SEPARATE OPINION OF JUDGE C ANÇADO T RINDADE
Table of Contents
Paragraphs
I. Prolegomena........................................................................1-3...............................
II. Manifestations of the Preventive Dimension in Contemporary International Law 4-5
III. The Autonomous Legal Regime of Provisional Measures of Protection............... 6
1. The Evolution of Provisional Measures of Protection .........................7-12......
2. The Conformation of Their Autonomous Legal Regime............................13-16
IV. Provisional Measures: The Enlargement of the Scope of Protection..................17-23
V. Breach of Provisional Measures of Protection as an Autonomous Breach,
Engaging State Responsibility by Itself...........................................24-25.................
VI. The ICJ’s Determination of Breaches of Obligations under Provisional
Measures of Protection ...........................................................26-33..........................
VII. A Plea for the Prompt Determination of Breaches of Provisional Measures of
Protection: Some Reflections......................................................34-44.....................
VIII. Supervision of Compliance with Provisional Measures of Protection.................45-46
IX. Breach of Provisional Measures and Reparation for Damages.........................47-52
X. Due Diligence, and the Interrelatedness between the Principle of Prevention and
the Precautionary Principle.......................................................53-57........................
XI. The Path towards the Progressive Development of Provisional Measures of
Protection........................................................................58-66..................................
XII. Epilogue: A Recapitulation........................................................67-73......................
I. PROLEGOMENA
1. I have accompanied the majority in voting in favour of the adoption today,
16 December 2015, of the present Judgment of the International Court of Justice (ICJ) in the two
joined cases of Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica versus
Nicaragua) and of the Construction of a Road in Costa Rica along the San Juan River
(Nicaragua versus Costa Rica). Yet, there are certain points ensuing from the Court’s decision
which, though not dwelt upon at depth by the Court in its reasoning, are in my view endowed with
importance, related as they are to the proper exercise of the international judicial function. I feel
thus obliged to dwell upon them, in the present Separate Opinion, nourishing the hope that the
considerations that follow may be useful for the handling of this matter by the ICJ in future cases. - 2 -
2. I start drawing attention to the manifestations, in the cas d’espèce, of the preventive
dimension in contemporary international law. I then turn attention to the key point, which I have
been sustaining in the adjudication of successive cases in this Court, namely, that of the
conformation of the autonomous legal regime of provisional measures of protection, in the course
of their evolution (after their transposition from comparative domestic procedural law into
international law). Next, I consider the widening of the scope of protection by means of
provisional measures, and the breach of these latter as an autonomous breach, engaging State
responsibility by itself. I then proceed to examine the determination by the ICJ of breaches of
obligations under Provisional Measures of Protection.
3. In sequence, I present a plea for the prompt determination by the Court of breaches of
Provisional Measures of Protection. My next line of considerations is on the supervision of
compliance with Provisional Measures of Protection. Following that, I examine the
interrelationship between the breach of provisional measures and the duty of reparation (in its
distinct forms) for damages. I then turn attention to due diligence, and the interrelatedness between
the principle of prevention and the precautionary principle. Next, I purport to detect the path
towards the progressive development of Provisional Measures of Protection. Last but not least, I
present, in an epilogue, my final considerations on the matter, in the form of a recapitulation of the
main points sustained herein, in the course of the present Separate Opinion.
II. M ANIFESTATIONS OF THE PREVENTIVE D IMENSION IN CONTEMPORARY
INTERNATIONAL L AW
4. May I begin by observing that the two joined 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 bring to the fore the relevance of the preventive dimension in contemporary international law,
as reflected in the present Judgment, of 16 December 2015, in the finding and legal consequences
of breaches of Provisional Measures of Protection (in the Certain Activities case), as well as in the
acknowledgment of the obligation of conducting an environmental impact assessment (EIA) (in the
Construction of a Road case as well). This preventive dimension grows in importance in the
framework of regimes of protection (such as those, e.g., of the human person, and of the
environment). Moreover, it brings us particularly close to general principles of law. Such
preventive dimension stands out clearly in the succession of the Court’s Orders of Provisional
1
Measures of Protection of 08.03.2011, 16.07.2013 and 22.11.2013 .
5. The question of the non-compliance with, or of breaches of, the aforementioned Orders of
Provisional Measures of Protection, was carefully addressed by the tw2 contending parties in the
course not only of the Court’s proceedings pertaining to such Orders , but also in the course of its
proceedings (written and oral phases) as to the merits of the Certain Activities case. Concern with
the issue of non-compliance with, or breaches of the Court’s Order of 08.03.2011, for example, was
3
in effect 4xpressed in Costa Rica’s Memorial — a whole chapter, — as well as in5its oral
arguments ; Nicaragua, likewise, devoted a chapter of its Counter-Memorial , as well as its oral
1
Reference can further be made to the Court’s subsequent Order of 13.12.2013.
2
Cf., as to Costa Rica’s oral arguments, ICJ, docs. CR 2013/24, of 14.10.2013, pp. 12-61; and CR 2013/26,
of 16.10.2013, pp. 8-35; and, as to Nicaragua’s oral arguments, ICJ, docs. CR 2013/25, of 15.10.2013, pp. 8-57; and
CR 2013/27, of 17.10.2013, pp. 8-44.
3Cf. Memorial, chapter VI, paras. 6.1-6.63.
4Cf. ICJ, docs. CR 2015/2, of 14.04.2015, pp. 17 and 23-2CR 2015/4, of 15.04.2015, pp. 23-32; and
CR 2015/14, of 28.04.2015, pp. 39-42 and 65-66.
5
Cf. Counter-Memorial, chapter 7, paras. 7.4-7.46. - 3 -
6
arguments , to the issue. The same concern was expressed, in respect of the Court’s subsequent
Order of Provisional Measures of 16.07.2013, — and of events following it, — in the oral
arguments of Costa Rica and of Nicaragua . Again, in respect of the Court’s third Order of
Provisional Measures, of 22.11.2013, reference can further be made to the oral arguments of both
Costa Rica and Nicaragua . 10
III. THE A UTONOMOUS L EGAL R EGIME OF P ROVISIONAL
M EASURES OF P ROTECTION
6. The autonomous legal regime of Provisional Measures of Protection has been quite
discernible to me: I have been drawing attention to it, in the way I conceive such autonomous legal
regime, in successive Dissenting and Individual Opinions in this Court. The present Judgment of
the ICJ in the two joined cases of Certain Activities and of the Construction of a Road is a proper
occasion to dwell further upon it. The Court has duly considered the submissions of the parties,
Costa Rica and Nicaragua (paras. 121-129), and has found that the respondent State incurred into a
breach of the obligations under its Order of Provisional Measures of Protection of 08.03.2011 by
the excavation of two caños in 2013 and the establishment of a military presence in the disputed
territory (paras. 127 and 129, and resolutory point n. 3 of the dispositif). The ICJ has pointed out
that the respondent State itself had acknowledged, in the course of the oral hearings, that “the
excavation of the second and third caños represented an infringement of its obligations under the
11
2011 Order” (para. 125) .
1. The Evolution of Provisional Measures of Protection
7. There are, as from this finding of the Court of a breach of provisional measures in the cas
d’espèce, several points that come to my mind, all relating to what I have been conceptualizing,
along the years, as the autonomous legal regime of Provisional Measures of Protection . This 12
regime can be better appreciated if we consider provisional measures in their historical evolution.
