Two of the most pressing questions concerning international peace and security today are how to avoid an escalation of conflicts in cyberspace and how to ensure responsible behavior and accountability of states in their use of information and communication technologies. With more than thirty states now possessing offensive cyber capabilities and cybersecurity incidents such as Stuxnet, WannaCry, and NotPetya causing significant physical effects or financial damage, there is a clear need to find a better way to manage security risks connected with the use of increasingly sophisticated cyber means by states. At present, this issue is on the agenda of two United Nations groups and is mainly addressed through a “framework for responsible behavior of states” consisting of international law, voluntary and non-binding norms, and confidence-building measures for states’ use of information and communication technologies. What the current discussions do not address, however, is whether the security risks could also be regulated through an arms control and inspection regime for cyber weapons. While such a regime has been proposed by scholars, states remain skeptical or even actively opposed to efforts to impose traditional arms control measures on offensive cyber capabilities. This essay examines why a cyber weapons inspection regime is so difficult to devise. It argues that due to their nature and mode of functioning, cyber weapons significantly differ from traditional nuclear, chemical, or biological weapons, such that mechanisms established by traditional arms control treaties either will not work or will not be agreed to by states. Instead, new regulatory approaches are necessary.

Indigenous Peoples are emerging as diplomats on the world stage. With states relinquishing some “soft power” space to non-state actors, the role of Indigenous Peoples in international diplomacy and particularly human rights diplomacy is both distinctive and important.

Standing back, the greatest influence of Indigenous Peoples on international law is our contribution to a pragmatically-driven yet conscious reframing of its foundations. Partly as a result of our participation in international law, it is changing its nineteenth and twentieth century state-centric, colonial, and positivist character to a more informal, flexible, and partially decolonizing system of law. In this way, Indigenous Peoples are crafting a legal system that achieves the “sweet-spot.” It has sufficient “hard-law” quality to restrain the self-interested instincts of powerful states—much needed by Indigenous Peoples seeking to realize their claims against states—and systemic inclusion and justice.

Key studies have highlighted how Western law was central to the civilizing mission of colonialism, legitimizing conquest while presenting itself as a colonizer's gift for overcoming barbarism. But law was not just an imposition to dispossess resources and accumulate labor; it was also transformed by the contestations of First Nations and the new practices deployed in settler societies. In this context, the first international legal theories were aimed at subordinating third world societies and, at the same time, provided the foundations of Western legal apparatus, shaping racially the modern concepts of sovereignty, territory, and property.

International law has long recognized that the power of a state to identify its nationals is a central attribute of sovereignty and firmly within the purview of domestic law. Yet these boundaries may be shifting, in part due to the effect of international human rights norms. In 2011, citizenship scholar Peter Spiro asked, “[w]ill international law colonize th[is] last bastion of sovereign discretion?” Ten years later, this essay reframes the question, asking whether the international law of Indigenous Peoples’ rights will “decolonize” the discretion, by encouraging its exercise in ways that respect and enable Indigenous connections to their traditional land. It considers this possibility in light of two recent cases decided by courts in Australia and Canada, both of which ascribe a distinctive legal status to non-citizen Indigenous persons: Love v. Commonwealth, Thoms v Commonwealth (“Love-Thoms,” Australian High Court) and R. v. Desautel (“Desautel,” British Columbia Court of Appeal, currently on appeal before the Supreme Court of Canada). In each case, the court in question recognized that some Indigenous non-citizens have constitutional rights to remain within the state's territory (and perhaps also a correlative right to enter it), by virtue of their pre-contact ancestral ties to land within the state's borders.

The Case of the Monetary Gold Removed from Rome in 1943 is familiar to all international lawyers. Like a catechism, we are taught that the ICJ will not proceed with a case where the legal interests of a State not before the Court “would not only be affected by a decision, but would form the very subject-matter of the decision.” Mollengarden and Zamir's proposal that the Court should dispense with the Monetary Gold principle feels almost heretical. The authors contend that the ICJ Statute sets out a framework for balancing the interests of third parties through the use of the intervention procedure, and that Monetary Gold “disrupts that balance.” Monetary Gold is, they submit, to be treated as only a judicial decision, entitled under Article 36(1)(d) of the Statute to little deference as a source of legal principle. I suggest taking an altogether different approach. The best way to understand the place of the Monetary Gold principle is in the context of the ICJ's rule making powers pursuant to Article 30(1) of the Court's Statute. These rule making powers are not limited to the promulgation of formal Rules of Court but extend to the determination of appropriate procedures during the hearing of a case. These procedural rules (small r), articulated in the context of particular cases, may in time evolve into formal Rules of Court through an iterative process. Monetary Gold is an instance of the Court defining a small r procedural rule in a manner that is consistent with the Court's Statute.

