Separate opinion of Judge Cançado Trindade

SEPARATE OPINION OF JUDGE CANÇADO TRINDADE
Table of Contents
Paragraphs
I. Prolegomena .............................................................................................................. 1
II. A New Era of International Adjudication of Human Rights Cases by the ICJ .......... 7
III. The Relevance of the Fundamental Principle of Equality and
Non-Discrimination ................................................................................................... 9
IV. Non-Discrimination and the Prohibition of Arbitrariness ........................................ 22
V. Arguments of the Parties in the Public Hearings before the Court .......................... 33
VI. Questions Put to the Parties in the Public Hearings before the Court ...................... 37
1. Questions and Answers ....................................................................................... 37
2. General Assessment: Rationale of the Local Remedies Rule in
International Human Rights Protection .............................................................. 48
3. General Assessment: Implications of a Continuing Situation ............................ 57
VII. The Correct Understanding of Compromissory Clauses under Human Rights
Conventions ............................................................................................................. 62
VIII. Vulnerability of Segments of the Population ........................................................... 68
IX. Towards the Consolidation of the Autonomous Legal Regime of Provisional
Measures of Protection ............................................................................................ 74
X. International Law and the Temporal Dimension ..................................................... 78
XI. Provisional Measures of Protection in Continuing Situations ................................. 82
XII. Epilogue: A Recapitulation ...................................................................................... 94
I. PROLEGOMENA.
1. I have concurred, with my vote, for the adoption today, 23 July 2018, by the International
Court of Justice (ICJ), of the present Order indicating Provisional Measures of Protection in the
case of the International Convention on the Elimination of All Forms of Racial Discrimination
[CERD] (Qatar versus United Arab Emirates - UAE). The ICJ has rightly ordered today, with my
support, provisional measures of protection, under the CERD Convention. Additionally, as I
attribute great importance to some related issues in the cas d’espèce, that in my perception underlie
the present decision of the ICJ but are 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.
2. I do so, under the merciless pressure of time, 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. This grows in importance in a case, like the present one (and two
other cases before - cf. infra), lodged with the ICJ under a core human rights treaty like the CERD
Convention.
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3. This being so, I shall develop my reflections, initially, in the following sequence: a) a new
era of international adjudication of human rights cases by the ICJ; b) the relevance of the
fundamental principle of equality and non-discrimination; and c) non-discrimination and the
prohibition of arbitrariness. I shall then examine the arguments made by the contending Parties in
the public hearings before the ICJ, and the written responses they presented to the questions that I
have deemed it fit to put to them; following that, I shall provide my general assessment as to the
rationale of the local remedies rule in international human rights protection, and as to implications
of a continuing situation.
4. Following that, I shall develop my further reflections on the remaining points to consider,
namely: a) the correct understanding of compromissory clauses under human rights Conventions;
b) vulnerability of segments of the population; c) towards the consolidation of the autonomous
legal regime of provisional measures of protection; d) international law and the temporal
dimension; and e) provisional measures of protection in continuing situations. Last but not least, in
an epilogue, I shall conclude with a recapitulation of the key points of the position I sustain in the
present Separate Opinion.
5. To start with, may I recall that, in a relatively brief period of time (2011-2018), the cas
d’espèce on Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (CERD Convention - Qatar versus UAE) is the third case lodged with the
International Court of Justice (ICJ) under the United Nations CERD Convention: the present Order
follows chronologically the Court’s decisions in the cases of Georgia versus Russian Federation
(preliminary objections, 2011)1 and of Ukraine versus Russian Federation (provisional measures of
protection, 2017)2.
6. In addition to those three cases under the CERD Convention, there have been other cases
brought before the ICJ, and decided by it, along the last eight years, concerning also other human
rights treaties. May I recall, in this respect, the case on questions relating to the Obligation to
Prosecute or Extradite (merits, 2012), under the U.N. Convention against Torture. Another
example is provided by the case of A.S. Diallo (merits, 2010, and reparations, 2012), in respect of,
inter alia, the U.N. Covenant on Civil and Political Rights (cf. infra).
II. A NEW ERA OF INTERNATIONAL ADJUDICATION OF HUMAN RIGHTS CASES BY THE ICJ.
7. To the ICJ’s Judgment on the merits (of 30.11.2010) on the case of A.S. Diallo, opposing
Guinea to D.R. Congo, I appended a Separate Opinion, wherein, inter alia, I deemed it fit to draw
attention to the advent of a new era of international adjudication of human rights cases by the ICJ
(paras. 232-245). In particular, - I singled out, - that was the first time in its history that “the World
Court has expressly taken into account the contribution of the case-law of two international human
rights tribunals, the European and the Inter-American Courts, to the perennial struggle of human
beings against arbitrariness”. In effect, - I added, - paragraph 65 of its Judgment referred to “the
1 ICJ’s Judgment of 01.04.2011, - preceded by the ICJ’s Order of provisional measures of protection, of
15.10.2008, wherein the Court acknowledged that there was an ongoing unresolved problem in the conflict in the region,
and the persons affected remained vulnerable (paras. 142-143).
2 ICJ’s Order of 19.04.2017, to which I appended a Separate Opinion; earlier, to the ICJ’s Judgment of
01.04.2011 I appended a Dissenting Opinion.
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protection of the human person against arbitrary treatment, encompassing the prohibition of
arbitrary expulsion3” (para. 237). I then concluded that
“(…) It is indeed reassuring that the ICJ has disclosed a new vision of this
particular issue, in so far as international human rights tribunals are concerned. This is
particularly important at a time when States rely, in their submissions to this Court, on
relevant provisions of human rights conventions, as both Guinea and the D.R. Congo
have done in the present case, in their arguments centred on the U.N. Covenant on
Civil and Political Rights and the African Charter on Human and Peoples’ Rights (in
addition to the relevant provision of the Vienna Convention on Consular Relations, in
the framework of the international protection of human rights).
This is not the only example wherein this has occurred. On 29 May 2009, the
ICJ delivered its Order (on provisional measures) in the case concerning Questions
Relating to the Obligation to Prosecute or Extradite, wherein Belgium and Senegal
presented their submissions concerning the interpretation and application of the
relevant provisions of the 1984 U.N. Convention against Torture. And, very recently,
a few days ago, in the public sittings before this Court of 13 to 17 September 2010,
Georgia and the Russian Federation submitted their oral arguments in the case
concerning the Application of the International Convention on the Elimination of All
Forms of Racial Discrimination, another U.N. human rights treaty. It is reassuring that
States begin to rely on human rights treaties before this Court, heralding a move
towards an era of possible adjudication of human rights cases by the ICJ itself. The
international juridical conscience has at last awakened to the fulfillment of this need.
The ICJ, in the exercise of its contentious as well as advisory functions in recent
years, has referred either to relevant provisions of a human rights treaty such as the
Covenant on Civil and Political Rights, or to the work of its supervisory organ, the
Human Rights Committee. These antecedents are not to pass unnoticed, in
acknowledging the turning-point which has just occurred in the present case of A.S.