May I recall that, in their origins, in domestic procedural law doctrine of over a century ago,
provisional measures were considered, and evolved, in order to safeguard the effectiveness of the
jurisdictional function itself.
Cf. ICJ, docs. CR 2015/5, of 16.04.2015, p. 18CR 2015/7, of 17.04.2015, pp. 46-50; and CR 2015/15,
of 29.04.2015, pp. 43-44.
Cf. ICJ, docs. CR 2015/2, of 14.04.2015, pp. 24-25; CR 2015/4, of 15.04.2015, pp. 31-32.
Cf. ICJ, doc. CR 2015/7, of 17.04.2015, pp. 48-50.
9
Cf. ICJ, docs. CR 2015/4, of 15.04.2015, pp. 31-34; and CR 2015/14, of 28.04.2015, pp. 65-66.
1Cf. ICJ, doc. CR 2015/7, of 17.04.2015, pp. 41-45.
1In the oral hearing of 16.04.2015, the agent of the respondent State asserted that “Nicaragua deeply regrets the
actions following the 2011 Order on Provisional Measures that led the Court to determine, in November 2013, that a new
Order was required”; ICJ, doc. 2015/5, of 16.04.2015, p. 18, para. 42. On the following day counsel recalled this (ICJ,
doc. 2015/7, of 17.04.2015, p. 45, para. 14), and again it did so in the hearing of 29.04.2015, adding that there was thus
“no need for future remedial measures”; ICJ, doc. 2015/15, of 29.04.2015, p. 44, paras. 23-24.
1Cf. A.A. Cançado Trindade, Évolution du Droit international au droit des gens - L´accès des particuliers à la
justice internationale: le regard d´un juge, Paris, Pédone, 2008, pp. 64-70; A.A. Cançado Trindade, “La Expansión y la
Consolidación de las Medidas Provisionales de Protección en la Jurisdicción Internacional Contemporánea”, in Retos de
la Jurisdicción Internacional (eds. S. Sanz Caballero and R. Abril Stoffels), Cizur Menor/Navarra, Cedri/CEU/Thomson
Reuters, 2012, pp. 99-117; A.A. Cançado Trindade, El Ejercicio de la Función Judicial Internacional - Memorias de la
Corte Interamericana de Derechos Humanos, 3rd. ed., Belo Horizonte/Brazil, Edit. Del Rey, 2013, Chapters V and XXI
(Provisional Measures), pp. 47-52 and 177-186; A.A. Cançado Trindade, “Les mesures provisoires de protection dans la
jurisprudence de la Cour Interaméricaine des Droits de l'Homme”, in Mesures conservatoires et droits fondamentaux (eds.
G. Cohen-Jonathan and J.-F. Flauss), Bruxelles, Bruylant/Nemesis, 2005, pp. 145-163. - 4 -
8. They thus emerged, in the domestic legal systems, in the form of a precautionary legal
action (mesure conservatoire / acción cautelar / ação cautelar), aiming at guaranteeing, not
directly subjective rights per se, but rather the jurisdictional process itself. They had not yet freed
themselves from a certain juridical formalism, conveying the impression of taking the legal process
as an end in itself, rather than as a means for the realization of justice. With the gradual
transposition of provisional measures from domestic into international law level, they came to be
increasingly resorted to, in face of the most diverse circumstances disclosing the probability or
imminence of an irreparable damage, to be prevented or avoided.
9. Their transposition into international legal procedure, and the increasing recourse to them
within the framework of domains of protection (e.g., of the human person or of the environment),
had the effect, in my perception, of enlarging the scope of international jurisdiction, and of refining
their conceptualization. International case-law on Provisional Measures of Protection expanded
considerably along the last three decades, making it clear to the contending parties that they are to
abstain from any action which may aggravate the dispute pendente lite, or may have a prejudicial
effect on the compliance with the subsequent judgment as to the merits.
10. Their rationale stood out clearer, turning to the protection of rights, of the equality of
arms (égalité des armes), and not only of the legal process itself. Along the last three decades,
Provisional Measures of Protection have freed themselves from the juridical formalism of the
procedural doctrine of over a century ago, and have, in my perception, come closer to reaching
their plenitude. They have become endowed with a character, more than precautionary, truly
tutelary. When their basic requisites, — of gravity and urgency, and the needed prevention of
irreparable harm, — are met, they have been ordered, in the light of the needs of protection, and
have thus conformed a true jurisdictional guarantee of a preventive character.
11. For many years I have been insisting on this particular point. To recall but one example,
already by the turn of the century, in another international jurisdiction, in my Concurring Opinion
appended to the Order of 25.05.1999 of the Inter-American Court of Human Rights (IACtHR) in
the case of James and Others, concerning Trinidad and Tobago, I deemed it fit to draw attention to
the configuration, in provisional measures of protection of our times, of a true jurisdictional
guarantee of a preventive character (para. 10). I further drew attention to the inherent power or
faculté of an international tribunal to determine the scope of the provisional measures that it
decided to order (para. 7). All this comes to reinforce the preventive dimension, proper of those
measures.
12. In the case of the ICJ (like in that of the IACtHR), such provisional measures do have a
conventional basis (Article 41 of the ICJ’s Statute). But even if an international tribunal does not
count on such a conventional basis, it has, in my understanding, inherent powers to indicate such
measures, so as to secure the sound administration of justice (la bonne administration de la
justice). Contemporary international tribunals have the compétence de la compétence
(Kompetenz-Kompetenz) in the domain of provisional measures as well, so as to safeguard the
respective rights of the contending parties in the course of the legal process. The grant of those
measures is a significant manifestation of the preventive dimension in contemporary international
law. - 5 -
2. The Conformation of Their Autonomous Legal Regime
13. In effect, the evolution of provisional measures in recent years has, in my perception,
made very clear that they operate within an autonomous legal regime of their own, encompassing
their juridical nature, the rights and obligations at issue, their legal effects, and the duty of
compliance with them. It is now the duty of contemporary international tribunals to elaborate on
such autonomous legal regime, and to extract the legal consequences ensuing therefrom. In order
to do so, it is necessary, in my understanding, to keep in mind — may I reiterate — their juridical
nature, the rights to be preserved and the corresponding obligations in their wide scope, and their
legal effects (cf. infra).
