime delimitation disputes. [FN79]
*441 In February 1994, the Court awarded the entire Aouzou Strip to Chad. [FN80] Libya initially rejected the
verdict, and reportedly began reinforcing troops in the area. [FN81] However, after a month of negotiations Qaddafi
indicated that he would accept the decision, [FN82] and in April Libya and Chad reached an agreement on the imple-
mentation of the Order. [FN83] Supporting the ICJ verdict, especially over such a large dispute, was certainly a good
move for Libya's international relations, and helped strengthen Libya's ties to other North African countries, which
Qaddafi had been trying to do for some time. [FN84]
If Libya's legal obligations under the ICJ Judgment are viewed simply as recognizing the border delimited by the
Court, Libya has complied fully with the decision. Libya has formally and informally recognized the international
border on various occasions. The withdrawal of Libyan troops from the Aouzou was made official through Security
Council enforcement, at the request of both parties. [FN85] On May 4, 1994, the Security Council passed Resolution
915, establishing the United Nations Aouzou Strip Observer Group (UNASOG) to oversee the implementation of the
ICJ Judgment. [FN86] The fifteen-member group was responsible for monitoring the full withdrawal of Libyan
forces from the strip. [FN87] Both Libya and Chad declared a plan for withdrawal on May 13, 1994, and the UN
group left the area after the departure of the last Libyan forces on May 30, 1994. [FN88]
A 1996 book on Libya reported that Qaddafi had “accepted the ruling of the ICJ without any attempt to reverse
it,” and that “[o]ne of Africa's longest and most costly confrontations had come to an end.” [FN89] Qaddafi himself

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reiterated, as late as 1998, that “[t]he [ICJ] verdict has been respected.” [FN90] Nearly all legal commentators have
accepted that the dispute over the Aouzou ended in 1994. [FN91]
Despite the recognition of Libya's compliance by most commentators on the ICJ, many reports have surfaced of a
continued Libyan presence in the strip-- both Libyan nationals and Libyan-supported Chadian rebels. One observer
reported that “[t]here has still not been a definitive solution to the Aouzou problem. It is doubtful whether Libya has
indeed terminated its occupation totally.” [FN92] The Congressional Research Service noted that Libyans may have
been fighting in the Aouzou in 1996, [FN93] and other reports claimed that Libya was holding parts of the strip in
1997. [FN94] A Chadian paper reported that ex-President Goukouni Weddeye might return to war against the Chadi-
an government with the help of high-ranking Libyan officers. [FN95] Supporting rebels in the Aouzou Strip might
provide Qaddafi with an effectual buffer zone, protecting his southern border from Chadian unrest.
*442 On January 30, 1997, the Chadian Ministry of Foreign Affairs protested Libya's publication of the “1997 Is-
lamic Diary” for allegedly containing a map placing the Aouzou Strip in Libya, and threatened to take the matter to
the Security Council. [FN96] The next month, however, Déby called for peace, and later that year he and Qaddafi
visited each other's capitals, signaling a “definitive reconciliation of the two countries.” [FN97]
Both states were anxious to avoid a direct confrontation, and Chad did not appear to be overly interested in pur-
suing its grievances with Libya on the international stage. During the mid-1990s Qaddafi worked toward advancing
regional solidarity, [FN98] achieving the Community of Sahel and Saharan States in 1998, which is already among
the largest regional bodies in Africa, [FN99] and promoting the formation of the African Union. [FN100] More im-
portant, Chad has little interest in provoking Qaddafi and losing his economic help by publicizing Libyan adventur-
ism in the region. Chad and Libya may have reached the same sort of informal or practical agreement as when Habré
“ignored” the Libyan presence in Aouzou to gain economic and political support. [FN101]
The réconciliation définitive of 1998 did not last. [FN102] After three years, Déby apparently lost patience with
the Libyan presence in the Aouzou. In January 2001, he declared that he could confirm that Libya was supporting
Youssouf Togoimi and the rebel Movement for Democracy and Justice in Chad (MDJT) in the Aouzou region.
[FN103] Chad had been fighting MDJT rebels in the Aouzou region since 1998, and some observers believe they had
Libyan support. [FN104] However, in response to Déby's accusations, Qaddafi assured Chad that neither Libya nor
forces inside Libya would support Togoimi. [FN105] Qaddafi led negotiations that resulted in a peace agreement
signed by the security minister of Chad and a rebel leader in January 2002. [FN106] In October 2002, Qaddafi spoke
on Chad's national radio, asking “the brothers of the Movement for Democracy and Justice to lay down their arms
and rejoin the peace camp.” [FN107] Although Libya played an important role as arbiter between the Chadian gov-
ernment and the MDJT, [FN108] there is evidence of Libyan support for the rebels as recently as 2003. [FN109] The
ICJ settled the *443 question of political sovereignty over the Aouzou, [FN110] but Libya seems likely not to have
fully relinquished its political or military dominion over the area. [FN111]
How must Libya respect Chad's sovereignty over the Aouzou Strip? In the case between Cameroon and Nigeria,
discussed below, the ICJ defined respecting territorial integrity as “withdrawing ... military and police forces and ad-
ministration” from the areas lost in the Judgment, [FN112] which Libya may have done only superficially. Although
a legitimate argument can be made for Libya's technical compliance--the territorial issue seems politically and leg-
ally settled--Libya's support for the MDJT is troubling from the perspective of effective compliance. By supporting
Chadian rebels in the Aouzou, Libya may be seeking to maintain its direct influence in the region and to circumvent
the Judgment, [FN113] though its involvement may also be designed to protect its southern border from spillover of
the internal turmoil in northern Chad. As Libya is partly responsible for Chadian unrest through years of arming and
supporting insurgencies to maintain its power in northern Chad, [FN114] a higher degree of conduct with respect to
the duty to withdraw from the Aouzou might be required for good faith compliance.
Even if Libya has complied with the requirements of the Judgment in only a technical sense, the Judgment was

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important in securing peace. Both sides accept the Court's ruling as legally binding. Libya cannot claim sovereignty
over the region without risking regional and international consequences, and appears to have given up all pretensions
to it. Despite its support for the rebels, Libya has managed to keep relations fairly cordial with Déby's government.
Large-scale war over the Aouzou Strip, as seen in the seventies and eighties, seems out of the question.
Overall, the system worked as intended, with the Security Council ensuring that Libyan troops withdrew after the
verdict. Since supporting rebels (or government factions, as some might characterize the MDJT) in a neighboring
country, even absent a territorial dispute, is not unknown in Africa or elsewhere, the character of Libyan support for
the rebels is unclear and the will of the Security Council to enforce the Judgment permanently is surely lacking. In
any case, the desirability of Security Council censure is doubtful. Publicity, however, might have made some differ-
ence. [FN115] Libya received very little praise in the international media for its peaceful acceptance of the Judg-
ment. [FN116] Perhaps if the international community had celebrated its compliance with what must have been a
tough Judgment to accept, Libya would have felt more pressure afterward to refrain from quietly circumventing it.
The LaGrand Case (Germany v. United States). Walter and Karl LaGrand, German nationals, were tried for
murder and sentenced to death in Arizona. [FN117] After a last-minute appeal failed and Karl LaGrand was ex-
ecuted, Germany applied to the ICJ for a provisional order to block the execution of Walter LaGrand. [FN118] Ari-
zona executed Walter LaGrand in violation of the resulting order. In response, the Court found (for the first time) in
the final judgment that *444 its provisional measures are binding. [FN119] The Court also held that by not informing
the brothers of their right to consular notification under the Vienna Convention on Consular Relations and Optional
Protocol on Disputes (Vienna Convention) [FN120] following their arrest and by not permitting “review and recon-
sideration” of the convictions and sentences of the LaGrand brothers in light of the treaty violation, the United States
had breached its obligation under the Convention. [FN121] The ICJ gave the United States two explicit obligations in
LaGrand: to give Germany a general assurance of nonrepetition of the treaty violations and to review and reconsider,
by taking into account any violation of rights under the Convention, the convictions and sentences of German nation-
als sentenced to severe penalties. [FN122]
The Court found that U.S. commitments to ensure implementation were sufficient to meet the obligation for a
general assurance of nonrepetition. [FN123] It recognized that programs set up by the United States to promote com-
pliance with its Vienna Convention obligations, involving the distribution of over sixty thousand pamphlets and four
hundred thousand pocket cards, demonstrated a good faith effort. [FN124] After the decision was issued, the United
States continued its program to promote consular notification. [FN125] The Department of State has called for strict
compliance, pointing out that some foreign nationals have sought judicial remedies for violations. [FN126] It has ex-
tensively coordinated this work with numerous federal agencies, as well as states with large populations of foreign
nationals. [FN127] An FBI Law Enforcement Bulletin notes that “even though the great weight of case law” indicates
that failure to provide Convention rights will not result in effects adverse to a case, “law enforcement officials at all
levels of American government should nevertheless comply with the treaty's notification provisions (and document
that compliance).” [FN128] A California statute now requires state and local police to give such notification and
mandates inclusion of the subject in training manuals. [FN129] In light of these continuing efforts, the United States
may be said to be in compliance with its law enforcement duties under the Judgment. In Avena and Other Mexican
Nationals, the Court gave its imprimatur to the ongoing U.S. program to improve consular notification as adequate.
[FN130]
*445 Although the United States seems to be in compliance with the first obligation imposed under LaGrand, it
has probably not met the second. The opinion states that should it “fail in its obligation ... to the detriment of German
nationals, .... it would be incumbent upon the United States to allow the review and reconsideration of the conviction
and sentence by taking account of the violation.” [FN131] As William Aceves has pointed out, this is a remedy of
process and not of outcome, and so compliance is largely a question of administrative procedure. [FN132]
Although its specifics were left to the United States, [FN133] compliance must be reasonable and in good faith.

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The obligation to review includes, at a minimum, a postsentencing determination whether the violation regarding
consular notification affected the substantive outcome of the case in question. [FN134] Reconsideration plainly re-
quires that some remedy be available if the violation did affect the outcome. Even so, compliance in individual cases
may not require any special action on the part of the United States. The Court was careful to say it had “not found
that a United States law, whether substantive or procedural in character, is inherently inconsistent with the obliga-
tions undertaken by the United States in the Vienna Convention.” [FN135]
In many cases, state court review alone may suffice. Federal court would also be an adequate forum for the re-
view process. Review would constitute compliance as long as some remedy was available in deserving cases. The
procedural default rule runs afoul of LaGrand only when it prevents the issue from being raised in any forum.
[FN136] This occurs in particular when the treaty violation itself was a cause of the procedural default. [FN137] If
neither state nor federal appellate judges will review the case in light of the alleged treaty violation, the United States
must provide some other process.
By the terms of the ICJ Statute, noncompliance with LaGrand can take place only in cases involving German na-
tionals. [FN138] However, the United States stated in Avena that it was applying the terms of LaGrand to all foreign
nationals, [FN139] in conformity with its assertions in internal publications, [FN140] so that German nationals are
unlikely to receive different treatment. At any rate, at a time when the cases of two German nationals on death row
and one awaiting resentencing are all affected (to some degree) by a violation of the Vienna Convention, [FN141] it
is certainly appropriate to evaluate current U.S. policies to determine compliance with LaGrand. The ICJ has en-
dorsed this view of the compliance duty in LaGrand, as it indicated in Avena that the United States should apply the
Judgment to all foreign nationals. [FN142] The current conduct of the United States with respect to all foreign na-
tionals is at least relevant to, if not determinative of, its commitment to comply with LaGrand with respect to Ger-
man nationals.
State and federal judges have generally ignored LaGrand, and are not offering review and reconsideration in ac-
cordance with its terms. Of the ten federal circuit court opinions published *446 from July 2001 to January 2004 that
involved the Vienna Convention in criminal cases, only one even mentions LaGrand. [FN143] However, that case is
also the only one that involved the death penalty. It held that it must be shown that the violation of the Convention
had some effect on trial for a remedy to be available. [FN144] Such a showing can be an insurmountable barrier, es-
pecially when defense counsel is not sure whether a judge will take the violation seriously.
Most federal and state courts have declined to address the issue directly, finding that even if the Vienna Conven-
tion creates individually enforceable rights (the ICJ in LaGrand found that it does), the remedy sought for the viola-
tion is not appropriate. [FN145] Although some courts have granted convictions and sentences review in light of
Convention violations, as called for in LaGrand, virtually none have found an appropriate remedy. Nevertheless,
only two appeals courts have directly opposed the policy behind LaGrand and only one did so unambiguously,
[FN146] though both involved sentences of less than fifteen years, and thus might not be severe enough to mandate
LaGrand review. [FN147]
Also ignoring LaGrand, state courts have liberally applied the doctrines of procedural default, clear error, and
standing to claims under the Convention, vitiating their chances of success. [FN148] Unfortunately, comparatively
few well-pled motions have provided opportunities for courts to promote the policy considerations inherent in LaG-
rand, though that may result from the difficulty of proving prejudice after the fact. In Avena, the ICJ found that since
the LaGrand decision, “the procedural default rule has not been revised, nor has any provision been made to prevent
its application in [appropriate] cases.” [FN149] The Court clearly does not view the judicial dance around the effects
of Vienna Convention violations to constitute adequate review and reconsideration.
One federal decision, however, made a remedy available as contemplated in LaGrand. In United States ex rel.
Madej v. Schomig, involving a Polish national who received a death sentence, a federal district judge held that the

