SEPARATE OPINION OF JUDGE C ANÇADO T RINDADE
Table of Contents
Paragraphs
I. Prolegomena ...........................................................................1.....................................
II. Conceptual Development of Provisional Measures of Protection ..........................3.....
III. Provisional Measures: Test of Vulnerability of Segments of the Population ............12
1. Human Vulnerability in International Case-Law ...................................12..............
2. Human Vulnerability in the Cas d’Espèce .........................................21..................
a) Ukraine’s Request for Provisional Measures of
Protection ...............................................................21.................................
b) Arguments of the Contending Parties on Human
Vulnerability ............................................................23...............................
IV. Provisional Measures: Utmost Vulnerability of Victims, Further Irreparable
Harm, and Urgency of the Situation ...................................................27........................
V. The Decisive Test: Human Vulnerability over “Plausibility” of Rights .................36...
VI. The Necessity and Importance of Provisional Measures of Protection
in the Cas d’Espèce ..................................................................45..................................
VII. The Concern of the International Community with the Living Conditions
of the Population Everywhere .........................................................52..........................
VIII. Provisional Measures: Protection of the Human Person, Beyond the
Strict Inter-State Dimension .........................................................56............................
IX. Chronic Violence and the Tragedy of Human Vulnerability ..............................62.....
X. Provisional Measures: Protection of People in Territory ..............................68...........
XI. The Autonomous Legal Regime of Provisional Measures of Protection:
Duty of Compliance with Them .........................................................74......................
1. Non-Compliance and State Responsibility .......................................77.............
2. Prompt Determination of Breaches of Provisional Measures:
An Anti-Voluntarist Posture ...................................................79.......................
3. Breaches of Provisional Measures and the Duty of Reparation ...................81.
XII. Epilogue ..............................................................................84..................................... - 2 -
I. Prolegomena.
1. I have concurred, with my vote, for the adoption today, 19 April 2017, by the International
Court of Justice (ICJ), of the present Order indicating Provisional Measures of Protection in the
case of the Application of the International Convention for the Suppression of the Financing of
Terrorism [ICSFT] and of the International Convention on the Elimination of All Forms of Racial
Discrimination [CERD] (Ukraine versus Russian Federation). As I attribute great importance to
some related issues that come to my mind in the cas d’espèce, in my perception underlying the
present decision of the ICJ but left out of the Court’s reasoning, I feel obliged to leave on the
records, in the present Separate Opinion, the identification of such issues and the foundations of my
own personal position thereon. I do so moved by a sense of duty in the exercise of the international
judicial function, even more so as some of the lessons I extract from the matter forming the object
of the present decision of the Court are not explicitly dealt with in the Court’s reasoning in the
present Order.
2. This being so, I shall develop my reflections in the following sequence: a) conceptual
development of provisional measures of protection; b) the test of vulnerability of segments of the
population (human vulnerability in international case-law, and in the cas d’espèce); c) utmost
vulnerability of victims, further irreparable harm, and urgency of the situation; d) the decisive test:
human vulnerability over “plausibility” of rights; e) the necessity and importance of provisional
measures of protection in the cas d’espèce; f) the concern of the international community with the
living conditions of the population everywhere; g) provisional measures, and the protection of the
human person, beyond the strict inter-State dimension; h) chronic violence and the tragedy of
human vulnerability; i) provisional measures, and the protection of people in territory; and j) the
autonomous legal regime of provisional measures of protection: duty of compliance with them,
non-compliance and State responsibility, prompt determination of their breaches, and duty of
reparation. I shall then move to my final considerations in the epilogue.
II. Conceptual Development of Provisional Measures of Protection.
3. Provisional measures of protection already have a long history, which originally
flourished in comparative domestic law; as from their early conceptualization, there followed their
gradual transposit1on, along the first half of the XXth century, from domestic into international
(procedural) law , in international arbitral and judicial practice. In recent decades, there has
occurred the clarification of their juridical preventive character, of their legal effects, as well as
their progressive development .2
4. As from the times of the transposition of provisional measures into the international legal
order, in the era of the old Permanent Court of International Justice (PCIJ), their relevance to the
1 Cf., on the case-law of national tribunals, 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 Courts,
Berlin/Heidelberg, Springer-Verlag, 1994, pp. 1-152.
2
As I pointed out in another international jurisdiction: cf. A.A. Cançado Trindade,
“Preface by the President of the Inter-American Court of Human Rights”, in Compendium of
Provisional Measures (June 1996-June 2000), vol. 2, Series E, San José of Costa Rica, IACtHR,
2000, pp. VII-XVIII, and sources referred to therein. - 3 -
progressive development of international law itself was detected . 3 Provisional measures of
protection have indeed evolved historically, in my perception, from precautionary legal measures
in domestic procedural law into jurisdictional guarantees o4 a preventive character in international
procedural law, endowed with a truly tutelary character .
5. Furthermore, provisional measures of protection have paved the way for continuous
monitoring, in prolonged situations of “extreme gravity and urgency”, seeking to “avoid irreparable
damage to persons”, in particular those in a situation of great vulnerability, if not defencelessness.
In effect, as I pointed out elsewhere, almost two decades ago, where situations of “vulnerability of
the fundamental rights of the human person are prolonged pathologically in time”, the adopted
“provisional measures of protection have had likewise5to be maintained in time, in order to face up
to the chronic threats to those fundamental rights” .
6. Provisional measures of protection have been evolving, with the growing awareness of
their importance in the realisation of justice; yet, there remains a long way to go to that effect. It
has not passed unnoticed in expert writing that the first contemporary international tribunal “which
explicitly held that its provisional measures are binding, was the Inter-American Court of Human
Rights [IACtHR], which stated that the relevant provision of the Convention “makes it mandatory
6 7
for the State to adopt the provisional measures ordered by this Tribunal’ ” .
7. This was made clear by the IACtHR in 1999-2000, in the period when it achieved a
remarkable jurisprudential construction on the matter ; afterwards, the International Court of
Justice [ICJ] did the same, in the LaGrand case (Judgment of 27.06.2001), in the proceedings of
which the IACtHR’s pioneering jurisprudential construction was brought to its attention by the
contending parties . Within the ICJ, I have drawn attention to this development in my Separate
3
Cf. 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. Already in its
time, the PCIJ admitted its prerogative to indicate or modify ex officio provisional measures of
protection, in terms other than the ones requested by either of the contending parties; cf. G. Guyomar,
Commentaire du Règlement de la Cour Internationale de Justice - Interprétation et pratique, Paris,
Pédone, 1973, pp. 348. And, as to the earlier ICJ era, cf. for jurisdictional aspects, inter alia,
L. Daniele, Le Misure Cautelari nel Processo dinanzi alla Corte Internazionale di Giustizia, Milano,
Giuffrè, 1993, pp. 5-183; S. Rosenne, Provisional Measures in International Law, Oxford, University
Press, 2005, pp. 85-187.
4A.A. Cançado Trindade, “Preface . . .”, op. cit. supra n. (2), p. X.
5Ibid., p. XVII.
6Inter-American Court of Human Rights [IACtHR], case of the Constitutional Tribunal
versus Peru, Provisional Measures of Protection, Resolution of 14.08.2000; and cf. note (10),
infra.
7
K. Oellers-Frahm, “Expanding the Competence to Issue Provisional Measures -
Strengthening the International Judicial Function”, in International Judicial Law-Making
(eds.A. von Bogdandy and I. Venzke), Heidelberg, Springer, [2011], p. 398.
8
This is examined in detail (particularly in the period 1999-2004) in my book of memories
of the IACtHR: A.A. Cançado Trindade, El Ejercicio de la Función Judicial Internacional -
Memorias de la Corte Interamericana de Derechos Humanos, 4th. ed., Belo Horizonte/Brazil, Edit.
Del Rey, 2017, pp. 47-52, 199-208 and 277-278.
9
The IACtHR was also the first international tribunal to affirm the existence of an individual
right to information on consular assistance in the framework of the guarantees of the due process of
law, in its Advisory Opinion (n. 16) on The Right to Information on Consular Assistance in the
Framework of the Guarantees of the Due Process of Law (of 01.10.1999, paras. 1-141. The IACtHR,
disclosing the impact of the International Law of Human Rights in the evolution of Public - 4 -
Opinion (paras. 167-172) in the A.S. Diallo case (merits, Judgment of 30.11.2010), to which I d10m
it sufficient to refer here. I have likewise drawn attention to this in my writings on the matter .
8. In effect, even before the turn of the century (from 1999 onwards), I have had occasions,
in another international jurisdiction (the IACtHR, wherein provisional measures of protection are
also endowed with a conventional basis), to dwell fu11her upon the legal nature of provisional
measures of protection and their binding character , and to keep on devoting my attention, along
the years, to the conceptual development of the autonomous legal regime of those measures . I 12
have identified obligations emanating from provisional measures of protection per se, entirely
distinct from obligations eventually ensuing from a Judgment as to the merits (and reparations) on
International Law itself, held therein that non-compliance with Article 36(1)(b) of the Vienna
Convention on Consular Relations of 1963 took place to the detriment not only of a State Party but
also of the human beings at issue (as the ICJ subsequently also admitted, in the LaGrand case,
Judgment of 27.06.2001). This pioneering contribution by the IACtHR in 1999 was acknowledged by
expert writing on the subject; cf., e.g., G. Cohen-Jonathan, “Cour Européenne des Droits de l’Homme
et droit international général (2000)”, 46 Annuaire français de Droit international (2000) p. 642;
Ph. Weckel, M.S.E. Helali and M. Sastre, “Chronique de jurisprudence internationale”, 104 Revue
générale de Droit international public (2000) pp. 794 and 791; and, on the impact of aforementioned
IACtHR’s Advisory Opinion n. 16 of 1999, cf. A.A. Cançado Trindade, “The Humanization of
Consular Law: The Impact of Advisory Opinion n. 16 (1999) of the Inter-American Court of Human
Rights on International Case-Law and Practice”, 6 Chinese Journal of International Law (2007) n. 1,
p. 1-16.