14. In my 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), wherein the Court
decided not to indicate or order provisional measures, I pondered that Provisional Measures of
Protection have lately much evolved, and appear nowadays as being “endowed with a character,
more than precautionary, truly tutelary” (para. 13). Their development — I added — has led the
Court gradually to overcome the strictly inter-State outlook in the acknowledgment of the rights to
be preserved (paras. 21, 25 and 72). Such rights to be protected by Provisional Measures have
encompassed, in the cas d’espèce, the right to the realisation of justice, — i.e., the right to see to it
that justice is done, — “ineluctably linked to the rule of law at both national and international
levels” (paras. 92-95 and 101).
15. Four years later, in my Dissenting Opinion in the Court’s Order (of 16.07.2013) in the
joined cases of Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica versus
Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua versus
Costa Rica), wherein the Court simply reaffirmed a previous Order (of 08.03.2011) and decided not
to indicate or order new provisional measures or modify the previous Order, I drew attention to the
overcoming of the inter-State outlook in the present domain of provisional measures (para. 49),
given that they came to extend protection also to the human person (paras. 39-42). I further warned
that non-compliance with Provisional Measures of Protection amounts to a breach of an
international obligation, engaging State responsibility per se (paras. 70-72). Provisional measures
have an autonomous legal regime of their own, — I concluded, — and they have grown in
importance, — with their preventive dimension underlined by their juridical nature, — “in respect
of regimes of protection, such as those of the human person as well as of the environment”
(paras. 73 and 75).
16. Shortly afterwards, in my subsequent Separate Opinion in the Court’s following Order of
Provisional Measures (of 22.11.2013) in the same two joined cases opposing the two
Central American countries, Nicaragua and Costa Rica, wherein the Court decided to indicate or
order new provisional measures, I observed that the duty of compliance with Provisional Measures
of Protection outlines their autonomous legal regime (paras. 23-24). Provisional Measures — I
proceeded — generate per se obligations, irrespective of, or independently from, those ensuing
from the Court’s Judgments on the merits or on reparations (para. 29). I insisted that Provisional
Measures of Protection, in their evolution, have become, more than precautionary, truly tutelary
(para. 26), and I then added, moving into their effects, that non-compliance with Provisional
Measures of Protection engages autonomously the international responsibility of the State
(paras. 24 and 39-40). Such non-compliance is “an autonomous breach of a conventional
obligation (concerning provisional measures), without prejudice to what will later be decided by
the Court as to the merits” (para. 37). - 6 -
IV. P ROVISIONAL M EASURES : T HE E NLARGEMENT OF THE SCOPE
OF P ROTECTION
17. In the present Judgment in the two joined cases of Certain Activities and of the
Construction of a Road, the Court has found, — in section III.C concerning the Certain Activities
case, — that the excavation of the second and the third caños and the establishment of a military
presence in the disputed territory breached the obligations of the provisional measures of protection
it had ordered (on 08.03.2011), and constituted “a violation of the territorial sovereignty” of the
applicant State (para. 129). Beyond that, provisional measures, in my perception, do widen the
scope of protection; it is not only a matter of State sovereignty. Protection extends to the
environment, and the right to life; their safeguard is also necessary to avoid aggravating the
dispute or rendering it more difficult to resolve (cf. para. 123).
18. The enlargement, by provisional measures, of the scope of protection, is deserving of
attention and praise. It is reassuring that prevention and precaution have found their place in the
conceptual universe of the law of nations, the droit des gens, — and a prominent place in
international environmental law. It could not have been otherwise. From the days of the
U.N. Conference on Environment and Development (Rio de Janeiro, 1992) up to the present, this
has occurred amidst the acknowledgment of risks and the limitations of human knowledge.
Prevention and precaution have enforced each other, and the new awareness of their need has
paved the way to the aforementioned expansion of Provisional Measures of Protection along the
last three decades.
19. It is not casual that they came to be conceived as precautionary measures (mesures
provisoires / medidas cautelares), prevention and precaution underlying them all. Precaution, in
effect, takes prevention further, in face of the uncertainty of risks, so as to avoid irreparable
damages. And here, again, in the domain of Provisional Measures of Protection, the relationship
between international law and time becomes manifest. The inter-temporal dimension is here
ineluctable, overcoming the constraints of legal positivism. International law endeavours to be
anticipatory in the regulation of social facts, so as to avoid irreparable harm; Provisional Measures
of Protection expand the protection they pursue, as a true international jurisdictional guarantee of a
preventive character .
20. In order to avoid irreparable harm, one cannot remain closed in the fugacious present, but
rather look back in time and learn the lessons of the past, as much as, at the same time, look into
the future, to see how to avoid irreparable harm. We live — or survive — surrounded by
uncertainties, which call for precaution. As Seneca warned in his De Brevitate Vitae (circa
49 A.D.), it is wise to keep in mind all times — past, present and future — together: time past, by
recollection; time present, by making the best use of it; and time future, by anticipating whatever
one can, and thus making one’s life meaningful, safer and longer . In his late years, in his Letters
to Lucilius (circa 62-64 A.D.), Seneca, in his Stoic search for some means of reconciliation with
the frailty of human nature, stated:
“We are tormented alike by what is past and what is to come. (...) [M]emory
brings back the agony of fear while foresight brings it on prematurely. No one
15
confines his unhappiness to the present” .
13
nd Cf., in this sense, A.A. Cançado Trindade, International Law for Humankind — Towards a New Jus Gentium,
2 rev. ed., Leiden/The Hague, Nijhoff/The Hague Academy of International Law, 2013, pp. 40-47.
14L.A. Seneca, On the Shortness of Life (De Brevitate Vitae) [circa 49 A.D.], part XV.
15L.A. Seneca, “Letter V”, in Letters to Lucilius [circa 62-64 A.D.]. - 7 -
21. Back to our times, in this XXIst century, in yet another case before this Court, on the
request for interpretation in the case of the Temple of Préah Vihéar (Cambodia versus Thailand),
the ICJ, in its Order of Provisional Measures of Protection of 18.07.2011, took the unprecedented
and correct decision to order, inter alia, the creation of a provisional “demilitarized zone” around
the Temple and in the proximities of the border between the two countries, which contributed to
put an end to the armed hostilities around the Temple in the border region between Cambodia and
Thailand. In my Separate Opinion appended to that Order, I supported the Court’s correct decision,
which, in my understanding, extended protection not only to the territory at issue, but also to the
populations living thereon, as well as to the monuments conforming the Temple which, by decision
of UNESCO (of 2008), integrate the cultural and spiritual world heritage (paras. 66-95).
22. In the same Separate Opinion, I dwelt upon the temporal dimension in international law,
this latter being also anticipatory in the regulation of social facts (paras. 64-65). In the context of
the cas d’espèce, Provisional Measures rightly extended protection also to cultural or spiritual
heritage, upholding a universal value (para. 93). They brought “territory, people and human values
together”, well beyond State territorial sovereignty (para. 100), — as shown by the establishment,
in the Order, of the aforementioned demilitarized zone (para. 117). I further observed that rights of
States and rights of individuals evolve pari passu in contemporary jus gentium, and added:
“Cultural and spiritual heritage appears more closely related to a human context,
rather than to the traditional State-centric context; it appears to transcend the purely
inter-State dimension (...)” (para. 113).