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ICJ decision undermined the baseline assumption of the Supreme Court in Breard v. Greene that under the current
system “full effect” is being given “to the purposes for which the rights accorded under this Article are intended.”
[FN150] Judge David H. Coar granted a motion to amend the judgment on the basis of a Convention violation, noting
that after LaGrand, “no court can credibly hold that the Vienna Convention does not create individually enforceable
rights.” [FN151] Madej aside, courts are generally not respecting U.S. obligations of review and reconsideration,
though they are reluctant to defy LaGrand directly. [FN152] Postconviction judicial review of Convention violations
(especially in situations *447 of procedural default), as contemplated by the ICJ, is likely to be avoided by U.S.
courts until the Supreme Court addresses the matter. [FN153]
The Department of State has taken the chief role in promoting review and reconsideration, focusing on clemency
petitions before governors and review boards. [FN154] The United States contended in Avena that their policy of re-
liance on the judicial process, taken together with asking clemency boards to take violations of the Vienna Conven-
tion into consideration, constitutes compliance under LaGrand. [FN155] The United States argued that through the
clemency process it had “succeeded in securing review and reconsideration in every case when a consular notifica-
tion violation had occurred and the death penalty was to be imposed.” [FN156] One example the State Department
points to was the Valdez case. A few weeks after LaGrand was handed down, it sent a letter to Governor Frank Keat-
ing of Oklahoma, who had received a clemency petition for Gerardo Valdez Maltos, a Mexican national on death
row, urging Keating to consider whether the Convention violation had had any prejudicial effect on the conviction or
sentence. [FN157] The governor denied the petition, saying that he had considered both the treaty violation and the
ICJ's Judgment, and that there was no prejudice. [FN158] A court later awarded Valdez a retrial on other grounds,
[FN159] though before the trial he accepted a plea bargain in return for a life sentence. [FN160]
In itself, promoting clemency as traditionally practiced is an inadequate response. In LaGrand the Court had sub-
stantial access to details about Arizona's clemency process, [FN161] and did not see it alone as constituting adequate
review, noting that the governor was in no way obliged to implement the clemency board's recommendation.
[FN162] In Avena, the Court spoke directly on the issue, observing that clemency “as currently practised” in the
United States did not appear to meet the criteria of fully examining and taking into account the possible prejudice
caused by a violation. [FN163] The State Department's letters did not suffice to transform the clemency process into
review and reconsideration under LaGrand. Still, appropriate clemency procedures could “supplement” review and
reconsideration in the three cases that had already exhausted the appeals process. [FN164] Even though the Court in
Avena left open the possibility *448 of devising a clemency process that would meet its requirements, [FN165] the
United States cannot in good faith rely on existing clemency procedures for compliance with LaGrand.
The Court did not require a substantive change of status as a result of LaGrand review for every violation, but
some remedy must be reasonably available. Clemency provides remedies in capital cases so rarely that this require-
ment cannot be reasonably met. As Aceves points out, “[I]t is evident that clemency review alone, which occurred in
the LaGrand case, will be an insufficient remedy in the absence of a genuine prospect of relief in well-deserving
cases.” [FN166] In Texas, only 1 of the last 157 people who exhausted the appeals process after being sentenced to
death received clemency. [FN167] Since 1977, the chance that a death row inmate will receive clemency has aver-
aged around 3 percent. [FN168] By contrast, 68 percent of death penalty cases were given a retrial on appeal from
1977 to 1995, and of those 82 percent were not sentenced to death in the subsequent trial. [FN169] Though these
numbers do not represent what the difference between appeal and clemency rates for successful Vienna Convention
claims would be, they provide a useful comparison. [FN170] A Convention claim will probably be much more
powerful on appeal than in a nearly hopeless clemency attempt.
The clemency process is inferior in many ways to the type of judicial review sought by the Court in LaGrand.
The Court in Avena clarified that in LaGrand it had understood that the review and reconsideration “should occur
within the overall judicial proceedings relating to the individual defendant concerned.” [FN171] Clemency boards
and governors surely take their duties seriously, but, as Mexico argued, they “are not required to have any legal train-
ing whatsoever .... and they do not routinely determine whether a conviction and sentence was reached in conformity

98 AMJIL 434 Page 9
98 Am. J. Int'l L. 434
with state and federal law.” [FN172] Clemency procedures vary widely from state to state and few are either trans-
parent or reliable. [FN173] For example, the Texas Board of Pardons and Paroles “typically considers only whether
the defendant is innocent in deciding whether to commute his death sentence to life imprisonment.” [FN174] Al-
though the United States has taken steps to implement the LaGrand Judgment, Avena makes clear that it is not in
compliance with its binding obligations under LaGrand. Even before the Court's clarification in Avena, U.S. practice
could probably not be seen as good faith compliance, as no remedy was realistically available for deserving cases
through any type of review.
Gabc íkovo-Nagymaros Project (Hungary/Slovakia). In 1977 Hungary and Czechoslovakia signed a treaty to
build a system of locks and dams on the Danube River, the Gabc íkovo-Nagymaros Project, [FN175] which Hungary
abandoned in 1989 for fear of damaging Budapest's water supply, as well as other environmental concerns. [FN176]
As Hungary stopped work and negotiations failed, Slovakia completed work on a variant of the proposed system and
began *449 damming the river in 1992. [FN177] In 1993 the two states (Slovakia taking over from Czechoslovakia)
submitted the dispute to the ICJ by special agreement. [FN178] The ruling in Gabc íkovo-Nagymaros Project favored
Slovakia, holding that the 1977 treaty was valid and imposing a duty on the parties to negotiate the “modalities” of
implementing it in good faith. [FN179] However, the Court pointed out that the environmental consequences might
affect treaty compliance. [FN180]
Negotiations started soon after the 1997 Judgment but broke down in 1998, and then resumed again after Slov-
akia filed a request with the ICJ for an additional judgment [FN181] declaring that Hungary was not negotiating in
good faith. [FN182] Recent negotiations have been continuous but unproductive, and Slovakia has talked about re-
turning the dispute to the Court. [FN183] Both sides, however, remain confident that it can remain a technical (or
legal) and not a political problem. [FN184]
The available facts on the negotiations may be too sparse (or the elapsed time too short) to label either state as
not being in compliance, but it appears likely that the parties are not fulfilling their duty of good faith negotiation.
Slovakia has taken the Judgment as carte blanche to insist on implementing the 1977 treaty; according to Hungary,
the Court decided that it is not obliged to build a dam, and the Court's opinion gave Hungary a lot of normative en-
vironmental language to support it in that position. [FN185] As the Court has said, “[The parties] are under an oblig-
ation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them
insists upon its own position without contemplating any modification of it.” [FN186] Answering the legal question
may have been an important step toward settlement, but the parties have been unable to use the Judgment to resolve
their differences.
Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Inter-
vening). Control of the Bakassi Peninsula and areas in the Lake Chad Basin, whose populations are estimated as
roughly 37,500 and 60,000, respectively, [FN187] has been contested by Nigeria and Cameroon for at least twenty
years. [FN188] The two countries had tried to resolve the dispute through bilateral negotiations, but after several
years Cameroon became dissatisfied with their progress, [FN189] which had been hindered by numerous armed
clashes on *450 Bakassi. [FN190] Just before Cameroon filed the case with the ICJ in 1994, thirty-four soldiers had
died in a battle on the border. [FN191] At the time of Cameroon's filing, Nigeria contested jurisdiction, saying that
the states had already agreed to settle the dispute through existing bilateral channels. [FN192] Even though Nigeria
initially resented Cameroon's taking the case to the ICJ, it later participated wholeheartedly. [FN193] Armed conflict,
however, continued while the suit was before the Court. In 1996 four persons died and thirteen were injured in anoth-
er skirmish. [FN194]
In its decision the ICJ awarded Cameroon the Lake Chad boundary it had asked for, granting around thirty vil-
lages to Cameroon and a few to Nigeria. [FN195] The Court also awarded Cameroon the Bakassi Peninsula, though
Nigeria won the maritime portion of the Judgment and much of the boundary between Lake Chad and Bakassi.
[FN196] The Court was careful to obligate both parties to withdraw their military, police, and administration from

98 AMJIL 434 Page 10
98 Am. J. Int'l L. 434
the affected areas “expeditiously and without condition.” [FN197] The maritime boundary drawn by the Court was
favorable to Equatorial Guinea, which had intervened as a nonparty. In an official statement Nigeria seemed to ac-
cept parts of the decision it perceived as fair or favorable to itself but rejected parts it found “unacceptable.” [FN198]
It pleaded federalism as a reason for noncompliance, saying that since “all land and territory comprising the nation of
Nigeria is specified in the Constitution,” the federal government could not give up Bakassi until the requisite national
and state assemblies amend the Constitution. [FN199] President Olusegun Obasanjo explained Nigeria's position:
“We want peace, but the interest of Nigeria will not be sacrificed .... [W]hat may be legally right may not be politic-
ally expedient.” [FN200] Nigeria's official position is that it neither accepts nor rejects the verdict. [FN201]
Both countries had agreed to respect the ruling before the verdict. Paul Biya, the president of Cameroon, reported
that the two presidents had agreed to abide by the ICJ judgment in a meeting with UN Secretary-General Kofi Annan
on September 5, 2002, [FN202] and the United Nations issued a press statement to that effect. [FN203] Not surpris-
ingly, Nigeria contested this assertion, saying that there was no such agreement and that they had merely “discussed
confidence-building measures to reduce tensions on the border and mandated Annan's staff to issue a statement.”
[FN204]
The Nigerian national government is under tremendous internal political pressure not to respect the Judgment, es-
pecially with regard to Bakassi, as various large Nigerian groups *451 have opposed it and called for war, if neces-
sary. [FN205] Many ethnic Nigerians fear unequal treatment and persecution by Cameroonian administrators.
[FN206] Some politicians fan the political flames by claiming (falsely) that Nigeria has millions of people and bil-
lions of dollars invested in Bakassi, and that people must support the president if Nigeria has to go to war. [FN207]
Bakassi representative Okon Ene stated that Cameroon was only interested in oil and that the Judgment would be un-
enforceable. [FN208] Another local leader said that if Nigeria cedes the peninsula to Cameroon, it would be “[o]ver
our dead bodies.” [FN209]
On the other side, Nigeria has been subjected to substantial international pressure to comply. At first, the British
High Commission to Nigeria took a hard line, saying “[ICJ] judgments are binding and not subject to appeal. Nigeria
has an obligation under the United Nations charter to comply with the judgement.” [FN210] The British foreign min-
ister for Africa met with Nigeria's ambassador to remind him that Obasanjo had promised to abide by the Judgment.
[FN211] Later, however, possibly because there was talk about war to protect the peninsula, [FN212] the British
stance softened to asking Nigeria to “establish a dialogue with Cameroun to find a political way forward.” [FN213]
Both the United States and France have also pressured Nigeria to accept the ruling. [FN214]
Cameroon has taken Nigeria's position with relative equanimity. The Cameroonian minister for communication,
Jacques Ndongo, urged his countrymen to receive Nigeria's reaction to the verdict with “calm, dignity and serenity.”
[FN215] Little mention has been made of an issue likely to be important in the future, the potential enclaving of
Cameroon, since Equatorial Guinea's position may now block its access to the open sea. [FN216]
Despite the pressures, Nigeria and Cameroon are finding a peaceful solution. At the request of Presidents Obas-
anjo and Biya, the United Nations set up a commission to “consider the implications” of the verdict, protect the
rights of the people in the affected areas, [FN217] and propose a workable solution. [FN218] So far the commission's
recommendations have been carried out with success, as Cameroon has taken control of the areas around Lake Chad
and the two states have traded villages along the long mutual border. [FN219] Bakassi may be another matter, but
even if the parties do not achieve full compliance with regard to the peninsula, the Judgment is *452 likely to be re-
spected in many of its details. Relations between the two countries have improved considerably since the ruling,
thanks in part to the large roles played by the United Nations and Britain in settling the dispute. [FN220] Given the
internal opposition in Nigeria to ceding territory (and its status as the powerhouse of West Africa), this process may
have been the only way to combine a peaceful solution with respect for Cameroon's legal rights.
Avena and Other Mexican Nationals (Mexico v. United States). Avena and Other Mexican Nationals is analyzed

98 Am. J. Int'l L. 434
in a case report in this issue (p. 559). Although, as of this writing, it is too early to make a determination about com-
pliance, [FN221] given the above discussion on LaGrand, full compliance appears unlikely without substantive
changes in U.S. practice.
Cases of Compliance
Maritime Delimitation in the Area Between Greenland and Jan Mayen (Denmark v. Norway). In Maritime Delim-
itation in the Area Between Greenland and Jan Mayen, Denmark asked the Court to declare that it was entitled to a
full 200-mile fishery zone and continental shelf in the area between Greenland and the island of Jan Mayen, while
Norway wanted a median line drawn between the two. [FN222] The dispute over Jan Mayen was submitted by Den-
mark to the ICJ after eight years of negotiations had failed. [FN223] Although Denmark was disappointed that the
Court's decision did not give it the full 200 miles off the coast of Greenland that it had asked for, the Court did not
draw a median line. [FN224] Norway received more area seaward of Greenland than it had (by agreement) from Ice-
land. [FN225] The boundary lines ultimately accepted by the parties differ from the line in the Judgment, apparently
as a result of negotiations involving possible oil and gas reserves in the area. [FN226]
Elettronica Sicula S.p.A. (ELSI) (United States v. Italy). In Elettronica Sicula, the United States maintained that
Italy had wrongfully breached their Treaty of Friendship, Commerce, and Navigation by requisitioning a business
owned by U.S. corporations without compensation. [FN227] Italy objected to the admissibility of the U.S. Applica-
tion to a Chamber of the Court, but the Chamber rejected the objection. [FN228] However, the Court held that the
Treaty had not been violated. [FN229]
In this case, where no direct legal obligations involving future action were indicated, the United States fulfills its
obligation under the Judgment simply by accepting it as legally dispositive of Italy's obligations under the Treaty.
The United States does not appear to have pursued the matter further.
*453 Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal). In Arbitral Award of 31 July 1989, Guinea-Bis-
sau requested that the Court declare the nonexistence or nullity of an arbitral award delimiting a maritime boundary
between itself and Senegal. [FN230] In 1991 the Court upheld the award, finding that it was “valid and binding” on
both states. [FN231] The two countries had disputed ownership of the area since oil was discovered in the 1980s. The
maritime dispute led to tensions on their mutual land border (which was clearly demarcated and never in dispute),
resulting in at least one armed conflict after Guinea-Bissau rejected the arbitral decision. [FN232]
Compliance in this case may be seen as more than simply taking the Judgment as dispositive (as in Elettronica
Sicula) because the Court also found that Guinea-Bissau and Senegal had an obligation to apply the award. [FN233]
At first, Guinea-Bissau rejected the Court's Judgment, [FN234] having eight months previously filed a separate ap-
plication with the ICJ for a new delimitation regardless of the outcome of Arbitral Award of 31 July 1989; [FN235]
but it later accepted an offer for bilateral talks. [FN236] Guinea-Bissau discontinued the second proceeding in 1995
when it ratified a 1993 treaty with Senegal implementing the Judgment. [FN237] Although it was possibly defiant for
a few years, the available information is too sparse to say that Guinea-Bissau did not comply with the Judgment in
any significant way, [FN238] especially as it officially complied in 1995 and continues, although unhappily, to ac-
cept the ruling. [FN239]
Territorial Questions Between Qatar and Bahrain (Qatar v. Bahrain). The dispute over the boundary between
Qatar and Bahrain stemmed from a 1939 British decision to give Bahrain ownership of various islands, including the
Hawar Islands. [FN240] Qatar opposed Britain's decision, and negotiations began around 1976 and ran for two dec-
ades but made little progress. [FN241] In 1986 Qatar forcibly seized twenty-nine Dutch laborers who were building a
Bahraini coast guard station [FN242] and war was averted only by Saudi mediation, [FN243] although the dispute
never escalated beyond trading strong statements in the media. [FN244]

