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Abstract
At the heart of modern international law stands the principle of peaceful settlement of international disputes. Traditionally, States’ right to resort to war for the resolution of international disputes was seldomly challenged. For centuries, use of force or threat of use of force was common in international relations. Not until the founding of the United Nations (UN) and the adoption of the Charter of the United Nations was non-use of force in international relations legally prohibited, and peaceful settlement of international disputes established as one of the fundamental principles in international law. In this development, the International Court of Justice (ICJ) was and continues to be a key actor. As will become clear in the following, however, the role of the Court goes beyond settling disputes. It has entailed the significant task of developing, without legislating, international law through judicial law-making. The case law analysed in this chapter shows that this is particularly the case when the existing law is inadequate, unclear or uncertain, and when the law needs to be developed first through progressive interpretation. In this role, the Court faces a tension inherent in the nature of law as such, i.e., between stability on the one hand, and evolution in view of economic and social progress on the other hand. This raises the question whether and to what extent self-restraint by the Court might be necessary. The chapter concludes by emphasizing three core challenges the Court faces, and how they might impact its work in the future.
Abstract
The United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses (UN Watercourses Convention) recommends that states apply and adapt their watercourse agreements to the provisions of the UN Watercourses Convention. To explore the advantages of abiding to crucial developments in international water law, environmental law, and climate change law, this monograph will analyze the most important hydroelectric energy treaty in the South American region, the Itaipu Treaty. The monograph will argue that adapting watercourse agreements to developments in international law provides a way to foster sustainable development for the treaty parties, the countries sharing the watercourse ecosystem, as well as the international community as a whole.
Abstract
The International Court of Justice’s most recent advisory opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 brings to the surface two important questions in respect of the Court’s advisory jurisdiction. First, should the Court be issuing advisory opinions in the context of a highly political dispute between states? Second, can other international organisations treat the advisory opinion as the basis of a binding legal obligation? This article delves into the implications of different answers to these questions. I conclude that, in respect of the second question, it would be problematic for an international organisation to treat an advisory opinion as the basis of a binding legal obligation. This is because the Court’s advisory opinions are only capable of conveying a moral force under the international law that creates them. Further, it would jeopardise the principle of state consent as it risks a dispute between two states being settled on the basis of an advisory opinion, without their explicit agreement. Following this conclusion, I argue that it is otherwise beneficial for the Court to issue opinions on highly political disputes. However, the caveat to this argument is that the Court should make it clear that its advisory opinions are not capable of forming the basis of a legal obligation. Otherwise, an international organisation could treat the advisory opinion as capable of having legal effect, as exemplified by the Special Chamber of the International Tribunal of the Law of the Sea’s treatment of the Chagos Archipelago opinion.