In “The Monetary Gold Principle: Back to Basics,” Zachary Mollengarden and Noam Zamir claim that the well-known principle runs against fundamental ICJ statutory provisions. It would “depart” from Article 36(1), “undermine” Article 62, “import factors external” to Article 59 and “obscure . . . rather than illuminate . . . the relevant rules of law” contrary to Article 38(1). Additionally, the policy considerations upon which the principle is allegedly based—compliance, due process, and legitimacy—would support its abolition, rather than its perpetuation. I argue that the authors’ claims are unpersuasive in relation to Article 36(1) of the ICJ Statute (consent of the parties to adjudication) since they fail to distinguish between having jurisdiction in a case and exercising jurisdiction to decide a claim. The authors also overestimate the role of Article 62 in securing third-party interests, since only intervention as a party, rather than a non-party, is sufficient to overcome the Monetary Gold limitation.

Zachary Mollengarden and Noam Zamir want to take back to basics the principle associated with the Monetary Gold Removed from Rome in 1943 (Monetary Gold) judgment of the International Court of Justice (ICJ). Their “categorical” and mostly doctrinal claim, underpinned by policy concern about “the tensions between the bilateral presuppositions of the Statute and the increasingly multilateral nature of international affairs and international disputes” is “that the Monetary Gold principle is irreconcilable with the ICJ Statute's jurisdictional architecture.” The tension between bilateralism and community interests often provides an attractive analytical perspective, and points raised by the authors might be relevant in calibrating certain aspects of the principle. But its wholesale critique, while skillfully put, is ultimately unpersuasive. Careful consideration of basic instruments and issues is commendable but an exclusive focus that does not engage with the broader international legal process will miss its unmistakable and widespread endorsement of the Monetary Gold principle. Even the concern about the multilateral context ultimately counts against rather than in favor of their argument. Multilateral sensitivities can already be articulated within the four corners of Monetary Gold, and Mauritius/Maldives, delivered just as the ink was drying on the first draft of this essay, is a perfectly timed example for that.

Zachary Mollengarden and Noam Zamir base their conclusion that the Monetary Gold principle should be abandoned on both legal considerations and policy implications. These two elements, however, do not receive equal attention in the article. This essay unpacks the authors’ dismissal of the idea that, by subjecting jurisdiction to consent, the principle makes compliance with awards from the ICJ more likely. Based on the notion that judicial decisions should be understood as embedded within wider political bargains, I contend that while consent might be indicative of states’ willingness to abide by a judicial decision, what ultimately matters for changing state policy towards compliance is the set of incentives that states face in the context of these wider political bargains. Thus, the essay argues, in line with Mollengarden and Zamir, that abandoning the Monetary Gold principle need not make the Court less effective. However, it will not necessarily make it more impactful either. Beyond Monetary Gold and in relation to its role in world politics more broadly, the Court's impact rests, ultimately, on how political actors––including the ICJ itself––mobilize rulings strategically.

The purpose of this essay is to explore the two main ways in which community interests have been taken into account in international adjudication. First, special procedural tools have been devised in order to accommodate the multilateral dimension of certain disputes into the traditionally bilateral scheme of international adjudication. It will be shown that such tools have been of little use for the protection of community interests. Second, legal relations engendered by community interests have been conceptualized in a bilateral manner so that they could fit adjudicative bilateralism. It may seem counterintuitive, but it will be maintained that this second avenue offers the most concrete, yet not entirely satisfactory, means to adjudicate community interests. Finally, the essay argues that the Monetary Gold rule proves a useful test to properly understand the different logic of these two avenues.

International water law (IWL) principles are often called upon to address disagreements and conflict between riparian states to a shared watercourse, with various parties invoking them to guide states’ behavior towards cooperative solutions that benefit the water resources as well as broader regional cooperation and peace. This essay argues that it is particularly important to acknowledge the role IWL principles play in negotiation processes, that is, in an ex ante and non-judicial function, providing a framework for cooperation and contributing to lawmaking, which makes them important tools of international relations and water diplomacy. First, IWL principles are particularly relevant in negotiation processes. IWL principles are thus not only relevant to legal adjudication or enforcement, but are also tools of international relations and diplomacy. Additionally, in their ex ante role, in the context of negotiations or other non-judicial interactions between riparian states, IWL principles can pose an inherent dilemma, as they can both provide a framework for negotiations and be the focus of negotiations, each dimension having implications for the effectiveness of negotiations and the likelihood of negotiated compromise outcomes. Third, in spite of this inherent dilemma and its possible negative repercussions on negotiation outcomes, the use of IWL principles in negotiations has a lawmaking function, contributing to the further development and strengthening of the overall legal regime for governing shared watercourses.

