¹ Rosalind Elphick & John Dugard, Jus Cogens and Compensation, in Peremptory Norms of General International Law: Disquisitions and Disputations 414 (Dire Tladi ed., 2023) (describing the rules on reparation as “one of the most established norms of customary international law”); see also Dinah Shelton, Reparations, Max Planck Encyclopedia Pub. Int’l L., para. 4 (2015) (“In early history, vanquished peoples paid tribute to the victors, over time giving rise to the custom of war indemnities intended to cover the victor’s war costs.”).

² Factory at Chorzów, Judgment, Claim for Indemnity, Merits, PCIJ (Series A) No. 17, at 47 (1928), at https://jusmundi.com/en/document/decision/en-factory-at-Chorzow-merits-judgment-thursday-13th-september-1928. See for discussion, Felix E. Torres, Revisiting the Chorzów Factory Standard of Reparation – Its Relevance in Contemporary International Law and Practice, 90 Nord. J. Int’l L. 190, 191 (2021) (where this standard is described in the following glowing terms: “This standard has been considered as ‘a source of wisdom’ in cases involving expropriation, with scholars and judges referring to it in a broader context as a matter of ‘legal logic,’ a ‘principle of reasoning’ not requiring any further confirmation. Ever since the International Law Commission (ILC) adopted the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) in 2001, the Chorzów standard of reparation received additional support. Today it seems to consolidate itself in the mindset of international law actors as never before, as suggested by its increasing use by the International Court of Justice (ICJ) and arbitral tribunals in foreign investment disputes.”).

³ It should be stated that even prior to the International Court of Justice beginning to making references to jus cogens, the concept did appear in several individual opinions of judges of the Court. For early examples, see Oscar Chinn, PCIJ (Series A/B) No. 63, at 149–50 (1934) (sep. op., Schücking, J.), at https://jusmundi.com/en/document/opinion/en-oscar-chinn-separate-opinion-of-m-schucking-wednesday-12th-december-1934, and Application of the Convention of 1902 Governing the Guardianship of Infants (Neth. v. Sweden), Judgment, 1958 ICJ Rep. 55, 106 (Nov. 28) (sep. op., Moreno Quintana, J.), at https://www.icj-cij.org/sites/default/files/case-related/33/12549.pdf. See for a fuller list Gleider I. Hernández, A Reluctant Guardian: The International Court of Justice and the Concept of “International Community,” 83 Brit. Y.B. Int’l L. 13, n. 60 (2013).

⁴ See, e.g., Ulf Linderfalk, The Legal Consequences of Jus Cogens and the Individuation of Norms, 33 Leiden J. Int’l L. 893, 893 (2020) (who, while declaring that “the concept of jus cogens has had a significant impact on the construction of international legal argument” also concedes that “the idea of jus cogens does not easily translate into practical action”). See Georges Abi-Saab, The Third World and the Future of the International Legal Order, 29 Revue Egyptienne de Droit International 27, 53 (1973); Ian Brownlie Comment, in Change and Stability in International Law-Making 110 (Antonio Cassese & Joseph H. H. Weiler eds., 1988) (where jus cogens is compared to a car stuck in a garage).

⁵ The statement in paragraph 6 of the Commentary to Conclusion 1 of the ILC Conclusions on the Identification and Legal Consequences of Peremptory Norms, (Jus Cogens) Report of the International Law Commission of the Seventy-Third Session, UN Doc. A/77/10 (2022), to the effect that while “individual peremptory norms of general international law (jus cogens) may have specific consequences that are distinct from the general consequences flowing from all peremptory norms,” the Conclusions “are not concerned with such specific consequences, nor do they seek to determine whether individual peremptory norms have specific consequences” does not detract from the intention of comprehensiveness. The Conclusions were intended to be comprehensive as far as jus cogens, but specific consequences arising from particular jus cogens norms are less about jus cogens and more about those particular norms.

⁶ See Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, Including East Jerusalem, Advisory Opinion, paras. 233, 273 et seq. (ICJ July 19, 2024).

