ICJ Discretionary Powers: Judicial Activism v. Restraint in the Advisory Opinion on Kosovo

Voting Patterns and the ICJ Nuclear Weapons Advisory Opinion

Brief Synopses of New Arabic Language Publications

Climate Change and the International Court of Justice

Climate change is the justice challenge of our century, and the increasingly serious impacts of climate change on human societies and ecosystems are raising important international legal challenges. States and stakeholders are appealing to international courts for clarity concerning their responsibilities in the global response to climate change, as well as their accountability for climaterelated loss and damage. Through advisory proceedings, these institutions are being asked to clarify the legal obligations of States in addressing climate change, including the prevention of ocean impacts, the protection of human rights, and in international law more broadly. The International Tribunal for the Law of the Sea (ITLOS), the Inter-American Court of Human Rights (IACtHR) and the International Court of Justice (ICJ) are at the forefront of such proceedings with the potential to reshape international climate law and governance. In this article, expert legal scholars highlight the significance of climate advisory proceedings in these tribunals, briefly underlining the legal reasoning of the ITLOS advisory opinion, its implications for international climate governance, and the questions and arguments before the IACtHR and the ICJ. The article explores, in the context of global efforts to implement the Paris Agreement under the United Nations Framework Convention on Climate Change (UNFCCC) and other climate litigation including in international courts and tribunals, the transformative potential of recent advisory opinions sought from the ITLOS, the IACtHR and the ICJ. In their responses to the pressing need for legal clarity in a world grappling with unprecedented climate challenges, the article suggests, courts are offered an historic opportunity to shape the contributions of international law to global sustainability, justice and the survival of life on Earth.

SHIRLEY V. SCOTT, INTERNATIONAL LAW IN WORLD POLITICS: AN INTRODUCTION (BOULDER, COLO.: LYNNE RIENNER PUBLISHERS, 2004). An article from journal Revue québécoise de droit international / Quebec Journal of International Law / Revista quebequense de derecho internacional (Volume 17, Number 2, 2004, pp. 1-317), on Érudit.

This Preface to the EPL Special Issue 55 (6) 2025 on the Advisory Opinions (2024-2025) of the International Courts and Tribunals (ICTs) onClimate Change seeks to provide an overview and serves as a lead research article to introduce the legal trajectory adopted for seeking an authoritative view on the “obligations of the States” under international law and “legal consequences under these obligations for States” (worded differently before each ICT) in relation to climate change from the three ICTs. The three marathon processes for seeking Advisory Opinions (AOs) took place before the International Court of Justice (ICJ), Inter-American Court of Human Rights (IACtHR) and International Tribunal on the Law of the Sea (ITLOS). The fourth one is pending (since May 02, 2025) before the African Court of Human & Peoples’ Rights. The respective ‘requests’ were presented to these ICTs on May 29, 2023 (ICJ), January 9, 2023 (IACtHR) and December 12, 2022 (ITLOS). After going through their procedural craft of formal requests, written statements, oral presentations and specially arranged meetings (by the ICJ) with some stakeholders such as Intergovernmental Panel on Climate Change (IPCC), the three ICTs delivered their respective AOs on July 23, 2025 (ICJ, The Hague), July 03, 2025 (IACtHR, San Jose) and May 21, 2024 (ITLOS, Hamburg). Thus, the AOs of these three ICTs provide a unique legal corpus ostensibly for strengthening legal basis of the State-centric consensual regime (1992 UNFCCC, 1997 Kyoto Protocol and 2015 Paris Agreement) on climate change. These AOs have brought to the fore role of the ICTs as ‘sentinels’ even as entire climate change global regulatory process (1992-2025) seem to be floundering after 33 years in spite of grim scientific projections about the “climate emergency”. It is in this backdrop that this preface-cum-research article provides the context, a preliminary overview of the outcomes of the three ICT AOs and possible future trajectory to resolve the “climate conundrum”, beyond the three AOs.