Could Turkey dam the Tigris and Euphrates and deprive its downstream neighbors of vital water resources? Could Brazil over-pump the Guarani Aquifer System to the detriment of the other aquifer states? Could Egypt put pressure on upstream Nile states and prevent them from developing river related infrastructure that might limit downstream flow? International law in the field of transboundary water cooperation has evolved and would appear to condemn unilateral practices such as the ones suggested above. However, hydro politics and the lack of reception of international water law instruments by many countries sometimes make it difficult to see international law properly reflected in the management of major rivers, lakes and aquifers around the world. In this essay, I first highlight what international law dictates when it comes to the tension between national sovereignty and transboundary water cooperation. I then explore how this tension plays out in the three examples noted above. Due to limited acceptance of the existing international, bilateral, or regional legal instruments, the resolution of the tension between national sovereignty and transboundary water cooperation will often be left to customary international law.

The relationship between the principle of equitable and reasonable utilization and the obligation against causing significant harm has been the most challenging issue in the long history of the evolution of international water law. The purpose of this essay is to discuss the genesis of the debate on the relationship between the two concepts, present the opposing positions of the different riparians thereon, and clarify how the UN Convention on the Law of the Non-Navigational Uses of International Watercourses has resolved this matter and rendered the two concepts reconcilable.

International practice, including international instruments and case law, confirms that states generally accept that they have a duty to provide prior notification of planned measures that may have a significant adverse effect upon co-riparians. The principle of “prior notification” is framed differently in various instruments, and it can broadly include the duty to “notify” and “consult” on planned measures. Prior notification helps to prevent and mitigate disputes, as underlined by the ICJ. Notification and consultation create the conditions for cooperation among riparian states and for ensuring the protection of international watercourses. On the contrary, the lack of notification and consultation may aggravate disputes as in the case of the Great Renaissance Dam along the Nile River. The UN Convention on the Law of the Non-Navigational Uses of International Watercourses (Watercourses Convention) provides a detailed procedural framework on prior notification and consultation. This essay outlines the established characteristics of the prior notification and consultation duty, then argues that the duty should be viewed not only as an inter-state obligation but also as including the obligation to inform and consult local communities.

The fundamental role of international law is to provide a framework for the coexistence of and cooperation among states. If international law and institutions work well, their contribution to the management of international affairs remains in the background. This essay seeks to illuminate the largely unnoticed work of river commissions in preventing and resolving cross-border water disputes. Among the oldest of international organizations, river commissions have long been at the forefront of technical and diplomatic interactions between countries. Similar to other international organizations, river commissions were created to better coordinate interstate interactions and more efficiently pursue common goals. They differ from other international organisations in the focus on water, a unique substance that cuts across so many aspects of human existence and requires specific treatment depending on the hydrological, political, social and economic context. Given the diversity of the contexts, river commissions differ from each other in their design and the tasks assigned to them. Therefore, a river commission is an umbrella term that encompasses a diversity of joint arrangements for cooperation between the riparian countries over their shared waters. This essay argues that river commissions helped to prevent, mitigate, and resolve many cross-border water disputes by building communities over water, enhancing technical knowledge and routinizing organisational transformations.

Quarrels between states sharing a transboundary aquifer (TBA) have been relatively minor in comparison with the more boisterous disputes seen in many of the world's shared river basins. Yet, transboundary groundwater can easily serve as the basis for cross-border disagreements. Twice as many TBAs and shared groundwater bodies have been identified globally as compared to transboundary rivers and lakes, and the volume of accessible groundwater exceeds all surface waters by a factor of one hundred. Yet, the number of treaties in force for TBAs is miniscule in comparison with those for transboundary rivers and lakes. Moreover, dozens of nations exploit groundwater from a TBA, often unilaterally and without knowing the cross-border implications, or even that the aquifer is transboundary. The lack of prioritization of groundwater in international practice and law, coupled with the reality that groundwater is “out of sight,” and thereby “out of mind,” has relegated shared aquifers as the neglected stepchildren of international water law. But, with many of the world's nations experiencing growing water scarcity and stress, this situation undoubtedly will change. This essay highlights the growing pains of international groundwater law and the challenges for its identification and articulation. Specific hydrogeologic characteristics of various TBAs are presented and, where relevant, placed in the context of water scarcity and security and recognized international legal norms.