Diallo: the Court, in the Judgment being delivered today, 30 November 2010, has
gone much further, beyond the United Nations system, in acknowledging the
contribution of the jurisprudential construction of two other international tribunals, the
Inter-American [IACtHR] and the European [ECtHR] Courts of Human Rights. It has
also dwelt upon the contribution of an international human rights supervisory organ,
the African Commission on Human and Peoples’ Rights. The three regional human
rights systems operate within the framework of the universality of human rights. (…)
By cultivating this dialogue, attentive to each other’s work in pursuance of a
common mission, contemporary international tribunals will provide avenues not only
for States, but also for human beings, everywhere, and in respect of distinct domains
of international law, to recover their faith in human justice. They will thus be
enlarging and strengthening the aptitude of contemporary international law to resolve
disputes occurred not only at inter-State level, but also at intra-State level. And they
will thus be striving towards securing to States as well as to human beings what they
are after: the realization of justice” (paras. 241-243 and 245).
3 Particularly relevant, for a study of the right to freedom of movement and residence under Article 22 of the
American Convention on Human Rights, are the Judgment of the Inter-American Court of Human Rights (IACtHR) of
15.06.2005, in the case of the Moiwana Community versus. Suriname (paras. 107-121), as well as the IACtHR’s Order
(on provisional measures of protection), of 18.08.2000, in the case of Haitians and Dominicans of Haitian-Origin in the
Dominican Republic (paras. 9-11), and Concurring Opinion of Judge A.A. Cançado Trindade (paras. 2-25).
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8. In the light of the aforementioned, and bearing in mind all that has been happening here at
the Grande Salle de Justice in the Peace Palace at The Hague in the last nine years, one is to
acknowledge that we are already within the new era of international adjudication of human rights
cases by the ICJ. The present case of Application of the CERD Convention (Qatar versus UAE)
bears witness of that. Having pointed this out, I can now move to the next point to consider in this
Separate Opinion, namely, the relevance of the fundamental principle of equality and nondiscrimination.
III. THE RELEVANCE OF THE FUNDAMENTAL PRINCIPLE OF EQUALITY AND
NON-DISCRIMINATION.
9. In the cas d’espèce, Qatar’s Request for the Indication of Provisional Measures of
Protection (of 11.06.2018) identifies the rights it seeks to protect against discriminatory measures
that “violate the customary international law principle of non-discrimination as well as the specific
obligations enumerated in CERD [Convention] Articles 2, 4, 5, 6, 7” (p. 8, para. 12)4. The principle
of equality and non-discrimination lies indeed in the foundations of the protected rights under the
CERD Convention. This is a point which should have been attentively addressed by the contending
parties in the course of the current proceedings5, which were largely consumed by diverting
attention to points with no bearing at all on the consideration of provisional measures of protection
under a human rights Convention.
10. This being so, I feel obliged to fill the gap, as I nourish the hope that this unfortunate
diversion does not happen again in cases of the kind before the ICJ, where the applicable law is a
human rights Convention, and not at all diplomatic protection rules. It is the principle of equality
and non-discrimination which here calls for attention, there being no place for devising or
imagining new “preconditions” for the consideration of provisional measures of protection under a
human rights Convention; it makes no sense to intermingle at this stage the consideration of
provisional measures with so-called “plausible admissibility” (cf. section VI, infra).
11. In focusing attention, thus, on the principle of equality and non-discrimination, it should
not pass unnoticed, to start with, that the idea of human equality marked presence already in the
origins of the law of nations (droit des gens), well before finding expression in the international
instruments which conform its corpus juris gentium, as known in our times. The idea of human
equality was underlying the original conception of the unity of human kind (present, for example, in
the pioneering thinking of Francisco de Vitoria and Bartolomé de Las Casas in the XVIth century).
12. The fundamental principle of equality and non-discrimination is nowadays a basic pillar
of the U.N. CERD Convention, and of the whole corpus juris of the International Law of Human
Rights. The expression of such principle emanated from human conscience, and projected itself in
the evolving law of nations from the XVIIth to the XXIst centuries. The principle of equality and
non-discrimination has a long history, accompanying the historical formation and evolution of the
law of nations itself.
13. By the mid-XXth century, the 1948 Universal Declaration of Human Rights proclaimed
that “[a]ll human beings are born free and equal in dignity and rights. They are endowed with
reason and conscience and should act towards one another in a spirit of brotherhood” (Article 1). It
4 Cf. likewise Qatar’s Application Instituting Proceedings (of 11.06.2018) p. 41, para. 58; and cf. p. 50, para. 65.
5 There are three brief references, in the oral pleadings of Qatar, to the principle of respect for the “dignity and
equality inherent in all human beings”; cf. ICJ, CR 2018/12, of 27.06.2018, pp. 32, 35 and 59.
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added that “[a]ll are equal before the law and are entitled without any discrimination to equal
protection of the law. All are entitled to equal protection against any discrimination in violation of
this Declaration and against any incitement to such discrimination” (Article 7).
14. And the 1945 Charter of the United Nations began by asserting the determination of “the
peoples of the United Nations” to “reaffirm faith in fundamental human rights, in the dignity and
worth of the human person, in the equal rights of men and women and of nations large and
small” (second preambular paragraph). Nowadays, the fundamental principle of equality and nondiscrimination
lies also in the foundations of the Law of the United Nations itself.
15. The gradual consolidation of the mechanisms of international protection of human rights,
moreover, has much contributed to a growing awareness of the importance of the prevalence of the
basic principle of equality and non-discrimination. Certain expressions were to emerge (e.g.,
“equality before the law” and “equal protection of the law”), on the basis of human values, and
associated to the corresponding obligations of States Parties to human rights treaties.
16. Supervisory organs of such treaties have been giving their constant contribution - of
growing importance - to the prohibition of the discrimination de facto or de jure, in their faithful
exercise of their functions of protection of the human person6. The obligation of non-discrimination
as related to the substantive rights protected under those treaties draws attention to the positive
obligations of the States Parties to secure the protection of the human beings under their
jurisdiction against the discrimination in all ambits of human relations7.
17. For its part, the Committee on the Elimination of Racial Discrimination, for example, has
in this respect issued General Recommendations orienting its own interpretation of the relevant
provisions of the CERD Convention. Among them, there are those which have an incidence in the
consideration of the present case of Application of the CERD Convention (Qatar versus UAE),
namely: General Recommendation n. 30 (of 19.08.2004), on discrimination against non-citizens;
General Recommendation n. 35 (of 26.09.2013), on combatting racist hate speech; General
Recommendation n. 25 (of 20.03.2000), on gender-related dimensions of racial discrimination;
General Recommendation n. 22 (of 23.08.1996), on Article 5 of the CERD Convention in relation
to refugees and displaced persons.
18. The advances in respect of the basic principle of equality and non-discrimination at
normative and jurisprudential levels8, have not, however, been accompanied by the international
legal doctrine, which so far has not dedicated sufficient attention to that fundamental principle; it
stands far from guarding proportion to its importance both in theory and practice of Law. This is
one of the rare examples of international case-law preceding international legal doctrine, and
requiring from it due and greater attention.