23. Beyond the classic territorialist outlook is the “human factor”; protection by means of
provisional measures extended itself to local populations as well as to the cultural and spiritual
world heritage (paras. 96-113), in the light of the principle of humanity, orienting the societas
gentium towards the realization of the common good (paras. 114-115 and 117). After all, — I
added, — one cannot consider territory (whereon hostilities were taking place) in isolation (as in
the past), making abstraction of the population (or the local populations), which form the most
precious component of statehood. One is to consider people on territory (cf. paras. 67, 81, 97, 100,
114), — I concluded, — there being epistemologically no inadequacy to extend protection, by
means of provisional measures, also to human life and cultural and spiritual world heritage.
V. B REACH OF PROVISIONAL M EASURES OF PROTECTION AS AN A UTONOMOUS
BREACH , NGAGING STATE RESPONSIBILITY BY ITSELF
24. The breach of a provisional measure of protection is additional to the breach which
comes, or may come, later to be determined as to the merits of the case at issue. The factual
context may be the same, but State responsibility is engaged not only with the occurrence and
determination of a breach of an international obligation as to the merits, but also earlier on, with the
occurrence and determination of a breach of an obligation under an Order of provisional measures
of protection. The latter is an autonomous breach. State responsibility is thus engaged time and
time again, in respect of the breaches of obligations as to provisional measures (prevention) and as
to the merits.
25. The breach of a provisional measure of protection is an autonomous breach, added to the
one which comes, or may come, later to be determined as to the merits. As such, it can be
promptly determined, with its legal consequences, without any need to wait for the conclusion of
the proceedings as to the merits. Although in the Order of 22.11.2013 the Court did not expressly - 8 -
determine the occurrence of a breach of the earlier Order of 08.03.2011, it implicitly held so, in
reiterating the earlier Order and indicating new provisional measures. In my view, the Court
should have done so already in its Order of 16.07.2013, as explained in my Dissenting Opinion
appended thereto.
VI. THE ICJ’S DETERMINATION OF BREACHES OF O BLIGATIONS UNDER
PROVISIONAL M EASURES OF P ROTECTION
26. In its practice, the ICJ has come to determine, on a few occasions so far, breaches of
obligations under provisional measures of protection it had ordered; it has done so at the end of the
proceedings as to the merits of the corresponding cases. This has occurred, until the Judgment the
Court has just delivered today, 16 December 2015, in the joined cases of Certain Activities and of
the Construction of a Road, in its Judgments as to the merits in the three cases of LaGrand
(of 27.06.2001), of Armed Activities on the Territory of the Congo (of 19.12.2005), and of the
Bosnian Genocide (of 26.02.2007).
27. Earlier on, in the case of the Hostages in Tehran (United States versus Iran, Judgment
of 24.05.1980), the ICJ stated that its Order of Provisional Measures of 15.12.1979 had been either
“rejected” or “ignored” by the authorities of the respondent State (paras. 75 and 93); the Court
expressed its concern with the aggravation of the “tension between the two countries” (para. 93),
but, in the dispositif of the Judgment, it did not expressly assert that the aforementioned Order of
Provisional Measures had been breached. No consequences from non-compliance with its
provisional measures were drawn by the Court.
28. The ICJ only started doing so in the course of the last 15 years, i.e., in the XXIst
century, — although, in my view, nothing hindered it from doing so well before, in earlier cases.
Thus, in its Judgment of 27.06.2001 in the LaGrand case (Germany versus United States), the ICJ,
after holding that its Order of Provisional Measures of 03.03.1999 had not been complied with
(para. 115), stated, in resolutory point n. 5 of the dispositif, that the respondent State had breached
the obligation incumbent upon it under the aforementioned Order of Provisional Measures. Yet,
once again the Court did not draw any consequences from the conduct in breach of its provisional
measures.
29. Four years later, in its Judgment of 19.12.2005 in the case concerning Armed Activities
on the Territory of the Congo (D.R. Congo versus Uganda), the ICJ, dwelling again on the matter,
first recalled its finding that the respondent State was “responsible for acts in violation of
international human rights law and international humanitarian law carried out by its military
forces” in the territory of the D.R. Congo (para. 264), committed in the period between the issue of
its Order of Provisional Measures (of 01.07.2000) and the withdrawal of Ugandan troops in
June 2003. Turning to its Order of Provisional Measures adopted half a decade earlier, the ICJ
found that the respondent State had not complied with it (para. 264), and reiterated its finding in
resolutory point n. 7 of the dispositif.
30. Another case of determination by the ICJ of a breach of its Orders of Provisional
Measures of Protection was that of the Application of the Convention against Genocide
(Bosnia and Herzegovina versus Serbia and Montenegro): the Court held so in its Judgment
of 26.02.2007, while the Orders of Provisional Measures had been adopted 14 years earlier,
on 08.04.1993 and 13.09.1993. They were intended to cease the atrocities that were already being
perpetrated. The Court found, only in its Judgment of 2007 (para. 456), that the respondent State
had failed to “take all measures within its power to prevent commission of the crime of genocide”, - 9 -
as indicated in its Order of 08.04.1993 (para. 52.A(1)) and reaffirmed in its Order of 13.09.1993,
nor did it comply with the measure of ensuring that “any (...) organizations and persons which may
be subject to its (...) influence (...) do not commit any acts of genocide”, as also indicated in its
Order of 08.04.1993 (para. 52.A(2)) and reiterated in its Order of 13.09.1993 .
31. Two years after the first Order (of 08.04.1993), the U.N. safe-area of Srebrenica
collapsed, and the mass-killings of July 1995 in Srebrenica occurred, in a flagrant breach of the
provisional measures ordered by the ICJ. In the meantime, the proceedings in the case before the
ICJ prolonged in time: as to preliminary objections until 1996; as to counter-claims until 1997,
and again until 2001; and as to the merits until 2007. Along these years, much criticism was
expressed in expert writing that the manifest breaches of the ICJ’s Orders of Provisional Measures
of Protection of 1993 (supra) passed for a long time without determination, and without any legal
consequences.
32. As to the ICJ’s Judgment on the merits of the aforementioned case of Application of the
Convention against Genocide (2007), the Court was requested by the applicant State to hold the
respondent State to be under an obligation to provide “symbolic compensation” (para. 458) for the
massacres at Srebrenica in July 1995. The Court, however, considered that, for the purposes of
reparation, the respondent State’s non-compliance with its Orders of 08.04.1993 and 13.09.1993 “is
an aspect of, or merges with, its breaches of the substantive obligations of prevention and
punishment laid upon it by the Convention” (para. 469). Thus, instead of ordering symbolic
compensation, the Court deemed it fit to “include in the operative clause of the present Judgment,
by way of satisfaction, a declaration that the Respondent has failed to comply with the Court’s
Orders indicating provisional measures” (para. 469).