98 Am. J. Int'l L. 434
Bahrain strongly objected when Qatar brought the case before the ICJ and indicated that it favored regional medi-
ation to resolve sovereignty over Hawar. [FN245] Bahrain added that it would *454 not participate in the Saudi-
backed mediation unless Qatar withdrew its ICJ filing, [FN246] but Qatar would agree to withdraw the case only if
the Saudi mediation settled the dispute. [FN247] Najib al-Nu'aymi, a Qatari government representative, noted that
Bahrain had refused to participate in the case for a time as a protest against the proceedings on jurisdiction. [FN248]
The Court found that both states had agreed to submit the dispute (over Bahraini protestations to the contrary) and in-
vited them to submit it in its entirety. [FN249] The Court then ruled that it had jurisdiction and that Qatar's unilateral
submission sufficed to put the dispute before it, [FN250] although several dissenting judges wrote that Bahrain had
never agreed to this course. [FN251]
After the rulings finding jurisdiction, Bahrain switched its stance and publicly supported the ICJ as the forum to
resolve the dispute, although with some misgivings. [FN252] When asked in an interview if Bahrain had changed its
position, Bahraini foreign minister Mohammed bin Mubarak al-Khalifa replied:
Bahrain continues to believe that the Saudi mediation still stands, and we hope that it will secure a solu-
tion to the problem. Qatar submitted a separate request to the ICJ which is now before the court. Bahrain also
has its own view on this separate request and the processing of the case in the court. We wanted to put matters
in their right context. [FN253]
As with many of its delimitation decisions, the ICJ divided the disputed territory between the two countries.
[FN254] Although Qatar fared well in the maritime portion of the Judgment, Bahrain was awarded the Hawar Is-
lands, [FN255] mirroring the situation on the ground. [FN256] The latter part of the decision was especially import-
ant for Bahrain because the Hawar Islands amounted to a third of its total land area. In his analysis of the Judgment,
Glen Plant puzzles over the fact that some of the reasoning was awkward and flew in the face of recent arbitrations
and established maritime delimitation law. [FN257] He suggests that the Court might have been trying to settle the
dispute in a way acceptable to the parties without doing much damage to international law. [FN258]
Such a resolution was probably wise. Bahrain had maintained through much of the litigation that it would not
cede any of its land [FN259] and would disregard any final decision by the ICJ. [FN260] In an interview, Bahraini
dissident Sa'id al-Shihabi pointed to the Judgment's maintenance of the status quo as essential: “Had the judgment
gone the other way, it would have had disastrous consequences. The Qatari Government has said it will abide by and
accept the court's judgment, while it is not clear what Bahrain's position would have been if the judgment had not
been in its favor.” [FN261] According to Shihabi, because the islands represent so much of its *455 territory, Bahrain
would not have accepted any ruling that involved losing sovereignty over Hawar. [FN262] The view that Bahrain
might not have been willing to abide by an adverse judgment is supported by an interview with Khalifa in April of
1997. [FN263] Although it is impossible to determine what Bahrain would have done had it lost Hawar, the Judg-
ment appears to have definitively settled the dispute.
The Court did reach a decision both parties could agree to comply with; they accepted the Judgment and declared
the following day a national holiday to celebrate the end of the dispute and better relations between the countries.
[FN264] The emir of Qatar said that “[d]espite the pain we feel [over Hawar Islands], we think that the court award
has put an end to the dispute ... We realize that our sacrifice will not be in vain since it lays the foundation for closer,
broader and unblemished relations between Qatar and Bahrain.” [FN265] The emir of Bahrain called the Judgment a
“historic victory” and “a glorious day” bringing “a new era of understanding.” [FN266] Soon after the ruling, both
states began to work on reallocating oil and gas exploration rights. [FN267]
Kasikili/Sedudu Island (Botswana/Namibia). The dispute over the island at issue in the Kasikili/Sedudu case is of
comparatively recent origin, dating from 1992. [FN268] For a few years before the Court's decision, Botswana had
stationed a “small military presence” on the island, ostensibly to “combat poaching.” [FN269] The dispute over
Kasikili/Sedudu formed part of a much larger dispute about many more islands in the Kwando-Linyanti-Chobe River,
which borders the two countries on the Caprivi Strip. [FN270] Kasikili/Sedudu itself is totally lacking in permanent

98 Am. J. Int'l L. 434
inhabitants, completely flooded for part of the year, and virtually bereft of economic value. [FN271] Its area amounts
to about 3.5 square kilometers. [FN272] The case was brought by special agreement and both governments agreed
beforehand that they would accept the Judgment of the Court as an end to the dispute. [FN273]
In 1999 the Court awarded Kasikili/Sedudu to Botswana, and took the initiative to say that nationals and vessels
from the two states were entitled to equal treatment in both channels around the island. [FN274] After the verdict,
Namibian President Sam Nujoma released a statement saying that “[a]s a law-abiding nation and consistent with our
undertaking, I wish to [as]sure the international community that Namibia will abide by the verdict of the ICJ and re-
spect it fully.” The permanent secretary of the Ministry of Justice for Namibia said he was disappointed, but that “we
have no choice but to respect the decision of the International Court of Justice.” [FN275] In short order, the two
states set up a joint technical commission that officially demarcated the entire length of the Chobe, concluding its
work in 2003. [FN276]
*456 Arrest Warrant of 11 April 2000 (Congo v. Belgium). In Arrest Warrant of 11 April 2000, the Democratic
Republic of the Congo asked the Court to declare that a warrant issued by Belgium for the arrest of Abdulaye Yero-
dia Ndombasi, then Congolese minister of foreign affairs, was unlawful and to enjoin Belgium from executing it.
[FN277] Belgium contested on admissibility, jurisdiction, and the merits but lost on all three, the Court ruling that
foreign ministers and heads of state enjoy immunity from third states while they are in office. [FN278] The Court de-
clared that Belgium must cancel the warrant and so inform those to whom it had been circulated, [FN279] and Belgi-
um complied. [FN280] Though Yerodia was no longer a foreign minister at the time of the decision, no new warrant
was issued. [FN281] The Belgian Cour de cassation has since apparently applied the ICJ Judgment as customary in-
ternational law in the case against Ariel Sharon, holding that he can be charged with war crimes after he leaves of-
fice. [FN282] Belgian compliance became completely assured when (under pressure from the United States) it re-
pealed its law creating universal jurisdiction, although it has allowed several pending trials to go forward. [FN283]
Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia). In Sovereignty over Pulau Ligitan and
Pulau Sipadan, Indonesia and Malaysia asked the Court to determine sovereignty over Ligitan and Sipadan, two
small islands off the northeast coast of Borneo. The Court awarded both islands to Malaysia on December 18, 2002.
[FN284] Indonesia indicated that it would respect the Judgment despite its disappointment with the outcome.
[FN285]
Oil Platforms Case (Iran v. United States). In Oil Platforms, Iran asked the ICJ to find that the United States had
breached its obligations under a 1955 treaty of amity by attacking its oil platforms in 1987 and 1988, and requested
reparations. The United States counterclaimed that Iran owed it reparations for attacking U.S. ships in the Persian
Gulf. [FN286] Although the Court found that the U.S. actions were not justified, it held that neither state had a legal
right to reparations under the treaty. [FN287] As in Elettronica Sicula, the Judgment carried no obligation to take fu-
ture action, leaving no compliance issue unless either state insists on pursuing its grievance under the treaty. [FN288]
III. FACTORS INFLUENCING COMPLIANCE
All of the final judgments significantly affected state conduct, and most of them completely ended the underlying
dispute. In fourteen cases that reached final judgments on the merits, five involved some form of noncompliance.
[FN289] Each of those five, however, has seen significant *457 efforts toward compliance. Various bases for distin-
guishing between the cases of compliance and those of partial noncompliance are set out below, and the data are
presented in table 1 (p. 458). [FN290]
TABLE 1. COMPLIANCE WITH ICJ FINAL JUDGMENTS SINCE 1987

98 Am. J. Int'l L. 434
Case Compli Jurisdict Underly Nature Extensi History Armed Political

FN
ance Level ion Con- ing Subject of Case and ve Prior of Armed Forces: Regime Int
[FN1]
tested? / Matter Relative Negoti- Conflict? Loser/ ern
FN
Desire to Importance ation? Winner ati
FN [FN1] [FN2]
Be in For- on-
FN
um al
[FN1]
Pre
ssu
re
to
Co
mp
ly?
FN
[F
N1
]
Elettron High No (suit Requisit Econom Yes No 2240/50 Democr

ica Sicula (claim ap- was unilat- ion without ic; low 6 atic N
FN
S.p.A. parently eral) compensa- ot
[FN3]
dropped) / tion sig
High ni-
fic-
ant
Arbitral High No (suit Maritim Mostly Yes (?) Yes 12/18 Semi-de
Award of (but a few was unilat- e boundary economic; (one armed mocratic Si
31 July years of un- eral) / High high clash) gni
1989 certainty) fic-
ant
Maritim High No (suit Maritim Econom Yes (8 No 27/32 Democr

e Delimita- (parties ne- was unilat- e boundary ic; medium years) atic N
tion, Green- gotiated ful- eral) / High ot
land & Jan fillment of sig
Mayen delimita- ni-
tion) fic-
ant
(?)
Land, Medium No Land Mostly Yes Yes 49/17 Semi-de

Island and (demarcatio (special and mari- political, (full-scale mocratic Si
Maritime n slow) agreement) time bound- some eco- war) gni
Frontier / High ary nomic; high fic-
ant

98 Am. J. Int'l L. 434
Territori Medium No Land Strategi Yes Yes 80/40 Authorit

al Dispute (control (special boundary c, some (full-scale arian Si
still con- agreement) political; war) gni
tested) / High at high fic-
first ant
Gabc Medium No Dammi Strategi Yes No 43/37 Democr

íkovo- (protracted (special ng of river; c and eco- atic Si
Nagymaros negoti- agreement) environ- nomic; me- gni
Project ations) / High mental dium fic-
damage ant
Kasikili High No River Domesti No (?) No 3/8 Semi-de

/Sedudu Is- (delimitatio (special boundary c political (armed mocratic N
land n com- agreement) (including and stra- presence ot
pleted) / High island) tegic; low only) sig
ni-
fic-
ant
(?)
Maritim High Yes Maritim Econom Yes (15 No 12/9 Authorit

e Delimita- (delimitatio (suit was e boundary ic, some years) arian Si
tion, Qatar n com- unilateral) / (including strategic; gni
& Bahrain pleted) High islands) high fic-
ant
LaGran Medium Yes Consula Domesti No No 1490/33 Democr

d (inadequate (suit was r notifica- c political; 1 atic Si
review/ re- unilateral) / tion and medium gni
considera- Low remedies fic-
tion) ant
Arrest High Yes Arrest Domesti No No 42/55 Democr

Warrant of (relevant (suit was warrant on c political; atic Si
11 April law was unilateral) / current for- medium gni
2000 changed) Low eign minis- fic-
ter ant
Land & Medium Yes Land Econom Yes Yes 77/15 Semi-de
Maritime (negotiation (suit was and mari- ic; low to (various mocratic Si
Boundary, s continu- unilateral) / time bound- medium armed gni
Cameroon ing) Low ary (land) Stra- clashes) fic-
& Nigeria tegic; high ant
(maritime)

98 Am. J. Int'l L. 434
Soverei High No Maritim Econom Some No 296/95 Semi-de

gnty, Pulau (delimitatio (special e boundary ic; medium mocratic N
Ligitan/Pu- n accepted) agreement) (including ot
lau Sipadan / High island) sig
ni-
fic-
ant
(?)
Sources: The sources for this table include the relevant ICJ cases and the following publications: U.S. DEP'T OF
STATE, BUREAU OF VERIFICATION AND COMPLIANCE, WORLD MILITARY EXPENDITURES AND ARMS
TRANSFERS 1999-2000 (28th ed. 2002) (the latest military figures are for 1999); UCLA COMMITTEE ON LATIN
AMERICAN STUDIES, STATISTICAL ABSTRACT OF LATIN AMERICA (2002).
FN1. The data refer to the “losing” state.

FN2. The figures are in thousands and reflect the situation at the time of the judgment.
FN3. Italy contested the admissibility of this case.
Jurisdiction
There was no link between submission by special agreement and compliance, as three of the five states that
signed a special agreement complied only in part with the judgment. Of the five states that contested jurisdiction,
only two were not in compliance. Jurisdiction was contested in five of the seven cases not brought by special agree-
ment. [FN291] Unilateral application was an important factor: all five of the states that brought unilateral suits and
lost accepted the judgment as controlling. [FN292] Conversely, only one of the five cases where a state was unwill-
ingly brought to court and then lost saw full compliance with the verdict. [FN293] No state ignored the Court and
only one refused to participate, and in a limited context at that. [FN294]
Land/Maritime Boundary Cases
Disputes involving land boundaries and a history of armed conflict received the lowest levels of compliance.
Four of the five disputes marked by noncompliance involved a dispute over a land boundary [FN295] and three of the
five had a history of armed conflict. The decision in the Qatari-Bahraini dispute was the only judgment concerning
substantial amounts of land that met with full compliance. In contrast, the Court's decisions on maritime boundaries
were respected by the parties in six of seven instances, [FN296] including by Guinea-Bissau and Senegal, which
were involved in at least one related armed conflict. Libya, which demonstrated some compliance problems in the
Aouzou, complied with the judgments of the Court in two maritime boundary cases in which it had previously been
involved. [FN297] Disputes that concerned large numbers of people or large land areas were the least likely to end in
full compliance.
Other Factors
Whether the dispute related primarily to political questions or economic resources was also a factor, as five of six
cases that were primarily economic in nature resulted in compliance, as opposed to only one of six involving mainly

