Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) - Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica) - The Court finds tha

INTERNATIONAL COURT OF JUSTICE
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Website: www.icj-cij.org

Press Release

Unofficial

No. 2013/18
25 July 2013

Certain Activities carried out by Nicaragua in the Border Area
(Costa Rica v. Nicaragua)

Construction of a Road in Costa Rica along the San Juan River

(Nicaragua v. Costa Rica)

The Court finds that the circumstances, as they now present themselves to the Court,
are not such as to require the exercise of its power to modify the measures
indicated in the Order of 8 March 2011 and reaffirms those measures

THE HAGUE, 25 July 2013. By an Order of 16 July 2013, the International Court of Justice
(ICJ), the principal judicial organ of the United Nations, ruled on the requests submitted by
Costa Rica and Nicaragua, respectively, for the modification of the provisional measures indicated
by the Court on 8 March 2011 in the case concerning Certain Activities carried out by Nicaragua in

the Border Area (Costa Rica v. Nicaragua), (hereinafter “the Costa Rica v. Nicaragua case”).

In its Order of 16 July 2013, the Court found, by fifteen votes to two, “that the
circumstances, as they now present themselves to the Court, are not such as to require the exercise
of its power to modify the measures indicated in the Order of 8 March 2011”. It “[r]eaffirm[ed]”,
unanimously, the provisional measures indicated in that Order, in particular the requirement that
the Parties “shall refrain from any action which might aggravate or extend the dispute before the
Court or make it more difficult to resolve”.

Reasoning of the Court

The Court first recalls that, by its Order of 8 March 2011 made in the Costa Rica v.

Nicaragua case, it had indicated, amongst other things, that “[e]ach Party shall refrain from sending
to, or maintaining in the disputed territory, including the caño, any personnel, whether civilian,
police or security” and that “Costa Rica may dispatch civilian personnel charged with the
protection of the environment to the disputed territory, including the caño, but only in so far as it is
necessary to avoid irreparable prejudice being caused to the part of the wetland where that territory
is situated” (para. 3).

In its Order of 16 July 2013, the Court sets out the modifications requested by Costa Rica
and by Nicaragua, and notes that each of the Parties asked it to reject the other’s request
(paras. 12 to 15). - 2 -

The Court further recalls that, in order to rule on those requests, it must determine whether
the conditions set forth in Article 76, paragraph 1, of the Rules of Court have been fulfilled. That

paragraph reads as follows: “At the request of a party the Court may, at any time before the final
judgment in the case, revoke or modify any decision concerning provisional measures if, in its
opinion, some change in the situation justifies such revocation or modification.” (Para. 16.)

Costa Rica’s request

In the first place, Costa Rica complains of “Nicaragua’s sending to the disputed area . . . and

maintaining thereon large numbers of persons” and, secondly, of the “activities undertaken by
those persons affecting that territory and its ecology”. In Costa Rica’s view, these actions, which
have occurred since the Court decided to indicate provisional measures, create a new situation
necessitating the modification of the Order of 8 March 2011, in the form of further provisional
measures, in particular so as to prevent the presence of any individual in the disputed territory other
than civilian personnel sent by Costa Rica and charged with the protection of the environment
(para. 19).

Nicaragua maintains that the persons referred to by Costa Rica are not part of the
Government of Nicaragua, but young people, members of a private movement (the Guardabarranco
Environmental Movement), who are present in the said territory in order to undertake
environmental conservation activities (para. 24).

Decision of the Court on Costa Rica’s request

In its Order of 16 July 2013, the Court regards it as having been established that, since the
rendering of its Order of 8 March 2011, organized groups of persons, whose presence was not
contemplated when it made its decision to indicate provisional measures, are regularly staying in
the disputed territory. It considers that this fact does indeed constitute, in the present case, a
change in the situation within the meaning of Article 76 of the Rules of Court (para. 25).

The Court then examines whether that change in the situation is such as to justify the

modification of the Order of 2011. It states that such a modification is subject to the same general
conditions as those governing the indication of provisional measures (Article 41 of the Statute of
the Court). The Court recalls in this respect that it may only indicate provisional measures if
irreparable prejudice may be caused to rights which are the subject of dispute in judicial
proceedings and that that power must be exercised only if there is urgency, in the sense that there is
a real and imminent risk that such prejudice may be caused before the Court has given its final
decision (para. 30).