33. The ICJ then found, in resolutory point n. 7 of the dispositif, that the respondent State
had “violated its obligations to comply with the provisional measures ordered by the Court on
8 April and 13 September 1993 in this case, inasmuch as it failed to take all measures within its
power to prevent genocide in Srebrenica in July 1995”. It took 14 years for the Court to determine
the breach of its Provisional Measures of Protection in the cas d’espèce. In my understanding,
there was no need to wait such a long time to determine the breach of such measures; on the
contrary, they should have been promptly determined by the ICJ, with all its legal consequences.
This tragic case shows that we are still in the infancy of the development of the legal regime of
provisional measures of protection in contemporary international law. A proper understanding of
the autonomous legal regime of those measures may foster their development at conceptual level.
VII. AP LEA FOR THE PROMPT D ETERMINATION OF B REACHES OF P ROVISIONAL
M EASURES OF PROTECTION : SOME R EFLECTIONS
34. In the cas d’espèce (Certain Activities case), the breaches of provisional measures have
been determined by the Court within a reasonably short lapse of time, — unlike in the case of
Armed Activities on the Territory of the Congo (half a decade later) and in the Bosnian Genocide
case (almost one and a half decades later). In the cas d’espèce, the damages caused by the breaches
of provisional measures have not been irreparable, — unlike in the LaGrand case, — and with their
determination by the Court in the present Judgment their effects can be made to cease. This brings
to the fore, in my perception, an important point related to the autonomous legal regime of
provisional measures of protection.
1Bosnia and Herzegovina promptly brought the matter before the U.N. Security Council, to have the Court’s
Orders enforced; the Security Council promptly adopted its Resolution 819 (of 16.04.1993), which, after expressly
invoking the ICJ’s Order of 08.04.1993), ordered the immediate cessation of the armed attacks and several other
measures to protect persons in Srebrenica and its surrounding areas. - 10 -
35. In effect, in my understanding, the determination of a breach of a provisional measure of
protection is not — should not be — conditioned by the completion of subsequent proceedings as
to the merits of the case at issue. The legal effects of a breach of a provisional measure of
protection should in my view be promptly determined, with all its legal consequences. In this way,
its anticipatory rationale would be better served. There is no room for raising here alleged
difficulties as to evidence, as for the ordering of provisional measures of protection, and the
determination of non-compliance with them, it suffices to rely on prima facie evidence
(commencement de preuve). And it could not be otherwise.
36. Furthermore, the rights that one seeks to protect under provisional measures are not
necessarily the same as those vindicated on the merits, as shown in the case of the Temple of Préah
Vihéar (cf. supra). Likewise, the obligations (of prevention) are new or additional ones, in relation
to those ensuing from the judgment on the merits. There is yet another point which I deem it fit to
single out here, namely, contemporary international tribunals have, in my understanding, an
inherent power or faculté to order provisional measures of protection, whenever needed, and to
determine, ex officio, the occurrence of a breach of provisional measures, with its legal
consequences. Having pointed this out, my concern here is now turned to a distinct, and very
concrete point.
37. The fact that, in its practice, the ICJ has only indicated provisional measures at the
request of a State party, in my view does not mean that it cannot order such measures sponte sua,
ex officio. The ICJ Statute endows the Court with “the power to indicate, if it considers that
circumstances so require, any provisional measures which ought to be taken to preserve the
respective rights of either party” (Article 41(1)). The Rules of Court provide for request by a party
for the indication of provisional measures (Article 73(1)); yet they add that, irrespective of such
request, the Court may indicate provisional measures that, in its view, “are in whole or in part other
than those requested” (Article 75(2)).
38. For example, in the case concerning the Land and Maritime Boundary between
Cameroon and Nigeria, the ICJ indicated, in its Order of 15.03.1996 (paras. 20 and 49), provision17
measures that were distinct from, and broader than, those requested by the applicant State . It
expressly stated, in that Order, that it was entitled to do so, that it had the power to indicate
measures “in whole or in part other than those requested / totalement ou partiellement différentes
de celles qui sont sollicités” (para. 48). Furthermore, the Rules of Court provide that
“The Court may at any time decide to examine proprio motu whether the
circumstances of the case require the indication of provisional measures which ought
to be taken or complied with by any or all of the parties” (Article 75(1)).
The Rules of Court moreover set forth that it “may request information from the parties on any
matter connected with the implementation of any provisional measures it has indicated”
(Article 78).
39. The Court, thus, is not conditioned by what a party, or the parties, request(s), nor — in
my view — even by the existence of the request itself. Here, in the realm of Provisional Measures
of Protection, once again the constraints of voluntarist legal positivism are, in my view,
1The Court then found, six years later, in its Judgment of 10.10.2002, that the applicant State had not established
that there had been a breach by the respondent State (para. 322) of the provisional measures indicated in its Order
of 15.03.1996. - 11 -
overcome . The Court is not limited to what the contending parties want (in the terms they
express their wish), or so request. The Court is not an arbitral tribunal, it stands above the will of
the contending parties. This is an important point that I have been making on successive occasions
within the ICJ, in its work of international adjudication.
40. In effect, there have lately been cases lodged with it, where the ICJ has been called upon
to reason beyond the inter-State dimension, not being limited by the contentions or interests of the
litigating States: this is the point I deemed it fit to stress in my Separate Opinion (paras. 227-228)
in the Court’s Judgment (merits) of 30.11.2010 in the case of A.S. Diallo (Guinea versus
D.R. Congo). Earlier on, in the Court’s Order (provisional measures) of 28.05.2009 in the case of
Questions Relating to the Obligation to Prosecute or Extradite (Belgium versus Senegal), I stated,
in my Dissenting Opinion appended thereto, that the Court is not to relinquish its jurisdiction in
respect of Provisional Measures of Protection in face of what appears to be the professed intentions
of the parties; on the contrary, the Court is to assume the role of guarantor of compliance with
conventional obligations, beyond the professed intention or will of the parties (para. 88).
41. In the same line of thinking, in the ICJ’s Judgment (preliminary objections)
of 01.04.2011 in the case concerning the Application of the International Convention on the
Elimination of All Forms of Racial Discrimination (CERD — Georgia versus Russian Federation),
I asserted, in my Dissenting Opinion appended thereto, that the ICJ cannot “keep on embarking on
a literal or grammatical and static interpretation of the terms of compromissory clauses” enshrined
in human rights treaties (such as the CERD Convention), “drawing ‘preconditions’ therefrom for
the exercise of its jurisdiction, in an attitude remindful of traditional international arbitral practice”
(para. 206). On the contrary, — I added, — “[w]hen human rights treaties are at stake, there is
need, in my perception, to overcome the force of inertia, and to assert and develop the compulsory
jurisdiction of the ICJ on the basis of the compromissory clauses contained in those treaties”
(para. 206).