6 Cf., e.g., A.A. Cançado Trindade, “Address to the U.N. Human Rights Committee on the Occasion of the
Commemoration of Its 100th Session”, 29 Netherlands Quarterly of Human Rights (2011) pp. 131-137.
7 Including at inter-individual level; cf. W. Vandenhole, Non-Discrimination and Equality in the View of the U.N.
Human Rights Treaty Bodies, Antwerpen/Oxford, Intersentia, 2005, pp. 23 and 215.
8 To the study of which I have dedicated my extensive book: A.A. Cançado Trindade, El Principio Básico de
Igualdad y No-Discriminación: Construcción Jurisprudencial, 1st. ed., Santiago de Chile, Ed. Librotecnia, 2013, pp. 39-
748.
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19. A significant jurisprudential advance is found in the ground-breaking Advisory Opinion
n. 18 (of 17.09.2003) of the IACtHR, on the Juridical Condition and Rights of Undocumented
Migrants, upholding the view that the fundamental principle of equality and non-discrimination
had entered the realm of jus cogens, thus enlarging its material content (paras. 97-101 and 110-
111)9. In the IACtHR’s understanding, States cannot discriminate, nor tolerate discriminatory
situations to the detriment of those persons; they had a duty to guarantee them the due process of
law, irrespective of their migratory status. States can no longer subordinate or condition the
observance of the principle of equality before the law and non-discrimination to the objectives of
their migratory or other policies.
20. For my part, I focused on this significant jurisprudential advance in my Concurring
Opinion appended to the aforementioned Advisory Opinion n. 18 of the IACtHR, wherein I
stressed, in support of the Court’s position, the relevance of the basic principle of equality and nondiscrimination,
enlarging the material content of jus cogens, and permeating, - together with other
general principles of law, - the whole juridical order itself, conforming its substratum (paras. 44-46,
52-58, 65 and 72)10. Without such principles, there is ultimately no legal order at all. I developed
my whole reasoning in the line of jusnaturalist thinking, - which marked the origins and historical
evolution of the law of nations (droit des gens), - in the framework of the civitas maxima gentium
and of the universality of the human kind.
21. The path was then paved for jurisprudential developments also in the international
adjudication of contentious cases pertaining to the basic principle of equality and nondiscrimination11.
In effect, this fundamental principle has been addressed - in Judgments on
contentious cases as well as in Advisory Opinions - in face of social marginalization (IACtHR,
cases of Servellón-García and Others, 2006, and of Indigenous Community Sawhoyamaxa, 2006);
of prohibition of arbitrariness (ICJ, case of A.S. Diallo, merits, 2010, and reparations, 2012;
Advisory Opinion on the Declaration of Independence of Kosovo, 2010; and case concerning the
CERD Convention, 2011), as well as in face of procedural equality (IACtHR, case Loayza Tamayo,
1997; and ICJ, Advisory Opinion on Judgment of the ILO Administrative Tribunal on a Complaint
against IFAD, 2012).
9 The IACtHR upheld that, accordingly, any discriminatory treatment of undocumented migrants or aliens would
generate the international responsibility of States.
10 For a study of the matter, cf., e.g., A.A. Cançado Trindade, “Le déracinement et la protection des migrants dans
le Droit international des droits de l’homme”, 19 Revue trimestrielle des droits de l’homme - Bruxelles (2008) n. 74,
pp. 289-328.
11 Ever since the IACtHR upheld, in its Advisory Opinion n. 18 (of 17.09.2003), that the fundamental principle of
equality and non-discrimination entered into the domain of jus cogens (supra), in the adjudication of successive
contentious cases I stressed the need to enlarge further the material content of jus cogens, so as to encompass likewise the
right of access to justice, and fulfill the pressing needs of protection of the human person. I did so, inter alia, in my
Separate Opinion (dedicated on the right of access to justice lato sensu) in the Court’s Judgment (of 31.01.2006) in the
case of the Massacre of Pueblo Bello versus Colombia, drawing attention to the utmost importance of the right of access
to justice lato sensu, encompassing its full realisation (para. 64). I further stressed, on successive occasions, the special
needs of protection of victims in situations of vulnerability; cf. A.A. Cançado Trindade, El Ejercicio de la Función
Judicial Internacional - Memorias de la Corte Interamericana de Derechos Humanos, 5th. rev. ed., Belo Horizonte, Edit.
Del Rey, 2018, ch. XXIV, pp. 219-226.
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IV. NON-DISCRIMINATION AND THE PROHIBITION OF ARBITRARINESS.
22. The protection being sought before the ICJ in the cas d’espèce, under the CERD
Convention, is furthermore against arbitrary measures, against arbitrariness. Brief references were
made to this in the course of the present oral pleadings before the ICJ12. This point has not escaped
the attention of other international tribunals, under other human rights Conventions: for example,
inter alia, in its Judgment (merits, of 03.07.2014) on the case of Georgia versus Russia, the
European Court of Human Rights (ECtHR) singled out the duty under the European Convention on
Human Rights (ECHR) “to protect the individual from arbitrariness”, and found that the arrests and
detentions that preceded “collective” expulsions (of nationals of the applicant State) amounted to
“an administrative practice” in breach of Article 5(1) and (4) of the ECHR (paras. 182 and 186-
188).
23. Subsequently, in its Judgment (merits, of 23.08.2016) on the case of J.K. and Others
versus Sweden, concerning expulsion of non-citizens (the applicants being Iraqi nationals), the
ECtHR held that, if deported, they would face a risk of being subjected to treatment in breach of
Article 3 of the ECHR (para. 123) in the destination country. In effect, non-discrimination and the
prohibition of arbitrariness are a point which cannot be overlooked, also in a wider framework, in
time and space. After all, in the relations between human beings and public power, arbitrariness is
an issue which has marked presence everywhere along the history of humankind. It has been a
source of concern along the centuries. This is why the tragedies written and performed in ancient
Greece remain so contemporary in our days, after so many centuries.
24. Suffice it here to recall, e.g., in Sophocles’s Antigone (441 b.C.), the arbitrariness of the
ruler Creon’s decree prohibiting Antigone to bury the corpse of one of her deceased brothers
(Polynices), and her determination nevertheless to do so in pursuance of justice; or else further to
recall, some years later, e.g., in Euripides’s Suppliant Women (424-419 b.C.), the arbitrariness that
led to the grief and lamentation of the women whose deceased children had been separated from
them, and their corpses then needed to be buried.
25. Sophocles’s Antigone, in particular, has been rewritten, in successive centuries, by
several other authors, bearing in mind their respective contemporary manifestations of
arbitrariness. Although the ancient Greeks had eyes mainly for justice rather than law (and only
later on, Romans of the ancient Empire began to distinguish between law and justice), there are
those who seek to associate the tragedy of Sophocles with the seeds or origins of the distinction
between natural law and positive law.
26. In any case, arbitrariness, as history shows, is unfortunately part of human nature, and
the discrimination that ensues therefrom is both de facto and de jure. If we look at the world
nowadays, marked by a serious crisis of values, we can see, in all continents, the inhumane split of
families in frontiers, in particular those of migrants or non-citizens. Positive law alone cannot solve
the problems created at times by itself, to the detriment of human beings in situations of
vulnerability (cf. infra). Law and justice go together, they are indissociable, in the line of the more
lucid jusnaturalist thinking.