98 Am. J. Int'l L. 434
political or strategic considerations. International pressure to comply played a prominent role in many states' de-
cisions to implement the judgments, as did internal political pressure and a desire simply to end the conflict. States
that were relatively powerful militarily were less compliant when they lost than evenly matched or less powerful
states. Willingness to appear before the ICJ was also an important factor, as the two (or perhaps three) states that
were unwilling participants and lost were all partially noncompliant.
*460 The extensive negotiations aimed at solving the dispute that preceded many of the cases did not appear to
affect compliance. Moreover, even though several of the participating states changed governments during the period
of litigation or implementation, it did not affect their attitude toward compliance. Autocratic states were no more
likely to disregard a judgment than democracies. Finally, the Security Council played a small (though definite) role
in the implementation of two cases. [FN298]
IV. CONCLUSION
Comparisons with Pre-1987 Cases
The above examination clearly supports Charney's chief empirical observation, that final judgments receive a
great deal of deference, as well as both Charney's and Gross's assertions that willingness to appear before the Court
relates directly to compliance. Gross's conclusion that judgments were of differing importance to the underlying dis-
putes also holds true for the post-1987 cases. Surprisingly, the connection both studies found between special agree-
ments and compliance did not figure in the recent cases. In part, this discrepancy may derive from the stricter stand-
ard of compliance used here than in Charney's study, though it is harder to explain in the context of Gross's study. At
first glance, the overall percentage of full compliance as measured by Charney, 80 percent from 1946 to 1987, ap-
pears to have decreased since 1987, to 60 percent from 1987 to 2004. However, as most cases of partial compliance
could be characterized as mostly or nearly compliant, overall compliance has probably increased or, at least, stayed
roughly the same.
Interestingly, cases of noncompliance have not seemed to undermine states' attraction to the ICJ. Instances of
compliance and noncompliance have been coincident over the past fifteen years, while the Court's docket has steadily
grown. [FN299] States' resistance to the Court through nonparticipation and nonappearance, which Charney found to
implicate its credibility in 1987, [FN300] was virtually nonexistent in the later cases studied.
Future Directions
The Court's compliance record is good, though not perfect. The ICJ is fulfilling its role as part of the United Na-
tions system designed to “maintain international peace and security” and “achieve international co-operation in solv-
ing international problems.” [FN301] That there have been continued problems in some cases simply speaks to the
limited ability of legal decisions to solve complicated political questions. Further studies involving comparisons with
other dispute resolution methods should be made to enhance our understanding of the meaning and significance of
the Court's record. An analysis of similar cases decided by arbitral and other international tribunals would be useful,
as would the inclusion of cases that did not make it to a final judgment. [FN302]
*461 Given the Court's current docket, how to improve the compliance record in land boundary disputes takes on
special importance. The legal component of such disputes is straightforwardly judiciable and well suited to the ICJ,
[FN303] and it plays a major role in the Court's recent work. Unfortunately, states have shown less willingness to re-
spect the land boundaries drawn by the ICJ than perhaps they could. An ICJ judgment may be the best possible resol-
ution to such conflicts, even if compliance falls short. However, where difficulties (technical or otherwise) in imple-
mentation may be foreseen, a formally available postjudgment procedure might be helpful. The administrative as-

98 Am. J. Int'l L. 434
pects of compliance in such complex disputes deserve more attention in this context.
[FNa1]. Columbia University School of Law, 2004; clp2008@columbia.edu.
[FN1]. Robert Jennings, Presentation, in INCREASING THE EFFECTIVENESS OF THE INTERNATIONAL

COURT OF JUSTICE: PROCEEDINGS OF THE ICJ/UNITAR COLLOQUIUM TO CELEBRATE THE 50TH AN-
NIVERSARY OF THE COURT 78 (Connie Peck & Roy S. Lee eds., 1997) [hereinafter ICJ/UNITAR COLLOQUI-
UM]; Philippe Couvreur, The Effectiveness of the International Court of Justice in the Peaceful Settlement of Inter-
national Disputes, in THE INTERNATIONAL COURT OF JUSTICE: ITS FUTURE ROLE AFTER FIFTY YEARS
83, 112 (A. S. Muller et al. eds., 1997) [hereinafter ICJ FUTURE ROLE]; COMPLIANCE WITH JUDGMENTS OF
INTERNATIONAL COURTS (M. Butlerman & M. Kuijer eds., 1996).
[FN2]. Couvreur, supra note 1, at 112 n.75.
[FN3]. Jennings, supra note 1, at 81.
[FN4]. This article will not deal with compliance with provisional measures or other interlocutory orders, or with ad-
visory opinions.
[FN5]. Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ REP. 14
(June 27).
[FN6]. Jonathan I. Charney, Disputes Implicating the Institutional Credibility of the Court: Problems of Non-
Appearance, Non-Participation, and Non-Performance, in THE INTERNATIONAL COURT OF JUSTICE AT A
CROSSROADS 288 (Lori Fisler Damrosch ed., 1987).
[FN7]. Charney reports only four cases of noncompliance with final judgments. Id. at 296, 300. The oldest of these
four cases, Corfu Channel (UK v. Alb.), 1949 ICJ REP. 4 (Apr. 9), was later resolved. Jennings, supra note 1, at 81.
Three other cases were too recent to determine compliance in 1987, although it now appears that all three decisions
have been successfully implemented. Libya and Tunisia reached an agreement implementing the Judgment in Applic-
ation for Revision and Interpretation of the Judgment of 24 February 1982 in Continental Shelf (Tunisia/Libya)
(Tunis. v. Libya), 1985 ICJ REP. 192 (Dec. 10). Stefano Ciarli & Keith McLachlan, A Bibliographic Review: Studies
of Libya's International Borders, 27 LIBYAN STUD. 89 (1996) (noting that the parties reached an agreement imple-
menting the 1982 ICJ Judgment in 1988 and concurrently established a joint economic exploration zone). It also
looks as if the Judgment in Continental Shelf (Malta/Libya), 1985 ICJ REP. 13 (June 3), has been respected. See
Malta-Libya Treaty of Friendship and Co-operation (Ratification), Dec. 7, 1984, amended in 1990, referencing
Agreement Implementing Article III of the Special Agreement and the Judgement of the ICJ Signed in Valletta on
the 10th November 1986, available at <http:// www.justice.gov.mt/documents/english/leg/vol_7/chapt311.pdf>; Fin-
anz-Adressen, Oil Exploration in Malta, at <http://www.finanz-adressen.de/europa/M-oil.html> (visited Apr. 26,
2004). Finally, the decision in Frontier Dispute (Burkina Faso/Mali), 1986 ICJ REP. 554 (Dec. 22), has also been
complied with. See ICJ Press Communiqué 87/1 (Jan. 16, 1987); PIERRE ENGLEBERT, BURKINA FASO: UN-
STEADY STATEHOOD IN WEST AFRICA 153-56 (1996); FREDERIC LEJAL, LE BURKINA FASO 128-29
(2002); J. G. Merrills, The International Court of Justice and the Adjudication of Territorial and Boundary Disputes,
13 LEIDEN J. INT'L L. 873 (2000).
[FN8]. Charney, supra note 6, at 297.
[FN9]. Id. at 310-19 (ten of twenty-eight cases that reached significant stages of litigation in the period 1947-1987
involved some form of nonappearance or nonparticipation).

98 Am. J. Int'l L. 434
[FN10]. Id. at 297.
[FN11]. “Generally speaking, since there is not much information relating to the post-adjudicative phase, one can
only offer some impressionistic views.” Leo Gross, Compulsory Jurisdiction Under the Optional Clause: History
and Practice, in THE INTERNATIONAL COURT OF JUSTICE AT A CROSSROADS, supra note 6, at 19, 45.
[FN12]. Id. at 45-46.
[FN13]. Id.
[FN14]. Most point to a few well-known problem cases, but assert an overall clean record of compliance. See, e.g.,
CHANDAN BALA, INTERNATIONAL COURT OF JUSTICE: ITS FUNCTIONING AND SETTLEMENT OF IN-
TERNATIONAL DISPUTES 145-59, 210 (1998); Couvreur, supra note 1; Gilbert Guillaume, Del'Exécution des
décisions de la Cour internationale de Justice, 7 SWISS REV. INT'L & EUR. L. 431 (1997).
[FN15]. Merrills, supra note 7.
[FN16]. D. P. Forsythe, The International Court of Justice at Fifty, in ICJ FUTURE ROLE, supra note 1, at 385.
[FN17]. See Beth A. Simmons, Compliance with International Agreements, 1998 ANN. REV. POL. SCI. 75, 79
(compliance may be measured by expectations, intentions, and standards); see also ABRAM CHAYES & ANTONIA
HANDLER CHAYES, THE NEW SOVEREIGNTY: COMPLIANCE WITH INTERNATIONAL REGULATORY
AGREEMENTS 17-22 (1995) (conduct may be measured in terms of its relative importance and cost, and the expect-
ations of the parties).
[FN18]. The dispositif is binding as it is explained by the rest of the opinion. This definition merges the standard
definitions of compliance (behavior) and implementation (actions that facilitate or result in compliance). See Kal
Raustiala & Anne-Marie Slaughter, International Law, International Relations and Compliance, in HANDBOOK OF
INTERNATIONAL RELATIONS 538, 539 (Walter Carlsnaes et al. eds., 2002).
[FN19]. See Gabc íkovo-Nagymaros Project (Hung./Slovk.), 1997 ICJ REP. 1, paras. 141-47 (Sept. 25), reprinted in
37 ILM 162 (1998) (stating duty of parties to apply a treaty “in a reasonable way and in such a manner that its pur-
pose can be realized,” and duty “to give effect to the Judgment of the Court”).
[FN20]. See Avena and Other Mexican Nationals (Mex. v. U.S.) (Mar. 31, 2004), 43 ILM 581, paras. 134-35,
140-43, 151 (2004) [hereinafter Avena]; infra notes 112, 179, 274, and corresponding text. The Court expects the
parties to use the judgment to help end the dispute, and they understand this. Belgium, as regards the Arrest Warrant
Judgment, and the United States, as regards the LaGrand Judgment, have acted consistently with this principle; and
Slovakia and Hungary have expected it in their negotiations following the Gabc íkovo Judgment, as discussed below.
In some cases, the duty to give effect to a judgment requires interpreting “case” under Article 59 of the Statute of the
Court to include matters not explicitly mentioned in the judgment. The Statute itself uses both “case” and the broader
term “dispute” to describe the scope of a matter before the Court. ICJ STATUTE Arts. 36, 39, 40.
[FN21]. Haya de la Torre (Colom. v. Peru), 1951 ICJ REP. 71, 79 (June 13); B. A. Ajibola, Compliance with Judg-
ments of the International Court of Justice, in COMPLIANCE WITH JUDGMENTS OF INTERNATIONAL
COURTS, supra note 1, at 9, 12; see also Mohamed Shahabuddeen, The World Court at the Turn of the Century, in
ICJ FUTURE ROLE, supra note 1, at 3, 19.
[FN22]. Effectiveness might be measured by the resolution of the dispute at hand, the quality of the opinion, the de-
velopment of international law, the effect on the docket, the effects on third parties, or the effects on similar disputes
and on international relations in general.

98 Am. J. Int'l L. 434
[FN23]. Mohammed Bedjaoui, Presentation, in ICJ/UNITAR COLLOQUIUM, supra note 1, at 22 (observing that on
a number of occasions, incidental proceedings have “made a decisive contribution not only to the settlement of dis-
putes of very different kinds, but also, directly, to the maintenance or restoration of peace between the parties”); see
also Ajibola, supra note 21, at 34-37.
[FN24]. Abram Chayes & Antonia Handler Chayes, On Compliance, in INTERNATIONAL INSTITUTIONS: AN
INTERNATIONAL ORGANIZATION READER 247, 249 (Lisa L. Martin & Beth A. Simmons eds., 2001); Gross,
supra note 11.
[FN25]. The cases are Elettronica Sicula S.p.A. (ELSI) (U.S. v. Italy), 1989 ICJ REP. 15 (July 20); Arbitral Award of
31 July 1989 (Guinea-Bissau v. Sen.), 1991 ICJ REP. 53 (Nov. 12); Land, Island and Maritime Frontier Dispute (El
Sal./Hond.: Nicar. Intervening), 1992 ICJ REP. 351 (Sept. 11); Maritime Delimitation in the Area Between Green-
land and Jan Mayen (Den. v. Nor.), 1993 ICJ REP. 38 (June 14) [hereinafter Jan Mayen]; Territorial Dispute
(Libya/Chad), 1994 ICJ REP. 6 (Feb. 13); Gabc íkovo-Nagymaros Project, supra note 19; Kasikili/Sedudu Island
(Bots./Namib.), 1999 ICJ REP. 1045 (Dec. 13); Maritime Delimitation and Territorial Questions Between Qatar and
Bahrain (Qatar v. Bahr.), Merits (Mar. 16, 2001), 40 ILM 847 (2001) [hereinafter Qatar v. Bahrain]; LaGrand (Ger.
v. U.S.) (June 27, 2001), 40 ILM 1069 (2001); Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002
ICJ REP. 3 (Feb. 14); Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nig.) (Int'l Ct.
Justice Oct. 10, 2002); Sovereignty over Pulau Ligitan and Pulau Sipadan (Indon./Malay.) (Int'l Ct. Justice Dec. 17,
2002); Oil Platforms (Iran v. U.S.), Merits (Int'l Ct. Justice Nov. 6, 2003); and Avena, supra note 20. All ICJ de-
cisions, opinions, and materials cited in this article, except Arbitral Award of 31 July 1989 and communiqués before
1992, are available online at <http://www.icj-cij.org>.
[FN26]. Within the basic divisions of compliance and partial noncompliance, the cases are ordered chronologically
by date of final judgment.
[FN27]. This article relies almost exclusively on public sources to determine compliance. In all cases where a source
was less reliable, such as in news media, the information was confirmed through numerous separate sources. Where
scant data are available, and no public complaints have been made, compliance has been assumed. All Internet and
electronic database sources are on file with the author.
[FN28]. El Salvador: Calderon Sol Says Border Dispute ‘Exaggerated’ by Press, EL DIARIO DE HOY, Foreign
Broadcast Information Service [FBIS], Doc. FBIS-LAT-96-168 (Aug. 26, 1996). All FBIS documents were trans-
lated by the FBIS and are available online at <http://www.wnc.fedworld.gov>. President of El Salvador on ICJ Rul-
ing on Border Dispute, BBC Summary of World Broadcasts, Sept. 14, 1992, available in LEXIS, News Library,
Allnws File.
[FN29]. Resource Center of the Americas, Finding Renews Border Dispute (Nov. 10, 2002), at
<http://www.americas.org>.
[FN30]. HONDURAS: A COUNTRY STUDY 39, 43-44, 69, 204 (Tim L. Merrill ed., 3d ed. 1995).
[FN31]. A 1980 treaty following OAS-assisted mediation provided that any disputes not settled in five years would
be jointly submitted to the ICJ. Merrills, supra note 7, at 876.
[FN32]. Geography of Honduras, LIBRARY OF CONGRESS STUDIES, AREA HANDBOOK, available at

<http://www.worldfacts.us> (visited Apr. 29, 2004); BBC Summary of World Broadcasts, supra note 28.
[FN33]. BBC Summary of World Broadcasts, supra note 28.
[FN34]. Id.; Commander in Chief Rules out Possible Conflict with El Salvador, BBC Summary of World Broadcasts,