⁷ See Patrick Robinson, Introduction to the Report on Reparations for Transatlantic Chattel Slavery (TCS) in the Americas and the Caribbean, for Discussion of Past Reparations for Racial Discrimination Rooted in Slavery and Colonialism, attached to Coleman Bazelon, Alberto Vargas, Rohan Janakiraman & Mary M. Olson, Brattle Quantification of Reparations for Transatlantic Chattel Slavery (June 8, 2023); Tendayi Achiume Report of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Racial Intolerance, UN Doc. A/74/321 (Aug. 21, 2019); Shashi Tharoor, Saying Sorry to India: Reparations or Atonement?, Harv. J. Int’l L. (online symposium), at https://journals.law.harvard.edu/ilj/wp-content/uploads/sites/84/Tharoor-Reparations.pdf; Max du Plessis, Reparations and International Law: How Are Reparations to Be Determined (Past Wrong or Current Effects), Against Whom, and What Form Should They Take?, 22 Windsor Y.B. Access Just. 41, 49 (2004). In his article on slavery and reparations, Max du Plessis makes a brief reference to jus cogens.

⁸ See, e.g., Daniel Costelloe, Legal Consequences of Peremptory Norms in International Law (2017). See however, Alexander Orakhelashvili, Peremptory Norms in International Law 247 et seq. (2006).

⁹ Island of Palmas Case (Neth. v. U.S.), PCA, II Reports of International Arbitral Awards 829, 845 (Apr. 4, 1928).

¹⁰ Reservation to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 1951 ICJ Rep. 15, 23 (May 28).

¹¹ See also generally Achiume, supra note 7.

¹² Chorzów Factory, supra note 2, at 47.

¹³ Id. at 46.

¹⁴ Id.

¹⁵ Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicar.), Question of Compensation, Judgment, 2018 ICJ Rep. 15, para. 53 (emphasis added); see also generally paras. 29 et seq. Cf. the Dissenting Opinion of Judge ad hoc Dugard, which is discussed further below.

¹⁶ Chorzów Factory, supra note 2 (emphasis added).

¹⁷ See Elphick & Dugard, supra note 1, at 425 (describing the traditional approach to compensation as follows: “Ostensibly, the only criteria relevant to quantification is the extent of the harm, given the restorative focus of the reparation’s standard. Indeed, the amount of compensation should reflect as closely as possible the value of the damage incurred. As such compensation cannot have a punitive, ‘expressive or exemplary’ character.”).

¹⁸ Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), Judgment, 2005 ICJ Rep. 168, 227 (Dec. 19).

¹⁹ Id., para. 165 (“The unlawful military intervention by Uganda was of such a magnitude and duration that the Court considers it to be a grave violation of the prohibition on the use of force expressed in Article 2, paragraph 4, of the Charter.”).

²⁰ Id., paras. 211, 219 (“Having examined the case file, the Court considers that it has credible evidence sufficient to conclude that the UPDF troops committed acts of killing, torture and other forms of inhumane treatment.”). The Court found that the prohibition of torture constitutes jus cogens in: Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.), Judgment, 2012 ICJ Rep. 422, para. 99 (July 20).

²¹ Armed Activities on the Territory of the Congo, supra note 18, para. 219.

²² Id., para. 259

²³ Id., para. 260

²⁴ Id. (emphasis added)

²⁵ See Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment, 2007 ICJ Rep. 43 (Feb. 26).

²⁶ See id., paras. 432 et seq.

²⁷ See id. (where the Court, in the context of the distinction between the duty to prevent and the prohibition of complicity, the Court noted that the differences for reparations “are so significant as to make it impossible to treat the two types of violation in the same way”).

²⁸ Id., para. 462.

²⁹ Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries (2001), para. 1 of the Commentary to Article 36 [hereinafter ARSIWA]

³⁰ Legal Consequences Arising from the Policies and Practices of Israel, supra note 6, para. 233.

³¹ See Olivier Corten & Vaios Koutroulis, The Jus Cogens Status of the Prohibition on the Use of Force: What Is Its Scope and Why Does It Matter?, in Peremptory Norms of General International Law: Disquisitions and Disputations, supra note 1.

³² In respect of Apartheid, the Court adopts a rather ambiguous posture, resulting in several judges providing observations that pull in different directions. See Legal Consequences Arising from the Policies and Practices of Israel, supra note 6, para. 229 (“For this reason, the Court considers that Israel’s legislation and measures constitute a breach of Article 3 of CERD.”) and the Declarations of President Salam (para. 29), Judges Brant (paras. 4 et seq.), Iwasawa (para. 12 et seq.), Nolte (paras. 8 set seq.), Tladi (paras. 36 et seq.), and Xue (para. 4).

³³ Id., para. 269.

³⁴ Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, 2019 ICJ Rep. 95, para. 183 (Feb. 25).