27. It is important to keep those ancient Greek tragedies in mind also to face the so-called
“globalization”, - a misleading and false neologism en vogue in the XXIst century. Such neologism
12 Cf., on the part of the applicant State, ICJ, doc. CR 2018/12, of 27.06.2018, pp. 22-23; ICJ, doc. CR 2018/14,
of 29.06.2018, p. 30.
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hides the marginalization and social exclusion of increasingly greater segments of the population
(including migrants). Frontiers have been opened to capitals and goods, but are sadly being closed
down to human beings (with split of families, and new walls, fences and detention centres, in
distinct continents).
28. The material progress of some has been accompanied by the exploitation of many
(including undocumented migrants). Some human beings (especially power-holders) have placed
most fellow human beings in a scale of priority inferior to that attributed to capitals and goods.
Nothing has been learned from sufferings of past generations; hence the need to remain attached to
the goal of the realization of justice, bearing in mind that law and justice go indissociably together.
The ICJ has a mission to keep on endeavouring to contribute to a humanized law of nations, in the
dehumanized world of our days.
29. In my aforementioned Separate Opinion appended to the ICJ’s Judgment on the case of
A.S. Diallo (merits, of 30.11.2010), - concerning the arbitrary detentions followed by expulsion of a
foreigner from his country of residence, - I devoted an entire section (VI) of it to “The Prohibition
of Arbitrariness in the International Law of Human Rights” (paras. 107-142), wherein I examined
the doctrinal development and the jurisprudential construction on the matter. I pondered, inter alia,
that, as human rights treaties
“conform a Law of protection (a droit de protection), oriented towards the safeguard
of the ostensibly weaker party, the victim, it is not at all surprising that the prohibition
of arbitrariness (…) covers arrests and detentions, as well as other acts of the public
power, such as expulsions” (para. 109).
30. Such has in fact been the understanding of international tribunals entrusted with the
interpretation and application of human rights treaties, - like the ICJ in the present case of the
Application of the CERD Convention (Qatar versus UAE). As I pointed out in that Separate
Opinion in the case of A.S. Diallo, the case-law of international human rights tribunals is quite
clear in this respect. No one can be deprived of liberty in an arbitrary way (cf. e.g., ECtHR, case of
Amuur versus France, Judgment of 25.06.1996). No one can be detained or arrested, even when
this is considered as “legal”, when it is incompatible with the provisions of human rights treaties
and carried out with arbitrariness (e.g., IACtHR, case of the “Street Children” - Villagrán Morales
and Others versus Guatemala, merits, Judgment of 19.11.1999; cases of Bámaca Velásquez and of
Maritza Urrutia versus Guatemala, Judgments of 25.11.2000 and of 27.11.2003, respectively).
31. The prohibition of arbitrariness, - I proceeded, - stands not only in respect of the right to
personal liberty, but also in relation to all other rights protected under human rights treaties13, so as
to secure the prevalence of the rule of law (la prééminence du droit). Epistemologically, this is the
correct posture in this respect, given the universally acknowledged interrelatedness and
indivisibility of all human rights. Arbitrariness amounts, in effect, to an abus de pouvoir on the part
of the State agents. Accordingly, a domestic law or an administrative act, concerning migrants or
non-citizens, cannot be applied when incompatible with the provisions of human rights treaties.
13 Such as, e.g. the right not to be expelled arbitrarily from a country, the right to a fair trial, the right to respect
for private and family life, the right to an effective remedy, or any other protected right.
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32. And in that Separate Opinion, I concluded, on the extent of the prohibition of
arbitrariness, that
“Human nature being what it is, everyone needs to guard protection against
arbitrariness on the part of State authorities. In a wider horizon, human beings need
protection ultimately against themselves, in their relations with each other. There is
hardly any need to require an express provision to the effect of prohibiting
arbitrariness in respect of distinct rights, or else to require the insertion of the adjective
‘arbitrary’ in distinct provisions, in order to enable the exercise of protection against
arbitrariness, in any circumstances, under human rights treaties. The letter together
with the spirit of those provisions under human rights treaties, converge in pointing to
the same direction: the absolute prohibition of arbitrariness, under the International
Law of Human Rights as a whole. Underlying this whole matter is the imperative of
access to justice lato sensu, the right to the Law (le droit au Droit, el derecho al
Derecho), the right to the realization of justice in a democratic society” (para. 142).
V. ARGUMENTS OF THE PARTIES IN THE PUBLIC HEARINGS BEFORE THE COURT.
33. The prohibition of arbitrariness brings to the fore the issue of the vulnerability of those
affected by discriminatory measures. Before examining this point (cf. section VII, infra), may I
now turn to the arguments of the parties during the oral pleadings which have just taken place
before the ICJ. In the course of the public hearings (first round) before the Court, the applicant
State presented (on 27.06.2018) its own understanding of the factual context of the cas d’espèce
within a temporal dimension.
34. Qatar argued that the “collective expulsion” of Qataris from the UAE as a discriminatory
measure was ongoing, affecting continuously some of their rights under the CERD Convention
(e.g., with the separation of families and loss of work); this was leading to the prolongation and
indefinite duration14 of harm or damage, in the human tragedy15 of the numerous and vulnerable
victims16. There was need for urgent regard to human suffering; the continuing vulnerability of
segments of the population required urgently, in its view, provisional measures of protection.
35. In the following public hearings before the Court (still first round, on 28.06.2018), the
respondent State did not address such issue of a continuing situation raised by Qatar; the UAE
focused instead on other aspects, attempting to minimize and dismiss the request for provisional
measures of protection17. It consumed much of the time of those public hearings raising the point
(responded by the applicant State - infra), inter alia, of the rule of exhaustion of local remedies18.
36. In the second and last round of public hearings before the Court (on 29.06.2018) the local
remedies rule continued to be addressed, this time by both the applicant State, in response to the
14 ICJ, CR 2018/12, of 27.06.2018, pp. 16-19, 22, 29-30, 38-40, 42, 46, 50, 52-58 and 62-64 (on the continuity of
violations).
15 Ibid., pp. 59-60 (on the “tragedy of the victims”).
16 Ibid., pp. 61-62 (on the “vulnerability of the population”).
17 ICJ, CR 2018/13, of 28.06.2018, p. 15 (on “uncertainty of facts”), p. 31 (on “prima facie determination on the
admissibility of the claims” and so-called plausibility of admissibility), and pp. 22-35 (on pre-conditions of
admissibility).
18 Ibid., pp. 28-35.
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argument of the respondent State, and by this latter once again19. The applicant State, furthermore,
consistently reiterated its understanding of a continuing situation of ongoing alleged violations of
human rights requiring “humanitarian considerations”20.