42. The Court, — may I reiterate, — is not an arbitral tribunal, it stands above the will of the
contending parties. It is not conditioned by requests or professed intentions of the contending
parties. It has an inherent power or faculté to proceed promptly to the determination of a breach of
provisional measures, in the interests of the sound administration of justice. And recta ratio guides
the sound administration of justice (la bonne administration de la justice). Recta ratio stands
above the will. It guides international adjudication and secures its contribution to the rule of law
(prééminence du droit) at international level.
43. The Court is entirely free to order the provisional measures that it considers necessary, so
as to prevent the aggravation of the dispute or the occurrence of irreparable harm, even if the
measures it decides to order are quite different from those requested by the contending parties. The
ICJ has in fact done so, not surprisingly, also in relation to situations of armed conflicts; the Court
has been faced, in such situations (surrounded by complexity), with the imperative of protection of
human life. Thus, in its Order of Provisional Measures of Protection, of 01.07.2000, in the case
concerning Armed Activities on the Territory of the Congo (D.R. Congo versus Uganda), the ICJ,
invoking Article 75(2) of the Rules of Court, once again asserted its power to order measures that
are “in whole or in part other than those requested / totalement ou partiellement différentes de
celles qui sont sollicités” (para. 43).
1For my criticisms of the voluntarist conception of international law, cf. A.A. Cançado Trindade, “The
Voluntarist Conception of International Law: A Re-Assessment”, 59 Revue de droit international de sciences diplomatiques
et politiques — Sottile (1981) pp. 201-240. - 12 -
44. The Court, in my view, after examining the circumstances of the cas d’espèce, may
proceed to order, sponte sua, provisional measures of protection. And it may, in my conception,
proceed motu proprio, — thus avoiding the aggravation of a situation, — to determine ex officio,
the occurrence of a breach of an Order of Provisional Measures of Protection. Keeping in mind the
preventive dimension in contemporary international law (cf. supra), and the need to prevent further
irreparable harm, the Court does not have to wait until the completion of the proceedings as to the
merits, especially if such proceedings are unreasonably prolonged, as, e.g., in the case of the
Bosnian Genocide (cf. supra).
VIII. SUPERVISION OF C OMPLIANCE WITH PROVISIONAL M EASURES
OFP ROTECTION
45. The fact that the ICJ has, so far, very seldom proceeded to the determination of a breach
of provisional measures in the subsequent proceedings as to the merits of the respective cases, in
my view does not mean that it cannot do so promptly, by means of another Order of Provisional
Measures. Furthermore, the Court has monitoring powers as to compliance with provisional
measures. If any unforeseeable circumstance may arise, the ICJ is, in my understanding, endowed
with inherent powers or facultés to take the decision that ensures compliance with the provisional
measures it has ordered, and thus the safeguard of the rights at stake.
46. All the aforesaid enhances the preventive dimension of Provisional Measures of
Protection. These latter have experienced a remarkable development in recent years, in
contemporary international law on the matter. Such measures now call for further development at
conceptual level. They have an autonomous legal regime of their own, which encompasses
supervision of compliance with them. The Court is endowed with monitoring powers to this effect.
This is yet another element which comes to enforce the rule of law (prééminence du droit) at
international level.
IX. BREACH OF PROVISIONAL M EASURES AND R EPARATION
FOR D AMAGES
47. May I now turn to yet another relevant point pertaining to the autonomous legal regime
of Provisional Measures of Protection, namely, the legal consequences of the finding of a breach of
such provisional measures. In addressing those consequences, the Court is likely to face the need
to consider remedies, reparations in their distinct forms, and costs. This point has not passed
unperceived in the present Judgment of the ICJ in the two joined cases of Certain Activities and of
the Construction of a Road. The Court has addressed reparations in the two joined cases .
48. Reparations are here contemplated in all their forms, — namely, e.g., compensation,
satisfaction, guarantee of non-repetition, among otherIn the cas d’espèce, — the Certain
Activities case, — the ICJ has determined the respondent’s duty of compensation for the material
damage (para. 142); it has further determined that, in the circumstances of the case, given its
finding of a breach of provisional measures (by the excavation of the caños and the establishment
of a military presence in the disputed territory), the declaration by the Court to this effect provides
adequate satisfaction to the applicant for the non-material damage (para. 139), without the need to
award costs (para. 144).
1Paras. 137-144 and 224-228, respectively. - 13 -
49. The ICJ has found that it has thereby afforded “adequate satisfaction” (para. 139) to the
applicant, by its declaration, in the Certain Activities case , of a breach of obligations ensuing
from the Order of provisional measures of 08.03.2011. Furthermore, the ICJ indicated new
provisional measures in its Order of 22.11.2013, so as to cease the effects of the harmful activities
and to remedy that breach. In the joined case of Construction of a Road, the ICJ declined to award
compensation (para. 226), but determined — even if not here referring specifically to a breach of
provisional measures — that its declaration of wrongful conduct for the respondent’s breach of the
obligation to conduct an environmental impact assessment provides adequate satisfaction to the
applicant (para. 224).
50. The grant of this form of reparation (satisfaction) in the two joined cases is necessary and
reassuring. The fact that the ICJ did not establish a breach of provisional measures nor did it
indicate new provisional measures already in its Order of 16.07.2013 (as it should, for the reasons
explained in my Dissenting Opinion appended thereto), and only did so in its subsequent Order
of 22.11.2013, gives weight to its decision not to award costs . After all, the prolongation of the
proceedings (as to provisional measures) 22 was due to the hesitation of the Court itself.
Accordingly, the relevant issue here is, thus, reparation (rather than costs of hearings) for breach of
Provisional Measures of Protection.
51. In effect, breach and duty of reparation come together. As I pointed out in my Separate
Opinion in the A.S. Diallo case (Guinea versus D.R. Congo, reparations, Judgment of 19.06.2012),
the duty of reparation has deep historical roots, going back to the origins of the law of nations, and
marking presence in the legacy of the “founding fathers” of our discipline (paras. 14-21). The duty
of reparation is widely acknowledged as one of general or customary international law (para. 25). I
stressed that
“The duty of full reparation is the prompt and indispensable complement of an
international wrongful act, so as to cease all the consequences ensuing therefrom, and
to secure respect for the international legal order. (...) The breach of international law
and the ensuing compliance with the duty of reparation for injuries are two sides of the
same coin; they form an indissoluble whole (...).
(...) [T]he reparatio (from the Latin reparare, ‘to dispose again’) ceases all the
effects of the breaches of international law (...) at issue, and provides satisfaction (as a
form of reparation) to the victims; by means of the reparations, the Law re-establishes
the legal order broken by those violations (...).