After setting out the arguments of the Parties concerning these various points, the Court
considers “that, as matters stand, it has not been demonstrated sufficiently that there is a risk of
irreparable prejudice to the rights claimed by Costa Rica”. It states that “[t]he facts put forward by
Costa Rica, whether the presence of Nicaraguan nationals or the activities which they are carrying
out in the disputed territory, do not appear, in the present circumstances as they are known to the
Court, to be such as to cause irreparable harm to ‘its right to sovereignty, to territorial integrity, and
to non-interference with its lands’”. Nor, the Court continues, “does the evidence included in the

case file establish the existence of a proven risk of irreparable damage to the environment”.
Moreover, the Court “does not see, in the facts as they have been reported to it, the evidence of
urgency that would justify the indication of further provisional measures” (paras. 32-35).

Consequently, the Court considers that, “despite the change that has occurred in the
situation, the conditions have not been fulfilled for it to modify the measures that it indicated in its
Order of 8 March 2011” (para. 36). - 3 -

Nicaragua’s request

Considering that Costa Rica’s request is “unsustainable”, Nicaragua submits its own request
for the modification or adaptation of the Order of 8 March 2011. It considers that there has been a
change in the factual and legal situations in question as a result of, first, the construction of a
160-km long road along the right bank of the San Juan River and, second, the joinder, by the Court,
of the proceedings in the two cases. Consequently, Nicaragua asks the Court to modify its Order of
8 March 2011, in particular to allow both Parties (and not only Costa Rica) to dispatch civilian
personnel charged with the protection of the environment to the disputed territory (para. 21).

For its part, Costa Rica asserts that no part of the road in question is in the disputed area and
considers that the joinder of the proceedings in the case concerning the Construction of a Road in
Costa Rica along the San Juan River (Nicaragua v. Costa Rica), introduced by Nicaragua on
21 December 2011 (hereinafter “the Nicaragua v. Costa Rica case”), “does not mean that there is
now one proceeding which should be the subject of joint orders”. Consequently, it asks the Court
to reject Nicaragua’s request (para. 22).

Decision of the Court on Nicaragua’s request

After examining Nicaragua’s first argument, the Court first recalls that, in the Nicaragua v.
Costa Rica case, on 19 December 2012, Nicaragua had asked the Court to examine proprio motu
whether the circumstances of the case required the indication of provisional measures, and that the
Court was of the view that, in March 2013, this was not the case. In addition, the Court finds that
the construction of the road, which is at the centre of the Nicaragua v. Costa Rica case, does not

have any bearing on the situation addressed in the Order made on 8 March 2011 in the
Costa Rica v. Nicaragua case (paras. 26-27).

With regard to Nicaragua’s second argument, the Court considers that the joinder of
proceedings in the two cases has also not brought about a change in the situation. It explains that
that joinder is a procedural step which does not have the effect of rendering applicable ipso facto,
to the facts underlying the Nicaragua v. Costa Rica case, the measures prescribed with respect to a
specific and separate situation in the first case (para. 28).

The Court therefore considers that Nicaragua may not rely upon a change in the situation
within the meaning of Article 76 of the Rules of Court in order to found its request for the
modification of the Order of 8 March 2011 (para. 29).

Conclusion of the Order

After examining the requests of the Parties and finding that it could not accede to them, the
Court notes nevertheless that “the presence of organized groups of Nicaraguan nationals in the
disputed area carries the risk of incidents which might aggravate the present dispute”. It adds that
that situation is “exacerbated by the limited size of the area and the numbers of Nicaraguan
nationals who are regularly present there”, and wishes to express “its concerns in this regard”
(para. 37).

The Court thus considers it necessary to reaffirm the measures that it indicated in its Order of

8 March 2011, in particular the requirement that the Parties “shall refrain from any action which
might aggravate or extend the dispute before the Court or make it more difficult to resolve”. It
notes that “the actions thus referred to may consist of either acts or omissions”. It reminds the
Parties once again that “these measures have binding effect . . . and therefore create international
legal obligations which each [of them] is required to comply with” (para. 38). - 4 -

Finally, the Court underlines that its Order of 16 July 2013 is without prejudice as to any
finding on the merits concerning the Parties’ compliance with its Order of 8 March 2011 (para. 39).

*

Composition of the Court

The Court was composed as follows: President Tomka; Vice-President Sepúlveda-Amor;

Judges Owada, Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf,
Greenwood, Xue, Donoghue, Gaja, Sebutinde, Bhandari; Judges ad hoc Guillaume,
Dugard; Registrar Couvreur.

Judge Cançado Trindade and Judge ad hoc Dugard have appended their dissenting opinions
to the Order of the Court. A summary of those opinions is annexed to this press release.

