SEPARATE OPINION OF JUDGE C ANÇADO T RINDADE
1.Although I have concurre d in the adoption today, 22Apri l2015, of the present Order of
Provisional Measures of Protection in the case of Questions Relating to the Seizure and Detention
of Certain Documents and Data (Timor-Leste versus Australia), for standing in agreement with the
resolutory points of its dispositif, I do not entirely share the reasoning of the Court which has led to
its decision. I feel thus obliged, in the faithful ex ercise of the international judicial function, to lay
on the records, in the present Separate Opinion, the foundations of my own personal position on the
relevant issues, raised herein, pertaining to provi sional measures of protection. Such measures, in
my understanding, are endowed with an autonomous legal regime of their own.
2.The present Order of Provisional Measures of Protection should, in my view, have been
adopted by the Court proprio motu , on the basis of Article75(1) of its Rules, upon its own
initiative and in its own terms, and not in the terms of an initiative of request by a contending Party,
on the basis of Article 76(1) of its Rules. In an y case, the International Court of Justice (ICJ) does
not need to abide by the request itself of a provisi onal measure of protection, in the terms that the
request is made. It may indicate or order provi sional measures of protection that go beyond what
was requested, in terms wholly or partly distinct from those of the request (Article75(2) of its
Rules) .
3. After all, the Court is master of its own competence in matters of provisional measures of
protection. It can indicate or order them sponte sua. The ICJ is master of its own procedure and
jurisdiction, and it can perfectly act ex officio in the domain of what I have been conceptualizing, in
the adjudication of successive cases before the ICJ, as the autonomous legal regime of provisional
measures of protection . Within this legal regime, the C ourt is well entitled to take a more
proactive posture (under Article 75(1) and (2) of its Rules), in the light also of the principle of the
juridical equality of States.
4. As I stated in my earlier Separate Opinion (paras. 14-15, 17, 19 and 25) in the ICJ’s Order
of03.03.2014 in the present case of Questions Relating to the Seizure and Detention of Certain
Documents and Data , the Court is on safer ground if it does not rely, in its decisions, only on
unilateral assurances or “undertakings” on the part of States, which can prove to be “the source of
uncertainties and apprehension in the course of inte rnational legal proceedings” (para. 15). In my
perception, the Court is on safer ground if it acts on its own initiative and terms, attentive to the
legal nature and the effects of provisional measures of protection.
5.As these latter purport to prevent irreparable harm or, like in the present case, to
prevent further irreparable harm to Timor-Leste, there is no room for indulging into an exercise
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And it may proprio motu request information from the contending Pa rties on “any matter” connected with the
implementation of any provisional measures it has indicated or ordered (Article 78 of its Rules).
Cf. to this effect, the considerations developed in my Dissenting Opinion in the Court’s Order of 28.05.2009 in
the case concerning Questions Relating to the Obligtion to Prosecute or Extradite(Belgium versus Senegal),
paras. 26-27, 29, 84, 88, 90-91; in my Separate Opinion in the Court’s Order of 18.07.2011 in the case of the Temple of
Préah Vihéar (Cambodia versus Thailand), paras.65 and74; in my Dissenting Opinion in the Court’s Order
of 16.07.2013 in the merged cases of Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica versus
Nicaragua) and of Construction of a Road in CostaRica along the SanJuan River (Nicaragua versus CostaRica),
paras. 40-42, 46-47, 50-53, 59-60 and 69- 76; in my Separate Opinion in the Court’s Order of 22.11.2013 in the merged
cases of Certain Activities Carried out Nicaragua in the Border Area (CostaRica versus Nicaragua) and of
Construction of a Road in Costa Rica along the San Juan River (Nicaragua versus Costa Rica), paras. 20-40; and in my
Separate Opinion in the Court’s Order of 03.03.2014, case of Questions Relating to the Seizure and Detention of Certain
Documents and Data (Timor-Leste versus Australia), paras. 59-62 and 71. - 2 -
of balancing the interests of the contending parties, as anyway the ICJ is not an amiable
compositeur, but rather a court of law. Another word of attention is called for at this stage. The
Agent for Australia, in its letter to the ICJ of 25.03.2015, while expressing Australia’s preparedness
now to return the documents and materials (belonging to Timor-Leste) that it seized on 03.12.2013,
again refers as it had done earlier on to its alleged “serious national security concerns” (p. 1).
