Chapter 1 addresses the jurisdiction of the Court to grant remedies in situations in which states did not provide an instrument that would confer such powers to it. The competence of the Court to grant remedies, when agreements of states exist in this sense, is established and without controversy, especially because the principle of consent is applicable in these situations. However, the nature of its power to give judgment on the remedies of international law in cases in which its jurisdiction is derived from an agreement that does not include any provision in this respect merits a brief assessment, as without such competence the Court might not have the power to resolve the dispute in a final manner. This chapter analyses the case-law of the Permanent Court of International Justice and of the International Court of Justice in order to determine whether the Court has addressed this issue and the justifications for which it has concluded that it has such competence.

Discussion on human rights before the International Tribunal for the Law of the Sea (ITLOS or Tribunal) often refers to its ‘considerations of humanity’ dictum. Yet this is just one way the Tribunal takes into account the interests and rights of individuals affected by law of the sea disputes. This chapter uncovers multiple modes of engagement of ITLOS with human rights – some subtle, some bold – across three types of procedure: prompt release, provisional measures and merits cases. It illustrates how ITLOS has achieved a ‘humanisation’ of the obligation of prompt release through its context- and purpose-based interpretation; likewise, parties increasingly invoke, and ITLOS tacitly relies upon, human rights as a basis for provisional measures. While the Tribunal’s reliance on individual rights in merits decisions remains limited to date, it may consider human rights on the basis of ‘reference provisions’ within UNCLOS, the ‘considerations of humanity’ dictum and the prohibition on abuse of rights. The analysis reveals that ITLOS has paved the way for human rights to be taken into account in law of the sea disputes and that UNCLOS provides a legal framework for it.

Using illustrations from proceedings over Pradaxa, Yasmin/Yaz, Zimmer’s Durom Hip Cups, and the World Trade Center disaster, this chapter narrates some of the judicial nudges lurking behind the following statistics: a mere 8 percent of judges in the dataset took no steps whatsoever to endorse, promote, or enforce private deals. Instead, 64.7 percent of judges presiding over private aggregate settlements formally appointed the private claims administrator or settlement master. And, to varying degrees, 52.9 percent of federal judges “approved” private settlements, blurring conventional wisdom that private settlements are just that – private. Settlement designers hope that a judicial imprimatur will persuade nonlead lawyers and plaintiffs alike to settle, so they ask judges to intervene in some explicit or implicit way. But judges often lack the information they need to send reliable signals and conduct no formal inquiries to determine whether settlements are fair. Plus, when judges use their power to approve, enforce, and push plaintiffs into private settlements, they not only appear to exceed the authority that rightly belongs to them, they may also impinge on plaintiffs’ free will to consent.