*

Full text of the Order and history of the proceedings

The full text of the Order is available on the Court’s website in the documentation for each
case, under the heading “Contentious cases”.

It is recalled that the proceedings in the Costa Rica v. Nicaragua case and in the Nicaragua v.
Costa Rica case were joined by the Court on 17 April 2013 “in conformity with the principle of the
sound administration of justice and with the need for judicial economy”. The history of those
proceedings can be found in paragraphs 1 to 11 of the Order of 16 July 2013.

*

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations.
It was established by the United Nations Charter in June 1945 and began its activities in
April 1946. The seat of the Court is at the Peace Palace in The Hague (Netherlands). Of the six
principal organs of the United Nations, it is the only one not located in New York. The Court has a
twofold role: first, to settle, in accordance with international law, legal disputes submitted to it by
States (its judgments have binding force and are without appeal for the parties concerned); and,

second, to give advisory opinions on legal questions referred to it by duly authorized United
Nations organs and agencies of the system. The Court is composed of 15 judges elected for a
nine-year term by the General Assembly and the Security Council of the United Nations.
Independent of the United Nations Secretariat, it is assisted by a Registry, its own international
secretariat, whose activities are both judicial and diplomatic, as well as administrative. The official
languages of the Court are French and English. Also known as the “World Court”, it is the only
court of a universal character with general jurisdiction.

The ICJ, a court open only to States for contentious proceedings, and to certain organs and
institutions of the United Nations system for advisory proceedings, should not be confused with the
other mostly criminal judicial institutions based in The Hague and adjacent areas, such as the - 5 -

International Criminal Tribunal for the former Yugoslavia (ICTY, an ad hoc court created by the
Security Council), the International Criminal Court (ICC, the first permanent international criminal

court, established by treaty, which does not belong to the United Nations system), the Special
Tribunal for Lebanon (STL, an independent judicial body composed of Lebanese and international
judges, which is not a United Nations tribunal and does not form part of the Lebanese judicial
system), or the Permanent Court of Arbitration (PCA, an independent institution which assists in
the establishment of arbitral tribunals and facilitates their work, in accordance with the Hague
Convention of 1899).

___________

Information Department:

Mr. Andrey Poskakukhin, First Secretary of the Court, Head of Department (+31 (0)70 302 2336)
Mr. Boris Heim, Information Officer (+31 (0)70 302 2337)
Ms Joanne Moore, Associate Information Officer (+31 (0)70 302 2394)

Ms Genoveva Madurga, Administrative Assistant (+31 (0)70 302 2396) Annex to Press Release 2013/18

Dissenting opinion of Judge Cançado Trindade

1. In his Dissenting Opinion, composed of 12 parts, Judge Cançado Trindade states that he
cannot concur with the decision taken by the majority of the Court (first resolutory point) not to
indicate new provisional measures in the cas d’espèce, as, in his perception, the Court majority’s
reasoning and decision “suffer from an ineluctable incongruence”: having admitted that there is a
change in the situation, it extracts no consequence therefrom, as in its view “the conditions” had
“not been fulfilled” for it to modify the measures it indicated in its previous Order of 08.03.2011.
In limiting itself to simply reaffirming its previous provisional measures, yet it expresses its

“concerns” at the new situation created in the disputed area, with the presence therein no longer of
personnel (whether civilian, police or security), but rather of “organized groups” of individuals, or
any “private individuals”.

2. Judge Cançado Trindade´s position is, a contrario sensu, that the changing circumstances
surrounding the present cases (joined), opposing Costa Rica to Nicaragua and vice-versa,
concerning, respectively, Certain Activities Carried out by Nicaragua in the Border Area, and the

Construction of a Road in Costa Rica along the San Juan River, require from the ICJ, in the light of
the relevant provisions of its interna corporis (Article 41 of the Statute and Article 76(1) of the
Rules of Court), the exercise of its powers to indicate new provisional measures in order to face the
new situation, which is one of urgency and of probability of irreparable harm, in the form of bodily
injury or death of the persons staying in the disputed area.

3. He thus feels bound, and cares, to leave on the records the foundations of his own personal

position thereon. His reflections, developed in the present Dissenting Opinion, pertain as he
indicates in part I to considerations as to the facts and as to the law. He reviews the concomitant
new requests of additional provisional measures of protection on the part of Costa Rica as well as
Nicaragua, and the position taken by them, in their respective requests, as to the purported
expansion of provisional measures of protection (part II). After reviewing the three technical
missions in loco pursuant to the 1971 Ramsar Convention (part III), Judge Cançado Trindade
considers the requisites of urgency, and risk or probability of harm (in the form of bodily injury or

death, of the persons staying in the disputed area part V), before proceeding to a general
assessment of the requests of Costa Rica (part IV) and of Nicaragua (part VI).