98 Am. J. Int'l L. 434
Sept. 18, 1992, available in LEXIS, News Library, Allnws File.
[FN35]. President of El Salvador on ICJ Ruling on Border Dispute, supra note 28.
[FN36]. Honduran-Salvadoran Relations “Strained” After Border Incident, BBC Summary of World Broadcasts,
Sept. 11, 1995, available in LEXIS, News Library, Allnws File.
[FN37]. Id.
[FN38]. Merrills, supra note 7, at 899 (Burkina Faso and Mali required the use of a geostationary satellite and finan-
cial help from Switzerland to resolve their demarcation issues, and Nicaragua and Honduras required three years and
OAS assistance for their demarcation and the transfer of four thousand people from the affected areas).
[FN39]. EL DIARIO DE HOY, supra note 28.
[FN40]. Tension on El Salvador-Honduras Border Reported Due to Spat over Timber, BBC Summary of World
Broadcasts, Feb. 27, 1997, available in LEXIS, News Library, Allnws File.
[FN41]. Week in Review, HONDURAS THIS WEEK ONLINE 49 (Dec. 4, 2000), at < ht-
tp://www.marrder.com/htw/>.
[FN42]. Id.; El Salvador: Binational Follow-up Commissions Discuss Border Problems, EL DIARIO DE HOY, Doc.
FBIS-LAT-97-159 (June 8, 1997).
[FN43]. EL DIARIO DE HOY, supra note 42.
[FN44]. JORGE I. DOMINGUEZ ET AL., BOUNDARY DISPUTES IN LATIN AMERICA 30 (U.S. Institute of
Peace, Peaceworks No. 50, 2003), available at <http:// www.isp.org>.
[FN45]. RESOURCE CENTER OF THE AMERICAS, supra note 29. Honduras claimed in January 2002 that not
one of the nine pockets delimited in 1992 had been officially demarcated. Letter Dated 22 January 2002 from the
Chargé d'Affaires a.i. of the Permanent Mission of Honduras to the United Nations Addressed to the President of the
Security Council, UN Doc. S/2002/108, annex (Jan. 23, 2002).
[FN46]. Honduran, Salvadoran Presidents' Declaration, EL DIARIO DE HOY, Doc. FBIS-LAT-95-107 (June 3,
1995); El Salvador, Honduras: ‘Joint Declaration’ to Prevent Spread of Border Problems, EL DIARIO DE HOY,
Doc. FBIS-LAT-97-041 (Feb. 26, 1997); Honduras and El Salvador Sign Agreement on Border Demarcation, BBC
Summary of World Broadcasts, Jan. 23, 1998, available in LEXIS, News Library, Allnws File; Salvador, Honduras
Relaunch Border Demarcation, Xinhua General News Service, Oct. 31, 2002, available in LEXIS, News Library,
Allnws File.
[FN47]. Letter Dated 28 November 2000 from the Permanent Representative of Honduras to the United Nations Ad-
dressed to the Secretary-General, UN Doc. S/2000/1142, annex (Dec. 1, 2000).
[FN48]. UN Doc. S/2002/108, supra note 45, appendix.
[FN49]. Id.; Letter Dated 11 March 2002 from the Chargé d'Affaires a.i. of the Permanent Mission of Honduras to
the United Nations Addressed to the President of the Security Council, UN Doc. S/2002/251, annex (Mar. 11, 2002)
(accusing El Salvador, by means of a reservation made in February 2002 to a multinational treaty concerning the Pa-
cific, of challenging and disregarding “both the letter and the spirit” of the ICJ Judgment).
[FN50]. Bernard H. Oxman, The Rule of Law and the United Nations Convention on the Law of the Sea, 7 EUR. J.
INT'L L. 353, 368 n.25 (1996); see United Nations Convention on the Law of the Sea, opened for signature Dec. 10,

98 Am. J. Int'l L. 434
1982, Art. 298(1)(a)(i), 1833 UNTS 397.
[FN51]. Letter Dated 24 September 2002 from the Chargé d'Affaires a.i. of the Permanent Mission of El Salvador to
the United Nations Addressed to the President of the Security Council, UN Doc. S/2002/1102, appendix (Oct. 2,
2002).
[FN52]. ICJ Press Release 2002/21 (Sept. 10, 2002).
[FN53]. Letter Dated 23 October 2002 from the Chargé d'Affaires a.i. of the Permanent Mission of El Salvador to the
United Nations Addressed to the President of the Security Council, UN Doc. S/2002/1194, annex (Oct. 2, 2002); Let-
ter Dated 17 September 2002 from the Minister for Foreign Affairs of Honduras Addressed to the President of the
Security Council, UN Doc. S/2002/1088, annex (Sept. 27, 2002).
[FN54]. Xinhua General News Service, supra note 46.
[FN55]. Central America: Political Press Review, BBC Worldwide Monitoring, Jan. 6, 2004, available in LEXIS,
News Library, Allnws File (observing that without international help, full demarcation is unlikely).
[FN56]. Honduran Navy Commander: Nicaragua ‘Provoked’ Incident, Agence France-Presse, Doc. FBIS-
LAT-2000-0220 (Feb. 20, 2000) (Honduran and Nicaraguan gunboats exchanged shots along the border, though they
have worked together to try to demarcate it).
[FN57]. A Threat to CA Peace, HONDURAS THIS WEEK ONLINE (June 9, 1997), at < ht-
tp://www.marrder.com/htw/>; Week in Review, HONDURAS THIS WEEK ONLINE 35 (Sept. 16, 2002), at id.
[FN58]. Despite More Obstacles, Solution Imminent in Gulf Border Conflict, HONDURAS THIS WEEK ONLINE
59 (June 24, 1997), at id. Honduras also accused Nicaragua of blocking its access to the Pacific. Minister: Nicaragua
Blocking Honduran Vessels, Nomitex, Doc. FBIS-LAT-1999-1224 (Dec. 24, 1999).
[FN59]. Land, Island and Maritime Frontier Dispute, supra note 25, 1992 ICJ REP. at 609-10. But see SHABTAI
ROSENNE, INTERVENTION IN THE INTERNATIONAL COURT OF JUSTICE 148-55 (1993) (criticizing the
Judgment on this point, and noting that Nicaragua had stated that it intended to be bound by the Judgment).
[FN60]. 1992 ICJ REP. at 606-09; see also Jonathan I. Charney, Progress in International Maritime Boundary De-
limitation Law, 88 AJIL 227 (1994).
[FN61]. Application for Revision of the Judgment of 11 September 1992 in the Case Concerning the Land, Island
and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening) (El Sal. v. Hond.) (Int'l Ct. Justice
Dec. 18, 2003).
[FN62]. Honduras Pleased International Court to Handle Border Dispute, Agence France-Presse, Dec. 9, 1999,
available in LEXIS, News Library, Allnws File.
[FN63]. GUY ARNOLD, THE MAVERICK STATE: GADDAFI AND THE NEW WORLD ORDER 75, 77 (1996).
The Aouzou Strip is a 114,000-square-kilometer border area between the two states.
[FN64]. Id. Libya lost much of its financial ability to continue the war because of rising national debt and falling oil
prices. J. MILLARD BURR & ROBERT O. COLLINS, AFRICA'S THIRTY YEARS WAR: LIBYA, CHAD, AND
THE SUDAN, 1963-1993, at 236-37 (1999).
[FN65]. ARNOLD, supra note 63, at 77.
[FN66]. Id.

98 Am. J. Int'l L. 434
[FN67]. Id.; see also MARY-JANE DEEB, LIBYA'S FOREIGN POLICY IN NORTH AFRICA 132 (1991) (Libya
wants the Aouzou uranium reserves “for economic as well as political reasons”). Whether there actually is uranium
in the Aouzou region is contested: “Tuons immédiatement quelques mythes! ... La bande d'Aozou [sic] ne contient
pas d'uranium ....” Pierre Conesa, Le Tchad des crises à répétition, LE MONDE-DIPLOMATIQUE, MAY 2001, at
23, available at < http://www.monde-diplomatique.fr/2001/05/CONESA/15145>.
[FN68]. DEEB, supra note 67, at 182.
[FN69]. See Memorial of the Great Socialist Libyan People's Jamahiriya (Libya/Chad), pts. III, IV (Aug. 26, 1991).
[FN70]. Christopher Greenwood, The International Court of Justice and the Use of Force, in FIFTY YEARS OF
THE INTERNATIONAL COURT OF JUSTICE: ESSAYS IN HONOUR OF SIR ROBERT JENNINGS 373, 384
(Vaughan Lowe & Malgosia Fitzmaurice eds., 1996) (likening this case to Frontier Dispute (Burk. Faso/Mali), where
both parties felt that the ICJ's provisional measures would strengthen a cease-fire agreement); see also SAM C.
NOLUTSHUNGU, LIMITS OF ANARCHY: INTERVENTION AND STATE FORMATION IN CHAD 227-28
(1996) (both countries had other pressing interests, and wanted to be seen making progress with diplomacy).
[FN71]. Dapo Akande, The Role of the International Court of Justice in the Maintenance of International Peace, 8
AFR. J. INT'L & COMP. L. 592, 609 (1996).
[FN72]. Ajibola, supra note 21, at 17. Chad received financial assistance for the litigation from the UN secretary-gen-
eral's ICJ trust fund. Peter H. F. Bekker, International Legal Aid in Practice: The ICJ Trust Fund, 87 AJIL 659, 666
n.45 (1993).
[FN73]. BURR & COLLINS, supra note 64, at 262. Libyan support for Déby was actually a breach of the special
agreement submitting the dispute to the ICJ. See infra note 78.
[FN74]. ARNOLD, supra note 63, at 77-78.
[FN75]. BURR & COLLINS, supra note 64, at 268.
[FN76]. Burr & Collins speculate that Déby was showing his new constituency he was a Chadian nationalist, and not
under Qaddafi's thumb. Id.
[FN77]. Territorial Dispute (Libya/Chad), 1990 ICJ REP. 149 (Oct. 26).
[FN78]. From the date of its signing, Libya was in continuous violation of the 1989 special agreement for supporting
attempts at a coup d'état against Habré's government. See Fundamental Agreement on the Peaceful Settlement of the
Territorial Dispute, Aug. 31, 1989, Chad/Libya, 29 ILM 15, 16-17 (1990) (agreement to “refrain from interfering dir-
ectly or indirectly ... in the internal or foreign affairs” of the other and “withhold all political, material, financial, or
military aid from forces hostile” to the other country).
[FN79]. Continental Shelf (Tunis./Libya), 1982 ICJ REP. 18 (Feb. 24); Continental Shelf (Libya/Malta), 1985 ICJ
REP. 13 (June 3); see Ciarli & McLachlan, supra note 7 (noting that the results of both cases were comparatively fa-
vorable to Libya).
[FN80]. Territorial Dispute, supra note 25, 1994 ICJ REP. at 40.
[FN81]. Libya Reinforcing Aouzou Strip, Radio France Internationale, Feb. 13, 1994, at
<http://www-ibru.dur.ac.uk>; Libya Rules out Withdrawal, Moroccan Radio, Feb. 19, 1994, at id.
[FN82]. ARNOLD, supra note 63, at 78.

98 Am. J. Int'l L. 434
[FN83]. Letter Dated 13 April 1994 from the Secretary-General Addressed to the President of the Security Council,
UN Doc. S/1994/432, 33 ILM 791 (1994), available at <http://www.un.org/Depts/dpko/dpko/co_ mission/
n9424007.pdf>.
[FN84]. Libya Prepared to Withdraw from Aouzou Strip, Jana News Agency (Tripoli), Mar. 10, 1994, at
<http://www-ibru.dur.ac.uk>.
[FN85]. Roy Lee, Intervention, in ICJ/UNITAR COLLOQUIUM, supra note 1, at 361.
[FN86]. SC Res. 915 (May 4, 1994), 33 ILM 791 (1994); UN Doc. S/1994/432, supra note 83.
[FN87]. SC Res. 915, supra note 86.
[FN88]. Report of the Secretary-General on the United Nations Aouzou Strip Observer Group, UN Doc. S/1994/672,
available at <http:// www.un.org/depts/dpko/missions/unasog.htm>.
[FN89]. ARNOLD, supra note 63, at 78; see also BURR & COLLINS, supra note 64, at 278.
[FN90]. Ali Delali, Libya-Chad: Kadhafi's Appeal to His Compatriots, Africa News Service, May 11, 1998, at
<http://www.allafrica.com>.
[FN91]. See, e.g., HOWARD N. MEYER, THE WORLD COURT IN ACTION: JUDGING AMONG THE NA-
TIONS 217-18 (2002).
[FN92]. Runa Riaz, Aouzou Border Dispute Between Libya and Chad (Karachi Univ. Int'l Rel. Dep't Student Re-
search, n.d.), at <http:// www.ribt.org/kuird/html/runa_riaz.html> (visited Apr. 27, 2004).
[FN93]. CLYDE R. MARK, CRS ISSUE BRIEF 93109: LIBYA, available at <http://
www.fas.org/man/crs/93-109.htm> (last modified Dec. 19, 1996).
[FN94]. Riaz, supra note 92.
[FN95]. Le Progrès stated that Weddeye “serait sur le point de reprendre le sentier de la guerre” and that he
“recevrait l'aide de certains officiers supérieurs libyens.” MARCHéS TROPICAUX ET MéDITERRANéENS (Feb.
28, 1997), available at <http://www.moreux.fr>.
[FN96]. THE MIDDLE EAST AND NORTH AFRICA 770 (49th ed. 2003); Chad: Ministry Protests Libyan Claims
to Aouzou Strip in Map, Agence France-Presse, Doc. FBIS-AFR-97-021 (Jan. 30, 1997); MARCHéS TROPICAUX
ET MéDITERRANéENS, supra note 95. In a book published in Banghazi, Libya, celebrating thirty years of the re-
volution (1969-1999), all seven maps placed the Aouzou Strip inside Libyan borders. LIBIYA AL-THAWRAH FI 30
‘AMAN, 1969-1999: AL-TAHAWWULAT AL-SIYASIYAH WA-AL-IQTIS ADIYAH WA-AL-IJTIMA ‘IYAH 71,
270, 282, 298, 303, 477, 690 (3d ed. 2000).
[FN97]. MARCHéS TROPICAUX ET MéDITERRANéENS (May 8, 1998), available at < http://www.moreux.fr>.
[FN98]. Richard I. Lawless, Libya: History, in THE MIDDLE-EAST AND NORTH AFRICA 775, 791-92 (50th ed.
2003).
[FN99]. Gamal Nkrumah, African Unity Lives? AL-AHRAM WKLY. ON-LINE, NO. 521 (Feb. 15-21, 2001), at
<http://weekly.ahram.org.eg/2001/521/re8.htm>.
[FN100]. Lucy Jones, Qaddafi's “Afro-Enthusiasm” Causes Concern in West, WASH. REP. MIDDLE E. AFF., Oct.
2001, available at <http://www.wrmea.com>.