One has to be aware that it has become commonplace in legal circles — as is
the conventional wisdom of the legal profession — to repeat that the duty of
reparation, conforming a ‘secondary obligation’, comes after the breach of
international law. This is not my conception; when everyone seems to be thinking
alike, no one is actually thinking at all. In my own conception, breach and reparation
go together, conforming an indissoluble whole: the latter is the indispensable
consequence or complement of the former. The duty of reparation is a fundamental
obligation (...). The indissoluble whole that violation and reparation conform admits
20
Paras. 127 and 129, and resolutory point n. 3.
2Para. 144 (Certain Activities case) of the present Judgment.
22
After the hearings of 11-13.01.2011 (following Costa Rica’s initial request for the indication of provisional
measures in the Certain Activities case), those of 14-17.10.2013 (following Costa Rica’s further request for the indication
of provisional measures in the Certain Activities case), and those of 05-08.11.2013 (following Nicaragua’s request for the
indication of provisional measures in the Construction of a Road case). - 14 -
no disruption (...), so as to evade the indispensable consequence of the international
breaches incurred into: the reparations due to the victims” (paras. 32, 35 and 39-40).
52. The interrelationship between breach and duty of reparation marks presence also in the
realm of the autonomous legal regime of Provisional Measures of Protection. A breach of a
provisional measure promptly generates the duty to provide reparation for it. It is important, for
provisional measures to achieve their plenitude (within their legal regime), to remain attentive to
reparations — in their distinct forms — for their breach. Reparations (to a greater extent than
costs) for the autonomous breach of Provisional Measures of Protection are a key element for the
consolidation of the autonomous legal regime of Provisional Measures of Protection.
X. D UE D ILIGENCE ,AND THE INTERRELATEDNESS BETWEEN THE PRINCIPLE
OF P REVENTION AND THE P RECAUTIONARY P RINCIPLE
53. Now that I approach the conclusion of the present Separate Opinion, may I come back to
its point of departure, namely, the relevance of the preventive dimension in contemporary
international law. Such preventive dimension marks presence in the Judgment the ICJ has just
adopted, in the two joined 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. It is significant that, in
the course of the proceedings in the present joined cases, the duty of due diligence has been
invoked, just as it was in an earlier Latin American case, that of the Pulp Mills on the River
Uruguay (2010), opposing Argentina to Uruguay.
54. In respect of the cas d’espèce (and specifically of the Construction of a Road case), it has
been asserted that the populations of both countries, Nicaragua and Costa Rica, “deserve to benefit
from the highest possible standards of environmental protection”, and that the States of Central
America hav23adopted and applied environmental and related laws to secure “high standards of
protection” . Due diligence has thus been duly acknowledged, once again, in a Latin American
case before the ICJ. There are other related aspects in the preventive dimension. The duty to
conduct an environmental impact assessment, for example, as determined by the Court in the
present Judgment, in the case of the Construction of a Road (paras. 153-162), brings to the fore, in
my perception, the interrelatedness between the principle of prevention and the precautionary
principle.
55. I had the occasion to dwell upon this particular point in the other aforementioned
Latin American case, of half a decade ago, concerning Pulp Mills on the River Uruguay
(Argentina versus Uruguay). In my Separate Opinion appended to the ICJ’s Judgment
of 20.04.2010 in the Pulp Mills case, I pondered that, while the principle of prevention assumes
that risks can be objectively assessed so as to avoid damage, the precautionary principle assesses
risks in face of uncertainties, taking into account the vulnerability of human beings and the
environment, and the possibility of irreversible harm (paras. 72-73).
56. Unlike the positivist belief in the certainties of scientific knowledge, — I proceeded, —
the precauti24ary principle is geared to the duty of due diligence, in face of scientific
uncertainties ; precaution is thus, nowadays, more than ever, needed (paras. 83 and 89). It is not
2ICJ, doc. CR 2015/15, of 29.04.2015, pp. 44-45, paras. 26-27 (statement of counsel of Nicaragua).
2For a recent reassessment of the precautionary principle, cf. A.A. Cançado Trindade, “Principle 15 —
Precaution”, in The Rio Declaration on Environment and Development — A Commentary (ed. J.E. Viñuales), Oxford,
Oxford University Press, 2015, pp. 403-428. - 15 -
surprising that some environmental law Conventions give expression to both the principle of
prevention and the precautionary principle, acknowledging the link between them, providing the
foundation of the duty to conduct an environmental impact assessment (paras. 94-96), — as upheld
by the ICJ in the joined case of the Construction of a Road.
57. In the present Judgment, the Court, recalling its earlier decision in the Pulp Mills
case (2010), referred in a reiterated way to the requirement of due diligence in order to prevent
significant transboundary environmental harm (para. 104). It focused on the undertaking of an
environmental impact assessment in the wider realm of general international law (paras. 104-105).
And it then stated that
“If the environmental impact assessment confirms that there is a risk of
significant transboundary harm, the State planning to undertake the activity is
required, in conformity with its due diligence obligation, to notify and consult in good
faith with the potentially affected State, where that is necessary to determine the
appropriate measures to prevent or mitigate that risk” (para. 104).
XI. THE P ATH TOWARDS THE P ROGRESSIVE D EVELOPMENT OF
PROVISIONAL M EASURES OF PROTECTION
58. Having pointed that out, the main lesson learned from the adjudication of the cas
d’espèce, that I deem it fit to leave on the records, in the present Separate Opinion, under the
umbrella of the preventive dimension in contemporary international law, as developed in the
preceding paragraphs, pertains to what I conceptualize as the conformation of an autonomous legal
regime of Provisional Measures of Protection, with all its elements and implications, as related to
the Court’s finding in the joined case of Certain Activities.
59. Thus, in my Dissenting Opinion in the ICJ’s Order of 16.07.2013 in the present two
joined cases of Certain Activities and of the Construction of a Road, wherein the Court decided not
to indicate new provisional measures, nor to modify the provisional measures indicated in its
previous Order of 08.03.2011, I asserted, and deem it fit here to reiterate:
“My 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 the task before this Court, now and in the years to come.
(...) 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 I conceive it. There is, in my
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. - 16 -
(...) [T]he matter before the Court 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” (paras. 72 and 75-76).
60. Provisional Measures of Protection have grown in importance, and have expanded and
have much developed in recent years, particularly in the framework of regimes of protection (such
as those, e.g., of the human person and of the environment). Provisional Measures of Protection
have become, more than precautionary, truly tutelary, enlarging the scope of protection. The
autonomous legal regime of Provisional Measures of Protection, in conclusion, is conformed, in my
conception, by the juridical nature of such measures, the rights at issue and the obligations derived
therefrom, their legal effects, and the duty of compliance with them, — all running parallel to the
proceedings as to the merits of the cas d’espèce. It also encompasses the legal consequences
ensuing therefrom.
61. The rights protected by Provisional Measures of Protection are not the same as those
pertaining to the merits of the case at issue. The obligations ensuing from Provisional Measures of
Protection are distinct from, and additional to, the ones that may derive later from the Court’s
subsequent decision as to the merits. In case of a breach of a provisional measure of protection, the
notion of victim of a harm emerges also in the framework of such provisional measures;
irreparable damages can, by that breach, occur in the present context of prevention.