VI. QUESTIONS PUT TO THE PARTIES IN THE PUBLIC HEARINGS BEFORE THE COURT.
1. Questions and Answers.
37. Those arguments advanced by the contending parties led me to address the following
questions to both of them, at the end of the public hearings (on 29.06.2018):
“1. Does the local remedies rule have the same rationale in diplomatic
protection and in international human rights protection? Does the effectiveness of local
remedies have an incidence under the United Nations Convention on the Elimination
of All Forms of Racial Discrimination and other human rights treaties?
2. Is it necessary to address the so-called plausibility of rights in face of a
continuing situation allegedly affecting the rights protected under a human rights
treaty like the United Nations Convention on the Elimination of All Forms of Racial
Discrimination?
3. What are the implications or effects, if any, of the existence of a continuing
situation allegedly affecting rights protected under a human rights Convention, for
requests of provisional measures of protection?”21.
38. In the course of the following week, the contending parties provided the Court with their
respective written answers (of 03.07.2018) to my questions, first, as to the rationale of the local
remedies rule in diplomatic protection and in international human rights protection, and then, on
the implications of a continuing situation. In respect of the first question, the applicant State, in its
detailed written answer, first recalled that international human rights supervisory organs have
stressed that the local remedies rule here requires “actual redress” for victims of human rights
violations, determining the obligation of States Parties to human rights treaties to provide them
with effective remedies22. And it proceeded:
“This added element of ‘actual redress’ finally echoes the differences in the
function of the local remedies rule in both systems, illustrated by Judge Cançado
Trindade’s seminal 1983 monograph on the subject23. In diplomatic protection, the
local remedies rule ensures that disputes are not elevated onto the international plane
before the authorities of the offending State have had an adequate opportunity to
address them by their own means. It can thus be said that in diplomatic protection, the
local remedies rule operates preemptively.
In international human rights protection, the focus of the rule is different. As
explained above, under most major international human rights instruments, States
19 Cf., on the part of Qatar, ICJ, CR 2018/14, of 29.06.2018, pp. 17-20; and cf., on the part of the UAE, ICJ,
CR 2018/15, of 29.06.2018, pp. 17-18.
20 Cf., on the part of Qatar, ICJ, CR 2018/14, of 29.06.2018, pp. 36-37 and 39-41.
21 In: ICJ, CR 2018/15, of 29.06.2018, p. 45.
22 ICJ, doc. 2018/24, of 03.07.2018, response in letter of Qatar, pp. 1-2, paras. 3-4.
23 See A.A. Cançado Trindade, The Application of the Rule of Exhaustion of Local Remedies in International Law
(1983), pp. 39, 51-52, 56.
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have bound themselves to international obligations to respect and ensure human rights,
including by subjecting those obligations to the scrutiny of national tribunals and other
State institutions. By asking that such tribunals and other State institutions be resorted
to before the violations are entrusted to the international machinery for their
implementation, the rule thus operates protectively24”25.
39. And the applicant State added that, under the CERD Convention and all other major
human rights treaties, the local remedies rule only applies if remedies are effective, this being in
accordance with general international law; the “principle of effectiveness” is here “fully
applicable”26. In view of the foregoing, it submitted that “although there is a certain degree of
overlap in the rationale of the local remedies rule in the fields of diplomatic protection and
international human rights protection, in the latter, the rule is also underscored by an element of
‘actual redress’. Such redress must, furthermore, be effective”27.
40. For its part, the respondent State, in its brief written answer to the first question, also of
03.07.2018, argued that the rule of exhaustion of local remedies has the “same rationale”
underlying it in the two contexts of “broadened” diplomatic protection and in international human
rights protection28. Yet, it added, under the CERD Convention and other human rights treaties, and
under general international law, the effectiveness of local remedies is a component of that rule,
which, e.g., determines that such remedies cannot be “unreasonably prolonged”29.
41. As to the second question, the applicant State contended that the purpose of the inquiry
on “plausibility” of rights, as found in the Court’s recent case-law, is a “limited one”, not engaging
“in any extensive evidentiary inquiry” and not undertaking any “in-depth factual assessment” at the
stage of provisional measures; it can only be “a very low threshold”30. It added that such very low
threshold applies, whether the Court puts the requisite “in terms of ‘plausibility of rights’ or
‘vulnerability of populations’” to be protected under a human rights treaty like the CERD
Convention31.
42. The respondent State, for its part, accepted that “violations of human rights” in a
“continuing situation” have to be “of concern to the Court”. However, - it added, - the issue would
“have to be placed within the vision of the Court”, i.e., in its view,
“Only States can be parties before the Court in contentious proceedings and the
Court when called upon to adjudicate upon a matter has to do so in the light of the
rights and duties of those States that are before the Court seeking a legal
determination”32.
24 This added purpose for the local remedies rule necessarily informs its application under the Convention and
other human rights treaties, as Qatar will explain at the appropriate stage of these proceedings.
25 ICJ, doc. 2018/24, of 03.07.2018, response in letter of Qatar, p. 3, paras. 5-6.
26 Ibid., pp. 4-6, paras. 7-8 and 11.
27 Ibid., pp. 6-7, para. 12.
28 ICJ, doc. 2018/24, of 03.07.2018, response in letter of the UAE, p. 1.
29 Ibid., p. 2.
30 ICJ, doc. 2018/24, of 03.07.2018, response in letter of Qatar, pp. 10-16, paras. 19, 21, 23 and 28.
31 Ibid, pp.13-16, paras. 26-29.
32 ICJ, doc. 2018/24, of 03.07.2018, response in letter of the UAE, p. 3.
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43. The respondent State added that, as part of ensuring the balance between, on the one
hand, vulnerable individuals and groups, and, on the other hand, the “adjudication between States
in the light of their rights and obligations under international law” has made the Court to have
“recourse inter alia to the doctrine of plausibility”. This is, in its view, “a necessary hurdle to be
surmounted before tackling substantive issues of protection” of the “rights or interests of
individuals, groups or States under perceived threat”; in sum, the consideration of the “plausibility
of the rights” at issue is “an indispensable preliminary step needed in order to address claimed
violations of rights, whatever their origin”33.
44. As to the third question, the applicant State upheld the view that, when there is a
continuing situation alleged affecting rights protected under a human rights Convention, “the
requirement of a real and imminent risk is necessarily satisfied”, and “irreparable prejudice is the
natural consequence of restrictions on those rights”34. In such circumstances, “any assessment of
risk of harm is necessarily met”, and the evidence provided (reports “showing continuing harm
throughout the past thirteen months”, as from 05.06.2017) has been, in its view, “more than
sufficient” for the Court “to make a finding of urgency”, given the “imminent risk of irreparable
harm”35.
45. For its part, the respondent State argued that, even in case of a continuing situation, the
ICJ is to exercise its own functions which are “different from those” of international human rights
tribunals at regional levels. Provisional measures, it added cannot be indicated if the Court is not
persuaded that the rights invoked are “at least plausible”. In its view, “the existence of a continuing
situation allegedly affecting rights protected under a human rights treaty does not as such change or
modify the conditions required for the indication of provisional measures of protection”36.