98 Am. J. Int'l L. 434
[FN101]. See text at note 69 supra.
[FN102]. According to Conesa, supra note 67, at 23:

Aucune puissance n'a tiré de durables avantages d'une intervention dans la crise. La Libye a ainsi soutenu
alternativement, et avec les mèmes déconvenues, MM. Habré, Oueddei [Weddeye] et Déby. Aucun des re-
sponsables tchadiens n'a accepté de reconnaître la légitimité de la revendication de Tripoli sur la bande
d'Aouzou. La réconciliation définitive de 1998 n'en a que le nom. Lorsque l'un des Etats frontaliers obtient un
avantage significatif, il fait l'union sacrée contre lui.
[FN103]. Riaz, supra note 92.
[FN104]. See Libya Extends Reach in Africa: Gadhafi Deploys Troops South of Neighboring Chad, STRATFOR
GLOBAL INTELLIGENCE UPDATE (June 6, 2001), available at
<http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=23131>.
[FN105]. Chad: Foreign Relations, COUNTRYWATCH, at <http:// www.countrywatch.com> (visited May 4, 2004);
Libya: Foreign Relations, COUNTRYWATCH, at id. (visited May 4, 2004).
[FN106]. Clyde R. Mark, Libya, CRS ISSUE BRIEF FOR CONGRESS 9 (Order Code IB93109, Apr. 10, 2002),
available at <http:// www.fpc.state.gov/documents/organization/9577.pdf>.
[FN107]. Libyan Leader Calls on Chadian Rebels to Lay Down Weapons, Agence France-Presse, Doc. FBIS-
AFR-2002-1008 (Oct. 7, 2002).
[FN108]. Libya is intimately involved in the negotiations and was “a major factor in the beneficial terms offered to
the MDJT” in January 2002. Libya has also pledged aid for the Aouzou. Bernard Lanne, Chad: Recent History, in
AFRICA SOUTH OF THE SAHARA 203, 211 (32d ed. 2003).
[FN109]. Three ‘Senior’ Rebel MDJT Members Resign Due to ‘Infighting,’ Agence France-Presse, Doc. FBIS-
AFR-2003-0402 (Apr. 2, 2003). Chadian officials suspect that General Massoud, a governor in southern Libya, was
supporting the rebels and urging them to reject the proposed peace agreement. Chad Officials Not Surprised About
Rebel Leader's Emergency Evacuation to Libya, Radio France Internationale, Doc. FBIS-AFR-2002-0830 (Sept. 30,
2002).
[FN110]. E-mail to author from Daoûd Abdullah of Tchad.com (Feb. 12, 2003) (on file with author).
[FN111]. MARIO J. AZEVEDO, ROOTS OF VIOLENCE: A HISTORY OF WAR IN CHAD 152 (1998); Laoro
Gondje, Libyan-Brokered Chad Peace Deal Raises Concerns, TURKISH DAILY NEWS, NO. 469 (Jan. 13, 2002), at
<http://www.turkishdailynews.com> (Libya may be using the MDJT to gain political control in Chad).
[FN112]. Land and Maritime Boundary Between Cameroon and Nigeria, supra note 25, para. 318.
[FN113]. See, e.g., AZEVEDO, supra note 111, at 151.
[FN114]. Id.
[FN115]. For more on publicity and the ICJ, see Bedjaoui, supra note 23, at 17-18, and the discussion in ICJ/
UNITAR COLLOQUIUM, supra note 1, at 207, 215-18, 224-25.
[FN116]. See Thomas M. Franck, Summary, in ICJ/UNITAR COLLOQUIUM, supra note 1, at 498-99. As an illus-
tration of the depth of coverage of the dispute in America, see Roger Cohen, Chad Wins World Court Decision in
Territorial Dispute with Libya, N.Y. TIMES, Feb. 4, 1994, at A6.

98 Am. J. Int'l L. 434
[FN117]. LaGrand, supra note 25, paras. 12-31.
[FN118]. Id., paras. 29-31.
[FN119]. Id., para. 128.
[FN120]. Officials must inform arrested or detained foreign nationals of their rights to consular notification and ac-
cess to consular officials. Vienna Convention on Consular Relations and Optional Protocol Concerning the Compuls-
ory Settlement of Disputes, Apr. 24, 1963, 21 UST 77, 325, 596 UNTS 261, 487.
[FN121]. LaGrand, supra note 25, para. 128.
[FN122]. Although there are many ways to understand the U.S. obligations under LaGrand, compliance depends on
the binding duties in the dispositif as explained by the text of the opinion. Other interpretations, however, are cer-
tainly possible. See, e.g., Douglass Cassel, International Remedies in National Criminal Cases: ICJ Judgment in
Germany v. United States, 15 LEIDEN J. INT'L L. 69 (2002).
[FN123]. LaGrand, supra note 25, para. 128(6).
[FN124]. Id., paras. 1, 120-22; see also Notification of Consular Officers upon the Arrest of Foreign Nationals, 28
C.F.R. §50.5 (2001); Counter-Memorial of the United States (Ger. v. U.S.), 2000 ICJ Pleadings (LaGrand) 20 (Mar.
27). The program to improve U.S. compliance with Vienna Convention obligations began well before the LaGrand
decision. Catherine Brown, Consular Rights and the Death Penalty After LaGrand, 96 ASIL PROC. 309, 313 (2002).
[FN125]. See Jean Guccione, On the Law--New Weapon in Defense: Foreign Consulates, L.A. TIMES, Nov. 16,
2001, at B2, available in 2001 WL 28929308.
[FN126]. U.S. DEP'T OF STATE, BUREAU OF CONSULAR AFFAIRS, CONSULAR NOTIFICATION AND AC-
CESS: INSTRUCTIONS FOR FEDERAL, STATE, AND OTHER LOCAL LAW ENFORCEMENT AND OTHER
OFFICIALS REGARDING FOREIGN NATIONALS IN THE UNITED STATES AND THE RIGHTS OF CONSU-
LAR OFFICIALS TO ASSIST THEM, pt. 3, Questions About Failure to Notify, available at
<http://www.travel.state.gov/consul_ notify.html> (last modified Feb. 10, 2004).
[FN127]. U.S. DEP'T OF STATE, BUREAU OF PUBLIC AFFAIRS, HISTORY OF THE DEPARTMENT OF
STATE DURING THE CLINTON PRESIDENCY §18, at <http:// www.state.gov/r/pa/ho/pubs/8534.htm>.
[FN128]. M. Wesley Clark, Providing Consular Rights Warnings to Foreign Nationals, FBI L. ENFORCEMENT
BULL, Mar. 2002, at 29, available at <http:// www.fbi.gov/publications/leb/2002/mar02leb.pdf>.
[FN129]. CAL. PENAL CODE §834c (West 2003). Some enforcement officials, however, still ignore their obliga-
tions under the Vienna Convention. See United States v. Ortiz, 315 F.3d 873, 997 (8th Cir. 2002) (the Kansas City
Police Department “apparently determin[ed] as a matter of policy that no notification of rights under the Convention
will ever be made”).
[FN130]. The Court rejected Mexico's petition for assurances of nonrepetition that went beyond those provided in
LaGrand (Avena, supra note 25, paras. 144-50, 153(10)), although it did see room for improvement in United States
practice (Avena, supra, paras. 64, 149).
[FN132]. William Aceves, Case Report: LaGrand (Germany v. United States), in 96 AJIL 210, 217 (2002).

98 Am. J. Int'l L. 434
[FN134]. Id., paras. 90-91, 125-27.
[FN135]. Id., para. 125.
[FN136]. Id., paras. 90-91.
[FN137]. See id.
[FN138]. ICJ STATUTE Art. 59; LaGrand, supra note 25, Declaration of President Guillaume, 40 ILM at 1103.
[FN139]. The United States argued in Avena that it applied LaGrand to all foreign nationals because it understood
that the Court “would not apply a different construction of the Convention to nationals of other States.” ICJ Doc. CR
2003/2, at 16, para. 2.14 (Jan. 21, 2003) [transcripts of oral arguments in Avena will be cited hereinafter by CR num-
ber, page, and paragraph].
[FN140]. See supra notes 124-28 and corresponding text.
[FN141]. As of January 1, 2004. Mark Warren, Foreign Nationals and the Death Penalty in the United States (Death
Penalty Information Center, Jan. 1, 2004), at <http://www.deathpenaltyinfo.org>. For details on their cases, see AM-
NESTY INTERNATIONAL, WORLDS APART: VIOLATIONS OF THE RIGHTS OF FOREIGN NATIONALS
ON DEATH ROW--CASES OF EUROPEANS (AI Index No. AMR 51/101/00), available at < ht-
tp://www.amnesty.org>.
[FN142]. Avena, supra note 25, para. 151. However, it is unclear whether the duty arises under Article 94 of the
United Nations Charter or international law in general, especially as the Court mentioned this obligation somewhat
indirectly. See id.
[FN143]. The case mentioning LaGrand is United States v. Ortiz, 315 F.3d 873 (8th Cir. 2002).
[FN144]. Id. at 886.
[FN145]. See, e.g., United States v. Flores-Flores, 42 Fed. Appx. 868, 870 (7th Cir. 2002), 2002 WL 1732617
(dismissal of case); United States v. Minjares-Alvarez, 264 F.3d 980, 986 (10th Cir. 2001) (suppression of statements
not a valid remedy); United States v. Felix-Felix, 275 F.3d 627, 635 (7th Cir. 2001) (exclusion of evidence); Bell v.
Commonwealth, 563 S.E.2d 695, 707 (Va. 2002) (suppression of statements).
[FN146]. Those cases are United States v. Gonzales, 2003 WL 21878712, at *4 (8th Cir. 2003) (all nonjurisdictional
defects, including violations of the Vienna Convention, are foreclosed by a plea of guilty); United States v. Emueg-
bunam, 268 F.3d 377, 391 (6th Cir. 2001) (no reversal of conviction because Vienna Convention does not create in-
dividually enforceable rights).
[FN147]. The Judgment hinted only that certain sentences would qualify as “severe penalties.” Perhaps a guideline
for “severe” can be found in the Court's characterization of two German cases, cited by the United States as evidence
of German practice, as “relatively light criminal penalties.” The cases could involve sentences of two years and fif-
teen years. LaGrand, supra note 25, para. 63; Counter-Memorial of the United States (Ger. v. U.S.), supra note 124,
para. 94 & Exs. 10, 11; Thomas Weigend, Sentencing and Punishment in Germany, in SENTENCING AND SANC-
TIONS IN WESTERN COUNTRIES 188, 213 (Michael Tonry & Richard S. Frase eds., 2001).
[FN148]. See, e.g., State v. Issa, 93 Ohio St.3d 49, 752 N.E.2d 904 (2001); Vasquez v. State, 2001 WL 1398441
(Del. Super. Ct. Nov. 5, 2001) (unpublished opinion); Gordon v. State, 2003 WL 22964723, 29 Fla. L. Weekly S1
(Fla. Sup. Ct. Dec. 18, 2003).

98 Am. J. Int'l L. 434
[FN149]. Avena, supra note 25, para. 113.
[FN150]. United States ex rel. Madej v. Schomig, 223 F.Supp.2d 968, 979 (N.D. Ill. 2002) (quoting Breard v.
Greene, 523 U.S. 371, 375 (1998) (per curiam); Vienna Convention on Consular Relations, supra note 120, Art.
36(2)).
[FN151]. United States ex rel. Madej v. Schomig, 2002 WL 31386480 (N.D. Ill. Oct. 22, 2002).
[FN152]. For example, when a Mexican national petitioned the Oklahoma Court of Criminal Appeals, citing LaG-
rand, the court followed the Supreme Court's decision in Breard v. Greene, 523 U.S. 371, 375 (1998), applying the
procedural default rule. Although the court explicitly declined to follow LaGrand, it effectively deferred to the ICJ
by granting a new trial under its equitable powers. Valdez v. Oklahoma, 46 P.3d 703, 2002 WL 809243 (Okla. Crim.
App. May 1, 2002) (Vienna Convention violation resulted in no prejudice to plaintiff).
However, soon after the Avena case was decided, the Oklahoma Court of Criminal Appeals ordered that Osbaldo
Torres be given an evidentiary hearing on whether he had been prejudiced by the Vienna Convention violation.
Torres v. State, No. PCD-04-442 (Okla. Crim. App. May 13, 2004). On the same day, Oklahoma governor Brad
Henry commuted the death sentence to life in prison without parole, citing the Vienna Convention concerns and men-
tioning the influence of the State Department. Office of Governor Brad Henry, Press Release: Governor Henry
Grants Clemency to Death Row Inmate Torres (May 13, 2004), at <http:// www.governor.state.ok.us/>.
[FN153]. At least two Justices appear to be willing to follow the reasoning in LaGrand. Torres v. Mullin, 157
L.Ed.2d 454, 455 (2003) (Breyer, J., dissenting from denial of cert.); id. at 454 (Stevens, J., opinion respecting the
denial of cert.).
[FN154]. Avena and Other Mexican Nationals (Mex. v. U.S.), Provisional Measures, para. 37 (Int'l Ct. Justice Feb. 5,
2003); ICJ Doc. CR 2003/29, at 46, para. 7.9 (Dec. 19, 2003) (Avena transcript).
[FN155]. ICJ Docs. CR 2003/2, supra note 139, at 9-12, CR 2003/29, supra note 154, at 46, para. 7.9.
[FN156]. ICJ Doc. CR 2003/2, supra note 139, at 10, para. 1.10.
[FN157]. Letter from William H. Taft IV, U.S. Department of State Legal Adviser, to Frank Keating, Governor of
Oklahoma (July 11, 2001) (on file at George Washington Univ.), quoted in Sean D. Murphy, Contemporary Practice
of the United States, 96 AJIL 461, 462 (2002). The United States has called such letters “unprecedented and ex-
traordinary interventions.” ICJ Doc. CR 2003/4, at 13 (Jan. 20, 2003).
[FN158]. Murphy, supra note 157 (citing Governor Frank Keating, Okla. Exec. Order No. 2001-24 (July 20, 2001)).
[FN159]. See supra note 152.
[FN160]. See Mexico, Press Release No. 283, Mexican National Gerardo Valdez Maltos, Who Was Facing the Death
Penalty in Oklahoma, Has Been Sentenced to Life in Prison, Therefore Ruling out the Death Penalty (Nov. 24, 2003),
at < http://www.sre.gob.mx>.
[FN161]. ICJ Doc. CR 2000/28, para. 2.30 (LaGrand transcript).
[FN164]. Id. However, if clemency proceedings were the only forum providing review and reconsideration, the re-
view would not be available, much of the time, in cases involving “severe penalties” other than the death penalty.

