This chapter concludes the monograph, summarizing the main reflections offered throughout and reflecting on the future of the relationship between the individual and the International Court of Justice.

The title of the Convention and article I both refer to the obligation to prevent genocide. However, the Convention provides no other guidance on the scope of this obligation. In its 2007 judgment in Bosnia v. Serbia the International Court of Justice held that Serbia had had been in breach of its obligation to prevent genocide because it failed to exert pressure on Bosnian Serb forces who were preparing to commit genocide at Srebrenica. The doctrine developed by the Court was quite radical in that it recognized an extraterritoriaoutside their own gterritory unless l dimension of the obligation, one that varied in scope depending upon the influence the State Party was capable of exerting. Prevention of genocide is also contemplated in the General Assembly resolution on the responsibility to protect. Means employed to prevent genocide must be otherwise lawful. States cannot use force to prevent genocide unless authorised pursuant to the Charter of the United Nations.

States incur responsibility for violations of the Convention that may include failure to prosecute or to comply with other obligations under the Convention. The International Court of Justice has made it clear that States may also be found responsibility for actually committing genocide. Because the repression of genocide is erga omnes, even a State that is not injured by the violation may take proceedings against another State alleging that it has committed genocide. The general principles are set out in the Articles on State Responsibility adopted by the International Law Commission. There have been seventeen interstate applications to the Court based upon the Genocide Convention although it has yet to conclude that a State Party has committed the crime of genocide. The two main cases to date are Bosnia v. Serbia and Croatia v. Serbia. Three cases are currently pending, Gambia v. Myanmar, Ukraine v. Russia and South Africa v. Israel. The Court has made important provisional measures orders in some of these cases.

After the second world war, the International Court of Justice decided two contentious cases: Corfu Channel (1949), which addressed straits used for international navigation; and Fisheries (1951), which considered baselines marking the start of the territorial sea. Both were initiated by the United Kingdom after two other states, Albania and Norway respectively, tried to prevent British vessels from operating without permission in their coastal waters - warships in one case, trawlers in the other. Taken together, the decisions set out the parameters of the modern approach to the law of the sea: preserving the naval powers’ traditional freedoms of navigation while recognising the coastal states’ claims to resources in the waters off their coasts.

This chapter maintains that the International Court of Justice (ICJ) may usefully intervene in the complex and multifaceted litigation that has developed before national and international tribunals, as well as human rights treaty bodies, concerning national climate policies adopted to implement international obligations. By considering the rationale and nature of climate litigation, the chapter seeks to point out what international law rules the ICJ should take into account (especially clarifying their existence and scope) in order to make a real contribution to national and international jurisprudence.

By way of conclusion, this chapter seeks to provide an overall assessment of what draws the Court and the Commission together, and of the impact that their “special relationship” has produced. In pulling the threads together, it explains that the interaction between the two organs has turned out differently to that which was originally envisaged, and that the great weight accorded by each of them to the work of the other has challenged the exclusive basis of State consent for international law’s validity. In a legal system that remains heavily dependent on unwritten rules of customary international law that require authoritative determination, the ultimate result has been that the Court and the Commission together assume a public order role not foreseen for either of them by their founders.

This chapter provides a detailed account of the impact that the Commission’s work has had in shaping the Court’s case-law. In addition to surveying and classifying all those instances in which the Court has to date been ready to refer expressly to the Commission’s output, the chapter demonstrates that reliance on the Commission’s work has often been more implicit. The question is then posed as to the basis for such recourse and the advantage afforded by it.

This chapter sets the scene for an appreciation of the contemporary relationship between the Court and the Commission by tracing its roots in the broader ideal of the pacific settlement of disputes and the rule of law in international affairs. Taking stock of developments dating back to the nineteenth century, it illustrates that the long-standing movements for an international court and for an international code were not unrelated, and that a certain vision did exist for the way in which their present institutional manifestations were to interact. That original vision, which has been lost in time, has thus far attracted less attention from commentators than its importance requires.

This introductory chapter explains the scope and purpose of the present study; the methodology pursued; and the structure of argument presented in subsequent chapters.

This chapter addresses in detail those rare occasions in which the Court and the Commission have adopted differing positions on the legal questions before them. In exploring both the potential for such disagreements and how they have been handled, the chapter shows that these instances attest to the strength of the inter-institutional relationship rather than undermine it. It also points out, however, that harmony comes at a cost.

This chapter addresses the relationship between the Court and the Commission beyond the printed page. By focusing attention on the movement of members from one institution to the other, and to the customary exchanges in Geneva between the members of both the UN organs, it reveals the extent and contribution of the more subtle ties that bind the Court and the Commission.

This chapter examines the unparalleled influence that the Court’s decisions have had on the Commission’s codification and progressive development of areas of the law under its consideration. It illustrates not only the great extent to which many of the Commission’s propositions have borrowed their authority from the pronouncements of the Court, but also the significant impact of the latter on the Commission’s choices concerning terminology and programme of work. The chapter further demonstrates the Commission’s conscious efforts to support the Court’s cause more broadly, including by encouraging the expansion of the Court’s jurisdiction and by promoting the doctrine of the sources of international law enshrined in its Statute.

Building on Derrida’s celebrated analysis of the term ‘supplement’, this chapter investigates the fundamental ambivalence of supplementary means of treaty interpretation. While the general philosophy of the Vienna Convention interpretive regime rests on the assumption of a hierarchy between the primary means set forth in Article 31 of the Vienna Convention and the supplementary means of Article 32, qualifying certain means as supplementary presumes that the primary interpretive means are somewhat lacking and in need of a complement. The chapter also focuses on the ‘danger’ of such supplement that has been highlighted in practice, namely, that supplementary means themselves need to be interpreted before they can be used in an interpretive inquiry, reinforcing the larger point made in the book that it is impossible to get an unmediated access to any signified. The chapter argues that since supplementary means are not comprehensively listed in the treaty interpretation regime, a virtually endless number of materials can be made relevant in treaty interpretation discourse through the channel of supplementary means.

How does one ascertain the object and purpose of a treaty? Can a treaty have more than one object and purpose? What does giving effect to the object and purpose of a treaty mean in practice? Despite such fundamental uncertainties surrounding them, the ‘object and purpose’ are widely resorted to in the practice of treaty interpretation. This chapter argues that the object and purpose doctrine is coextensive with a large amount of interpretive discretion. The identification of the object and purpose of a treaty a largely indeterminate process, and the assumption that the treaty makers necessarily want the object and purpose of their treaty to be implemented under all circumstances leaves the treaty interpreter with considerable normative power that can hardly be resisted given the very terms of the assumption. The chapter argues that consideration of the finality of a treaty cannot be an exercise in abstract logic, but meet the requirements of practical reason.