4. The joinder of proceedings in the two aforementioned cases of Certain Activities Carried
out by Nicaragua in the Border Area, and of the Construction of a Road in Costa Rica along the
San Juan River does not amount to a change of the situation, for the purposes of provisional
measures; be that as it may, the relevant questions raised by Nicaragua are bound to be dealt with

by the ICJ in the merits phase of the latter case (para. 37). There is, however, he proceeds, a
change in the situation (part VII) in respect of the Court’s Order of 08.03.2011, in that provisional
measures at that time were keeping in mind the presence in the disputed area of “personnel”
(whether civilian, security of police), whereas now the presence therein is of “organized groups” of
individuals (Nicaraguan nationals). This amounts to a new situation, endowed with urgency, in
face of the probability of incidents causing “irremediable harm in the form of bodily injury or

death” (paras. 30-31), to recall the language of paragraph 75 of the Court’s Order of 08.03.2011.
The Court, thus, should, in his understanding, have ordered new provisional measures of
protection (para. 33).

5. Judge Cançado Trindade then turns his attention to the aspects of the matter as to the law,
namely: a) the effects of provisional measures of protection beyond the strict territorialist outlook;
b) the beneficiaries of provisional measures of protection, beyond the traditional inter-State

dimension; and c) the effects of provisional measures of protection beyond the traditional
inter-State dimension. As to the first of these three points (the effects of provisional measures of
protection beyond the strict territorialist outlook), he ponders that the factual context before the ICJ - 2 -

“takes us beyond the traditional outlook of State territorial sovereignty” (part VIII). He adds that
the concerns expressed before the ICJ encompass

“living conditions of people in their natural habitat, and the required environmental
protection. International case-law on the matter (of distinct international tribunals) has
so far sought to clarify the juridical nature of provisional measures, stressing its
essentially preventive character. (...) Whenever ordered provisional measures protect
rights of individuals, they appear endowed with a character, more than precautionary,
truly tutelary, besides preserving the parties’ (States’) rights at stake” (para. 38).

6. Judge Cançado Trindade recalls that the circumstances of certain cases before the ICJ
have led this latter, in its decisions on provisional measures, to shift its attention on to the
protection of people in territory (e.g., the case of the Frontier Dispute, Burkina Faso versus Mali,
1986; the case of the Land and Maritime Boundary, Cameroon versus Nigeria, 1996; the case of
Armed Activities on the Territory of the Congo, D.R. Congo versus Uganda, 2000; the case
concerning the Application of the International Convention on the Elimination of All Forms of Racial

Discrimination, Georgia versus Russia, 2008 cf. infra). In those decisions, among others, he
stresses, the ICJ became attentive also to the fate of persons, thus moving beyond the strict
territorialist outlook (paras. 39-40).

7. He further recalls that, lately, the ICJ has again moved its reasoning beyond the strict
territorialist approach in its recent Order of the Court of provisional measures of protection
(of 18.07.2011) in the case of the Temple of Preah Vihear (Cambodia versus Thailand).

International law he continues “in a way endeavours to be anticipatory in the regulation of
social facts, so as to avoid disorder and chaos, as well as irreparable harm”; we are here before the
raison d’être of provisional measures of protection, i.e., to prevent and avoid irreparable harm in
situations of gravity and urgency. Endowed with a notorious preventive character, they are
anticipatory in nature, looking forward in time; they thus disclose the preventive dimension of the
safeguard of rights (para. 41).

8. Judge Cançado Trindade next recalls that, in his Separate Opinion in the Court’s recent
Order in the case of the Temple of Preah Vihear, he has sustained that there is epistemologically no
impossibility or inadequacy for provisional measures, of the kind of the ones indicated in that
Order, to extend protection as they should also to human life, as well as to cultural and
spiritual world heritage. In fact, the reassuring effects of the provisional measures indicated in that
recent Order of the ICJ have been precisely that they have extended protection not only to the
territorial zone at issue, but also to the life and personal integrity of human beings who live or

happen to be in that zone or near it, as well as to the Temple of Preah Vihear itself, situated in the
aforementioned zone, and all that the Temple represents (para. 42). That Court’s Order has thus
brought people and territory together, since, in the warning of Judge Cançado Trindade,

“[n]ot everything can be subsumed under territorial sovereignty. The fundamental
human right to life is not at all subsumed under State sovereignty. [...] The Court
needs to adjust its conceptual framework and its language to the new needs of

protection, when it decides to indicate or order the Provisional Measures requested
from it.” (para. 43).