On 22 July 2010 the International Court of Justice (ICJ) presented its advisory opinion on the accordance of Kosovo's unilateral declaration of independence (UDI) with international law. The Court's opinion marks further milestone in the international community's engagement with Kosovo and the so-called status question. It remains to be seen, however, whether the present opinion will go down in the history of the ICJ as groundbreaking decision or, rather, an exercise of mechanical jurisprudence. In the view of this author, the substance of the opinion is, for the most part, neither spectacular nor particularly controversial. Most notably, assertions according to which the opinion provides a guide and instruction manual for secessionist groups the world over, seem greatly exaggerated. The ICJ deliberately leaves open whether Kosovo's UDI has in fact led to the creation of new state. Likewise, it does not take any position on the legality under international law of the acts of recognition hitherto extended to Kosovo. In the end, the Court simply confirms that general international law is largely indifferent towards attempted secessions; notwithstanding the existence of narrow zones of law, within which secession is either prohibited or expressly permitted. Unfortunately, the Court does not provide any guidance on how to approach the crucial question of whether – beyond the well established right to independence for colonial peoples and peoples subject to alien subjugation, domination and exploitation – international law positively permits secession in certain (exceptional) situations by conferring right upon majority residing within definable territory to separate from the state to the jurisdiction of which that territory belongs. Thus, what we are eventually left with is further affirmation – this time by the ICJ – that, from the perspective of international law, secession is for the most part still matter of fact rather than law.

This chapter describes the table of contents containing duration of cases and advisory opinion, countries as applicant/respondent, countries submitting written statement/oral statement and declarations/opinions of judges. The cases appealed, countries involved in International Court of Justice (ICJ) and Permanent Court of International Justice (PCIJ) are discussed. The advisory opinions are rendered by the ICJ. The format in the book The World Court Reference Guide and Case-Law Digest is similar to the contentious cases - begins with the exact question(s) placed by the requesting organisation, source of authority seeking the opinion, duration of the proceedings, states, organisations and others authorised by the Court to file written statements and present oral statements during the public hearings, head notes, operative paragraph, record of opinions and sources of law. The book consists of substantive law which covers sources and rules of international law, the subjects of international law and the international society. Keywords: advisory opinion; ICJ; international law; PCIJ; public hearings

The international community anxiously awaited delivery of the advisory opinion of the International Court of Justice (ICJ) on Kosovo’s declaration of independence, hoping it would clarify the controversial right of self-determination and the right of secession. Although it was hailed by many as a confirmation of both rights, the advisory opinion was disappointing regarding that part of the analysis which was based on general international law. The ICJ interpreted the question posed in a very narrow and formalistic way. It concluded that declarations of independence (not their consequences) are not in violation of international law, but it did not rule that they are in accordance with international law, as was requested in the posed question. The ICJ refused to examine whether there is a positive entitlement to secession under international law. Although Kosovo and its supporters claimed that the case of Kosovo is unique and will not set a precedent, Russia used the case of Kosovo and the advisory opinion to justify the so-called referendum in Crimea and the subsequent incorporation of Crimea into Russia. However, the situation in Crimea is only superficially comparable to Kosovo and the advisory opinion gives little or no support in the case of Crimea.

The situations of Western Sahara and Palestine have much in common. Both remain territories under foreign rule in the face of widespread support for their peoples' self-determination. One of the most important reasons against its jurisdiction was the proposition advanced in a number of submissions that 'the request concerns a contentious matter between Israel and Palestine' lacking Israeli consent. In contrast with contentious International Court of Justice (ICJ) cases, Advisory Opinions offer much greater scope for the participation of a range of states as well as inter-governmental organisations (IGOs) and in the case of Palestine, nascent state entities. This chapter concerns with two strategic devices employed by the parties in presenting their respective positions: the use of language and the use of history. Matters of jurisdiction and propriety also reflected normative positions about the role of the ICJ and international law within international society.Keywords: advisory opinions; inter-governmental organisations (IGOs); International Court of Justice (ICJ); international law; Israel; Palestinian territory; self-determination

This article examines the notion of consent as an element of judicial propriety as defined by the International Court of Justice (ICJ) in the context of its advisory function. The article situates the issue of judicial propriety within a broader conversation on the Court’s normative outlooks in international law, and examines the most recent advisory opinion on the Chagos Archipelago to understand how the Court itself views its role in international law. The article concludes that the Court’s advisory opinions do not provide much clarity as to the circumstances in which a lack of consent will become a compelling enough reason to justify a refusal to give an advisory opinion. The Court appears to ritually recite consent as a relevant element in its assessment of judicial propriety, however, it continues to limit such relevance.

