SEPARATE OPINION OF J UDGE O WADA
1. I have voted in favour of the Order in support of all points contained in its operative
paragraph 106. I also agree with the Court’s decision not to grant Ukraine’s request for provisional
measures concerning the International Conven tion for the Suppression of the Financing of
Terrorism (ICSFT). Nevertheless, I have arrived at the same conclusion of the Order on the ICSFT
through a different path. In particular, it is my considered view that the rights claimed by Ukraine
under the ICSFT are plausible, but that there is no real and imminent risk at this moment that
irreparable prejudice will be caused to those rights.
I. The nature of the conditions for provisional measures
2. While the term “plausible” has come to be accepted as a standard term for referring to a
certain element within the purview of an exam ination of whether provisional measures can be
granted or not, a proper understanding of the nature of the plausibility requirement should start with
an examination of what Article 41, paragraph 1, of the Statute of the Court provided on this issue.
This paragraph provides: “The Court shall have the power to indicate, if it considers that
circumstances so require, any provisional measu res which ought to be taken to preserve the
respective rights of either party.”
Th3e. rationale of this provision is explained in the recent Order on the request for
Indication of provisional measures of protection in the Georgia v. Russia case of 2008 as follows:
“the power of the Court to indicate provisional measures under Article41 of the
Statute of the Court has its object the preservation of the respective rights of the
parties pending the decision of the Court, in order to ensure that irreparable prejudice
shall not be caused to rights which are the subject of dispute in judicial
proceedings;... it follows that the Court must be concerned to preserve by such
measures the rights which may subsequently be adjudged by the Court to belong either
to the Applicant or to the Respondent”. ( Application of the International Convention
on the Elimination of all Forms of Racial Discrimination (Georgia v. Russian
Federation), Provisional Measures, Order of 15 October 2008, I.C.J. Reports 2008,
pp. 388-389, para. 118.)
4. While a facile analogy of this legal ins titution with similar institutions in private law
should naturally be carefully avoided, given that the specific purposes for which a legal institution
similar in name could be considerably diffe rent, it is important to recognize that the rationale for
this institution introduced in the Statute of th e Court finds resonance in similar institutions
stipulated in a number of domestic legal systems, such as the institution of an “interlocutory
injunction” under common law. In the doctrine of common law it is explained that the usual
purpose of an interlocutory injunction is “to preserve the status quo until the rights of the parties
have been determined in the action”. To grant su ch an injunction, the principal elements to be
applied are summarized as follows: (1) th e plaintiff must establish that he had a good arguable
claim to the right he seeks to protect; (2) it is en ough that the plaintiff shows that there is a serious
question to be tried; and (3) if the plaintiff satisfies these tests, the grant or refusal of an injunction
is a matter of the Court’s discretion on the balance of convenience” ( The Supreme Court
Practice, 1995, Vol. 1, Part 1, (London, 1994), p. 514; emphasis added). The precise requirements
for provisional relief, naturally, vary across different legal systems, but the rationale for this
institution can be regarded as being aptly summarized in this formulation. - 2 -
5. As far as the jurisprudence of this Court is concerned, the Court has consistently held that
“(1)it may indicate provisional measures if certain requirements, such as the provisions relied on
by the Applicant appear, prima facie, to afford a basis on which its jurisdiction could be founded”
(see Immunities and Criminal Proceedings (Equatorial Guinea v. France), Provisional Measures,
Order of 7December2016 , p.8, para.31); (2)“the rights asserted by the party requesting
provisional measures are at least plausible in th e sense that a link must exist between the rights
which form the subject of the proceedings and the provisional measures being sought (see ibid.,
paras.71-72); (3)“irreparable prejudice can be caused to the rights which are the subject of
judicial proceedings” (see ibid., para. 82); and (4) “there is urgency, in the sense that there is a real
and imminent risk that irreparable prejudice will be caused to the rights before the Court gives its
final decision” (see ibid., para. 83).
6. While all these elements are required in order for the Court to be able to indicate
provisional measures, a distinction could be observe d between the first two elements (prima facie
jurisdiction and plausibility) and the last two elements (risk of irreparable prejudice and urgency) in
their legal character.