³⁵ Legal Consequences Arising from the Policies and Practices of Israel, supra note 6, paras. 60–63 (dec., Salam, Pres.).

³⁶ Id. (especially at para. 62, where he quotes the ILC Commentary, which states that “any financially assessable damage” is possible to the extent that it is “established”).

³⁷ Legal Consequences Arising from the Policies and Practices of Israel, supra note 6, para. 55 (dec., Tladi, J.).

³⁸ Commentary to Conclusion 19 of the Conclusions on the Identification and Legal Consequences of Peremptory Norms of General International Law (Jus Cogens), Report of the international Law Commission, Seventy-Third Session, para. 18, UN Doc. A/77/10 (2022).

³⁹ Id.

⁴⁰ Cf. Dire Tladi The International Law Commission’s Draft Conclusions on Peremptory Norms 196 (2024) (“At first reading, paragraph 4 provided that Draft Conclusion 19 [is] without prejudice to other consequences that serious breaches of jus cogens might entail. This would include, for example, the duties of cessation, payment of compensation, including whether a higher amount of compensation is applicable in the event of a serious breach ….”).

⁴¹ Draft Articles on State Responsibility Provisionally Adopted by the Drafting Committee on Second Reading, Art. 42, UN Doc. A/CN.4/L/600 (Aug. 21, 2000).

⁴² See France, State Responsibility: Comments and Observations Received from Governments, 64 UN Docs. A/CN.4/515, Add.1-3 (Mar. 19, Apr. 3, May 1, June 28, 2001); see also Mexico, at 65 (which described the approach as not advisable).

⁴³ Id., Japan, Comments and Observations, at 68.

⁴⁴ Id., United States of America, at 71.

⁴⁵ Id., The United Kingdom, at 66; see also Republic of Korea, at 72 (suggesting the deletion of the provision).

⁴⁶ Id., Argentina, at 64.

⁴⁷ Id., Spain, at 66.

⁴⁸ Id., The Netherlands, at 70.

⁴⁹ Id.

⁵⁰ Report of the International Law Commission, Fifty-Second Sess., II(2) Y.B. Int’l L. Comm’n, para. 358 (2000) (emphasis added).

⁵¹ ARSIWA, supra note 29, para. 3 of the Commentary to Article 34.

⁵² Id., para. 3 of Commentary Article 35.

⁵³ Id., para. 3 of the Commentary to Article 34.

⁵⁴ Id. Art. 41.

⁵⁵ Tladi, supra note 40, at 177.

⁵⁶ Report of the International Law Commission, Seventy-Sixth Session, para. 437, UN Doc. A/80/10.

⁵⁷ Mārtiņš Paparinskis, Compensation for the Damage Caused by Internationally Wrongful Acts, Annex I in the Report of the International Law Commission, Seventy-Fifth Session, para. 14, UN Doc A/79/10 (2024).

⁵⁸ Conclusions on Peremptory Norms, supra note 38, Conclusion 17 (“Peremptory norms of general international law (jus cogens) give rise to obligations owed to the international community as a whole (obligations erga omnes), in relation to which all States have a legal interest.”).

⁵⁹ See ARSIWA, supra note 29, Chapter III General Commentary para. 4.

⁶⁰ See Conclusions on Peremptory Norms, supra note 38, Commentary to Conclusion 17 para. 3; Obligations of States in Respect of Climate Change, Advisory Opinion, para 440 (ICJ July 23, 2025). It is possible to read the jurisprudence of the Court as suggesting that other norms, such as particular rules under human rights or international humanitarian law, might also fall in this category. See Legal Consequences Arising from the Policies and Practices of Israel, supra note 6, para. 274 (“Among the obligations erga omnes violated by Israel are the obligation to respect the right of the Palestinian people to self-determination and the obligation arising from the prohibition of the use of force to acquire territory as well as certain of its obligations under international humanitarian law and international human rights law.”). But even if this were accepted, the category would remain nonetheless, limited.

⁶¹ Case of the Monetary Gold Removed from Rome in 1943 (It. v. Fr., UK, N. Ire., U.S.), Judgment, 1954 ICJ Rep. 19 (June 15).

⁶² Case Concerning East Timor (Port. v. Austl.), Judgment, 1995 ICJ Rep. 90, para. 29 (June 30).

⁶³ Id

⁶⁴ Id.

⁶⁵ Id.

⁶⁶ See Case Concerning Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Rwanda: New Application: 2002), Jurisdiction and Admissibility, 2006 ICJ Rep. 6, para. 58 (Feb. 3).