The function of the International Court of Justice (ICJ) is to decide in accordance with international law such disputes or advisory opinions that are submitted to it. Although the ICJ has consistently applied and contributed to the development of general public international law, in certain areas such as international humanitarian law (IHL), the Court has gone back and forth between authentic contributions and judicial constraint. In other words, while on certain occasions the ICJ has grounded its decisions on IHL, in other cases it deliberately refrained from doing so, arguably due to the subject matter under consideration or to justify a departure from its previous case law. Instead of describing the decisions rendered by the ICJ regarding IHL issues, this chapter portrays how the Court has selectively applied (and refrained from applying) this legal framework. In doing so, the chapter considers certain factors that may explain this behavior and analyzes them in light of its dual role: as a crucial actor in the pacific settlement of international disputes; and in applying international law.

Article 38, para.1, of the Statute of the International Court of Justice (ICJ) defines customary international law as evidence of general practice accepted as law, understood as State practice and opinio juris. However, by identifying certain norms as an international custom without referring to the traditional evidence of State practice and opinio juris, international courts and tribunals are contributing to the formation of customary international law. This paper presents an analysis of how the International Court of Justice contributes to the formation of customary international law by relying on the draft articles of the International Law Commission (ILC). Th e International Court of Justice, in “deciding in accordance with international law”, also authoritatively declares what the current international law is, while the International Law Commission, although constituted of highly qualified publicists from various States, is drafting only non-binding international instruments. By relying on the ILC draft articles and declaring them to be reflecting customary international law-although the draft articles may not be necessary the expression of the States’ practice and their opinio juris, the ICJ creates and generates the creation of customary international law. Interestingly, the ICJ tends to rely mostly on ILC draft articles that refer to the jurisprudence of either the Permanent Court of International Justice (“PCIJ”) or the ICJ itself. Th e paper presents research of approximately 70 ICJ decisions and individual opinions that cite to the work of the ILC. The author notes the evolution of the relationship between the ICJ and the ILC through three different time periods, and presents the findings on how, when and why the ICJ relies on the ILC draft articles. In addition, the author gives examples in which the ICJ rejected the reliance on the ILC’s work, mainly due to the divergent interpretation on the specific area of international law. The ICJ, by relying on the ILC draft articles that in turn refer to the jurisprudence of the ICJ or PCIJ, is not only generating norms of customary international law, but is also reaffirming the importance of its (and PCIJ’s) jurisprudence for the future of international law. Although ICJ decisions are binding only between the parties to the dispute (Art.59 ICJ Statute), the clarification of whether a norm is customary or not, affects the international community of States. Noting the present reluctance of States to adopt treaties, and- hence their potentially decreasing role in international law-making, this research offers an insight into an alternative venue of international law-making. As the international community, and the ILC itself, is regaining interest in the sources of international law, this paper aims to identify the mechanisms of international law-making, the understanding of which will contribute to international law’s needed predictability and a more uniform and reliable interpretation of international law.

This opinion critically analyses the ‘advisory opinion’ of the International Court of Justice (ICJ) which concerns the obligations of States in respect of climate change (2025), and in doing so, identifies issues that remain unresolved with the advisory opinion. This opinion also considers the principle of erga omnes, which is briefly mentioned in the ‘advisory opinion’ and also discusses climate change obligations that have the character of erga omnes , that is, obligations that are owed by a State to members of the international community as a whole. It is suggested that the ICJ has missed opportunities to clarify the relationship between the obligation(s) concerning climate change, the principle of erga omnes , consent and customary international law. It is also argued that the list of obligations that were considered jus cogens by the International Law Commission could be expanded, in the context of climate change, and notes that these types of obligations are also owed to members of the international community as a whole ( erga omnes ).

The International Court of Justice (ICJ) procedure has been, within and across contentious cases and advisory opinions, both a catalyst for, and a constraint on, the emergence and evolution of erga omnes obligations. Clarification, interpretation, and affirmation of the law have most frequently worked as catalysts for the emergence and evolution of erga omnes obligations. Judicial propriety and/or judicial discretion have most frequently tended to constrain the emergence and evolution of erga omnes obligations. Judicial propriety and/or judicial discretion, evidence, consent, and standing before the Court have been other catalysts. Formalism, jurisdiction, fact-finding, and interpretation have been other constraints on the emergence and evolution of erga omnes obligations.