7. The first two requirements relate to the scope of the legal framework in which the Court is
entitled to exercise its power under Article 41 to in dicate provisional measures. Thus, in order for
the Court to be able to indicate provisional measure s that “preserve the respective rights of either
party” the Court must ascertain that jurisdiction to deal with the alleged rights exists, at least prima
facie, on the basis of the Convention in question, and that the rights whose protection is sought
must exist on the basis of the provisions prescrib ed in the Convention. There must be a link
between the rights whose protection is sought and the measures requested. These are legal
requirements that the Court must satisfy befo re exercising its power to indicate provisional
measures of protection.
8. The last two requirements, on the other hand, belong to the discretionary power that the
Court can exercise in determining whether to indicate provisional measures or not. They flow
directly from the Court’s power to indicate provisional measures “if it considers that circumstances
so require”. On these questions the Court has the discretion to determine what these circumstances
are, but such power does not extend to the first two requirements which are prescribed by the legal
scope of the institution.
9. This distinction is not merely academic. It carries significant consequences in relation to
the thesis that provisional measures of protection should not amount to a prejudgment of the case.
There is no question that the Court’s Order on th e indication of provisional measures should never
prejudge and determine any question relating to the final determination on jurisdiction of the Court,
the admissibility of the Application, and especially any aspect of the merits of the dispute. The
first two requirements thus should carry a great weight in order to avoid the danger of falling into a
prejudgment and an infringement of their final decision, at the stage of these preliminary
proceedings, which is incidental to the main proceedings on the merits.
II. The standard of plausibility
10. In light of this understanding on the nature of the conditions for provisional measures,
the so-called “test of plausibility” of the existen ce of the asserted rights — which, in my view, is a
shorthand term to refer to the condition that “a link must exist between the right whose protection
is sought and the measures requested — cannot and should not be as high as it would be the case
with the test of “ prima facie case” for the existence of such asser ted rights. This low requirement - 3 -
of the threshold should only be obvious, if rega rd is had to the point that the determination on
whether the rights are plausible should not prejudge the merits of the dispute. In other words, it
could and should merely indicate whether there is some arguable possibility — be it high or low —
that the asserted rights exist, justifying the exer cise of the Court’s power to indicate provisional
measures. If, on the other hand, this standard were too high, a determination on whether the right is
plausible could risk resulting in a prejudgment of the merits of the dispute. A negative
determination that the rights in question would not be plausible, could suggest a conclusion at this
stage that the asserted rights could not exist under th e Convention, leading to a conclusion, in fact
if not in law, that the Court would be preven ted, from embarking upon further examination of the
legal validity of the asserted rights under the C onvention in question. Such prejudgment would
clearly be inappropriate in light of the fact that , at the stage of provisional measures, the parties
have not had sufficient opportunity to furnish all the evidence to establish th eir arguments in full,
nor the Court has had sufficient opportunity to cons ider the totality of the evidence and arguments
that the parties would like to present at the merits stage.
11. The correctness of this understanding on the standard of plausibility is borne out by the
jurisprudence of the Court. Although the Court form ally introduced this requirement into its Order
as an express terminology for the first time in Questions Concerning the Obligation to Prosecute or
Extradite (Belgium v. Senegal), Provisional Measures, Order of 28 May 2009, I.C.J. Reports 2009,
p. 151, para. 57), it is my understanding that this formal introduction did nothing more than making
explicit what had long been implicit in the juri sprudence of the Court and its predecessor, PCIJ.
Over the course of this implicit and explicit hi story of the issue of “plausibility” in the
jurisprudence of the Court and its predecessor, the requirement of plausibility has been consistently
understood to be at a reasonable level in light of the nature of the exercise.
12. This understanding can already be seen in the discussion of the issue in the PCIJ days,
such as in the case concerning Polish Agrarian Reform and German Minority (Germany v. Poland)
before the Permanent Court of International Jus tice. In his opinion to the Order on interim
measures of protection in that case, Judge Anzilotti remarked:
theIf summaria cognitio, which is characteristic of a procedure of this kind,
enabled us to take into account the possibility of the right claimed by the German
Government, and the possibility of the danger to which that right was exposed, I
should find it difficult to imagine any request for the indication of interim measures
more just, more opportune or more a ppropriate than the one which we are
considering.” (Interim Measures of Protection, Order of 29 July 1933, P.C.I.J. Series
A/B, No. 58, p. 181 ; emphasis in the original)
13. The same understanding can also be seen much more recently in the case concerning
Passage through the Great Belt (Finland v. Denmark) before this Court. In his opinion to the
Order on provisional measures, Judge Shahabuddeen , after exhaustively analysing the precedents
of this Court and its predecessor, stated on this point as follows:
“[I]n measuring the danger of prejudgment, it has to be borne in mind that what
the Court is considering is not whether th e right sought to be preserved definitively
exists, but whether the requesting State has shown any possibility of its existence.”