⁶⁷ Id., para. 64.

⁶⁸ Id. This position was confirmed by the Court in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Sudan v. UAE), Order on Provisional Measures (May 5, 2025).

⁶⁹ Jurisdictional Immunities of the State (Ger. v. It.; Greece intervening), Judgment, 2012 ICJ Rep. 99 (Feb. 3).

⁷⁰ Third Report of the Special Rapporteur on Peremptory Norms (Jus Cogens), para. 121, UN Doc. A.CN.4/714 (Feb. 12, 2018) (describes the intersection between jus cogens and immunities as follows: “Perhaps no other potential consequence has been more controversial and topical than the effect that jus cogens norms have on the immunity of States and immunity of officials.”). For some relevant literature, see Antonio Cassese, When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v. Belgium Case, 13 Eur. J. Int’l L. 853 (2002); Dapo Akande & Sangeeta Shah, Immunities of State Officials, International Crimes, and Foreign Domestic Courts, 21 Eur. J. Int’l L. 815 (2011); Thomas Weatherall, Jus Cogens and Sovereign Immunity: Reconciling Divergence in Contemporary Jurisprudence, 46 Geo. J. Int’l L. 1151 (2015); Dire Tladi, Immunity in the Era of “Criminalisation”: The African Union, the ICC and International Law, 58 Japanese Y.B. Int’l L. 17, (2015).

⁷¹ Jurisdictional Immunities of the State, supra note 69, para. 92.

⁷² Id. (“This strand of the argument rests on the premise that there is a conflict between jus cogens rules forming part of the law of armed conflict and according immunity to Germany. Since jus cogens rules always prevail over any inconsistent rule of international law, whether contained in a treaty or in customary international law, so the argument runs, and since the rule which accords one State immunity before the courts of another does not have the status of jus cogens, the rule of immunity must give way.”)

⁷³ Id., para. 93.

⁷⁴ See, however, Jurisdictional Immunities of the State, supra note 69, paras. 294–95 (diss. op., Cançado Trindade, J.) (“Such undue methodology is coupled with inadequate and unpersuasive conceptualizations, of the kind so widespread in the legal profession, such as, inter alia, the counterpositions of ‘primary’” to ‘secondary’ rules, or of ‘procedural’ to ‘substantive’ rules, or of obligations of ‘conduct’ to those of ‘result’. Words, words, words … Where are the values?”); see also Alexander Orakhelashvili, The Classification of International Legal Rules: A Reply to Stefan Talmon, 26 Leiden J. Int’l L. 89 (2013), especially at 102 (“The proponents of the division of rules into substantive and procedural have so far failed to provide either consistent methodology or conclusions that can be tested and maintained against the background of the international legal system.”), also p. 103 (“‘procedural’ rules form no recognizable or consistent category of the rules of international law.”).

⁷⁵ Jutta Brunnée, Procedure and Substance in International Environmental Law 20 (2020); see also Matina Papadaki, Substantive and Procedural Rules in International Law Adjudication: Exploring Their Interaction in Intervention Before the international Court of Justice, in International Law and Litigation: A Look into Procedure 37 (Hélène Ruiz Fabri ed., 2019) (noting that while the distinction between procedure and substance is importance, the boundary between them “are not only blurred but also permeable”). Elsewhere she uses “hazy and movable.” Id. at 44.

⁷⁶ See also Papadaki, supra note 75, at 38 (who recognizes, not only that there “is a spectrum with a permeable boundary,” but also that the distinction is fluid); see also André Nollkaemper, International Adjudication of Global Public Goods: The Intersection of Substance and Procedure, 23 Eur. J. Int’l L. 769, 773 (2012) (stating that the distinction “is not a binary one”).

⁷⁷ See Stefan Talmon, Jus Cogens After Germany v. Italy: Substantive and Procedural Rules Distinguished, 25 Leiden J. Int’l L. 982 (2012).

⁷⁸ See Third Report on Peremptory Norms, supra note 69, para. 134 (“the distinction between procedural and substantive norms seems hard to criticize in the context of jurisdiction” of international courts and tribunals).

⁷⁹ Id. See however, Jurisdictional Immunities of the State, supra note 69, para. 297 (diss. op., Cançado Trindade, J.) (who takes issue also with the distinction made by the Court in Case Concerning Armed Activities on the Territory of the Congo, supra note 66.