9. Moving to the next point of his analysis (namely, the beneficiaries of provisional measures
of protection, beyond the traditional inter-State dimension part IX), he observes that, although in
the international litigation before the ICJ, only States, as contending parties, can request provisional
measures, yet, in recent years, in successive cases, the ultimate beneficiaries were meant to be the

individuals concerned, and to that end the requesting States advanced their arguments in order to
obtain the Court’s Orders of provisional measures of protection, in distinct contexts (para. 44). - 3 -

10. He refers, as examples, to the Order of 15.12.1979, in the Hostages case (United States
versus Iran); the Order of 10.05.1984, in the Nicaragua versus United States case; the Order

of 10.01.1986 in the Frontier Dispute case (Burkina Faso versus Mali); the Order of 15.03.1996 in
the case of the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon versus
Nigeria); the Order of 01.07.2000, case of Armed Activities on the Territory of the Congo; the
Order of 08.04.1993 in the case concerning the Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia and Herzegovina versus Yugoslavia); the Order
of 15.10.2008 in the case concerning the Application of the International Convention on the
Elimination of All Forms of Racial Discrimination (Georgia versus Russia) (paras. 44-48).

11. Judge Cançado Trindade points out that, along the last three decades, the ICJ has
gradually overcome the strictly inter-State outlook in the acknowledgement of the rights to be
preserved by means of its Orders of provisional measures of protection. And he adds that

“Nostalgics of the past, clung to their own dogmatism, can hardly deny that,
nowadays, States litigating before this Court, despite its inter-State contentious
procedure, have conceded that they have no longer the monopoly of the rights to be

preserved, and, much to their credit, they recognize so, in pleading before this Court
on behalf also of individuals, their nationals and others, or even in a larger framework,
its inhabitants.

Facts tend to come before the norms, requiring of these latter the aptitude to
cover new situations they are meant to regulate, with due attention to superior values.
Before this Court, States keep on holding the monopoly of jus standi, as well as locus

standi in judicio, in so far as requests for provisional measures are concerned, but this
has not proved incompatible with the preservation of the rights of the human person,
together with those of States. The ultimate beneficiaries of the rights to be thereby
preserved have been, not seldom and ultimately, human beings, alongside the States
wherein they live. Provisional measures indicated in successive Orders of the ICJ
have transcended the artificial inter-State dimension of the past, and have come to
preserve also rights whose ultimate subjects (titulaires) are human beings”

(paras. 49-50).

12. Turning to the remaining one of his three points (namely, the effects of provisional
measures of protection beyond the traditional inter-State dimension), Judge Cançado Trindade
recalls that, in the case concerning Questions Relating to the Obligation to Prosecute or to Extradite
(Order of 28.05.2009), wherein the ICJ decided not to indicate provisional measures, he warned, in his
extensive Dissenting Opinion, that the basic right at issue pertained to the realization of justice, which
assumed a central place in the case, one of a paramount importance, deserving of particular attention.

The crucial factor was, as he stressed in his Dissenting Opinion, the endurance by the victims of
an ungrateful two-decade search for justice, in vain until now, for the reported atrocities of the
Habré regime in Chad (para. 51).

13. The determination of urgency and the probability of irreparable damage are exercises
which the ICJ is nowadays used to; yet, he proceeds, although the identification of the legal

nature and the material content of the right(s) to be preserved seem not to raise great difficulties,
the same cannot be said of the consideration of the legal effects and consequences of the right at
issue, in particular when provisional measures are not indicated or ordered by the Court. We here
move on to the effects of provisional measures of protection, beyond the traditional inter-State
dimension. In this respect, “there seems to remain still a long way to go” (para. 53).

14. In the cas d’espèce before the Court, he adds, the new provisional measures are

requested not only in respect of agents of the public power (personnel), but also in respect of
individuals (simples particuliers), in order to avoid “harm in the form of bodily injury or death”, - 4 -

well beyond the traditional inter-State dimension (para. 54). Judge Cançado Trindade then
concludes on this point that

“States are bound to protect all persons under their respective jurisdictions.
Provisional measures, with their preventive nature, appear as truly tutelary, rather than
only precautionary, purporting to protect individuals also against harassment and
threats, thus avoiding “harm in the form of bodily injury or death”. After all, the
beneficiaries of the compliance with, and due performance of, obligations under
ordered provisional measures of protection, are not only States, but also human

beings. A strictly inter-State outlook does not reflect this important point. The strictly
inter-State dimension has long been surpassed, and seems insufficient, if not
inadequate, to address obligations under provisional measures of protection”
(para. 56).