(Provisional Measures, Order of 29 July 1991, I.C.J. Reports 1991, p. 30; emphasis
added) - 4 -
14. Admittedly, when the Court introduced th e plausibility requirement in express terms in
Questions Concerning the Obligation to Prosecute or Extradite, the choice of the word “plausible”
may not have made the standard sufficiently precise. The term “plausible” is not a term of art that
exists in the legal science but a term used in common life, as signifying “seeming reasonable and
probable” and could be held to be synonymous to “likely, believable”, as well as “specious,
meretricious” (Oxford Dictionary and Thesauru s). The OxfordEnglishDictionary defines
“plausible” as “seeming reasonable, probable, or truthful; convincing, believable”. The Merriam-
WebsterDictionary defines it as “superficially fa ir, reasonable, or valuable but often specious;
superficially pleasing or persuasive; a ppearing worthy of belief”. And the Larousse Dictionary
defines “plausible” as “ qui semble pouvoir être admis, accepté, tenu pour vrai ”. As a result, the
word alone could be seen as indicating a low or high standard.
15. Nevertheless, the Court’s choice of the wo rd “plausible” reveals that the Court at the
very least wished to distinguish it from the “ prima facie” standard that applies for jurisdiction. As
Judge Shahabuddeen noted in the Passage through the Great Belt case (Finland v. Denmark):
“Judge Anzilotti’s formula, referred to above, appears to be potentially less
productive of any risk of prejudgment than the prima facie test, as commonly
understood; and I prefer it.” ( Provisional Measures, Order of 29July1991,
I.C.J. Reports 1991, p. 36)
16. It is important to note that the Court’s jurisprudence on the requirement since the Order
in Questions Concerning the Obligation to Prosecute or Extradite, when this terminology was
introduced, reveals that the standard applied has always been fairly low. This can be seen first and
foremost by the fact that, aside from the present Order, the Court has always found the rights in
question to be plausible. Today is the first time that the Court has found that a right does not meet
the plausibility requirement.
17. In the recent case law, the Court has employed languages indicating a standard of
plausibility that has been adopted above in expl aining why certain rights were “plausible”. In
Questions Concerning the Obligation to Prosecute or Extradite (Belgium v. Senegal), the Court
held that the right in question was pl ausible because it was “grounded in a possible interpretation”
of the Convention Against Torture ( Provisional Measures, Order of 28Ma2 y009,
I.C.J. Reports 2009, p.152, para.60, emphasis added). And in Questions Relating to the Seizure
and Detention of Certain Documents and Data (Timor-Leste v. Australia), the Court held that one
of the rights in question was plausible because it “ might be derived ” from the principle of the
sovereign equality of States ( Provisional Measures, Order of 3 March 2014, I.C.J. Reports 2014,
p. 153, para. 27, emphasis added). The use of the words “possible” and “might” confirms that the
standard is fairly low.
18. Moreover, at least, on one occasion the Court seems to have suggested that the degree of
certainty required to find a right plausible could be thus lower than fifty per cent in the context of
the asserted rights of the opposing party. In Certain Activities Carried Out by Nicaragua in the
Border Area (Costa Rica v. Nicaragua), the Court held:
“Whereas it appears to the Court, afte r a careful examination of the evidence
and arguments presented by the Parties, th at the title to sovereignty claimed by
CostaRica over the entirety of Isla Portillo s is plausible ; whereas the Court is not
called upon to rule on the plausibility of th e title to sovereignty over the disputed - 5 -
territory advanced by Nicaragua.” ( Provisional Measures, Order of 8March2011,
I.C.J. Reports 2011, p. 19, para. 58.)
19. If “plausibility” were to imply a degree of certainty greater than fifty per cent, then a
finding that Costa Rica’s claim was plausible w ould necessarily imply that Nicaragua’s claim was
not plausible. Therefore, based on this passage, th e Court appeared to consider that “plausibility”
could be a certainty of fifty per cent or less.
