The Jadhav Case is an interesting case which, besides adding to a discernible frequency of provisional measures disputes in international litigation, brings to the fore at least two aspects of particular importance: the evolution of the jurisprudence of the International Court of Justice (ICJ/Court) on the prerequisites for its indication of provisional measures and a noticeable break from the past in India's well-known attitude to adjudication of its disputes by the Court, particularly its disputes with Pakistan. This is not to underestimate the significance of human rights considerations that underlie the case. India's approaching the Court in this case seems to be an act of pragmatism dictated by domestic considerations rather than a general change in its attitude to adjudication of its disputes by the Court. Thus, nothing contrary to international law or jurisdictional bases of the Court may be inferred for or against India from its approaching the Court in this case. While the real motives behind India's Application may have been quite different, this is undoubtedly a positive development in international law, much of whose preoccupation critically remains the peaceful settlement of disputes, as a corollary to the jus cogens nature of its prohibition of the threat or use of force in international relations. This is even more important when seen in light of the fact that both India and Pakistan are declared nuclear weapons states with only India having a declared 'no-first-use' policy.
The lack of a desirable normative framework for transboundary water sharing adds to the problem of water sharing for the existence in South Asia of the two declared nuclear weapon states of India and Pakistan as water remains one of the key unresolved problems between these two South Asian countries. Although the South Asian region is not without water sharing arrangements, including treaties, we do not really have principles of water sharing. The paper therefore suggests that the South Asian country members of the South Asian Association for Regional Cooperation (SAARC) become parties to the 1997 Watercourses Convention with any appropriate reservations and/or declarations and establish a SAARC cooperation mechanism for a necessary effectuation and institutional monitoring of equity, reasonableness, flexibility and adaptation in the South Asian water sharing.
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.
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