10Cf. note (8), supra, and cf. also: A.A. Cançado Trindade, “The Evolution of Provisional
Measures of Protection under the Case-Law of the Inter-American Court of Human Rights
(1987-2002)”, 24 Human Rights Law Journal - Strasbourg/Kehl (2003) n. 5-8, pp. 162-168;
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;
A.A. Cançado Trindade, “Une ère d’avancées jurisprudentielles et institutionnelles: souvenirs de la
Cour interaméricaine des droits de l’homme”, in Le particularisme interaméricain des droits de
l’homme (eds. L. Hennebel and H. Tigroudja), Paris, Pédone, 2009, pp. 65-66; 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.
11
Cf. IACtHR, case of James and Others versus Trinidad and Tobago (Resolution of
25.05.1999), Concurring Opinion of Judge Cançado Trindade, paras. 9-10 (where I asserted the
binding character of provisional measures of protection as a “jurisdictional guarantee of preventive
character”); IACtHR, case of the Haitians and Dominicans of Haitian Origin in the Dominican
Republic (Resolution of 18.08.2000), Concurring Opinion of Judge Cançado Trindade,
paras. 13-25; cf. IACtHR, case of the Community of Peace of San José of Apartadó (Resolution of
18.06.2002, pursuant to its previous Resolution, in the same case, of 20.11.2000), Concurring
Opinion of Judge Cançado Trindade, paras. 14-17 and 19-20.
12
Cf. IACtHR, case of Eloísa Barrios and Others (Resolution of 29.06.2005), Concurring
Opinion of Judge Cançado Trindade, paras. 4-11; IACtHR. case of Eloísa Barrios and Others
(Resolution of 22.09.2005), Concurring Opinion of Judge Cançado Trindade, paras. 2-9; IACtHR,
case of the Children and Adolescents Deprived of Their Freedom in the ‘Complex of Tatuapé’ of
FEBEM (Resolution of 17.11.2005), Concurring Opinion of Judge Cançado Trindade, paras. 2-10;
IACtHR, ibid. (Resolution of 29.11.2005), Concurring Opinion of Judge Cançado Trindade,
paras. 13-36. - 5 -
the cas d’espèce; I have further pointed out that non-compliance with the former - as well as the
latter - generates the responsibility of the State, with legal consequences .
9. I have thus made the point that the “injured party” or victim14ay, in my perception,
appear promptly in the realm of provisional measures of protection , in case of non-compliance
with them. Accordingly, non-compliance with, or breach of, such measures, engages
autonomously the international responsibility of the State at issue, within the domain of provisional
measures of protection , irrespective of the subsequent Judgments as to the merits of the concrete
cases (cf. infra).
10. Hence the utmost importance of compliance with those measures , for the realization of
justice itself. Over a decade ago I deemed it fit to warn that one is not to take for granted advances
in interim measures of protection (in distinct international jurisdictions), as such advances still
appear threatened by the increasing violence in the world today, everywhere; attention is thus to be
kept so as to avoid steps backwards and to keep on enhancing the institute of provisional measures
of protection .
11. In effect, for the last eight years (2009 onwards), I have been devoting myself to the
conceptual development of the autonomous legal regime of those measures, this time in the
case-law of the ICJ (cf. infra). In the recent case of Questions Relating to the Seizure and
Detention of Certain Documents and Data (Timor-Leste versus Australia, provisional measures,
Order of 22.04.2015), I have pointed out, in my Separate Opinion, that, in our days, the progressive
development of international law, by means of provisional measures of protection,
“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” (para. 10).
13 IACtHR, case of the Community of Peace of San José of Apartadó (Resolution of
02.02.2006), Concurring Opinion of Judge Cançado Trindade, paras. 6-7, and cf. also paras. 4 and
8-10; and cf., to the same effect, IACtHR, case of the Communities of Jiguamiandó and
Curbaradó (Resolution of 07.02.2006), Concurring Opinion of Judge Cançado Trindade,
paras. 6-7, and cf. also paras. 4 and 8-11.
14
Cf. IACtHR, case of Eloísa Barrios and Others (Resolution of 29.06.2005). Concurring
Opinion of Judge Cançado Trindade, para. 5; case of the Community of Peace of San José of
Apartadó (Resolution of 02.02.2006), Concurring Opinion of Judge Cançado Trindade, para. 5;
case of the Communities of Jiguamiandó and Curbaradó (Resolution of 07.02.2006), Concurring
Opinion of Judge Cançado Trindade, para. 5. And, on “potential victims” in the realm of
provisional measures of protection, cf. IACtHR, case of the Members of the Group of Community
Studies and Psychosocial Action - ECAP (case of the Massacre of Plan de Sánchez) (Resolution of
29.11.2006), Separate Opinion of Judge Cançado Trindade, paras. 10 and 12.
15 Cf. IACtHR, case of the Prisons of Mendoza (Resolution of 30.03.2006), Concurring
Opinion of Judge Cançado Trindade, paras. 11-12; IACtHR, case of the Prison of Araraquara
(Resolution of 30.09.2006), Concurring Opinion of Judge Cançado Trindade, paras. 24-25.
16
Cf. IACtHR, case of the Communities of Jiguamiandó and Curbaradó (Resolution of
15.03.2005), Concurring Opinion of Judge Cançado Trindade, paras. 4 and 10; case of the
Community of Peace of San José of Apartadó (Resolution of 15.03.2005), Concurring Opinion of
Judge Cançado Trindade, paras. 4 and 10; case of the Indigenous People of Sarayaku (Resolution
of 06.07.2004), Concurring Opinion of Judge Cançado Trindade, paras. 2 and 30.
17 Cf. IACtHR, case of the Members of the Group of Community Studies and Psychosocial
Action - ECAP (case of the Massacre of Plan de Sánchez (Resolution of 29.11.2006), Separate
Opinion of Judge Cançado Trindade, paras. 1, 5, 10 and 14-15. - 6 -
III. Provisional Measures: Test of Vulnerability of Segments of the Population.
1. Human Vulnerability in International Case-Law.
12. The present case of the Application of the ICSFT Convention and of the CERD
Convention (Ukraine versus Russian Federation), is not the first one wherein the alleged
vulnerability of segments of the population concerned is brought to the Court’s attention, in its
consideration of provisional measures of protection. Suffice it here to recall a couple of examples
to this effect. In the case of Armed Activities on the Territory of Congo (D.R. Congo versus
Uganda), e.g., - where it was not disputed that there had already occurred “grave and repeated
violations of human rights and international humanitarian law”, - the ICJ found (Order of
01.07.2000, paras. 42-43) that persons in the area of the armed conflict (in the D.R. Congo)
remained “extremely vulnerable”, undergoing “a serious risk that the rights at issue” in the cas
d’espèce might suffer further “irreparable prejudice”; this being so, the ICJ, accordingly, decided
to indicate provisional measures “as a matter of urgency in order to protect those rights” (para. 43).
13. Subsequently, in the case of the Application of the International Convention against All
Forms of Racial Discrimination - CERD (Georgia versus Russian Federation), the ICJ again found
(Order of 15.10.2008, para. 143) that, given “the ongoing tension and the absence of an overall
settlement to the conflict in the region” of South Ossetia, Abkhazia and adjacent areas, the
segments of the population concerned “remain[ed] vulnerable” (para. 143). The ICJ pondered that
“the problems of refugees and internally displaced persons” in the region at issue had “not yet been
resolved in their entirety”; the persons concerned ran a “serious risk of irreparable prejudice”,
which could involve “potential loss of life or bodily injury”, in breach of rights under the CERD
Convention (paras. 142-143). The Court, accordingly, decided likewise to indicate provisional
measures of protection (para. 149).
14. In the ICJ’s Advisory Opinion on the Declaration of Independence of Kosovo (of
22.07.2010), I addressed in my Separate Opinion the overcoming of the inter-State paradigm in
contemporary international law (paras. 182-188), and the growing care of the United Nations and
other international organizations in respect of the needs and values of peoples (paras. 53-66). I
focused on the people-centered outlook in contemporary international law (paras. 169-176), and the
increasing attention to the centrality of the sufferings of peoples (paras. 161-168).
15. In the same Separate Opinion, I then gave an account of the attention of the U.N. main
organs – in particular the General Assembly (paras. 103-114) and the Secretary General
(paras. 119-129) – to the needs of people, “especially of the most vulnerable groups affected by the
conflict” (para. 105). Furthermore, I recalled the humane ends of the State (paras. 177-181), and
dwelt upon the fundamental principle of humanity in the framework of the Law of the United
Nations (paras. 196-211). I then underlined the special attention required to those in “situation of
greater vulnerability and standing thus in greater need of protection” (para. 185), - keeping always
in mind the humane ends of the State.
16. Later on, in my Dissenting Opinion in the case of the Jurisdictional Immunities of States
(Germany versus Italy, Greece intervening, Judgment of 03.02.2012), I deemed it fit to warn that
there is greater need of protection and justice not only to potential or actual victims, “increasingly
vulnerable, if not defenceless”, but also to “the social milieu as a whole” (para. 175). And, shortly
afterwards, in my Separate Opinion in the case of A.S. Diallo (Guinea versus D.R. Congo,
reparations, Judgment of 19.06.2012), I deemed it necessary to draw attention to the needed
measures “intended to overcome the extreme vulnerability of victims” (para. 84).
17. It is significant that, in our times, cases pertaining to situations of extreme adversity or
vulnerability of human beings have been brought to the attention of the ICJ as well as other
international tribunals. This is, in my perception, a sign of the new paradigm of the humanized - 7 -
international law, the new jus gentium 18 of our times, sensitive and attentive to the needs of
protection of the human person in any circumstances of vulnerability. The case-law of international
human rights tribunals is particularly illustrative in this respect.