20. In light of this jurisprudence, and in light of the nature of this requirement of so-called
“plausibility” as discussed above, it is my considered view that the standard of plausibility is, and
must be, fairly low. The question to be asked s hould therefore be that of whether an asserted right
is “possible” or “arguable” that it exists.
III. The plausibility of the rights asserted by Ukraine under the ICSFT
21. Applying this analysis, I come to the conclusion that the ri ghts asserted by Ukraine
concerning the ICSFT should be held to be plausible.
22. I agree with the Court’s finding that “the obligations under Article18 and the
corresponding rights are premised on the acts identified in Article2” in this final analysis.
However, I do not accept the view of the majority th at, in the same paragraph, “in the context of a
request for the indication of provisional measure s, a State party to the Convention [ICSFT] may
rely on Article18 to require another State party to co-operate with it in the prevention of certain
types of acts only if it is plausible that such acts cons titute offences under Article 2 of the ICSFT ”
(Order, paragraph 74, emphasis added) and that “in order to determine whether the rights for which
Ukraine seeks protection are at least plausible, it is necessary to ascertain whether there are
sufficient reasons for considering that the other elem ents set out in Article 2, paragraph 1, such as
the elements of intention or knowledge noted above [Cie. Order paragraph 76], and the element of
purpose specified in Article 2, paragraph 1 (b), are present” (Order, paragraph 75).
23. In my view, such determination would prejudge the merits. What is required at this stage
is to determine merely whether it is “possible” or “arguable” that the asserted rights arguably fall
within the scope of Article2 of the ICSFT in accordance with the arguments presented by the
requesting party. In my opinion, this determin ation does not require a detailed examination of
whether the requirements of intention, knowledge, and purpose as prescribed in Article 2 have been
met. Such an examination would require a thorou gh analysis of the evid ence that would go well
beyond what is required at this stage of the proceedings.
24. It may be true that Ukraine has not furn ished in the course of the present proceedings
conclusive evidence that the requirements of inte ntion, knowledge, and purpose are satisfied. But
at this early stage of the proceedings, the Court should not expect Ukraine to have done so. All that
Ukraine should be required to show is that its asserted rights under the ICSFT are at least
“possible” or “arguable”. And I think that Ukrain e has provided sufficient material to allow the
Court to reach this conclusion. - 6 -
IV. Real and imminent risk of irreparable prejudice
25. While it is my view that the rights asserted by Ukraine under the ICSFT are plausible, I
believe that the assessment by the Court of the f actual elements involved with respect to the last
two elements mentioned above (see para. 6 above) may well be different. As mentioned above, the
risk of prejudgment does not lie there with respect to the last two requirements, the fate of which
will depend upon the discretionary determination of the Court on whether at this stage of the
proceedings, the Court recognizes that there is a ne ed and imminent risk to the rights asserted in
light of the assessment to be made by the Court in the present situation. It is entirely within the
Court’s discretion, in assessing whether there is real and imminent risk, to take into account such
elements as intention, knowledge and purpose sp ecified in Article2 of the ICSFT as relevant
factors. It cannot be denied that in light of the on-going fluid situation in eastern Ukraine, many
uncertainties persist as to whether the flow of financing as well as military supplies from one place
to another is taking place, if so by whom and for what purpose. On the basis of this reasoning, I am
prepared to accept that there is no real and immi nent risk that irreparable prejudice will be caused
to the rights asserted by Ukraine under the ICSFT.
26. I am further prepared to accept that any pr ejudice that would be caused to the rights in
question could not be said to be irreparable. The rights in question are basically the rights of
Ukraine to require the Russian Federation to co-o perate in the prevention of the financing of
terrorism. Because of the very nature of such right s, any prejudice to such rights cannot be said to
be irreparable at this stage to the extent that Ukraine may still meaningfully demand the Russian
Federation to seek for full coopera tion in good faith to implement its obligation under Article18
for the future.
27. In this sense a finding of the Court that there is no real and imminent risk of irreparable
prejudice could not affect the Court’s final determ ination on whether the rights in question exist.
This finding by the Court would not prejudge the merits of the dispute and could not amount to a
prejudgment on the case, as different from a finding of the Court on the issue relating to the
jurisdiction or a finding of the Court deny the “pla usibility” of the rights asserted by the requesting
party.
(Signed) Hisashi O WADA .
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Separate opinion of Judge Owada