46. Still in the same week, the contending parties provided the Court, two days later, with
their additional written comments (of 05.07.2018) to each other’s respective answers (cf. supra) to
my questions. The applicant State recalled the components of effectiveness of local remedies and
redress in the rationale of the local remedies rule under human rights treaties, and welcomed the
UAE’s acceptance of it as well as of the Court’s need to be “sensitive and attentive” to a continuing
situation in breach of human rights, wherein the harm is “not merely imminent by presently
occurring”, requiring attention also to “the vulnerability of the affected individuals”37.
47. The respondent State, for its part, insisted on the requirement of exhaustion of local
remedies, and on its position that “doctrine of plausibility” constitutes a “balance” between the
claimed violation of rights and the “procedural requirements” to adjudicate inter-State cases38.
Besides questioning the evidence produced, it did not accept the “low threshold” advanced by
Qatar, asserting that there “has to be a tangible or plausible basis” for the claims at issue. And it
33 Ibid., p. 3.
34 ICJ, doc. 2018/24, of 03.07.2018, response in letter of Qatar, p. 17, paras. 31-32.
35 Ibid., pp. 19-20, paras. 35-36.
36 And it added that “[t]he UAE is focused upon the importance of the implementation of binding treaties and the
fight against terrorism”. ICJ, doc. 2018/24, of 03.07.2018, response in letter of the UAE, p. 5.
37 ICJ, doc. 2018/25, of 05.07.2018, comment in letter of Qatar, pp. 1-4, paras. 2-5 and 7-8.
38 ICJ, doc. 2018/25, of 05.07.2018, comment in letter of the UAE, pp. 1-3.
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concluded that, in its view, there is no “different approach” to the grant of provisional measures of
protection in cases under human rights treaties39.
2. General Assessment: Rationale of the Local Remedies Rule in
International Human Rights Protection.
48. May I now proceed to my own assessment of the arguments surveyed above, presented
by the contending parties in their written responses to my questions (supra). To start with, in my
understanding, the raising of the rule of exhaustion of local remedies at this early stage is
surprising, besides regrettable, due to the fact that the present proceedings are on a request for
provisional measures of protection, not on admissibility. The local remedies rule is a condition of
admissibility of international claims; it cannot be invoked as a precondition for the consideration of
urgent requests of provisional measures of protection.
49. The incidence of the local remedies rule in human rights protection is certainly distinct
from its application in the practice of diplomatic protection of nationals abroad; the rule at issue is
far from having the dimensions of an immutable or sacrosanct principle of international law.
Moreover, the two domains - human rights protection and diplomatic protection - are also distinct,
and there is nothing to hinder the application of that rule with greater or lesser rigour in such
different domains.
50. Its rationale is quite distinct in the two contexts. In the domain of the safeguard of the
rights of the human person, attention is focused on the need to secure the faithful realization of the
object and purpose of human rights treaties, and on the need of effectiveness of local remedies;
attention is focused, in sum, on the needs of protection. The rationale of the local remedies rule in
the context of diplomatic protection is entirely distinct, focusing on the process of exhaustion of
such remedies.
51. Local remedies, in turn, form an integral part of the very system of international human
rights protection, the emphasis falling on the element of redress rather than on the process of
exhaustion. The local remedies rule bears witness of the interaction between international law and
domestic law in the present context of protection40. We are here before a droit de protection, with a
specificity of its own, fundamentally victim-oriented, concerned with the rights of individual
human beings rather than of States. Such rights are accompanied by obligations of States.
52. Generally recognized rules of international law (which the formulation of the local
remedies rule in human rights treaties refers to), besides following an evolution of their own in the
distinct contexts in which they apply, necessarily undergo, when inserted in human rights treaties, a
certain degree of adjustment or adaptation, dictated by the special character of the object and
purpose of those treaties and by the widely recognized specificity of the international protection of
human rights.
39 Ibid., pp. 4-8.
40 Cf. A.A. Cançado Trindade, The Application of the Rule of Exhaustion of Local Remedies in International Law,
Cambridge, Cambridge University Press, 1983, pp. 1-445; A.A. Cançado Trindade, O Esgotamento de Recursos Internos
no Direito Internacional, 2nd. ed., Brasília, Edit. University of Brasília, 1997, pp. 1-327; A.A. Cançado Trindade, “Origin
and Historical Development of the Rule of Exhaustion of Local Remedies in International Law”, 12 Revue belge de droit
international/Belgisch Tijdschrift voor international Recht - Bruxelles (1976) pp. 499-527.
- 14 -
53. In the handling of successive cases under the CERD Convention, for example, the
Committee on the Elimination of Racial Discrimination (CERD Committee) has deemed it
necessary to single out that petitioners are only required to exhaust “remedies that are effective in
the circumstances” of the cas d’espèce (cases of M. Lacko versus Slovakia, decision of 09.08.2001,
para. 6.2; and of Zentralrat Deutscher Sinti und Roma et al. versus Germany, decision of
22.02.2008, para 7.3).
54. In another case (of D. Durmic versus Serbia and Montenegro), the CERD Committee
pointed out that local remedies need not be exhausted if their application “is unreasonably
prolonged” (decision of 06.03.2006, para. 6.5). And, in yet another case (of D.R. versus Australia),
the CERD Committee considered that none of the proposed local remedies could be effective, and
reiterated (decision of 14.08.2009) that
“domestic remedies need not be exhausted if they objectively have no prospect of
success. This is the case where under applicable domestic law, the claim would
inevitably be dismissed, or where established jurisprudence of the highest domestic
tribunals would preclude a positive result” (paras. 6.4-6.5).
55. The local remedies rule has a rationale of its own under human rights treaties; this
cannot be distorted by the invocation of the handling of inter-State cases in the exercise of
diplomatic protection, where the local remedies rule has an entirely distinct rationale. The former
stresses redress, the latter outlines exhaustion. One cannot deprive a human rights Convention of
its effet utile by using the distinct rationale of the rule in diplomatic protection.
56. Contemporary international tribunals share the common mission of realization of justice.
There is here a fundamental unity of conception and mission. International human rights tribunals,
created by Conventions at regional levels, operate within the conceptual framework of the
universality of human rights. International human rights tribunals have been faithful to the rationale
of effectiveness of local remedies and redress41. There is in this respect a complementarity in
outlook between mechanisms of dispute-settlement at U.N. and regional levels, all operating under
the conceptualized universality of the rights inherent to the human person.
3. General Assessment: Implications of a Continuing Situation.
57. In my understanding, the attempt to create another precondition for provisional measures,
as from the so-called “plausibility” of rights, is regrettable. The test of so-called “plausibility” of
rights is, in my perception, an unfortunate invention - a recent one - of the majority of the ICJ. In
the present proceedings, the so-called “plausibility” of admissibility42 is a new and additional
unfortunate attempt, this time by the respondent State, to invent an additional “precondition” for
provisional measures of protection. In a continuing situation, the rights requiring protection are
clearly known, their being no sense to wonder whether they are “plausible”.