18. For example, there have been cases where the IACtHR was faced with the extreme
19
vulnerability of the victims amidst the decomposition of the public power and the social tissue , or
else in the context of forced displacement of members of (indigenous) communities amidst chronic
poverty . In such situations, the social exclusion of the victimized renders the international
21
jurisdiction their “last hope”, given their situation of extreme vulnerability and defencelessness .
19. For its part, the ECtHR has likewise been attentive to the alleged “vulnerabilité” and
“frustration” of some of the applicants in general . Along the years, the ECtHR acknowledged the
23
vulnerability of children, and disabled persons, among other victimized individuals . In the case
of M. Mayeka and K. Mitunga versus Belgium (2006), the ECtHR outlined the “position of extreme
vulnerability” of young and unaccompanied, undocumented migrants . And in the M.S.S. versus
Belgium and Greece case (2011), the ECtHR f25used on the particular “vulnerability inherent” in
the situation of homeless asylum-seekers .
20. Furthermore, in the Tanrikulu versus Turkey case (1999), e.g., the ECtHR drew attention
to the situation of vulnerability of the complainant, like that of applicant villagers in previous cases,
under intimidation and “unacceptable pressure”, in breach of the right of individual petition under
18 Cf. A.A. Cançado Trindade, A Humanização do Direito Internacional, 1st. ed., Belo
Horizonte/Brazil, Edit. Del Rey, 2006, pp. 3-409; 2nd. rev. ed., Belo Horizonte/Brazil, Edit. Del Rey,
2015, pp. 3-782; A.A. Cançado Trindade, La Humanización del Derecho Internacional
Contemporáneo, México, Edit. Porrúa/IMDPC, 2013, pp. 1-324; A.A. Cançado Trindade, Los
Tribunales Internacionales Contemporáneos y la Humanización del Derecho Internacional,
Buenos Aires, Ed. Ad-Hoc, 2013, pp. 7-185.
19
E.g., IACtHR, case of Servellón and Others versus Honduras (Judgment of 21.09. 2006),
para. 99; and Separate Opinion of Judge Cançado Trindade, singling out the extreme vulnerability
of the victimized (paras. 7, 17, 24, 26 and 32).
20 E.g., IACtHR, case of the Indigenous Community Sawhoyamaxa versus Paraguay
(Judgment of 29.03.2006), Separate Opinion of Judge Cançado Trindade, paras. 14, and cf.
paras. 16, 18-19, 24, 29 and 37 (on the situation of flagrant and extreme vulnerability and
abandonment).
21
Ibid., paras. 58, 67 and 73.
22
E.g., ECtHR/3rd. Section, case Varnava and Others versus Turkey (Judgment of
10.01.2008), para. 137. The case was then referred to the ECtHR/Grand Chamber, which was
likewise attentive to the circumstances surrounding the victims case Varnava and Others versus
Turkey (Judgment of 18.09.2009), paras. 147-149.
23
Cf., inter alia, e.g., ECtHR, case A. versus United Kingdom (Judgment of 23.09.1998),
para. 22; ECtHR/1st. Section, case Dordević versus Croatia (Judgment of 24.07.2012), para. 138,
and cf. paras. 131 and 133.
24
Cf. ECtHR/1st. Section (Judgment of 12.10.2006, para. 103, and cf. para. 55), in breach
of Article 3 of the European Convention on Human Rights (paras. 59, 61 and 63).
25Cf. ECtHR/Grand Chamber (Judgment of 21.01.2011, paras. 232-233 and 258-259), in
breach of Article 3 of the European Convention on Human Rights (paras. 233-234 and 264). - 8 -
the ECHR . And in the Cyprus versus Turkey case (2001), the ECtHR took into account the
27
testimony of witnesses on “vulnerability and fear of the enclaved population” .
2. Human Vulnerability in the Cas d’Espèce.
a) Ukraine’s Request for Provisional Measures of Protection.
21. In the present case, in its Request for Provisional Measures of Protection, of
16 January 2017, Ukraine began by stating that it was seeking to prevent further aggravation of the
conflict with the respondent State “ongoing for almost three years”, with alleged “continuing
violations of international law” (paras. 1, 4 and 9). It singled out that the requested provisional
measures aimed at the protection of “the lives and basic human rights” of its people (para. 1, and
cf. paras. 11 and 16-17), as “the fundamental rights of civilians in Ukraine remain under constant
threat” (para. 4, and cf. para. 11).
22. In its Request, the complainant State repeatedly drew attention to the extreme
vulnerability of segments of the civilian population in eastern Ukraine and Crimea (paras. 4, 10,
13-14, 18-19 and 21). Ukraine stressed that it was seeking the protection of “its rights, and those of
its people” (paras. 6-17). In effect, the present case, opposing Ukraine to the Russian Federation, is
not the first one wherein, in its consideration of provisional measures of protection, the ICJ is
called upon to take into account people and territory together, and, more particularly, the protection
of people in territory.
b) Arguments of the Contending Parties on Human Vulnerability.
23. In the oral phase of the present proceedings, there was not one single round of public
hearings before the Court (of 06-09.03.2017) when the contending parties did not expressly address
the test of vulnerability of segments of the population. Ukraine did so to a larger extent than the
Russian Federation. Although the object of their arguments was the test of the vulnerability of
segments of the population, they pointed, as expected, to distinct directions.
24. In the first round of public hearings before the ICJ (06-07.03.2017), Ukraine contended
that, given the very large number of displa28d persons, “any population could be called
‘vulnerable’ and in need of protection” . It added that the populations, in both eastern Ukraine and
Crimea, “are vulnerable” , and that, by and large, the “ethnic Ukrainian community has been
30
vulnerable” . The Russian Federation, for its par31 challenged the accuracy of Ukraine’s claim that
“Crimean Tatars are particularly vulnerable” .
25. In the second round of public hearings before the ICJ (08-09.03.2017), Ukraine retook its
argument, referring to “the displacement of some 1.7 million Ukrainian citizens”, and to the
“fatalities and other injuries to Ukraine’s vulnerable civilian population” . Such violations were
suffered by “a vulnerable population, stripped of (. . .) protections” ; it added that the “civilian
26
Cf. ECtHR (Judgment of 08.07.1999), paras. 130 and 142(7).
27
Cf. ECtHR (Judgment of 10.05.2001), para. 224.
28
ICJ, doc. CR 2017/1, of 06.03.2017, p. 32, para. 25.
29
Ibid., p. 70, para. 51.
30
Ibid., p. 67, para. 43.
31
ICJ, doc. CR 2017/2, of 07.03.2017, p. 55, paras. 7-8.
32ICJ, doc. CR 2017/3, of 08.03.2017, p. 12, para. 2.
33Ibid., p. 60, para. 31. - 9 -
populations of Ukraine, including in particular eastern Ukraine and Crimea, are extremely
34
vulnerable and require the Court’s immediate protection” .
26. The Russian Federation, in turn, referred to Ukraine’s claim “to protect the vulnerable
population”, in particular “in the east of Ukraine” , and added that, to that effect (of protection), it
36
was necessary to secure the implementation of the Minsk Agreements . This is how far the
contending parties have gone in their arguments on the vulnerability of segments of the population.
It is significant that both of them deemed it fit to address the issue, each one in its own way.
IV. Provisional Measures: Utmost Vulnerability of Victims, Further Irreparable Harm, and
Urgency of the Situation.
27. Human vulnerability was thus addressed, in distinct ways, by both contending parties in
their pleadings before the ICJ (supra). Also in the documents submitted to the ICJ by both parties,
shortly before the public hearings, evidence was produced of the utmost vulnerability of segments
of the local population (e.g., in eastern Ukraine). In effect, in the course of the present proceedings
on Provisional Measures of Protection, the two contending parties have shown procedural
cooperation in providing relevant evidence to the Court. They both brought to the attention of the
Court, in their documents lodged with it, e.g., several reports on the human rights situation in
Ukraine (mainly of the Office of the United Nations High Commissioner for Human Rights -
OHCHR), containing accounts of indiscriminate shelling of the civilian population from all sides.
28. The accounts of such shelling are numerous, going beyond the specific passages referred
to by each of the two contending parties in their arguments before the ICJ. The OHCHR reports
address indiscriminate shelling of civilians - in breach of the human rights and international
humanitarian law - from all sides, in densely populated areas, both government-controlled areas 37
38
and towns and villages controlled by armed groups . Artillery and military weaponry have been
kept within or near those densely populated areas, so as to keep on conducting indiscriminate
shelling of their civilian residents.
29. Some specific examples may here be pointed out. According to OHCHR Reports on the
ongoing conflict in eastern Ukraine, all parties - including Ukrainian forces and non-State armed
groups - have carried out indiscriminate shelling and used explosive weapons, with wide-area
39
effects, i40densely populated areas . Intense shelling remains a daily occurrence in many
locations (including government-controlled areas as well as towns controlled by non-State armed
groups) . These widespread attacks have resulted in heavy damages to civilians (injuries and
casualties) .
34
Ibid., p. 61, para. 5.
35
ICJ, doc. CR 2017/4, of 09.03.2017, p. 68, para. 20.
36
Ibid., p. 69, para. 23.
37
Such as Avdiivka, Debaltseve, Popasna, Shchastia and Stanychno Luhanske.
38
Including Donetsk city, Luhansk and Horlivka.
39
. OHCHR, Report on the Human Rights Situation in Ukraine (16 November 2016 to
15 February 2017), paras. 18 and 22-24; OHCHR, Report on the Human Rights Situation in
Ukraine (1 December 2014 to 15 February 2015), para. 5; OHCHR, Report on the Human Rights
Situation in Ukraine (17 August 2014), paras. 4 and 26.