15. Judge Cançado Trindade then focuses his reflections on the proper exercise of the
international judicial function in the present domain, and moves on to his rebuttal of so-called
“judicial self-restraint”, or l’art de ne rien faire (part XI). He stresses that the present Order of the

ICJ, on requests for provisional measures in the cases concerning Certain Activities Carried out
by Nicaragua in the Border Area and the Construction of a Road in Costa Rica along the San Juan
River, suffers from “a stark incongruence”, as the Court concludes (in respect of Costa Rica’s
request) that a change in the situation has occurred, as “organized groups of persons”, whose
presence was not contemplated when it issued its previous decision to indicate provisional

measures, are now “regularly staying” in the disputed area, yet the Court extracts no
consequence therefrom (para. 57).

16. The Court limits itself to say that, despite that change in the situation, in its view the
conditions “have not been fulfilled” for it to modify the measures that it indicated in its previous
Order of 08.03.2011. In Judge Cançado Trindade’s perception, this conclusion simply begs the
question. Worse still, as the Court’s majority admits in paragraph 36 of the present Order that there

indeed is a risk of incidents in the disputed area, and that this new situation “is exacerbated” by the
“limited size” of the area and the presence therein of “numbers of Nicaraguan nationals”. Thus,
contrary to the Court’s majority, he sustains that the new situation created in the disputed area
clearly calls for new provisional measures, in order to prevent or avoid irreparable harm to the
persons concerned and to the environment. The new provisional measures called for by Judge
Cançado Trindade would make it clear that each Party should refrain from sending to, or
maintaining in, the disputed area, including the caño, not only any personnel (whether civilian,

police or security), but also “organized groups” of individuals, or any “private individuals”.

17. As a matter of fact, he adds, this is not the first time that the Court discloses its
unjustified “judicial self-restraint” in respect of provisional measures of protection, even when
faced with the presence of the prerequisites of urgency and the probability of irreparable harm.
Four years ago, it did so in its Order of 28.05.2009 in the case concerning the Obligation to
Prosecute or Extradite (Belgium versus Senegal), wherein it refrained from ordering or indicating

the requested provisional measures of protection. Judge Cançado Trindade recalls that, on the
occasion, he appended an extensive Dissenting Opinion (paragraphs 1-105) to that Order, seeking
to preserve the integrity of the corpus juris of the 1984 U.N. Convention against Torture. Shortly
after the Court’s Order of 28.05.2009 wherein the ICJ found that the circumstances of the case
were, in its view, not such as to require the exercise of its power under Article 41 of the Statute to
indicate provisional measures, there followed a succession of uncertainties, amidst the “emptiness”
of the Court’s self-imposed “restraint”, and “its apparent insensitiveness towards the underlying

human values” (paras. 60-61).

18. On that occasion, contrary to the Court’s majority, he sought to demonstrate that there
was manifest urgency in the situation affecting surviving victims of torture, or their close relatives,
in respect of their right to the realization of justice under the U.N. Convention against Torture. Yet - 5 -

the Court “preferred to rely comfortably on an unilateral act of promise (conceptualized in the
traditional framework of inter-State relations) made by the respondent State in the course of the

legal proceedings before itself”. That pledge, in his view, “did not remove the prerequisites of
urgency and probability of irreparable harm for the indication of provisional measures, nor did it
efface the longstanding sufferings of the Habré regime, in their saga of more than two decades in
search of the realization of justice” (para. 62).

19. Yet, the Court took a “passive posture”, reduced to that of “a spectator of subsequent
events”. In effect, following the Court’s Order of 28.05.2009, no initiative was taken in the

respondent State towards the trial of Mr. Hissène Habré in Senegal; the return to Mr. H. Habré to
Chad was announced, as well as his imminent expulsion from Senegal, which was then cancelled in
the last minute under public pressure. In Judge Cançado Trindade’s perception, the Court “was
lucky” that Mr. H. Habré did not escape from his house surveillance in Dakar, and that he was not
expelled from Senegal. Instead of “assuming its own control” over the situation, he added,

“the self-restrained Court preferred to count on the imponderable, on la fortuna. The
Court cannot keep on counting on the imponderable, as la fortuna may at any time turn

against it. As Sophocles, in his perennial wisdom, warned, through the voices of the
chorus of one of his tragedies: count no man happy till he passed the final threshold
of his life secure from pain (bodily or spiritual harm)” (para. 63).