⁸⁰ Nollkaemper, supra note 76, at 774 (who having showed that rules on jurisdiction could have some substantive elements, proceeds to state “[s]till, jurisdiction is quite separate from the substantive rules that define the rights and obligations”).

⁸¹ Id.; see also Papadaki, supra note 75, at 40 et seq.

⁸² See Talmon, supra note 77, at 984.

⁸³ See Third Report on Peremptory Norms, supra note 70, para. 134.

⁸⁴ Orakhelashvili, supra note 74; see also Papadaki, supra note 75, at 38 (who concedes that the distinction between procedural rules and substantive rules can be “challenged in theory and practice”).

⁸⁵ Indeed, while I accept that the substance/procedure distinction in Case Concerning Armed Activities on the Territory of the Congo makes sense, Judges Koroma and Cançado Trindade disagree. See Case Concerning Armed Activities on the Territory of the Congo, supra note 66, especially at para. 25 (diss. op., Koroma, J.) (“While I do not accept the substance of the DRC’s argument on this issue, I do believe that the gravity of the matter and the nature of the allegation before the Court are such that the Court should have been allowed to adjudicate the case. There is no impediment in law preventing Rwanda from expressing its consent and thereby entitling the Court to examine the alleged breaches of Rwanda’s obligations under the Genocide Convention.”). See also Jurisdictional Immunities of the State, supra note 69, paras. 296–97 (diss. op., Cançado Trindade, J.).

⁸⁶ See, e.g., Dire Tladi, Of Heroes and Villains, Angels and Demons: The ICC-AU Tension Revisited, 60 Ger. Y.B. Int’l L. 43 (2017).

⁸⁷ Prosecutor v. Omar Hassan Ahmad Al-Bashir, Judgment in the Jordan Referral re Al-Bashir Appeal, No. ICC-02/05-01/09-397-Anx1 OA2 (May 6, 2019) (joint concur op., Eboe-Osuji, Morrison, Hofmański, Bossa, JJ.) is especially relevant. It dedicates twenty paragraphs over nine pages, to support (para. 238) the UN Secretariat’s caution “that ‘the formalism in this dichotomy [‘procedural’ versus ‘substantive’ immunity] tends to obscure the nature of the dynamic relationship that seems to exists’ between that construct of aspects of immunity.”

⁸⁸ ILC Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, with Commentaries, II Y.B. Int’l L. Comm’n, Prin. III (1950). Part III, Formulation of the Nürnberg Principles, Principle III, at 375, provides that “The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.” An example of the distinction made between immunity as a procedural rule and the content of Principle III can be found in the ILC’s Articles on Prevention and Punishment of Crimes Against Humanity, with Commentaries, II(2) Y.B. Int’l L. Comm’n (2019). See paragraph 31 of the Commentary to Article 6 (“For the purposes of the present draft articles, paragraph 5 means that an alleged offender cannot raise the fact of his or her official position as a substantive defence so as to negate any criminal responsibility. By contrast, paragraph 5 has no effect on any procedural immunity that a foreign State official may enjoy before a national criminal jurisdiction, which continues to be governed by conventional and customary international law.”)

⁸⁹ See Commentary to Principle III of the Formulation of the Nünberg Principles, supra note 88 (“The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment …. The same idea was also expressed in the following passage of the findings: ‘He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State if the State in authorizing action moves outside its competence under international law.’”) (emphasis added).

⁹⁰ Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Gamb. v. Myan.), Preliminary Objections, Judgment, 2022 ICJ Rep. 47, paras. 108–13 (July 22).

⁹¹ Id.; Third Report on Peremptory Norms, supra note 70, para. 134 (“Without entering into the debate concerning the correctness or not of the distinction between substance and procedure in the context of immunities, it seems reasonable to conclude that there is a closer relationship between the procedural rules of immunities and the substantive rules underlying jus cogens norms than there is between the procedural rule requiring consent to jurisdiction and the substantive norm underlying jus cogens norms.”).

⁹² Nollkaemper, supra note 76, at 774.

⁹³ Id.

⁹⁴ Elphick & Dugard, supra note 1, at 425.

⁹⁵ Orakhelashvili, supra note 8, at 242.

⁹⁶ Jurisdictional Immunities of the State, supra note 69, para. 22 (diss. op., Yusuf, J.).

⁹⁷ Id.

⁹⁸ Id., para. 30.

⁹⁹ See id., paras. 223 et seq. (diss. op., Gaja, J. ad hoc).

¹⁰⁰ Id. at 223–24.