98 Am. J. Int'l L. 434
[FN165]. Id.
[FN166]. William J. Aceves, The LaGrand Decision: Affirming the Status of Consular Assistance, in AMERICAN
CIVIL LIBERTIES UNION, 2001 INTERNATIONAL CIVIL LIBERTIES REPORT 117, 122, available at <http://
www.archive.aclu.org/library/iclr/2001/iclr2001_16.pdf>.
[FN167]. ICJ Doc. CR 2003/25, at 15 (Dec. 15, 2003) (Avena transcript).
[FN168]. The Death Penalty Information Center reports that from 1977 to 2002 there were 6322 death sentences and
49 grants of clemency. Gov. George Ryan of Illinois granted clemency to every one of the 171 death row inmates in
Illinois in January 2003. At <http://www.deathpenaltyinfo.org> (visited May 13, 2004); see also Robert Salladay,
Clemency: Slim Chance These Days, S.F. EXAMINER, Nov. 29, 1998, at A1, available in LEXIS, News Library, In-
divid. Pub. File.
[FN169]. James S. Liebman et al., Capital Attrition: Error Rates in Capital Cases, 1973-1995, 78 TEX. L. REV.
1839, 1849-52 (2000).
[FN170]. As clemency boards are less likely than judicial bodies to understand or care about claims that are based on
legalistic reasons, the disparity in overturn rates is probably even higher.
[FN172]. ICJ Doc. CR 2003/28, at 27, para. 67 (Dec. 18, 2003).
[FN173]. Information on individual clemency procedures can be found at the Criminal Justice Policy Foundation
Web site, <http://www.cjpf.org>.
[FN174]. ICJ Doc. CR 2003/28, supra note 172, at 27-28, para. 67.
[FN175]. Gabc íkovo-Nagymaros Project, supra note 19, 37 ILM at 174, para. 15.
[FN176]. Update: Hungary-Slovakia and the Gabc íkovo-Nagymaros Project, 1998 COLO. J. INT'L ENVTL. L.
Y.B. 260.
[FN177]. Gabc íkovo-Nagymaros Project, supra note 19, 37 ILM at 177, paras. 22-23.
[FN178]. Special Agreement for Submission to the International Court of Justice of the Differences Between Them
Concerning the Gabc íkovo-Nagymaros Project, Apr. 7, 1993, Hung.-Slovk., 32 ILM 1293 (1993).
[FN179]. Gabc íkovo-Nagymaros Project, supra 19, at 201-03, paras. 144-55.
[FN180]. Id. at 184-86, paras. 52-56, 196, paras. 112-13, & 200-01, para. 140.
[FN181]. Update: Hungary-Slovakia and the Gabc íkovo-Nagymaros Project, supra note 176.
[FN182]. ICJ Press Communiqué 98/28 (Sept. 3, 1998).
[FN183]. Slovak Government Commissioner Discusses Gabc íkovo Dam Project, BRATISLAVA PRAVDA, Doc.
FBIS-EEU-2001-0117 (Jan. 15, 2001); Slovak Minister Optimistic About Talks with Hungary on Disputed Law, Ra-
dio Slovakia, BBC Worldwide Monitoring, Aug. 15, 2002, available in LEXIS, News Library, Allnws File; Gyõrgy
Moldova, A Tale of Two Dams, UNESCO COURIER, Oct. 2001, available at <http://www.unesco.org>.
[FN184]. BBC Worldwide Monitoring, supra note 183; Update: Hungary-Slovakia and the Gabc íkovo-Nagymaros

98 Am. J. Int'l L. 434
Project, supra note 176.
[FN185]. HILAL ELVER, PEACEFUL USES OF INTERNATIONAL RIVERS: THE EUPHRATES AND TIGRIS
RIVERS DISPUTE 233 (2002); Hungary Not to Build Dam on Danube, BBC Worldwide Monitoring, Jan. 15, 2004,
available in LEXIS, News Library, Allnws File; see also Ida L. Bostian, Note, Flushing the Danube: The World
Court's Decision Concerning the Gabc íkovo Dam, 9 COLO.J. INT'L ENVTL. L. & POL'Y 401, 420-21 (1998)
(concluding that the Judgment has done little to help settle the dispute).
[FN186]. North Sea Continental Shelf (FRG v. Den.; FRG v. Neth.), 1969 ICJ REP. 3, para. 85(b) (Feb. 20), quoted
in David Anderson, Negotiation and Dispute Settlement, in REMEDIES IN INTERNATIONAL LAW: THE INSTI-
TUTIONAL DILEMMA 111, 118-19 (Malcolm D. Evans ed., 1998).
[FN187]. Population as initially estimated by Nigeria (although later estimated to be 156,000). Counter-Memorial of
the Federal Republic of Nigeria (Cameroon v. Nig.), 1999 ICJ Pleadings, paras. 33, 416 (May); ICJ Doc. CR 2002/9,
at 45, para. 134 (Mar. 1, 2002) (Cameroon v. Nigeria transcript).
[FN188]. Focus on Nigeria's Response to ICJ Ruling on Bakassi Peninsula, UN Integrated Regional Information
Networks, Oct. 15, 2002, at <http:// www.allafrica.com>; Emmanuel Aziken, Bakassi Representatives Vow to Re-
main in Nigeria Despite World Court Ruling, LAGOS VANGUARD (Internet Version), Doc. FBIS-AFR-2002-1011
(Oct. 11, 2002).
[FN189]. Nigeria: World Court Says Able to Rule on Nigeria-Cameroon Dispute, Agence France-Presse, Doc. FBIS-
AFR-98-162 (June 11, 1998).
[FN190]. See International Court Poised to Rule on Nigeria-Cameroon Border Dispute, Agence France-Presse, Doc.
FBIS-AFR-2002-1009 (Oct. 9, 2002).
[FN191]. Id.
[FN192]. Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nig.), Preliminary Objections,
1998 ICJ REP. 275, para. 18 (June 11).
[FN193]. Cameroon's Biya Said Satisfied with Talks with Obasanjo, Annan on Bakassi Crisis, Radio France Interna-
tionale, Doc. FBIS-AFR-2002-0909 (Sept. 9, 2002).
[FN194]. Nigerian Press Reports Four Killed in Border Clash with Cameroon, Agence France-Presse, Doc. FBIS-
AFR-96-025 (Feb. 6, 1996).
[FN195]. For a review of the decision itself, see Pieter H. F. Bekker, Case Report: Land and Maritime Boundary
Between Cameroon and Nigeria (Cameroon v. Nigeria; Equatorial Guinea Intervening), in 97 AJIL 387 (2003).
[FN196]. Also favorable to Nigeria was the Court's rejection of Cameroon's state responsibility reparation claims.
[FN197]. Land and Maritime Boundary Between Cameroon and Nigeria, supra note 25, para. 325.
[FN198]. The statement accepted the Court's determinations on reparations, the land boundary between Lake Chad
and Bakassi, and the international boundary south of the Maroua line. It rejected the Court's ruling with respect to
Bakassi itself and the Maroua Treaty of 1975. Cameroon; Bakassi: Why the ICJ Judgement Is Unacceptable-
-Government, Africa News Service, Oct. 24, 2002, available in LEXIS, News Library, Allnws File.
[FN199]. Id.; see Counter-Memorial of the United States, supra note 124, para. 114.
[FN200]. Austin Ogwuda, Bakassi: I'm Ready for Talks with Biya, Says Obasanjo, VANGUARD (Lagos), Oct. 30,

98 Am. J. Int'l L. 434
2002, at <http://www.allafrica.com>.
[FN201]. Nigeria Has No Substantive Claim on Bakassi--Cameroonian Politician, WKLY. TRUST (Kaduna), Dec.
13, 2002, at <http://www.allafrica.com>.
[FN202]. Id.
[FN203]. Nigeria Defends Defiance of World Court Border Ruling, UN Press Release SG/T/2344 (Sept. 10, 2002);
see Agence France-Presse, Doc. FBIS-AFR-2002-1025 (Oct. 25, 2002).
[FN204]. Nigeria: Government Said [sic] Disputes UN Account of Meeting on Spat with Cameroon, Agence France-
Presse, Doc. FBIS-AFR-2002-1030 (Oct. 30, 2002).
[FN205]. Assisi Asobie, Nigeria, Cameroun and the Unending Conflict over Bakassi, VANGUARD (Lagos), Feb.
27, 2003, at <http://www.allafrica.com>.
[FN206]. WKLY. TRUST, supra note 201.
[FN207]. Aziken, supra note 188. Nigeria said, however, that it will not go to war over the issue. Chikas Ohadoma,
Bakassi: Nigeria Bound by ICJ's Ruling, Says Britain, THIS DAY (Lagos), Oct. 25, 2002, at
[FN208]. Aziken, supra note 188.
[FN209]. Bakassi Has Never Been Part of Cameroon--Paramount Ruler, WKLY. TRUST (Kaduna), Dec. 13, 2002,
at <http://www.allafrica.com>.
[FN210]. Agence France-Presse, supra note 203.
[FN211]. Id. The ambassador denied that President Obasanjo made the promise: “There was no such sancrosact com-
mittment [sic] to the then impending verdict at the Paris meeting with President Biya .... [W]e cannot be taken cap-
tive of such a statement by an official in the office of the UN Secretary General.” Id.
[FN212]. See Akpo Mudiaga Odje, ICJ Judgment on Bakassi: How Enforceable? THIS DAY (Lagos), Nov. 19,
2002, at <http://www.allafrica.com>; Bature Umar, Bakassi: Senator Wants Military Combat-Ready, THIS DAY
(Lagos), Nov. 14, 2002, at <http://www.allafrica.com>.
[FN213]. Ogwuda, supra note 200.
[FN215]. Nigeria Rejects ICJ Ruling; Cameroonians Urged to Continue to Live in Harmony with Nigerians, CRTV
Online: National News Round-up, Oct. 25, 2002, at <http://www.crtv.cm/actualite_det.php?code=592>.
[FN216]. In making enclaving possible, the Court rejected the equitable approach used in the Guinea/Guinea-Bissau
arbitration to maximize stability in the region. See Land and Maritime Boundary Between Cameroon and Nigeria,
supra note 25, para. 297; Delimitation of the Maritime Boundary Between Guinea and Guinea-Bissau (Feb. 14,
1985), 25 ILM 251, 252 (1986).
[FN217]. Kolade Larewaju, UN Panel on Bakassi Meets Dec. 1, VANGUARD (Lagos), Nov. 29, 2002, at
[FN218]. Shakirat Abdulmajeed, Bakassi: C'ttee to Demarcate Border Set Up, DAILYTRUST (Abuja), Dec. 4, 2002,

98 Am. J. Int'l L. 434
at <http://www.allafrica.com>.
[FN219]. Nigeria, Cameroon to Sign Friendship, Non-aggression Treaty, Xinhua General News Service, Feb. 1,
2004, available in LEXIS, News Library, Allnws File; World Court Ruling, DAILY TRUST (Abuja), Sept. 10, 2003,
at <http:// www.allafrica.com>; Abdullahi Tasiu Abubakar, World Court Ruling: Cameroun Cedes Villages to Niger-
ia, DAILY TRUST (Abuja), Mar. 29, 2004, at <http:// www.allafrica.com>.
[FN220]. Peter Capella, Nigeria, Cameroon Move to Normalise Relations at Summit with UN, Agence France-Presse,
Jan. 31, 2004, available in LEXIS, News Library, Allnws File; Cameroon-Nigeria: Britain Offers CFA 1,000 Million
for Demarcation, CAMEROON TRIB. (Yaoundé), Apr. 2, 2004, at <http:// www.allafrica.com>.
[FN221]. Especially as full implementation of the judgments discussed below has taken an average of over two and a
half years. However, for a positive early development, see supra note 152.
[FN222]. Jan Mayen, supra note 25, at 42-43, para. 9.
[FN223]. In 1981 Norwegian inspection authorities boarded a Danish ship fishing for capelin in the disputed area,
angering Danish fishermen. An interim agreement between the Danish and Norwegian foreign ministers, assisted by
a general depletion of capelin stock that led to an areawide agreement to cease capelin fishing, quelled the dispute
until the ICJ ruling. FINN LAURSEN, SMALL POWERS AT SEA 89 (1993). Although brought unilaterally by
Denmark, the case was, for all intents, consensually before the Court. Norway did not object to jurisdiction. Per Ma-
gid, Intervention, in ICJ/UNITAR COLLOQUIUM, supra note 1, at 365.
[FN224]. Jan Mayen, supra note 25, at 80-82, paras. 92-94.
[FN225]. Agreement on the Continental Shelf Between Iceland and Jan Mayen, Oct. 22, 1981, Ice.-Nor., 21 ILM
1222 (1982), available at <http:// www.un.org/depts/los>.
[FN226]. Agreement Concerning the Delimitation of the Continental Shelf in the Area Between Jan Mayen and
Greenland and Concerning the Boundary Between the Fishery Zones, Dec. 18, 1995, Nor.-Den., 1903 UNTS 171;
Hans Longva, Intervention, in ICJ/UNITAR COLLOQUIUM, supra note 1, at 362; see also Additional Protocol to
the 1995 Agreement, Nov. 11, 1997, 2100 UNTS 180.
[FN227]. Elettronica Sicula S.p.A., supra note 25, at 19-21, para. 10.
[FN228]. Id. at 81, para. 137.
[FN229]. Id.
[FN230]. Although Guinea-Bissau brought the suit unilaterally, Senegal did not contest jurisdiction. Arbitral Award
of 31 July 1989, supra note 25, at 55, paras. 1-2.
[FN231]. Id. at 75-76, para. 69.
[FN232]. JOSHUA B. FORREST, GUINEA-BISSAU: POWER, CONFLICT, AND RENEWAL IN A WEST

AFRICAN NATION 72 (1992).
[FN233]. Id.
[FN234]. Douglas G. Anglin, Conflict in Sub-Saharan Africa, pt. 3(B)(b), in 1995-1996 ÉTUDES STRATéGIQUES
ET MILITAIRES, at <http://www.ulaval.ca/>.
[FN235]. Maritime Delimitation Between Guinea-Bissau and Senegal (Guinea-Bissau v. Sen.), Application Institut-