Yet, as I deemed it fit to warn in my previous Se parate Opinion (paras. 38-41) in the Court’s Order
of 03.03.2014 in the present case, arguments of alle ged “national security”, such as the ones in the
present case, cannot be made the concern of an international tribunal.
6. The ICJ is attentive, instead, to the general principles of law, to the prevalence of the due
process of law, to the preservation of equality of arms ( égalité des armes). Initiatives of ordering
new provisional measures of protection should, in my understanding, rest on the ICJ itself, rather
than on requests of the contending parties to that effect. Moreover, as I sustained in my previous
Separate Opinion (paras. 53 and 62) in the ICJ’s Order of 03.03.2014 in the cas d’espèce, the Court
should have taken and kept custody itself of Timo r-Leste’s seized documents, here in its premises
in the Peace Palace at The Hague, so as to have them promptly returned, duly sealed, to
Timor-Leste, whom they belong to.
7.The ICJ should have thus proceeded, as master of its own jurisdiction, without leaving
space and time to abide later by the (respondent) State’s “will”. In my perception, contrary to what
the Court says in the present Order (paras. 12, 14, 15 and 18), the situation itself has not at present
changed. Animus is not a synonym of factum. What has now changed, is not the objective
situation in the present case, but rather the stat e of mind, the attitude or predisposition of the
respondent State, as it now realizes that the seized documents and data should be returned, it can
be added, properly sealed, to Timor-Leste, whom they belong to. In any case, in the present
Order, the Court rightly determines that the doc uments are kept sealed until thus returned by
Australia to Timor-Leste’s lawyers (resolutory points 1-2).
8.Already in1931, it was pondered with insight that provisional measures are bound to
assist the development of international law, as they, after all, contribute to the realization of justice
in a given legal situation . At that time, the old Permanent Court of International Justice (PCIJ)
already admitted its prerogative to indicate or modify ex officio provisional measures of protection,
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in terms other than the ones requested by the contending Parties . The ICJ, for its part, in revising
the relevant provisions of its Rules of Court and br inging them closer to its Statute (Article 41(1)) , 5
sought to e6hance the authority of its initiative to indicate or order provisional measures of
protection .
3
P. Guggenheim,Les mesures provisoires de procédure internationale et leur influence sur le développement du
droit des gens, Paris, Libr. Rec. Sirey, 1931, pp. 14-15 and 62.
4G. Guyomar, Commentaire du Règlement de la Cour Internationale de Justice Interprétation et pratique ,
Paris, Pédone, 1973, pp. 348.
5From the start, Article 41(1) of the Statute of the ICJ and of its predecessor, the PCIJ set forth the power of
the Court to indicate provisional measures; the doctrinal debates that followed (as to their effects) did not hinder the
development of a vast case-law (of the PCIJ and the ICJ) on the matter; cf., e.g., J.Sztucki,Interim Measures in the Hague
Court An Attempt at a Scrutiny , Deventer, Kluwer, 1983, pp.35-60 and270-280; J.B.Elkind, Interim Protection A
Functional Approach, The Hague, Nijhoff, 1981, pp. 88-152.