41 To this effect, cf., for an analysis of the vast case-law of the ECtHR on the matter, e.g., P. van Dijk, F. van
Hoof, A. van Rijn and Leo Zwaak, Theory and Practice of the European Convention on Human Rights, 4th. ed.,
Antwerpen/Oxford, Intersentia, 2006, pp. 125-161 and 560-563; D.J. Harris, M. O’Boyle, E.P. Bates and C.M. Buckley,
Law of the European Convention on Human Rights, 2nd. ed., Oxford, Oxford University Press, 2009, pp. 759-776; as to
the case-law of the IACtHR, cf. A.A. Cançado Trindade, El Agotamiento de los Recursos Internos en el Sistema
Interamericano de Protección de los Derechos Humanos, San José/C.R., IIDH, 1991, pp. 1-60; and as to the case-law of
the African Court on Human and Peoples’ Rights (AfCtHPR), cf. M. Löffelmann, Recent Jurisprudence of the African
Court on Human and Peoples’ Rights – Developments 2014 to 2016, Arusha, Tanzania/Eschborn, Germany, Deutsche
Gesellschaft für Internationale Zusammenarbeit (GIZ), 2016, pp.1-63, esp. pp. 5-8, 22, 24-26 and 29-30.
42 Cf., on the part of the UAE, ICJ, CR 2018/15, of 29.06.2018, p. 16.
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58. In the consideration of the present request for provisional measures of protection in the
case of Application of the CERD Convention (Qatar versus UAE), the question of a continuing
situation allegedly affecting the rights of vulnerable persons has deserved particular attention,
mainly on the part of the applicant State (which dwelt upon it), but also on the part of the
respondent State. Yet, the handling of the matter consumed much time in addressing points which
have nothing to do with provisional measures of protection, - such as the undue invocation of the
rule of exhaustion of local remedies at this stage of provisional measures, as well as the undue
attempt to link the so-called “plausibility” of rights to the so-called “plausibility” of admissibility,
as presumed interrelated requirements.
59. It appears that each one feels free to interpret so-called “plausibility” of rights in the way
one feels like; this may be due to the fact that the Court’s majority itself has not elaborated on what
such “plausibility” means. To invoke “plausibility” as a new “precondition”, creating undue
difficulties for the granting of provisional measures of protection in relation to a continuing
situation, is misleading, it renders a disservice to the realization of justice. I shall develop further
reflections on provisional measures of protection in continuing situations subsequently in the
present Separate Opinion (cf. section XI, infra).
60. The rights to be protected in the cas d’espèce are clearly those invoked under the CERD
Convention (Articles 2, 4, 5, 6 and 7). The so-called “plausibility” of rights is surrounded by
uncertainties, which are much increased in trying to add to it the so-called “plausibility” of
admissibility, undermining provisional measures of protection as jurisdictional guarantees of a
preventive character. It is time to awaken and to concentrate attention on the nature of provisional
measures of protection, particularly under human rights treaties, to the benefit of human beings
experiencing a continuing situation of vulnerability affecting their rights.
61. In the present case we are not in face of rights of States; the rights under the CERD
Convention are rights of individuals (accompanied by obligations of States), irrespective of the
matter having been brought to the ICJ by a State Party to the Convention. In doing so, the State
Party exercises a collective guarantee under the CERD Convention, making use of its
compromissory clause in Article 22, which is not amenable to interpretation raising
“preconditions”. The compromissory clause in Article 22 is to be interpreted bearing in mind the
object and purpose of the CERD Convention.
VII. THE CORRECT UNDERSTANDING OF COMPROMISSORY CLAUSES
UNDER HUMAN RIGHTS CONVENTIONS.
62. I have dwelt upon this particular point in depth in my lengthy Dissenting Opinion in the
earlier case on Application of the CERD Convention (Georgia versus Russian Federation, Judgment
of 01.04.2011), where the Court upheld the second preliminary objection and found itself without
jurisdiction to examine the case. In my Dissenting Opinion (paras. 1-214), I warned at first that the
punctum pruriens judicii was the proper understanding of the compromissory clause (Article 22) of
the CERD Convention, for which it is necessary to be attentive to the nature and substance of a
human rights treaty like the CERD Convention.
63. Regrettably, in that Judgment of 2011, the Court’s majority set a very high threshold (as
to the requirement of prior negotiations) for the exercise of jurisdiction on the basis of that human
rights treaty, the CERD Convention, losing sight of the nature of this important U.N. human rights
treaty, endowed with universality. It advanced the view that Article 22 of the CERD Convention
establishes “preconditions” to be fulfilled by a State Party before it may have recourse to this
- 16 -
Court, thus rendering access to the ICJ particularly difficult. I added, in my Dissenting Opinion,
that this was not in accordance with the Court’s (PCIJ and ICJ) own earlier jurisprudence
constante, which had never ascribed to that factual element the character of a “precondition” that
would have to be fully satisfied, for the exercise of its jurisdiction43.
64. It was necessary, - I proceeded, - to turn attention to the sufferings and needs of
protection of the affected segments of the population; yet, the Court’s majority pursued
unfortunately an essentially inter-State, and mostly bilateral, outlook, on the basis of allegedly
unfulfilled “preconditions” of its own construction; instead of setting up a higher standard of
protection, under the CERD Convention, of individuals in a continuing situation of great
vulnerability, it applied, contrariwise, a higher standard of State consent for the exercise of its
jurisdiction.
65. One cannot erect, in pursuance of a strictly textual or grammatical reasoning relating to
the compromissory clause (Article 22) of the CERD Convention, a mandatory “precondition” for
the exercise of the Court’s jurisdiction (such as that of prior negotiations), as this amounts to
erecting a groundless and most regrettable obstacle to justice. This “precondition”, - I proceeded, -
finds no support in the Court’s own earlier jurisprudence constante, nor in the legislative history of
the CERD Convention.
66. I then pointed out, in my aforementioned Dissenting Opinion, that, already at the time
that the CERD Convention was being elaborated there were those who supported the compulsory
settlement of disputes by the Court. Underlying the general rule of treaty interpretation is the
principle ut res magis valeat quam pereat (the so-called effet utile), of much importance in respect
of human rights treaties, amongst which the CERD Convention. This latter is a pioneering human
rights Convention, endowed with universality, occupying a prominent place in the Law of the
United Nations itself. It cannot be a hostage of State consent or discretion (as in the entirely distinct
domain of diplomatic protection), in its interpretation and application.
67. Before moving to the next point, may I here add that all obligations under the CERD
Convention (including those of providing redress by means of effective local remedies, and of
dispute-settlement in inter-State cases thereunder) have a rationale of their own, proper of human
rights treaties. There was awareness of that since the time of the travaux préparatoires of the
CERD Convention44, so as to secure its effectiveness, and safeguard it from attempts at conceptual
deconstruction (such as the devising of additional so-called “preconditions”)45.
43 Both the PCIJ and the ICJ have been quite clear in holding that an attempt of negotiation is sufficient, there
being no mandatory “precondition” at all of resolutory negotiations for either of them to exercise jurisdiction in a case
they had been seized of.