20. In today’s present Order, the ICJ “has exercised self-restraint once again”: this time,
after finding that there has been a change in the situation, it has added that the circumstances
presented to it, nevertheless, are not such as to require modification of its previous Order

of 08.03.2011, which is simply reaffirmed. Moreover, it has seen no urgency in the new situation.
The Court’s reasoning, in his understanding, “rests on a petitio principii, adducing no persuasive
argument to support its decision not to order new provisional measures in face of the new
situation”; the ICJ limits itself to reasserting the previous provisional measures, even in addressing
a new and distinct situation, which it admits has now changed (para. 64).

21. The Court “unduly establishes” a further test for the indication of provisional measures,

rendering it more difficult or simply avoiding to order these latter, “at variance with its
interna corporis”. In his view, the ICJ “does not elaborate on its dictum, nor does it provide any
demonstration whatsoever to corroborate its assertion”. Its “ineluctable incongruence” lies in the
fact that, once it finds that there is a change in the situation, it fails to modify or rather
expand its previous Order, so as to face the new situation, endowed with the requisite elements
of risk (in the form of bodily harm or death, and harm to the environment) and urgency.

22. Once again, the Court, from now on, will “only hope for the best”, but not without
expressing its “concerns” with regard to the new situation (as it did in paragraph 36 of the present
Order), given the ostensible risk and the probability of harm posed by it. In Judge
Cançado Trindade’s understanding,

“Instead of remaining preoccupied, the ICJ should have ordered the new provisional
measures required by the new situation created in the disputed area. Once again, the

Court will nourish the hope that fate is on its side, oblivious of the extreme care with
which someone so familiar with human suffering and tragedy like Cicero approached
fate, in one of his fragmented reflections. Even so, despite all his awareness, Cicero
did not cross over the final threshold of his life secure from pain: at the end of his
path, he suffered bodily injuries and violent death...” (para. 66).

23. If the Court expressly recognizes such risk and the probability of irreparable harm, and

expresses its “concerns” with this new situation (supra), it is then clear, he proceeds, that the
provisional measures already ordered should be modified, or expanded, so as to face this new
situation. That the Court has not done so, “in face of the likelihood of bodily harm or death of the - 6 -

individuals staying in the disputed area”, is a cause of concern to him, as “the rights at issue and

the corresponding obligations are beyond the strictly inter-State dimension, and the Court seems
not to have valued this as it should” (para. 68).

24. Last but not least, Judge Cançado Trindade presents, as his concluding reflections, his
thesis towards an autonomous legal regime of provisional measures of protection (part XII). He
insists on the point he has already made in other cases lodged with the ICJ, as well as in another
international jurisdiction (cf. El Ejercicio de la Función Judicial Internacional Memorias de la

Corte Interamericana de Derechos Humanos, 2nd. ed., Belo Horizonte/Brazil, Edit. Del Rey, 2013,
ch. XXI: “The Preventive Dimension: The Binding Character and the Expansion of Provisional
Measures of Protection”, pp. 177-186), that “the strictly inter-State dimension has long been
surpassed, and appears inappropriate to address obligations under provisional measures of
protection” (para. 69). In his understanding, the institute of provisional measures of protection
stands in need of a conceptual refinement, in all its aspects.

25. Provisional measures of protection indicated or ordered by the ICJ (or other international
tribunals) generate per se obligations for the States concerned, which are distinct from the
obligations which emanate from the Court’s (subsequent) Judgments on the merits (and on
reparations) of the respective cases. In this sense, in Judge Cançado Trindade’s conception,
“provisional measures have an autonomous legal regime of their own, disclosing the high relevance
of their preventive dimension”. Parallel to the Court’s (subsequent) decisions on the merits, the
international responsibility of a State may be engaged for non-compliance with, or breach of, a

provisional measure of protection ordered by the Court (or other international tribunals) (para. 71).

26. His thesis, in sum, is that provisional measures, endowed with a conventional basis,
such as those of the ICJ (under Article 41 of the Statute), are also endowed with autonomy, have
a legal regime of their own, and non-compliance with them generates the responsibility of the
State, entails legal consequences, without prejudice of the examination and resolution of the
concrete cases as to the merits. This discloses their important preventive dimension, in their wide

scope. The proper treatment of this subject-matter is, in his view, “the task before this Court, now
and in the years to come” (para. 72).