98 Am. J. Int'l L. 434
ing Proceedings at 2 (Mar. 12, 1991).
[FN236]. Seydou Amadou Oumarou, Agreeing to Share, UNESCO COURIER, Jul./Aug. 1998, at 58, available at
<http://www.unesco.org/courier/1998_ 08/uk/dossier/txt34.htm>.
[FN237]. Maritime Delimitation Between Guinea-Bissau and Senegal (Guinea-Bissau v. Sen.), 1995 ICJ REP. 423,
425-26 (Nov. 8); Management and Cooperation Agreement, Oct. 14, 1993, Guinea-Bissau-Sen., available at <http://
www.un.org/depts/los/index.htm>.
[FN238]. The second suit was probably a tactic to delay complying with any verdict from the first suit, and might be
considered an attempt at legal noncompliance.
[FN239]. Guinea-Bissau has talked about renegotiating the division of oil profits under the 1993 Agreement with
Senegal, as it currently receives 15% and Senegal 85%, per the ICJ Judgment. MBendi, Guinea-Bissau: Oil and Gas
Industry (last modified Aug. 28, 2000), available at <http:// www.mbendi.co.za/indy/oilg/af/gb/p0005.htm>.
[FN240]. Glen Plant, Case Report: Maritime Delimitation and Territorial Questions Between Qatar and Bahrain
(Qatar v. Bahrain), in 96 AJIL 198, 200-01 (2002); Qatar Says Bahrain Agrees to World Court Arbitration on Is-
lands, Agence France-Presse, Doc. FBIS-NES-96-015 (Jan. 23, 1996).
[FN241]. Memorial of the State of Qatar (Qatar v. Bahr.), 1996 ICJ Pleadings, paras. 1-2 (Sept. 30).
[FN242]. Latheep Farouk, News from the Gulf Region: Qatar, Bahrain Move to Settle Border Row, GULF NEWS,
Feb. 20, 2000, available in LEXIS, News Library, Allnws File.
[FN243]. Agence France-Presse, supra note 240; Ramin Seddiq, Border Disputes on the Arabian Peninsula, POL'Y
WATCH, NO. 525 (Washington Institute for Near East Policy, Mar. 15, 2001), at
<http://www.ciaonet.org/srchfrm.html> (war was averted only by Saudi mediation).
[FN244]. QATAR: GCC Head on Border Disputes, Other Issues (interview with Jamil al-Hujaylan by Sawsan Abu-
Husayn), AL-SHARQ AL-AWSAT, Doc. FBIS-NES-97-002 (Jan. 1, 1997).
[FN245]. Rasha Saad, Gulf Emirates Settle Debate, AL-AHRAM WKLY. ON-LINE, NO. 526 (Mar. 22-28, 2001), at
<http://weekly.ahram.org.eg/2001/526/re3.htm>.
[FN246]. Id.
[FN247]. AL-SHARQ AL-AWSAT, supra note 244; Qatar Hails ‘Legal Victory’ in Dispute, AL-SHARQ AL-
AWSAT, Doc. FBIS-NES-95-033 (Feb. 16, 1995).
[FN248]. Qatar Hails ‘Legal Victory’ in Dispute, AL-SHARQ AL-AWSAT, supra note 247. The Court largely ig-
nored Bahrain's refusal to participate. Judge Nicolas Valticos, appointed by Bahrain, further argued that it had re-
fused to submit the dispute for adjudication after the Court solicited both parties to do so. Qatar v. Bahrain, supra
note 25, Jurisdiction and Admissibility (Feb. 15, 1995), 34 ILM 1204, 1241 (1995) (Valticos, J. ad hoc, diss. op.).
[FN249]. Qatar v. Bahrain, Jurisdiction and Admissibility (July 1, 1994), 33 ILM 1461 (1994).
[FN250]. Qatar v. Bahrain, Jurisdiction and Admissibility, supra note 248, at 1217, para. 50.
[FN251]. Id. at 1224-41 (Oda, Shahabuddeen, Koroma, JJ., & Valticos, J. ad hoc, diss. ops.); see also Qatar Says
Bahrain Agrees to World Court Arbitration on Islands, Agence France-Presse, Doc. FBIS-NES-96-015 (Jan. 23,
1996).

98 Am. J. Int'l L. 434
[FN252]. BAHRAIN: Minister on Israel, Qatar, Recent Troubles, AL-SHARQ AL-AWSATTTTTT, Doc. FBIS-
NES-97-071 (Apr. 10, 1997) (interview with Bahraini foreign minister Sheik Mohammed bin Mubarak al-Khalifa by
Wafa'i Diyab).
[FN253]. Id.
[FN254]. The Court also noted that Qatari vessels enjoyed a right of innocent passage in the waters separating the
Hawar Islands from the other Bahraini islands. Qatar v. Bahrain, supra note 25, at 896, para. 252.
[FN255]. Id.
[FN256]. John R. Crook, The 2001 Judicial Activity of the International Court of Justice, 96 AJIL 397, 398 (2002).
[FN257]. Plant, supra note 240, at 205-06.
[FN258]. Id. at 209-10.
[FN260]. THE MIDDLE EAST AND NORTH AFRICA, supra note 96, at 222.
[FN261]. Bahrain's al-Shihabi on Returning Home, ICJ Verdict, Opposition, Domestic Issues, AL-SHARQ AL-
AWSAT, Doc. FBIS-NES-2001-0323 (Mar. 23, 2001) (interview with Bahraini dissident Sa'id al-Shihabi by Ghalib
Darwish).
[FN262]. Id.
[FN263]. He stated that Bahrain's “territory is not open to give and take.” AL-SHARQ AL-AWSAT, supra note 252.
[FN264]. Qatar and Bahrain Accept ICJ Ruling on Border Dispute and Prepare New Oil/Gas Exploration Plans, 44
MIDDLE E. ECON. SURV. (Mar. 26, 2001), at < http://www.mees.com>.
[FN265]. Id.
[FN266]. Saad, supra note 245; 44 MIDDLE E. ECON. SURV., supra note 264.
[FN267]. Id.
[FN268]. Kasikili to Test Regional Relations, NAMIBIAN (Dec. 12, 1999), at < ht-
tp://www.namibian.com.na/1999/December/local/regional.html>.
[FN269]. Id.
[FN270]. Botswana Accused in the NA, NAMIBIAN (Feb. 3, 2000), at <http://

www.namibian.com.na/2000/February/News/accused.html>.
[FN271]. NAMIBIAN, supra note 268; Anglin, supra note 234, pt. 2(A)(b). Additionally, Anglin asserts that Nami-
bia “intimated that it might find difficulty complying with an unfavourable court judgement.” Id., pt. 3(B)(b).
[FN272]. Memorial of the Republic of Botswana (Bots. v Namib.), 1997 ICJ Pleadings, para. 11 (Feb. 28).
[FN273]. Kasikili/Sedudu Island, supra note 25, paras. 1-2; Christof Maletsky, Kasikili KO, NAMIBIAN (Dec. 13,
1999), at <http:// www.namibian.com.na/Netstories/December99/ko.html>.

98 Am. J. Int'l L. 434
[FN274]. Kasikili/Sedudu Island, supra note 25, paras. 102-04.
[FN275]. Maletsky, supra note 273.
[FN276]. Governments Reach New Border Settlement, AFRICA NEWS, Mar. 7, 2003, available in LEXIS, News
Library, Allnws File; Delimitation Report Presented to the National Assembly, AFRICA NEWS, June 18, 2003,
available in id.
[FN277]. Arrest Warrant of 11 April 2000, supra note 25, paras. 1-2, 10.
[FN278]. Id., para. 78.
[FN279]. Id.
[FN280]. Immediately after the verdict, the Belgian Foreign Ministry called for the case against Israeli prime minis-
ter Ariel Sharon to be dropped, as well as that against Ndombasi. Belgian War Crimes Law Rejected, BBC News:
World Edition (Feb. 14, 2002), at <http://news.bbc.co.uk>.
[FN281]. See Michael C. Dorf, Can One Nation Arrest the Foreign Minister of Another? The World Court Says No,
FINDLAW (Feb. 20, 2002), at <http:// www.findlaw.com>. An appeals court threw out a new indictment against
Yerodia because he was not physically present in Belgium. Tom L. W. Scheirs, Brussels Chambers of Indictment Re-
stricts [sic] Application of War Crimes Act, INT'L ENFORCEMENT L. REP., Dec. 2002, available in LEXIS, News
Library, Allnws File.
[FN282]. H.S.A. et al. v. S.A., Cass. 2e civ., Feb. 12, 2003, No. P.02.1139.F, translated in 42 ILM 596 (2003).
[FN283]. Steven R. Ratner, Belgium's War Crimes Statute: A Postmortem, 97 AJIL 888 (2003).
[FN284]. Sovereignty over Pulau Ligitan and Pulau Sipadan, supra note 25, para. 150.
[FN285]. Indonesia Disappointed with Court Ruling on Disputed Islands, Agence France-Presse, Dec. 17, 2002,
available in LEXIS, News Library, Allnws File; Heru Andriyanto & Zhai Jingsheng, Indonesia Accepts ICJ's Rule
for Regional Peace, Xinhua General News Service, Dec. 18, 2002, available in LEXIS, News Library, Allnws File.
Indonesian president Megawati Sukarnoputri has defended the loss, saying that she did not lose the islands because
Indonesia never owned them in the first place. President Requested to Explain Loss of Sipadan-Ligitan to House, In-
donesian National News Agency, Sept. 19, 2003, available in LEXIS, News Library, Allnws File.
[FN286]. Oil Platforms, supra note 25, paras. 1, 9, 19.
[FN287]. Id., para. 125.
[FN288]. As the Court found that the U.S. attacks were not justified, Iran could ask for reparations under general in-
ternational law, but it could not claim a right under the 1955 treaty. Id., para. 125(1).
[FN289]. The Avena case is not included in the following analysis.
[FN290]. These factors are recognized (among many others) as relevant to conflict resolution in the international re-
lations literature. See, e.g., PAUL K. HUTH, STANDING YOUR GROUND: TERRITORIAL DISPUTES AND IN-
TERNATIONAL CONFLICT (1996).
[FN291]. Norway and Senegal did not object to litigating the case concerned before the Court, and should be con-
sidered as willing participants.

98 Am. J. Int'l L. 434
[FN292]. Of these states, however, only Qatar and the United States (in Elettronica Sicula) lost after winning on jur-
isdiction, and Qatar alone lost a comparatively large claim.
[FN293]. That state was Belgium in the Arrest Warrant case. Libya can also be considered a losing party that was
nonconsensually before the Court because of the change in the political situation soon after the commencement of the
case. See supra notes 73-79 and corresponding text.
[FN294]. To protest the case, Bahrain refused to participate for a time. See supra note 248.
[FN295]. Gabc íkovo-Nagymaros Project is included as a functional boundary dispute, as it implicates land use and
environmental concerns over a large area on either side of the border, even though the parties do not disagree about
the boundary itself.
[FN296]. El Salvador is the one exception, although its noncompliance over the maritime boundary was directly tied
to a dispute over the adjoining land.
[FN297]. See supra note 7.
[FN298]. The only instance of Security Council action was the establishment of UNASOG, which had symbolic
power but contributed little to the effectiveness of the Judgment. It is unclear whether Chad's 1997 threat to go to the
Security Council was effective in securing peace with Libya. Honduran complaints to the Security Council and de-
mands for action may have helped secure the latest demarcation agreement with El Salvador.
[FN299]. Fitzmaurice thought that states entered into adjudication in part because of a subconscious expectation that
they could escape an award if it went too far awry. See OSCAR SCHACHTER, INTERNATIONAL LAW IN THE-
ORY AND PRACTICE 228 (1991). It is possible that some noncompliance may actually make the ICJ a more at-
tractive forum for important disputes.
[FN300]. Charney, supra note 6, at 302-03. Bahrain did refuse to participate for a time during jurisdictional proceed-
ings, but its lack of participation was of minor significance to the case (as it otherwise participated fully).
[FN301]. UN CHARTER Art. 1, para. 1; see also NAGENDRA SINGH, THE ROLE AND RECORD OF THE IN-
TERNATIONAL COURT OF JUSTICE 11, 319-20 (1989); Hans Corell, Presentation, in ICJ/UNITAR COLLOQUI-
UM, supra note 1, at 6.
[FN302]. Many cases are settled during proceedings, those where the Court rejects jurisdiction, those in which the
threat of litigation has an effect, and cases brought under the Court's advisory jurisdiction. Judge Bedjaoui points out
that there are many recent examples of this phenomenon. Bedjaoui, supra note 23, at 22-23.
[FN303]. Robert Y. Jennings, The Proper Work and Purposes of the ICJ, in ICJ FUTURE ROLE, supra note 1, at 33,
37.
98 Am. J. Int'l L. 434
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Compliance With Final Judgments

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98 AMJIL 434 Page 1

98 Am. J. Int'l L. 434

American Journal of International Law

Colter Paulson [FNa1]

Copyright © 2004 by American Society of International Law; Colter Paulson

I. COMPLIANCE WITH ICJ JUDGMENTS

Past Studies of State Compliance and Effectiveness

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

II. THE RECORD

Cases Involving Some Noncompliance

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© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

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© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

III. FACTORS INFLUENCING COMPLIANCE

TABLE 1. COMPLIANCE WITH ICJ FINAL JUDGMENTS SINCE 1987

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Case Compli Jurisdict Underly Nature Extensi History Armed Political

Elettron High No (suit Requisit Econom Yes No 2240/50 Democr

Maritim High No (suit Maritim Econom Yes (8 No 27/32 Democr

Land, Medium No Land Mostly Yes Yes 49/17 Semi-de

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Territori Medium No Land Strategi Yes Yes 80/40 Authorit

Gabc Medium No Dammi Strategi Yes No 43/37 Democr

Kasikili High No River Domesti No (?) No 3/8 Semi-de

Maritim High Yes Maritim Econom Yes (15 No 12/9 Authorit

LaGran Medium Yes Consula Domesti No No 1490/33 Democr

Arrest High Yes Arrest Domesti No No 42/55 Democr

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Soverei High No Maritim Econom Some No 296/95 Semi-de

FN1. The data refer to the “losing” state.

Land/Maritime Boundary Cases

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Comparisons with Pre-1987 Cases

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

[FNa1]. Columbia University School of Law, 2004; clp2008@columbia.edu.

[FN1]. Robert Jennings, Presentation, in INCREASING THE EFFECTIVENESS OF THE INTERNATIONAL

[FN2]. Couvreur, supra note 1, at 112 n.75.

[FN3]. Jennings, supra note 1, at 81.

[FN8]. Charney, supra note 6, at 297.

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

[FN10]. Id. at 297.

[FN12]. Id. at 45-46.

[FN15]. Merrills, supra note 7.

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

[FN32]. Geography of Honduras, LIBRARY OF CONGRESS STUDIES, AREA HANDBOOK, available at

[FN33]. BBC Summary of World Broadcasts, supra note 28.

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

Sept. 18, 1992, available in LEXIS, News Library, Allnws File.

[FN39]. EL DIARIO DE HOY, supra note 28.

[FN43]. EL DIARIO DE HOY, supra note 42.

[FN48]. UN Doc. S/2002/108, supra note 45, appendix.

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.

1982, Art. 298(1)(a)(i), 1833 UNTS 397.

[FN52]. ICJ Press Release 2002/21 (Sept. 10, 2002).

[FN54]. Xinhua General News Service, supra note 46.