Why Comply? An Analysis of Trends in Compliance with Judgments of the International Court of Justice since Nicaragua.

Heather L. Jones, American University Washington College of Law

Abstract

Decisions of the International Court of Justice have been met with substantial compliance in the modern era. Direct, defiant noncompliance -- where a state deliberately and ceaselessly rejects a decision of the Court and refuses to implement its judgment -- has not occurred in any case. In cases where noncompliancy has been present, the noncompliant behavior has been only initial or slight.

Pressure from the international community and the presence of international organizations raise the reputation costs associated with noncompliance thereby minimizing the risk of disobedience with judgments. Defiant noncompliance occurs where a judgment is in discord with a state’s self-interest or threatens its autonomous regime. Problems for implementation may also occur where judgments are ambiguous, but such complications are not a result of defiance. Instances of noncompliance can be cured if the subject matter is sufficiently international and there is ample external political pressure, especially where the presence of a mutually shared interest, a close relationship, or an extant or anticipated military conflict has increased the state’s need for a definitive solution. Judgments which entail compromise or allow for cooperative efforts are more easily implemented, regardless of whether the compromise is designated by the Court’s judgment, or, alternatively, is achieved through subsequent cooperation between the parties.

In order to continue the trend toward compliance, international organizations and the international community must continue to act as an enforcer of international decisions by exerting pressure on defiant parties and raising reputation costs associated with noncompliance. Further, the international law regime must remain a system of sovereign states operating on a theory of consent in which a proper balance is achieved between the sovereignty sacrificed and the international safeguards secured as a result.