62. In order to avoid25r prevent those damages, provisional measures of protection set forth
obligations of their own , distinct from the obligations emanating later from the respective
Judgments as to the merits of the corresponding cases . As I pondered, one decade ago, in another
international jurisdiction, an international tribunal has the inherent power or faculté to supervise
motu proprio the compliance or otherwise, on the part of the State concerned, with the provisional
measures of protection it ordered; this is “even more necessary and pressing in a27ituation of
extreme gravity and urgency”, so as to prevent or avoid irreparable damage .
63. In such circumstances, an international tribunal cannot abstain from exercising its
inherent power or faculté of supervision of compliance with its own Orders, in the interests of the
sound administration of justice (la bonne administration de la justice). Non-compliance with
Provisional Measures of Protection amounts to a breach of international obligations deriving from
such measures. This being so, the determination of their breach, in my understanding, does not
need to wait for the conclusion of the proceedings as to the merits of the case at issue, particularly
if such proceedings are unduly prolonged.
25
Cf., in this sense, IACtHR, case of Eloísa Barrios and Others, concerning Venezuela, Order of 29.06.2005,
Concurring Opinion of Judge Cançado Trindade, paras. 5-6.
2Cf., in this sense, IACtHR, case of the Communities of Jiguamiandó and Curbaradó, concerning Colombia,
Order of 07.02.2006, Concurring Opinion of Judge Cançado Trindade, paras. 5-6.
27
Cf., in this sense, IACtHR, case of Eloísa Barrios and Others, Order of 22.09.2005, concerning Venezuela,
Concurring Opinion of Judge Cançado Trindade, para. 6. - 17 -
64. Furthermore, the determination of their breach is not conditioned by the existence of a
request to this effect by the State concerned; the Court, in my view, is fully entitled to proceed
promptly to the determination of their breach sponte sua, ex officio, in the interests of the sound
administration of justice (la bonne administration de la justice). The determination of a breach of
provisional measures entails legal consequences; this paves the way for the granting of remedies,
of distinct forms of reparation, and eventually costs.
65. In the present Judgment of the ICJ in the two joined cases of Certain Activities and of the
Construction of a Road, the ICJ was attentive to this point, having found that, by its own
determination of a breach of obligations ensuing from the Order of provisional measures
of 08.03.2011 — in the Certain Activities case , — it has afforded “adequate satisfaction” to the
applicant State (para. 139). For all the aforesaid, it is high time to refine, at conceptual level, the
autonomous legal regime of Provisional Measures of Protection.
66. Such refinement can clarify further this domain of international law marked by
prevention and the duty of due diligence, and can thus foster the progressive development of those
measures in the contemporary law of nations, faithful to their preventive dimension, to the benefit
of all the justiciables. The progressive development of Provisional Measures of Protection is a
domain in respect of which international case-law seems to be preceding legal doctrine, and it is a
source of satisfaction to me to endeavour to contribute to that.
XII. E PILOGUE : A R ECAPITULATION
67. Provisional Measures of Protection provide, as we can see, a fertile ground for reflection
at the juridico-epistemological level. Time and law are here ineluctably together, as in other
domains of international law. Provisional measures underline the preventive dimension, growing
in clarity, in contemporary international law. Provisional measures have undergone a significant
evolution, but there remains a long way to go for them to reach their plenitude. In order to
endeavour to pave this way, may I, last but not least, proceed to a brief recapitulation of the main
points I deemed it fit to make, particularly in respect of Provisional Measures of Protection, in the
course of the present Separate Opinion.
68. Primus: The preventive dimension in contemporary international law is clearly
manifested in the formation of what I conceive as the autonomous legal regime of Provisional
Measures of Protection. Secundus: Such preventive dimension grows in importance in the
framework of regimes of protection (e.g., of the human person and of the environment), bringing us
closer to general principles of law. Tertius: Provisional measures, historically emerged in
comparative domestic law as a precautionary legal action, had their scope enlarged in international
jurisdiction, becoming endowed with a tutelary — rather than only precautionary — character, as a
true jurisdictional guarantee of a preventive nature. Quartus: Prevention and precaution underlie
provisional measures, anticipatory in nature, so as to avoid the aggravation of the dispute and
irreparable damage.
69. Quintus: In the framework of their autonomous legal regime, provisional measures
guarantee rights which are not necessarily the same as those invoked in the proceedings as to the
merits. Sextus: In the framework of their autonomous legal regime, provisional measures generate
per se obligations, independently from those ensuing from the Court’s subsequent judgment on the
28Paras. 127 and 129, and resolutory point n. 3. - 18 -
merits or on reparations. Septimus: The Court is fully entitled to order Provisional Measures of
Protection, and to order motu proprio, any measure which it deems necessary.
70. Octavus: The Court is fully entitled to order motu proprio provisional measures which
are totally or partially different from those requested by the contending parties. Nonus: The Court
is fully entitled to order further provisional measures motu proprio; it does not need to wait for a
request by a party to do so. Decimus: The Court has inherent powers or facultés to supervise ex
officio compliance with Provisional Measures of Protection and thus to enhance their preventive
dimension.
71. Undecimus: Non-compliance amounts to an autonomous breach of provisional
measures, irrespective of what will later be decided (any other breach) by the Court as to the
merits. Duodecimus: A breach of a Provisional Measure of Protection engages by itself State
responsibility, being additional to any other breach which may come later to be determined by the
Court as to the merits. Tertius decimus: The notion of victim marks presence also in the realm of
Provisional Measures of Protection.
72. Quartus decimus: The determination by the Court of a breach of a provisional measure
should not be conditioned by the completion of subsequent proceedings as to the merits; the legal
effects of such breach should be promptly determined by the Court, in the interests of the sound
administration of justice (la bonne administration de la justice). Quintus decimus: Contemporary
international tribunals have an inherent power or faculté to determine promptly such breach, with
all its legal consequences (remedies, satisfaction as a form of reparation, and eventually costs).
Sextus decimus: The duty to provide reparation (in its distinct forms) is promptly generated by the
breach of Provisional Measures of Protection.
73. Septimus decimus: The interrelationship between breach and duty of reparation marks
presence also in the realm of the autonomous legal regime of Provisional Measures of Protection.
Duodevicesimus: The autonomous legal regime of their own, with all its elements (cf. supra),
contributes to the prevalence of the rule of law (prééminence du droit) at international level.
Undevicesimus: Provisional Measures of Protection have much evolved in recent decades, but
there remains a long way to go so as to reach their plenitude. Vicesimus: Contemporary
international tribunals are to refine the autonomous legal regime of Provisional Measures of
Protection, and to foster their progressive development, to the benefit of all the justiciables.
(Signed) Antônio Augusto C ANÇADO T RINDADE .
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Separate opinion of Judge Cançado Trindade