¹⁰¹ Id. at 224

¹⁰² Id. A similar position is taken in Tladi, supra note 40.

¹⁰³ The other part is the related notion of the distinction between substance and procedure.

¹⁰⁴ Aloeboetoe et al. v. Suriname, Judgment, Reparations and Costs, para. 46 (Inter.-Am. Ct. Hum. Rts. Sept. 10, 1993). This example is provided by Orakhelashvili, supra note 8, at 245–46.

¹⁰⁵ Aloeboetoe, supra note 104, para. 46.

¹⁰⁶ Case Concerning Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Merits, Judgment, 2010 ICJ Rep. 692, para. 161 (Nov. 30).

¹⁰⁷ See id., para. 165(7) (“[T]he Democratic Republic of the Congo is under obligation to make appropriate reparation, in the form of compensation, to the Republic of Guinea for the injurious consequences of the violations of international obligations referred to in subparagraphs (2) and (3) above.”).

¹⁰⁸ Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Compensation Owed by the Democratic Republic of Congo to Republic of Guinea, Judgment, 2012 ICJ Rep. 326, paras. 18 et seq. (June 19). See for a similarly “flexible approach,” Armed Activities on the Territories of the Congo, Reparations, 2022 ICJ Rep. 13 (Feb. 9) (diss. op., Daude, J. ad hoc).

¹⁰⁹ State Responsibility: Comments and Observations, United Kingdom, supra note 42, at 66–67.

¹¹⁰ Elphick & Dugard, supra note 1, at 426 (emphasis removed). In their analysis, Elphick and Dugard consider cases awarding moral damages for mental harm such as: Opinion in the Lusitania Cases (U.S. v. Germany), UN RIAA 35, Ruling of 1 November 1923; Moiwana Community v. Suriname, Judgment, Preliminary Objections, Merits, Reparations and Costs (Int.-Am. Ct. Hum. Rts. June 15, 2005).

¹¹¹ Certain Activities Carried Out by Nicaragua, supra note 15, para. 2 (diss. op., Dugard, J. ad hoc) (“On the face of it this case may appear to be trivial. Damage to a wetland of 6.19 hectares for which the injured State claims a mere US$6,711,685.26 in compensation hardly suggests that this is an important case …. Such an assessment would, however, be wrong.”).

¹¹² Id. (“The dispute between Costa Rica and Nicaragua involves three fundamental issues: the forcible invasion of the territory of a State, the purposeful damage to an internationally protected wetland and the calculated and deliberate violation of an Order of this Court.”).

¹¹³ Id., para. 30.

¹¹⁴ Id., paras. 33 et seq.

¹¹⁵ Id., paras. 40 et seq.

¹¹⁶ Reservations to the Genocide Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 1951 ICJ Rep. 12 (May 28).

¹¹⁷ See, in this regard, my Declaration in Legal Consequences Arising from the Policies and Practices of Israel, supra note 6, para. 55 (dec., Tladi, J.) (acknowledging that the weight of argument, at this point, does not support the position I have put forward: (“I would have been particularly pleased if the Court had … engaged with the (rather difficult) question of whether the peremptory character of the norms in question has any impact whatsoever on the question of reparations—I believe it does, but I understand that this would be going against the grain, something a court of law should avoid doing unless it has a watertight basis.”)) (emphasis added).

¹¹⁸ Dire Tladi, Between Stability and Responsiveness in International Law – The Example of Jus Cogens, 13 ESIL Reflections (2024); see also Karl Zemanek, International Law Needs Development. But Where to?, in From Bilateralism to Community Interests: Essays in Honour of Judge Bruno Simma 793 (Ulrich Fastenrath et al. eds., 2011).

¹¹⁹ Statement by President of the International Court of Justice, Manfred Lachs, on the Occasion of the Twenty-Fifth Anniversary of the International Law Commission, General Assembly Official Records, Official Records, 2151st Plenary Meeting, para. 36.

¹²⁰ Id.

¹²¹ Tladi, supra note 118.

¹²² Dire Tladi, The Role of the International Court of Justice in the Development of International Law, in The Cambridge Companion to the International Court of Justice (Carlos Espósito & Kate Parlett eds., 2023).

¹²³ Chorzów Factory, supra note 2, at 47 (emphasis added). See in this regard, Torres, supra note 2, at 227 (who states that the Chorzów Factory standard is not “a static set of uncontested rules” but rather can be understood as “a dynamic and disputed standard with different levels of legitimacy”).