27. The juridical nature of provisional measures, with their preventive dimension, he
adds, has lately been clarified by a growing case-law on the matter, as those measures came
to be increasingly indicated or ordered, in recent years, by contemporary international, as well as

national, tribunals. Soon the recourse to provisional measures of protection, also at international
level, had the effect of expanding the domain of international jurisdiction, with the consequent
reduction of the so-called “reserved domain” of the State. In his outlook, this “grows in importance
in respect of regimes of protection, such as those of the human person as well as of the
environment”. The clarification of the juridical nature of provisional measures is, however, still at
the initial stage of the evolution of the matter, to be followed, in our days, in his understanding,
by “the elaboration on the legal consequences of non-compliance with those measures”, and the

conceptual development of what he deems it fit to call “their autonomous legal regime” (para. 73).

28. He points out that what has led him to leave on the records, in the present Dissenting
Opinion, his position on the matter, which he has been sustaining for years, “is not a lack of
confidence in the contending parties complying with them (...) The two contending parties come
both from a part of the world, Latin America, with a longstanding and strong tradition in
international legal doctrine” (para. 74). Instead, what has led him to leave on the records his

dissenting position, is “the Court’s self-restraint, and the incongruence of its reasoning”, in “a
matter of such importance for the progressive development international law”. He has thus cared
“to take the time and work to leave on the records the present Dissenting Opinion, so as to render a
service to our mission of imparting justice” (para. 74). - 7 -

29. In Judge Cançado Trindade’s perception, the notion of victim (or of potential victim), of
injured party, can thus, in effect, “emerge also in the context proper to provisional measures of

protection”, parallel to the merits (and reparations) of the cas d’espèce. Provisional measures of
protection generate obligations (of prevention) for the States concerned, which are distinct from the
obligations which emanate from the Judgments of the Court as to the merits (and reparations) of the
respective cases. This ensues from their autonomous legal regime, as he conceives it. There is, in
his perception, “pressing need nowadays to refine and to develop conceptually this autonomous
legal regime, focused, in particular, on the contemporary expansion of provisional measures, the

means to secure due and prompt compliance with them, and the legal consequences of
non-compliance, to the benefit of those protected thereunder” (para 75).

30. He has likewise advocated a pro-active posture of the ICJ in respect of provisional
measures of protection, in his earlier Dissenting Opinion in the Court’s Order of 28.05.2009 in the
case of Questions Relating to the Obligation to Prosecute or Extradite (Belgium versus Senegal),
where he deemed it fit to recall that the Court is not restricted by the arguments of the Parties, as

confirmed by Article 75(1) and (2) of the Rules of Court, which expressly entitle the ICJ to indicate
or order, motu proprio, provisional measures that it regards as necessary, even if they are wholly or
in part distinct from those that are requested.

31. A decision of the ICJ indicating provisional measures in the present case, as he then
sustained, “would have set up a remarkable precedent in the long search for justice in the theory

and practice of international law”, as this was “the first case lodged with the ICJ on the basis of the
1984 United Nations Convention against Torture”, the first human rights treaty incorporating the
principle of universal jurisdiction as an international obligation of all States Parties (para. 80 of his
Dissenting Opinion in the Court’s Order of 28.05.2009).

32. Judge Cançado Trindade concludes that, in this matter, “the worst possible posture would
be that of passiveness, if not indifference, that of judicial inactivism” (para. 76). The matter before
the ICJ “calls for a more pro-active posture on its part”, so as not only to settle the controversies

filed with it, but also to tell what the Law is (juris dictio), and thus “to contribute effectively to the
avoidance or prevention of irreparable harm in situations of urgency, to the ultimate benefit of all
subjects of international law, States as well as groups of individuals, and simples particuliers.
After all, the human person (living in harmony in her natural habitat) occupies a central place in the
new jus gentium of our times” (para. 76).

Dissenting opinion of Judge ad hoc Dugard

The Order of 2011 requiring Parties to refrain from sending personnel into the territory
subject to dispute between Costa Rica and Nicaragua prohibits members of the Guardabarranco
Environment Movement from entering this territory as they qualify as civilian personnel.
Moreover, their presence in the disputed territory is contrary to the object and purpose of the
2011 Order. The access of members of the Guardabarranco Environment Movement to the
disputed territory poses a real risk of irreparable prejudice to Costa Rica as the Movement is not an

association of youthful environmentalists committed to the scientific study of the environment. It
is rather a nationalistic youth movement with a dual purpose, the protection of the environment and
the furtherance of Nicaragua’s national interest.

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