40 OHCHR, Report on the Human Rights Situation in Ukraine (16 November 2016 to
15 February 2017), para. 18. - 10 -
30. For instance, indiscriminate shelling has struck and damaged residential buildings , 43
hospitals , ambulances , schools , kindergartens , and a school football pitch . In addition to
49
the attacks on schools (encompassing the military use of them ), the OHCHR also reports attacks
41 OHCHR, Report on the Human Rights Situation in Ukraine (16 August to
15 November 2016), para. 23; OHCHR, Report on the Human Rights Situation in Ukraine
(16 February to 15 May 2016), para. 19; OHCHR, Report on the Human Rights Situation in
Ukraine (16 August to 15 November 2016), para. 23; OHCHR, Report on the Human Rights
Situation in Ukraine (16 May to 15 August 2015), para. 4; OHCHR, Report on the Human Rights
Situation in Ukraine (1 December 2014 to 15 February 2015), paras. 6, 23 and 44; OHCHR,
Report on the Human Rights Situation in Ukraine (17 August 2014), para. 26.
42
OHCHR, Accountability for Killings in Ukraine from January 2014 to May 2016, para. 32:
The “OHCHR estimates that up to 2,000 civilians may have been killed during the armed conflict
period (. . .). About 85 to 90 per cent of these deaths, recorded by OHCHR both in the territories
controlled by the Government and in the areas controlled by armed groups, are as a result of
shelling of populated areas with mortars, canons, howitzers, tanks and multiple launch rocket
systems”. And cf., likewise: OHCHR, Report on the Human Rights Situation in Ukraine
(16 August to 15 November 2016), para. 23; OHCHR, Report on the Human Rights Situation in
Ukraine (16 May to 15 August 2016), para. 40; OHCHR, Report on the Human Rights Situation in
Ukraine (16 February to 15 May 2016), paras. 11, 19 and 25; OHCHR, Report on the Human
Rights Situation in Ukraine (16 August to 15 November 2015), para. 26; OHCHR, Report on the
Human Rights Situation in Ukraine (16 May to 15 August 2015), paras. 23 and 25-26; OHCHR,
Report on the Human Rights Situation in Ukraine (1 December 2014 to 15 February 2015), paras. 5
and 7; OHCHR, Report on the Human Rights Situation in Ukraine (15 December 2014), paras. 5
and 38. And cf. also, more recently, OHCHR, Report on the Human Rights Situation in Ukraine
(16 November 2016 to 15 February 2017), paras. 28-31.
43 OHCHR, Report on the Human Rights Situation in Ukraine (1 December 2014 to
15 February 2015), para. 44; OHCHR, Report on the Human Rights Situation in Ukraine
(15 June 2014), para. 259.
44
OHCHR, Report on the Human Rights Situation in Ukraine (16 November 2016 to
15 February 2017), para. 24; OHCHR, Report on the Human Rights Situation in Ukraine (16 May
to 15 August 2016), para. 36; OHCHR, Report on the Human Rights Situation in Ukraine (16 May
to 15 August 2015), para. 104; OHCHR, Report on the Human Rights Situation in Ukraine
(1 December 2014 to 15 February 2015), paras. 7 and 44; OHCHR, Report on the Human Rights
Situation in Ukraine (15 June 2014), para. 172.
45
OHCHR, Report on the Human Rights Situation in Ukraine (16 May to 15 August 2015),
para. 104.
46 OHCHR, Report on the Human Rights Situation in Ukraine (16 August to
15 November 2016), para. 19; OHCHR, Report on the Human Rights Situation in Ukraine
(16 May to 15 August 2016), para. 35; OHCHR, Report on the Human Rights Situation in Ukraine
(1 December 2014 to 15 February 2015), paras. 7 and 44.
47 OHCHR, Report on the Human Rights Situation in Ukraine (16 November 2016 to
15 February 2017), para. 24; OHCHR, Report on the Human Rights Situation in Ukraine
(1 December 2014 to 15 February 2015), paras. 7 and 44.
48
OHCHR, Report on the Human Rights Situation in Ukraine (15 December 2014), para. 38.
49
Cf. also, on this particular point, Human Rights Watch, Studying Under Fire - Attacks on
Schools, Military Use of Schools During the Armed Conflict in Eastern Ukraine, 11.02.2016
(https://www.hrw.org/report/2016/02/11/studying-under-fire/attacks-schoo…-
during-armed-conflict) [HRW - Report]; Ukraine: Attacks, Military Use of Schools, 11.02.2016
(https://www.hrw.org/news/2016/02/11/ukraine-attacks-military-use-schools). - 11 -
50
on churches (including on priests and parishioners) . In some towns, u51to 80 per cent of
residential buildings and public facilities have been destroyed . Those injured and killed as a
result of indiscriminate shelling have included women , children , and elderly people , among 54
55
others .
31. In such indiscriminate shelling - which, as warned by the OHCHR in late 2014 and early
56
2015, “must cease immediat57y” , - there has been an increasing and continuing flow of heavy and
sophisticated weaponry . In the same period, the OHCHR also recorded “a considerable number
of alleged summary executions and killings of civilians who were not taking part in hostilities”, and
also singled out the “vast majority of civilian casualties” as a result of “the indiscriminate shelling 58
of residential areas, in violation of the international humanitarian law principle of distinction” .
The OHCHR further warned, in mid-2016, that both sides (Government forces and armed groups)
“continue to disregard the protections afforded under international humanitarian law to
schools as civilian objects used for educational purposes. (. . .) Hospitals used for
medical purposes have also been frequently hit by artillery fire, in violation of their
protected status under international humanitarian law. (. . .) In some cases,
Government forces and armed groups have used educational and health facilities for
military purposes” .59
32. Furthermore, indiscriminate shelling has had a serious impact on civilian infrastructure,
such as water pipes and filtration systems, gas pipelines and power stations. As a result, thousands
of people have been deprived of life-saving services (including heating, water and electricity), thus
50Cf. OHCHR, Report on the Human Rights Situation in Ukraine (15 June 2014), para. 315
(in the village of Perevalnoe, Crimea); OHCHR, Report on the Human Rights Situation in Ukraine
(17 August 2014), para. 163 (Ukrainian Orthodox Church of the Kyiv Patriarchate, village of
Mramornoye, near Simferopol); OHCHR, Report on the Human Rights Situation in Ukraine
(15 December 2014), para. 84 (same church in same patriarchate, again in Simferopol area);
OHCHR, Accountability for killings in Ukraine from January 2014 to May 2016, Annex I,
paras. 39-40 (evangelical church “Transfiguration of Christ”, town of Sloviansk).
51 OHCHR, Report on the Human Rights Situation in Ukraine (16 February to
15 May 2015), para. 83.
52 OHCHR, Report on the Human Rights Situation in Ukraine (1 December 2014 to
15 February 2015), para. 5.
53
Ibid., para. 5.
54
Ibid., para. 5.
55
Cf. OHCHR, Report on the Human Rights Situation in Ukraine (15 June 2014), para. 172;
OHCHR, Report on the Human Rights Situation in Ukraine (16 February to 15 May 2015),
para. 65.
56 OHCHR, Report on the Human Rights Situation in Ukraine (1 December 2014 to
15 February 2015), para. 2.
57
Ibid., para. 3.
58
OHCHR, Accountability for Killings in Ukraine from January 2014 to May 2016, p. 3
(Executive Summary).
59
OHCHR, Report on the Human Rights Situation in Ukraine (16 May to 15 August 2016),
paras. 35-37. - 12 -
triggering additional humanitarian needs . In some of the worst affected areas, there has been an
“almost total economic and infrastructure breakdown” . 61
33. Moreover, civilian populations attempting to flee from such precarious situations have
been attacked at checkpoints, apparently by both Government armed forces and non-State armed
groups . Such limitations on freedom of movement have compelled civilians to spend prolonged
64
periods exposed to the violence and risks of ongoing hostilities . Despite the ever growing civilian
death toll, on no occasion have armed groups or Government authorities taken responsibility for
any civilian victims of the conflict. As a result, civilian victims of indiscriminate shelling have
suffered both the effects o65their physical injuries (in addition to casualties), and of the denial of
social and legal protection .
34. There were other reports brought to the Court’s attention, in addition to those of the
OHCHR. A report of the Organization for Security and Cooperation in Europe (OSCE - Special
Monitoring Mission to Ukraine, of July 2016) referred to “ongoing hostilities, shelling and general
insecurity”, and “serious human rights violations”, as the main reason for the massive internal
displacement of persons in the areas affected .6
35. A report of the U.N. special rapporteur on the “Human Rights of Internally Displaced
Persons” (of April 2015) stated likewise that ongoing hostilities have caused “massive internal
displacement” in the eastern regions of Ukraine; it urged “all parties to the hostilities to bring the
fighting to an end without delay”, and “to protect civilians”, as well as to ensure the voluntary and
safe return of internally displaced persons to their homes .
60 OHCHR, Report on the Human Rights Situation in Ukraine (16 November 2016 to
15 February 2017), paras. 18 and 25-27; OHCHR, Report on the Human Rights Situation in
Ukraine (16 August to 15 November 2016), para. 18; OHCHR, Report on the Human Rights
Situation in Ukraine (16 May to 15 August 2016), para. 125; OHCHR, Report on the Human
Rights Situation in Ukraine (16 February to 15 May 2016), para. 15; OHCHR, Report on the
Human Rights Situation in Ukraine (1 December 2014 to 15 February 2015), paras. 7 and 44.
61
OHCHR, Report on the Human Rights Situation in Ukraine (1 December 2014 to
15 February 2015), para. 44.
62
OHCHR, Report on the Human Rights Situation in Ukraine (16 February to
15 May 2016), para. 20.
63
OHCHR, Report on the Human Rights Situation in Ukraine (17 August 2014), para. 4.