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Cf. S.Rosenne, Provisional Measures in International Law The International Court of Justice and the
International Tribunal for the Law of the Sea , Oxford, Oxford University Press, 2005, pp.73-74. The ICJ can do so
proprio motu, whenever, in its assessment, the circumstances of the case so require; cf. K. Oellers-Frahm, “Article 41”,
in The Statute of the International Court of Just A Commentary (eds. A.Zimmermann et alii), 2nd. ed., Oxford,
Oxford University Press, 2012, pp. 1050 and 1053. - 3 -
9.The ICJ is entitled to do so 7 in its own terms , as it deems appropriate, even more so to
prevent an aggravation of a dispute . This Court has already disclosed its preparedness to do so:
an example to this effect li es in the decision of the ICJ, which I keep in grateful memory, in
its Order of 18.07.2011 in the case of the Temple of Préah Vihéar (Cambodia versus Thailand), to
establish a “provisional demilitarized zone”, so as to prevent further irreparable harm.
10. Nowadays, with eight and a half decades of sedimentation of experience, looking back in
time, we can realize that steps ahead have b een taken, but the move towards the progressive
development of international law in this domain ha s been rather slow. In our days, in early 2015,
such progressive development requires an awareness of the autonomous legal regime of provisional
measures of protection, as well as judicial decisions which reflect it accordingly, with all its
implications.
11.In my perception, the way is paved and th e time is ripe for the ordering by the ICJ of
provisional measures of protection proprio motu, on the basis of Article 75(1) and (2) of the Rules
of Court. Advances in this domain cannot be ach ieved in pursuance of a voluntarist conception of
international law in general, and of in ternational legal procedure in particular . The requirements
of objective justice stand above the options of litigati on strategies. These latter rest in the hands of
the contending Parties, while the former constitu te the essentials whereby an international tribunal
accomplishes its mission to impart justice.
12. The autonomous legal regime (as I percei ve it) of provisional measures of protection has
been formed after a long evolution. The traditi onal precautionary legal actions, as they originally
flourished in comparative domestic procedural law, were transposed into the international legal
order, and evolved in both of them 9, appearing nowadays with a character, more than
precautionary, truly tutelary. Provisional measures of protection constitute nowadays a true
jurisdictional guarantee of a preventive charact er, corresponding to an evolutionary legal
conception.
13. In my conception, the autonomous (not simply “accessory”) legal regime of provisional
measures of protection, in expansion in our times, disclosing the relevant preventive dimension in
international law, comprises the rights to be protected (which are not necessarily the same as in the
proceedings on the merits of the concrete case), the corresponding obligations of the States
concerned, and the legal consequences of non-compliance with provisional measures (which are
7Cf. H.Thirlway, The Law and Practice of the In ternational Court of Justice Fifty Years of Jurisprudence ,
Oxford, Oxford University Press, 2013, vol. I, pp. 953-955; and vol. II, pp. 1805-1806.
8For my criticisms of the voluntarist conception, cf. A.A.CançadoTrindade,Le Droit international pour la
personne humaine , Paris, Pédone, 2012, pp.115-136; A.A.CançadoTrindade, Los Tribunales Internacionales
Contemporáneos y la Humaniza ción del Derecho Internacional , BuenosAires, Ed. Ad-Hoc, 2013, pp.69-77;
A.A. Cançado Trindade, Os Tribunais Internacionais e a Realização da Justiça, Rio de Janeiro, Edit. Renovar, 2015,
pp. 197-198 and 352-354.
9Cf., on the case-law of national trib unals, e.g., E. García de Enterria,La Batalla por las Medidas Cautelares ,
2nd.rev. ed., Madrid, Civitas, 1995, pp.25-385; and cf., on the case-law of international tribunals, e.g., R.Bernhardt (ed).,
Interim Measures Indicated by International Court,sBerlin/Heidelberg, Springer-Verlag, 1994, pp. 1-152. - 4 -
distinct from those ensuing from breaches as to th e merits of the case). And the Court is fully
entitled to decide thereon, without waiting for the manifestations of the “will” of a contending State
party. It is human conscience, standing above the “will”, that accounts for the progressive
development of international law. Ex conscientia jus oritur.
(Signed) Antônio Augusto C ANÇADO T RINDADE .
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Separate opinion of Judge Cançado Trindade