Sources of International Law

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The Silala Case: Was Justice Served?

On 1 December 2022, the International Court of Justice (“ICJ” or “Court”) issued its decision on the Silala case. At the time of the Application, the Parties’ views were positively opposed. Chile requested a declaratory judgment that the Silala River system is an international watercourse, the use of which is governed by customary international law (“CIL”). It furthermore sought a declaration recognizing that its current use of the water is equitable and reasonable. Bolivia, on the other hand, rejected Chile’s legal characterization of the Silala, arguing instead that it was a spring wholly located in Bolivian territory and artificially steered towards Chile (Judgment, para. 32). While Chile’s claims remained essentially untouched throughout the proceedings (Judgment, paras. 25, 27), Bolivia progressively modified its submissions and, in its closing arguments, presented a radically different case – that all of the Silala, including any artificially enhanced surface flow, constitutes an international watercourse that entitles both States to an equitable and reasonable use.

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Disobeying the Security Council or a disobedient Security Council? The effects of jus cogens on Security Council resolutions in recent debates of the ILC and in the views of states

At the most recent plenary session of the International Law Commission, which concluded on 5 August 2022, one issue proved particularly controversial. Indeed, it proved so controversial that Prof. Tladi, Special Rapporteur on peremptory norms of general international law (jus cogens), claimed that he was willing to fall on his sword over the issue, whereas Chinese ILC-member Prof. Huang insinuated…

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Assessing the Authority of the ICRC Customary IHL Study

If you are desperately in need of some light summer reading, dear readers, I have just the thing for you, inclusive of beach-ready spreadsheets if you want them. Sandy Sivakumaran and I recently posted on SSRN a draft article, ‘Assessing the Authority of the ICRC Customary IHL Study,’ which is forthcoming in the International Review…

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Canada Takes on International Law in Cyberspace

This April, Global Affairs Canada (GAC, the foreign ministry) released Canada’s position on the application of international law in cyberspace. Unfortunately, for two reasons, the statement failed to attract the attention it merited. First, Canada released it on the heels of the 2019-21 U.N. Group of Governmental Experts (GGE) Report on State…

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Ashraf Ghani’s ambitions to divert the Helmand River now serve his enemy, the Taliban: an International Law perspective

One tragedy follows another in Afghanistan. Occurring amid many other dramatic events, the diversion of the Helmand (Hirmand) River, which flows through Afghanistan and Iran, by the Taliban in January 2022 was almost lost in the news. This deliberate act can cause huge economic losses, degrade entire ecosystems, and threaten the lives of those dependent upon its waters.

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