64
OHCHR, Report on the Human Rights Situation in Ukraine (16 February to
15 May 2016), para. 20.
65
OHCHR, Report on the Human Rights Situation in Ukraine (16 August to
15 November 2016), para. 136.
66 OSCE - Special Monitoring Mission [SMM] to Ukraine, Thematic Report –
Conflict-Related Disappearances in Ukraine: Increased Vulnerabilities of Affected Populations
and Triggers of Tension Within Communities, July 2016, pp. 19 and 24.
67U.N./Human Rights Council, Report of the Special Rapporteur on the Human Rights of
Internally Displaced Persons (C. Beyani) - Addendum: Mission to Ukraine, U.N.
doc. A/HRC/29/34/Add. 3, of 02.04.2015, p. 19, para. 75; and, cf. also, on refugees in general,
United Nations High Commissioner for Refugees [UNHCR], Profiling and Needs Assessment of
Internally Displaced Persons (IDPs), of 17.10.2014, pp. 1-116. - 13 -
V. The Decisive Test: Human Vulnerability over “Plausibility” of Rights.
36. The aforementioned indiscriminate shelling of civilians brings to the fore the high
probability of further irreparable damage, and the urgency of the situation. The test of human
vulnerability paves the way, in my perception, even more cogently than the one of “plausibility” of
rights, for the indication of provisional measures of protection, whose ultimate beneficiaries, in the
present circumstances, are human beings. Attention is, in my perception, to be focused, above all,
on the vulnerability of human beings.
37. The so-called “plausibility” test is a recent invention of the Court: it was introduced in
the case of Questions Relating to the Obligation to Prosecute or Extradite (Belgium versus
Senegal, Order of 28.05.2009), and the ICJ has ever since been trying to clarify it. Sometimes its
invocation of the term “plausible” appears to be related to rights, sometimes to facts, or else to
arguments of the parties, - as can be seen in the erratic use of the term in paragraphs 63-64, 66-71,
74-75, 79 and 82-83 of the present Order.
38. In effect, in the present Order, the ICJ uses the term “plausible” not only in respect of
rights (paras. 63-64, 69, 75, 79 and 82), but also more widely in respect of the application of
international instruments (para. 70), thus disclosing two distinct forms of legal “plausibility”.
Likewise, in the present Order, the ICJ uses the term “plausible” also in relation to facts (paras. 66,
68, 75 and 82-83), thus referring to another distinct form, this time of factual “plausibility”. The
term is used even by reference to “intent” and “purpose” (para. 66). And the ICJ, in the present
Order, further uses the term “plausible” also in relation to arguments or allegations (para. 71).
39. Is it reasonable to use the “plausibility” test in this way, with an entire lack of precision
and surrounded by uncertainties? And that is not all: in the present Order, the ICJ seeks to apply
“plausibility” not only as a test (supra), but also even as a “condition” (para. 83). This ends up
creating a difficulty or obstacle for the consideration and adoption of provisional measures of
protection in relation to the dispute as a whole before the Court, encompassing both the ICSFT and
the CERD Conventions, and extending to both Crimea and eastern Ukraine.
40. This is not the first time within the ICJ that I deem it fit to warn against the uncertainties
surrounding the so-called “plausibility” test. I have already highlighted this point, e.g., in my
Separate Opinion in the case of Questions Relating to the Seizure and Detention of Certain
Documents and Data (Timor-Leste versus Australia), where I pondered that “a right is a right,
irrespective of its so-called ‘plausibility’ (whatever that might concretely mean)” (para. 48).
Attention is to be kept on the needs of protection, rather than on strategies of litigation.
41. I find it regrettable that, along the present Order in the case of the Application of the
ICSFT Convention and of the CERD Convention, the ICJ distracts attention from the key test of the
vulnerability of victims (to which it just briefly refers to, as in paras. 92 and 96) to the
inconsistencies of so-called “plausibility”, whatever that might concretely mean. The rights to be
protected in the cas d’espèce are rights ultimately of human beings (individually or in groups), to a
far greater extent than rights of States.
42. The Court is here faced with a situation where the fundamental rights to life (and of
living) and to the security and integrity of the person are at stake, in the circumstances of the cas
d’espèce. The individuals concerned live (or survive) in a situation of great vulnerability. In
addition, there is here another related point to be kept in mind, namely, that the rights protected at
the stage of provisional measures of protection are not necessarily identical to the rights vindicated
later, at the stage of the merits of the case.
43. The requirements for the granting of provisional measures of protection are the gravity of
the situation, the urgency of the need of such measures, and the probability of irreparable harm.
They are met in a situation like that of the cas d’espèce, putting at stake, in eastern Ukraine, the - 14 -
fundamental rights to life and to the security and integrity of the person, among others. They are
insufficiently dealt with, or even eluded, in the present Court’s Order, which, on the other hand,
abounds in the aforementioned inconsistencies of invocation of the “plausibility” test.
44. As I have been sustaining along the years, time and time again, provisional measures of
protection have an autonomous legal regime of their own. This being so, it is clear to me that
human vulnerability is a test even more compelling than “plausibility” of rights for the indication
or ordering of provisional measures of protection. In so acknowledging and sustaining, one is
contributing to the ongoing historical process of humanization of contemporary international law. \
VI. The Necessity and Importance of Provisional Measures of Protection in the Cas d’Espèce.
45. In the present case of the Application of the ICSFT Convention and of the CERD
Convention (Ukraine versus Russian Federation), in my understanding the Court is entitled and
obliged, in view of the evidence produced before it, to indicate provisional measures of protection,
on the basis of both the ICSFT Convention and of the CERD Convention. At this stage of the
proceedings, it suffices to determine the Court’s prima facie jurisdiction thereunder; an in-de68h
analysis of these two Conventions is not required, and should be kept for the merits stage . The
evidence already submitted to the Court is sufficient for the purposes of provisional measures.
46. To determine its prima facie jurisdiction at the present stage, the Court does not need to
establish definitively breaches of the two Conventions at issue (Article 18 of the ICSFT
Convention, and Articles 2(1) and 5(b) of the CERD Convention). At the stage of provisional
measures, the Court cannot make definitive findings of fact nor findings of attribution of
69
responsibility , - issues to be determined later on, at the stage of the merits. At the present stage,
the ICJ - as the International Court of Justice, - is under the duty to focus, on the basis of the
evidence produced, on the protection of the vulnerable civilian population living (or surviving) in
the areas concerned.
47. On the basis on the documents and evidence submitted by the Parties, there appear to be
ongoing attacks on civilians in eastern Ukraine (particularly in Avdiika); this situation has been
ongoing since 2014 and continues to result in fatalities, deaths and bodily injuries. There were
and there continue to be armed incidents causi71 loss of life or bodily injuries, which by their
nature and gravity are inherently irreparable . There is urgency in the situation, and the Court is to
protect the vulnerable segments of the population. The fact that after the two Minsk Agreements
(of 05.09.2014 and 12.02.2015) 72 the situation remains unstable, and the tensions and
68
Cf., in this sense, ICJ, case of the Temple of Preah Vihear (Cambodia versus Thailand,
Provisional Measures, Order of 18.07.2011), para. 53.
69
Cf. ICJ, case of the Application of CERD Convention (Georgia versus Russian Federation,
Provisional Measures, Order of 15.10.2008), p. 353, para. 141.
70
On the very recent escalation of hostilities in Avdiivka/Donetsk/Makiivka, cf. OHCHR,
[Report on] Conflict-Related Civilian Casualties in Ukraine (06.03.2017), p. 1; OHCHR,
Escalation of Hostilities Has Exacerbated Civilian Suffering - U.N. Report (04.03.2017), pp. 1-2.
71
Cf., in this respect, ICJ, case of the Application of CERD Convention (Georgia versus
Russian Federation, Provisional Measures, Order of 15.10.2008), p. 353, para. 142.
72Both agreements contain very similar provisions, including specific commitments to, inter
alia: an immediate bilateral ceasefire (with monitoring and verification by the OSCE); the
withdrawal of illegal armed groups from Ukraine; the release of hostages and other unlawfully
detained individuals; the unimpeded provision of humanitarian assistance. - 15 -
73
indiscriminate shelling (from all sides) are still ongoing , stresses the ICJ’s duty to order
provisional measures of protection.
48. For its part, the CERD Convention is a core U.N. human rights Convention intended to
protect rights of the human person at intra-State level. Accordingly, concern for the protection of
vulnerable segments of the population must inform the Court’s finding that the test of human
vulnerability here applies, requiring provisional measures of protection. To this end, there is prima
facie jurisdiction under the CERD Convention (inter alia Articles 2(1) and 5(b)), as well as under
the ICSFT Convention (Article 18, as related to Article 2), and undue and groundless obstacles to
access to justice thereunder are to be discarded.
49. Where there is a risk to human life or health, the Court has duly considered the
probability of a damage which would be ipso facto irreparable. Imminence of breaches of rights
under the CERD Convention, insofar as they could involve privation, hardship, anguish and danger
to life and health, can result in damages that can be properly qualified as irreparable; such risk of
irreparable harm renders certain ethnic segments of local populations (in Crimean Tatar and ethnic
Ukrainian communities) particularly vulnerable . 74
50. As the security of the vulnerable segments of the population remains at risk, provisional
measures by the Court are necessary to protect them. Furthermore, the state of armed conflict and
the application of International Humanitarian Law do not exclude the application of the ICSFT and
CERD Conventions: they are not mutually-excluding, but rather, they reinforce each other in the
factual context of the cas d’espèce, so as to secure the protection due to persons in situations of
great vulnerability.
51. It is reassuring that the ICJ, as “the principal judicial organ of the United Nations”
(Article 92 of the U.N. Charter), orders provisional measures of protection in face of the
imminence of (new) breaches of human rights and of International Humanitarian Law. The
circumstances of the cas d’espèce call for a vue d’ensemble of the relevant provisions of the ICSFT
and CERD Conventions, and ILHR and IHL in the exercise of hermeneutics. Other main organs of
the United Nations (like the General Assembly 75 and the Security Council ) have likewise
expressed their concerns with the circumstances of the cas d’espèce.
VII. The Concern of the International Community with the Living Conditions of the
Population Everywhere.
52. This is not the first time that, in face of the victimization of vulnerable segments of the
population in an ongoing armed conflict or hostilities, I upheld the “approximations and
convergences”, and the concomitant application, of International Humanitarian Law and other
international Conventions (of human rights and others), a situation which, - as I pointed out
15 years ago in another international jurisdiction, - clearly requires the recognition of the effects of
73 As reported, e.g., by the OSCE Special Monitoring Mission to Ukraine, based on
information received up to 30.01.2017.
74 Case of the Application of CERD Convention (Georgia versus Russian Federation,
Provisional Measures, Order of 15.10.2008), paras. 142-143.
75Cf. U.N., General Assembly resolution 68/262, of 27.03.2014 (para. 4, on the need of
protection of human life in Ukraine); General Assembly resolution 71/205, of 19.12.2016 (paras. 1
and 2(h), concern with discriminatory measures and practices in Crimea).
76Cf. U.N., Security Council resolution 2202 (2015), of 17.02.2015 (paras. 1 and 3, on the
needed implementation of the “Package of Measures for the Implementation of the Minsk
Agreements” of 12.02.2015). - 16 -
77
the Convention at issue vis-à-vis others, simples particuliers (Drittwirkung) . In the cas d’espèce,
such is the case of the ICSFT and CERD Conventions: Drittwirkung has as incidence here, as both
Conventions cover inter-individual relations as well, without thereby excluding the determination
of State responsibility (even if by omission, a question for consideration at the subsequent stage of
the merits).
53. As I have already pointed out in the present Separate Opinion, the vulnerability of
victims, with its implications, are thus clearly acknowledged in contemporary international
case-law, of distinct international tribunals (cf. part III, supra). In a still wider framework, may I
just add, in this connection, that the cycle of World Conferences of the United Nations (along the
nineties and beginning of the last decade), came significantly to disclose a common denominator,
giving cohesion to the final documents they adopted, namely, the recognition of the legitimacy of the
concern of the international community as a whole with the conditions of living of the population
everywhere .79
54. The U.N. World Conference of Vienna (1993), in particular, added an important element
to this common denominator, namely, the special attention devoted to the vulnerable segments of
the population everywhere. The protection of the vulnerable constitutes the great legacy of the
II World Conference of Human Rights (Vienna, 1993) : more than any other of the World
Conferences of that cycle, it presented, given its wide theme, a systemic vision of all segments of
the population affected by vulnerability or extreme adversity.
55. The Declaration and Programme of Action of Vienna, final document adopted by the
1993 Vienna Conference, sought to concentrate special attention on persons suffering from
81
discrimination and vulnerable groups, on the socially excluded, in greater need of protection . The
aforementioned document much contributed to the recognition of the centrality of victims in the
present domain of protection, with special attention to their living conditions amidst vulnerability.
In its legacy, such centrality of the victims is projected until current times, and underlined in cases
77Cf. IACtHR, case of the Community of Peace of San José of Apartadó (Resolution of
18.06.2002), Concurring Opinion of Judge Cançado Trindade, para. 14; IACtHR, case of the
Prisons of Mendoza (Resolution of 30.03.2006), Concurring Opinion of Judge Cançado Trindade,
para. 5.
78World Conferences on Environment and Development, Rio de Janeiro, 1992; on Human
Rights, Vienna, 1993; on Population and Development, Cairo, 1994; on Social Development,
Copenhagen, 1995; on Rights of Women, Beijing, 1995; on Human Settlements – Habitat-II, Istanbul,
1996; and World Conference against Racism, Durban/South Africa, 2001.
79
Cf. A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos,
vol. I, 2nd. ed., Porto Alegre/Brazil, S.A. Fabris Ed., 2003, chs. III-VII, pp. 165-338; and cf.
A.A. Cançado Trindade, “Sustainable Human Development and Conditions of Life as a Matter of
Legitimate International Concern: The Legacy of the U.N. World Conferences”, in Japan and
International Law - Past, Present and Future (Symposium of the Centennial of the Japanese
Association of International Law), The Hague, Kluwer, 1999, pp. 285-309.
80
Cf. A.A. Cançado Trindade, A Proteção dos Vulneráveis como Legado da II Conferência
Mundial de Direitos Humanos (1993-2013), Fortaleza/Brazil, IBDH/IIDH/SLADI, 2014,
pp. 13-363.
81A.A. Cançado Trindade, "Nouvelles réflexions sur l’interdépendence ou l'indivisibilité de
tous les droits de l’homme, une décennie après la Conférence Mondiale de Vienne", in El Derecho
Internacional: Normas, Hechos y Valores - Liber Amicorum J.A. Pastor Ridruejo (eds. L. Caflisch et
alii), Madrid, Universidad Complutense, 2005, pp. 59-73. - 17 -
of systematic violation of their fundamental rights, amidst particularly aggravating
82
circumstances .
VIII. Provisional Measures: Protection of the Human Person, Beyond the Strict Inter-State
Dimension.
56. Eight years ago, in the case of Questions Relating to the Obligation to Prosecute or
Extradite (Belgium versus Senegal), the ICJ decided, in its Order of 28.05.2009, not to indicate
provisional measures of protection. I appended a Dissenting Opinion to that Order, recalling the
saga of the victims of the Hissène Habré regime (1982-1990) in Chad (paras. 30-45) in their search
for justice; and, after drawing attention to the preventive juridical nature of such provisional
measures, granted without prejudice to the Court’s final decision on the merits of the case at issue
(para. 12), as well as to their truly tutelary character (para. 13), I deemed it fit to point out that,
along recent decades, there have been occasions when the ICJ, in deciding on provisional measures
of protection, has endeavoured gradually to overcome the strictly inter-State outlook, in
acknowledging the need of preservation of “human life and personal integrity”, fundamental rights
of individuals (paras. 20-21).
57. Whenever alleged grave violations of the International Law of Human Rights (ILHR)
and International Humanitarian Law (IHL) are at the origin of the inter-State contentieux before the
ICJ, this has not been controverted by the contending parties themselves (para. 40); requesting
States themselves have, in their arguments before the ICJ, ”gone beyond the strictly inter-State
outlook of the past”, in vindicating the protection, by means of provisional measures, of “the
fundamental rights of the human person” (para. 23). In effect, - I added in my aforementioned
Dissenting Opinion, - in recent decades,
“provisional measures indicated in successive Orders of the ICJ have transcended the
artificial inter-State dimension of the past, and have come to preserve also rights
whose ultimate subjects (titulaires) are the human beings. This reassuring
development admits no steps backwards, as it has taken place to fulfil a basic need and
aspiration not only of States, but of the contemporary international community as a
whole” (para. 25).
58. I singled out the importance and time dimension of provisional measures of protection,
particularly in face of the briefness and vulnerability of human life (paras. 46-47), and warned that
prolonged delays in a situation of adversity or even defencelessness may amount to an aggravating
circumstance (para. 59). Subsequently, in the same case of Questions Relating to the Obligation to
Prosecute or Extradite (merits, Judgment of 20.07.2012), I pondered that the central position is of
the human person, of the victims (and not of the States), and attention to their situation of great
vulnerability requires further development in the treatment of the matter (para. 174).
59. And, in my Separate Opinion in the case of A.S. Diallo (Guinea versus D.R. Congo,
merits, Judgment of 30.11.2010), I pointed out that “humaneness is to condition human behaviour
in all circumstances, in times of peace as well as of disturbances and armed conflict” (para. 102),
particularly in face of a “situation of vulnerability, or even defencelessness” (para. 105). More
recently, in my Dissenting Opinion in the Court’s Order of 16.07.2013 in the joined cases of
82
Cf. A.A. Cançado Trindade, State Responsibility in Cases of Massacres: Contemporary
Advances in International Justice, Utrecht, Universiteit Utrecht, 2011, pp. 1-71;
A.A. Cançado Trindade, The Access of Individuals to International Justice, Oxford, Oxford
University Press, 2011, ch. X, pp. 179-191; A.A. Cançado Trindade, “Die Entwicklung des
interamerikanischen Systems zum Schutz der Menschenrechte”, 70 Zeitschrift für ausländisches
öffentliches Recht und Völkerrecht (2010) pp. 629-699. - 18 -
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), I pointed out that
“After all, the beneficiaries of the compliance with, and due performance of,
obligations under ordered provisional measures of protection, are not only States, but
also human beings. A strictly inter-State outlook does not reflect this important point.
The strictly inter-State dimension has long been surpassed, and seems insufficient, if
not inadequate, to address obligations under provisional measures of protection”
(para. 56).
60. May I, at this stage, briefly recall the two cases Ukraine versus Russian Federation,
pending before the European Court of Human Rights (ECtHR), illustrative of the protection of the
human person, beyond the strict inter-State dimension. The ECtHR applied provisional measures of
protection in those (inter-State) cases, in addition to over 150 individual cases (out of a total of
more than 1400 individual cases) lodged by individuals against Ukraine, or the Russian Federation
or both .
61. In the first case Ukraine versus Russian Federation, for example, the ECtHR, in applying
provisional measures of protection, called upon both contending parties to refrain from taking any
measures (in particular military action) which might entail breaches of the ECtHR rights of the
civilian population (including putting their life and health at risk), as well as to comply with their
engagements under the ECtHR, notably in respect of the fundamen84l right to life (Article 2) and
the prohibition of inhuman or degrading treatment (Article 3) .
IX. Chronic Violence and the Tragedy of Human Vulnerability.
62. The briefness and vulnerability of human life have attracted attention of philosophers
along the centuries, as widely known. The point assumes a dramatic dimension in face of
persisting and chronic violence, and even of policies leading to it. Humanist thinking has always
stood against that, and in defence of human life, and dignified conditions of living. May I here
recall one example, the reflections of the universal writer Leo Tolstoi, which remain as topical
nowadays, even in changed and entirely new circumstances, as at the time he wrote them.
63. Already in his earlier writings (of 1854-1856), on the conflict of Sevastópol (the
Sevastópol Sketches) during the War of Crimea (from December 1854 to August 1856), L. Tolstoi
gave expression to his humanist and pacifist outlook, supporting non-violent resistance to injustice
and oppression, and warning against the irrationality and cruelty of war. To L. Tolstoi, it was
unjustifiable to prepare people to slaughter each other in war, to send people into the battlefield to
inflict sufferings, wounds and death to each other. In face of this fostering of hatred, either war
was a madness, or those who produced such madness were not rational creatures. War was a
83
In a third Ukraine versus Russia case (application n. 49537/14), provisional measures
were promptly adopted by the ECtHR, in a case concerning security of the person of a Ukrainian
national of the Crimean Tatars ethnic group, a case which was then struck out of its list of cases; cf.
ECtHR, Press Release 286 (2015), of 24.09.2015, p. 1. In the second pending case Ukraine versus
Russia (application n. 43800/14, concerning abducted persons, then returned to Ukraine),
provisional measures were promptly adopted and then lifted by the ECtHR; cf. ECtHR, Press
Release 345 (2014), of 26.11.2014, p. 2. As to the more than 150 individual cases, cf. ECtHR,
Press Release 296 (2015), 01.10.2015, p. 2; and ECtHR, Press Release 122 (2015), of 13.04.2015,
p. 1.
84
Cf. ECtHR, Press Release 073 (2014), 13.03.2014, p. 1; and cf. also ECtHR, Press
Release 345 (2014), of 26.11.2014, pp. 1-2. - 19 -
tragedy of the human condition, leaving survivors surrounded by corpses; it was an evil to be
avoided , he concluded.
64. Years later, L. Tolstoi permeated also his epic masterpiece novel War and Peace (1869)
with philosophical humanist considerations. Along the centuries, - he wrote, - “millions of men
perpetrated so great a mass of crime[s]” with the utmost wickedness, not looking at them as
86
crimes . Often with patriotism they prepared themselves for murder, the “object of warfare”; they
met together to murder the others, glorifying victories, “supposing that the more men have been
87
slaughtered the greater the achievement” .
65. L. Tolstoi warned that, against “all humanity”, “[g]reatness would appear to exclude all
possibility of right and wrong”88even in face of atrocities; nothing was esteemed as wrong, in face
“of glory and of greatness” . To him, quite on the contrary, - he concluded in War and Peace, -
“there can be no free-will”, as human action is to be controlled, and knowledge is to bring “the
essence of life under the laws of reason”, and man can only know himself “through
consciousness” . 89
66. L. Tolstoi kept his concerns in mind along the years. Much later on in his life, after
writing his acclaimed literary novels War and Peace and Anna Karénina, he devoted himself to his
writings on religious thinking, focusing attention more on non-violence and passive resistance.
Thus, in a subsequent book (The Slavery of Our Times), he again warned (in 1900) against
organized and extreme violence, criticizing the recruitment of personnel to be sent to war and to
90
kill vulnerable and defenseless persons .
67. In the remaining years of his life, in his book The Kingdom of God is Within You
91
(1894-1897), L. Tolstoi posi92oned himself against war and armamentism , invoking the
“conscience of mankind” . In particular, he condemned the compulsory military recruitment of
persons to be sent to war as a form of State violence, depriving those persons of their private and
94 95
family life . This, he added, was an inversion of the humane ends of the State , it was a form of
“military slavery” , sending the recruited persons to the slaughtering of others and to their own
death . This amounted to inflicting evil on others and on themselves . 98
85 L. Tolstoi, Contos de Guerra [1855-1856], Lisbon, Relógio d’Água Edit., 2015 [reed.],
pp. 21, 26, 32 and 74.
86
L. Tolstoi, War and Peace [1869], N.Y., Ed. Modern Library/Random House, 2002
[reed.], p. 687.
87Ibid., pp. 885-886.
88Ibid., pp. 1218 and 1291.
89Ibid., pp. 1370 and 1382.
90 L. Tolstoi, La Esclavitud de Nuestro Tiempo [The Slavery of Our Times, 1900],
Barcelona, Littera, 2000 [reed.], pp. 86-87, 89, 91, 97, 101, 103-104 and 121.
91
L. Tolstoi, El Reino de Dios Está en Vosotros [Tsarstvo Bozhie Vnutrí Vas], 7th.. ed.,
Barcelona, Edit. Kairós, 2016, pp. 21, 152-153, 157 and 170.
92
Ibid., pp. 24 and 229, and cf. pp. 412 and 414.
93
Ibid., pp. 186-189, 209 and 353.
94
Ibid., pp. 211-212 and 230-231.
95
Ibid., p. 213. - 20 -
X. Provisional Measures: Protection of People in Territory.
68. I have already made the point that, amidst generalized violence, the ultimate
beneficiaries of obligations under ordered provisional measures of protection are human beings. A
strictly inter-State outlook is, in my perception, insufficient and surpassed, to address adequately
obligations under provisional measures (cf. part VIII, supra). Thus, over half a decade ago, in my
Separate Opinion in the case of the Temple of Préah Vihéar (Cambodia versus Thailand, Order of
18.07.2011), for example, I deemed it fit to draw attention to this point (in my Separate Opinion,
paras. 66, 70, 77 and 113), wherein I pondered that
“International law in a way endeavours to be anticipatory in the regulation of
social facts, so as to avoid disorder and chaos, as well as irreparable harm. (. . .) We
are here before the raison d’être of Provisional Measures of Protection, to prevent and
avoid irreparable harm in situations of gravity and urgency. They are endowed with a
preventive character, being anticipatory in nature, looking forward in time. They
disclose the preventive dimension of the safeguard of rights. Here, again, the time
factor marks its presence in a notorious way” (para. 64).
69. I added that provisional measures, intended to protect human life, call for a humanist
outlook, as they encompass, besides territory, people, “the most precious constituent element of
statehood” (paras. 70 and 81). People and territory are to be brought together, giving “proper
weight to the human factor” (para. 97). After all, I concluded on this point,
“Not everything can be subsumed under territorial sovereignty. The
fundamental human right to life is not at all subsumed under State sovereignty. The
human right not to be forcefully displaced or evacuated from one’s home is not to be
equated with territorial sovereignty. The Court needs to adjust its conceptual
framework and its language to the new needs of protection, when it decides to indicate
or order the Provisional Measures requested from it” (para. 99).
70. Shortly afterwards, I had the occasion to elaborate further on this issue, in the
consideration of the matter in the 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): in its Order of 16.07.2013, as the ICJ decided
not to order provisional measures, I appended a Dissenting Opinion thereto; and in its subsequent
Order of 22.11.2013, where the Court indicated provisional measures, I appended a Separate
Opinion thereto.
71. In my Dissenting Opinion of 16.07.2013, I underlined the fact that the Court was once
again faced with the requested protection of people in territory (paras. 39 and 46-47), drawing
attention to the preventive dimension of the safeguard of the rights at issue (para. 41). After
recalling other situations of the kind, I added that
“along the last three decades, the ICJ has gradually overcome the strictly inter-State
outlook in the acknowledgement of the rights to be preserved by means of its Orders
of provisional measures of protection. (. . .)
Facts tend to come before the norms, requiring of these latter the aptitude to
cover new situations they are meant to regulate, with due attention to superior
96
Ibid., p. 216, and cf. p. 364.
97 Ibid., pp. 371-372.
98 Ibid., pp. 387 and 393. - 21 -
values . Before this Court, States keep on holding the monopoly of jus standi, as well
as locus standi in judicio, in so far as requests for provisional measures are concerned,
but this has not proved incompatible with the preservation of the rights of the human
person, together with those of States. The ultimate beneficiaries of the rights to be
thereby preserved have been, not seldom and ultimately, human beings, alongside the
States wherein they live. Provisional measures indicated in successive Orders of the
ICJ have transcended the artificial inter-State dimension of the past, and have come to
preserve also rights whose ultimate subjects (titulaires) are human beings”
(paras. 49-50).
72. I then observed that provisional measures are “truly tutelary”, as States are bound “to
protect all persons under their respective jurisdictions”, thus avoiding “harm in the form of bodily
injury or death” (para. 56). Provisional measures have an autonomous legal regime of their own,
which needs conceptual refinement, focusing attention on the legal consequences of
non-compliance with them, generating State responsibility and entailing legal consequences
(paras. 69-72).
73. The obligations which the ordering of those measures generates “are distinct from the
obligations” ensuing from the Court’s judgments as to the merits (para. 75). I concluded that this
calls for “a more pro-active posture” on the part of the Court, so as
“to contribute effectively to the avoidance or prevention of irreparable harm in
situations of urgency, to the ultimate benefit of all subjects of international law, -
States as well as groups of individuals, and simples particuliers. After all, the human
person (living in harmony in her natural habitat) occupies a central place in the new
jus gentium of our times” (para. 76).
XI. The Autonomous Legal Regime of Provisional Measures of Protection: Duty of
Compliance with Them.
74. Now, in the present case of the Application of the ICSFT Convention and of the CERD
Convention (Ukraine versus Russian Federation), we again find ourselves within the realm of the
autonomous legal regime of provisional measures of protection, which I have already referred to in
the present Separate Opinion. Such legal regime is configured by the rights to be protected (not
necessarily identical to those vindicated later in the merits stage), by the obligations emanating
from the provisional measures of protection, generating autonomously State responsibility, with its
legal consequences, and by the presence of (potential) victims already at the stage of provisional
measures of protection.
75. As the cas d’espèce shows, the claimed rights to be protected encompass the
fundamental rights of human beings, such as the right to life, the right to personal security and
integrity, the right not to be forcefully displaced or evacuated from one’s home. The duty of
compliance with provisional measures of protection brings to the fore another element configuring
their autonomous legal regime, to which I now turn attention, in its component elements, namely:
non-compliance and the prompt engagement of State responsibility; prompt determination by the
Court of breaches of provisional measures of protection; and the ensuing duty of reparation for
damages resulting from those breaches.
76. Shortly after my aforementioned Dissenting Opinion in the Court’s Order of 16.07.2013,
in my Separate Opinion in the Court’s following Order of 22.11.2013 in the same joined cases
opposing Costa Rica and Nicaragua, I began by observing that, much as provisional measures of
protection have expanded in our times, the configuration of the autonomous legal regime of their
99Cf., inter alia, G. Morin, La révolte du Droit contre le Code - La révision nécessaire des
concepts juridiques, Paris, Libr. Rec. Sirey, 1945, pp. 2, 6-7 and 109-115. - 22 -
100
own keeps on calling for further elaboration, for example, in respect of the necessary compliance
with them (paras. 20-26). Given that provisional measures generate per se obligations,
non-compliance with them generates State responsibility and entails legal consequences (para. 29).
1. Non-Compliance and State Responsibility.
77. The beneficiaries of compliance with provisional measures, - I proceeded, - can be
“States as well as groups of individuals, and simples particuliers” (para. 31). I then added that, had
the ICJ, in its previous Order of 16.07.2013 in the aforementioned merged cases (supra), indicated
or ordered the provisional measures requested, “probably the present situation in the disputed
territory (. . .) would not have arisen” (para. 38). And I concluded that non-compliance with
provisional measures “entails an additional ground of responsibility; the task ahead of us is to
extract the consequences ensuing therefrom” (para. 40).
78. Two years later, in the same 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, in
the Court’s Order of 16.12.2015, I appended a new Separate Opinion, wherein I presented a plea
for the prompt determination by the ICJ of breaches of provisional measures of protection (paras. 3
and 34-44) and sustained the duty of reparation (in its distinct forms) for damages resulting from
those breaches (paras. 3 and 47-52).
2. Prompt Determination of Breaches of Provisional Measures: An Anti-Voluntarist Posture.
79. The determination of breaches of provisional measures of protection, - I stressed, - does
not need to wait until the end of proceedings as to the merits of the case at issue (paras. 26 and 33),
as obligations of prevention are additional ones, in relation to those ensuing from the judgment on
the merits; in order to serve better their anticipatory rationale, “the determination of a breach of
provisional measures of protection is not - should not be - conditioned by the completion of
subsequent proceedings as to the merits of the case at issue” (para. 35). And I added that
“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” (para. 36).
80. In the realm of provisional measures of protection, - I added, -
“once again the constraints of voluntarist legal positivism are, in my view,
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.
(. . .) [T]he Court is to assume the role of guarantor of compliance with
conventional obligations, beyond the professed intention or will of the parties (. . .).
(. . .) The Court, - may I reiterate, - is not an arbitral tribunal, it stands above the
will of the contending parties. It has an inherent power or faculté to proceed promptly
100Cf. note (10), supra.
101
For 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. - 23 -
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”
(paras. 39-40 and 42).
3. Breaches of Provisional Measures and the Duty of Reparation.
81. In case of a finding of breaches of provisional measures, - I proceeded in the same
Separate Opinion in the two joined cases, - the Court is entitled to address reparations (in all its
forms), irrespective of subsequent proceedings on the merits, as “breach and reparation come
together” (paras. 47-48 and 51). In the interests of the sound administration of justice (la bonne
administration de la justice), an international tribunal has the inherent power or faculté to supervise
motu proprio compliance with its Orders of provisional measures, and, in case of non-compliance,
to address the legal consequences ensuing therefrom and to determine the duty of reparation
(paras. 62-63).
82. In this domain, - I continued, - international case-law seems to be preceding legal
doctrine, and it is a source of satisfaction to me to endeavour to keep on contributing to that
(para. 66). This development portrays the relevance of the preventive dimension in contemporary
international law (paras. 53-56). After all, in their autonomous legal regime, provisional measures
of protection guarantee rights and generate per se obligations, which are not necessarily the same
as those dealt with in the subsequent proceedings as to the merits. I then concluded that a breach of
provisional measures engages by itself State responsibility, with the duty to provide prompt
reparation (paras. 68-72). Contemporary international tribunals are to foster this progressive
development, “to the benefit of all the justiciables” (para. 73).
83. As I further pointed out in my Separate Opinion in the case of Questions Relating to the
Seizure and Detention of Certain Documents and Data (Timor-Leste versus Australia, provisional
measures, Order of 22.04.2015), such rights and obligations being proper to provisional measures,
the ICJ is fully entitled to decide on the legal consequences of non-compliance with them
(including the due reparations),
“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” (para. 13).
XII. Epilogue.
84. The matter brought to the Court’s attention in the factual context of the request which led
to the adoption of the present Order of Provisional Measures of Protection in the case of the
Application of the ICSFT Convention and of the CERD Convention (Ukraine versus Russian
Federation), requires, as I have endeavoured to demonstrate, much reflection, from a humanist
outlook. This is ineluctable, given the central position occupied by the victims (including potential
victims) in the consideration of requests of provisional measures of protection like the present one.
We here find human beings in great need of protection, in situations of vulnerability or even
defencelessness.
85. In these circumstances, the decisive test, in my understanding, is that of human
vulnerability, rather than so-called “plausibility” of rights. In face of the gravity of the situation, of
urgency and risks of (further) irreparable damage, provisional measures of protection are required.
Their indication is oriented by the principle pro persona humana, pro victima. Those measures
bear witness to the current historical process of humanization of international law, which is
irreversible. The protection of human beings in situations of great vulnerability has thus found
expression at international law level in our times, as a sign of such historical process; yet, there
remains a long way to go. - 24 -
86. The pressing need to secure protection of human beings in situations of great
vulnerability, in my perception, requires the ICJ to go beyond the strict inter-State dimension (the
one it is used to, attached to a dogma of the past), and to concentrate attention on victims (including
102 103 104 105
the potential ones ), - be they individuals , groups of individuals , peoples or humankind , as
subjects of international law, - and not on inter-State susceptibilities. Human beings in
vulnerability are the ultimate beneficiaries of provisional measures of protection, endowed
nowadays with a truly tutelary character, as true jurisdictional guarantees of preventive character.
87. I have already pointed out that, in the course of the proceedings leading to the adoption
of the present Order, the situation of utmost vulnerability of segments of the population - calling
for provisional measures of protection - was brought to the attention of the Court (cf. part III,
supra). The two contending parties have provided the Court with extensive documentation on it,
which I have examined in the present Separate Opinion (cf. part IV, supra).
88. I find it regrettable that such human vulnerability is not duly dealt with in the reasoning
of the Court, nor expressly reflected in the dispositif of the present Order, where, - despite the
constatation in that documentation of the situation of human vulnerability of segments of the
population (e.g., under indiscriminate shelling), - the protection of the fundamental rights to life
and to the security and integrity of the person is not even mentioned.
89. Even so, point (2) of the dispositif, addressed to both contending Parties, and the only
one covering the dispute as a whole before the Court (encompassing both the ICSFT and the CERD
Conventions), in both Crimea and eastern Ukraine, in my understanding implicitly extends
protection also to those fundamental rights, in ordering that “[b]oth Parties shall refrain from any
action which might aggravate or extend the dispute before the Court or make it more difficult to
resolve”.
90. The principle of humanity comes to the fore. There are no restrictions ratione personae
(e.g., attempting to focus exclusively on relations between States and individuals). International
Conventions, like the two invoked in the present case (the ICSFT and the CERD Conventions), as I
have already pointed out, have a Drittwirkung effect, they cover likewise inter-individual relations,
without thereby excluding the subsequent consideration of State responsibility (as to the merits),
even if by omission.
102 On the notion of potential victims in the framework of the evolution of the notion of
victim (or the condition of the complainant) in the domain of the International Law of Human
Rights, cf. A.A. Cançado Trindade, “Co-Existence and Co-Ordination of Mechanisms of
International Protection of Human Rights (At Global and Regional Levels)”, 202 Recueil des Cours de
l’Académie de Droit International de Haye (1987), ch. XI, pp. 243-299, esp. pp. 271-292.
103 As I pointed out in my Separate Opinions of the A.S. Diallo case (Judgments of
30.11.2010, merits; and of 19.06.2012, reparations).
104 As I sustained in my Dissenting and Separate Opinions in the case of Questions Relating
to the Obligation to Prosecute or Extradite (Order of 28.05.2009, and Judgment of 20.07.2012,
respectively), as well as in my Dissenting Opinion in the case of the Application of the Convention
against Genocide (Judgment of 03.02.2015).
105
As I upheld in my three Dissenting Opinions in the three cases of the Obligations of
Nuclear Disarmament (Judgments of 05.10.2016). - 25 -
91. After all, the principle of humanity permeates the whole corpus juris of contemporary
international law (encompassing the converging trends of the International Law of Human Rights,
International Humanitarian Law, International Law of Refugees, International Criminal Law). The
principle of humanity has a clear incidence on the protection of persons in situations of great
vulnerability. The raison d’humanité prevails here over the raison d’État. Human beings stand in
need, ultimately, of protection against evil, which lies within themselves.
(Signed) Antônio Augusto C ANÇADO T RINDADE .
___________
Separate opinion of Judge Cançado Trindade