44 Cf., on this particular point, e.g., N. Lerner, The U.N. Convention on the Elimination of All Forms of Racial
Discrimination (reprint revised), Leiden, Brill/Nijhoff, 2014, pp. 81 and 98; A.A. Cançado Trindade, “Exhaustion of
Local Remedies under the United Nations Convention on the Elimination of All Forms of Racial Discrimination”, 22
German Yearbook of International Law/Jahrbuch für internationales Recht - Kiel (1979) pp. 374-383;
45 Cf. recent assessments by, e.g., M. Dubuy, “Application de la Convention internationale sur l’élimination de
toutes les formes de discrimination raciale (Géorgie c. Fédération de Russie), exceptions préliminaires: Un formalisme
excessif au service du classicisme?”, 57 Annuaire français de Droit international (2011) pp. 183-212; P. Thornberry, The
International Convention on the Elimination of All Forms of Racial Discrimination - A Commentary, Oxford, Oxford
University Press, 2016, pp. 472-483 (on Article 22).
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VIII. VULNERABILITY OF SEGMENTS OF THE POPULATION.
68. In the present Order that the ICJ has just adopted today, in the case of Application of the
CERD Convention (Qatar versus UAE), the Court has correctly granted provisional measures of
protection under the CERD Convention, to ensure that families including a Qatari, separated by the
measures adopted by the UAE on 05.06.2017, are reunited; that Qatari students, affected by the
same measures, complete their education in the UAE, or, if they wish, obtain their educational
records to continue their studies elsewhere; and that Qataris, affected by the same measures, have
access to national tribunals in the UAE. The CERD Convention itself determines that States Parties
are to assure to everyone within their jurisdiction “effective protection and remedies” before
national tribunals against any acts of discrimination (Article 6). The provisional measures, as
requested in the cas d’espèce, become necessary for the protection of persons in a situation of
vulnerability.
69. I have already addressed the principle of non-discrimination and the prohibition of
arbitrariness (section III, supra), and my reflections thereon lead me to the next related point to be
here considered. Cases as the present one of Application of the CERD Convention (Qatar versus
UAE), like the aforementioned previous cases before the ICJ also under the CERD Convention (as
well as under other human rights treaties), disclose the centrality of the position of the human
person in the overcoming of the inter-State paradigm in contemporary international law. The
request of provisional measures of protection is here intended to put an end to the alleged
vulnerability of the affected persons (potential victims).
70. Human beings in vulnerability are the ultimate beneficiaries of compliance with the
ordered provisional measures of protection. However vulnerable, they are subjects of international
law. We are here before the new paradigm of the humanized international law, the new jus gentium
of our times, sensitive and attentive to the needs of protection of the human person in any
circumstances of vulnerability. This is a point which I have been making in successive Individual
Opinions in previous decisions of the ICJ; I feel it sufficient only to refer to them now, with no
need to extend further thereon in the present Separate Opinion.
71. To summarize it, in my previous Separate Opinion appended to the ICJ’s recent Order
(of 19.04.2017) on provisional measures of protection - also under the CERD Convention - in the
case of Ukraine versus Russian Federation, I pondered:
“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” (para. 44).
72. Anticipatory in nature, provisional measures of protection are intended to prevent and
avoid irreparable harm in situations of gravity (probability of irreparable harm) and urgency. The
extreme vulnerability of the affected persons is an aggravating circumstance, rendering such
provisional measures imperative. These latter, in my perception, are not “mesures conservatoires”
(as in traditional, old-fashioned and unsatisfactory language), as they do require change, as in the
cas d’espèce, so as to put an end to a continuing situation (cf. infra) affecting the rights of persons
in utter vulnerability, if not defencelessness.
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73. For years I have been sustaining that provisional measures of protection, needed by
human beings (under human rights treaties, like the CERD Convention in the cas d’espèce), may
become even more than precautionary, being in effect tutelary, particularly for vulnerable persons
(potential victims), and directly related to realization of justice itself. Obligations emanating from
such ordered measures are not necessarily the same as those ensuing from a Judgment as to the
merits (and reparations), they may be entirely distinct (cf. infra). Particularly attentive to human
beings in situations of vulnerability, provisional measures of protection, endowed with a tutelary
character, appear as true jurisdictional guarantees with a preventive dimension.
IX. TOWARDS THE CONSOLIDATION OF THE AUTONOMOUS LEGAL REGIME
OF PROVISIONAL MEASURES OF PROTECTION.
74. This is one of the aspects, and a significant one, of what I have been calling, - in several
(more than twenty) of my Individual Opinions, successively within two international jurisdictions,
in the period 2000-201846, - the needed conformation of the autonomous legal regime of
provisional measures of protection47. As I pointed out in my Dissenting Opinion in an ICJ’s Order
(of 16.07.2013), - at an early stage of the handling of two merged cases opposing two Central
American States, - even
“the notion of victim (or of potential victim48), or injured party, can (…) emerge also
in the context proper to provisional measures of protection, parallel to the merits (and
reparations) of the cas d’espèce”49 (para. 75).
75. I am confident that we are at last moving towards the consolidation of the autonomous
legal regime of provisional measures of protection, thus enhancing the preventive dimension of
international law. After all, contemporary international tribunals have an important contribution to
give to the avoidance or prevention of irreparable harm in situations of urgency, to the ultimate
46 Such Individual Opinions on the matter are reproduced in the collections: a) Judge A.A. Cançado Trindade -
The Construction of a Humanized International Law - A Collection of Individual Opinions (1991-2013), vol. I (IACtHR),
Leiden, Brill/Nijhoff, 2014, pp. 799-852; vol. II (ICJ), Leiden, Brill/Nijhoff, 2014, pp. 1815-1864; vol. III (ICJ), Leiden,
Brill/Nijhoff, 2017, pp. 733-764; and b) Vers un nouveau jus gentium humanisé - Recueil des Opinions Individuelles du
Juge A.A. Cançado Trindade [CIJ], Paris, L’Harmattan, 2018, pp. 143-224 and 884-886; and c) Esencia y
Transcendencia del Derecho Internacional de los Derechos Humanos (Votos [del Juez A.A. Cançado Trindade] en la
Corte Interamericana de Derechos Humanos, 1991-2008), vols. I-III, 2nd. rev. ed., Mexico D.F., Ed. Cám. Dips., 2015,
vol. III, pp. 77-399.
47 Cf. A.A. Cançado Trindade, O Regime Jurídico Autônomo das Medidas Provisórias de Proteção,
The Hague/Fortaleza, IBDH/IIDH, 2017, pp. 13-348.
48 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 protection 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 La Haye (1987), ch. XI, pp. 243-299, esp. pp. 271-292.
49 Cf. ICJ, (merged) cases of Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica versus
Nicaragua) and Construction of a Road in Costa Rica along the San Juan River, Order of 16.07.2013, Dissenting Opinion
of Judge Cançado Trindade, para. 75.
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benefit of human beings, and to secure due compliance with the ordered provisional measures of
protection50.
76. The component elements of this autonomous legal regime are: the rights to be protected;
the corresponding obligations; the prompt determination of responsibility (in case of noncompliance),
with its legal consequences, encompassing the duty of reparation for damages. Rights
and obligations concerning provisional measures of protection are not the same as those pertaining
to the merits of the cases, and the configuration of responsibility with all its legal consequences is
prompt, without waiting for the decision on the merits. The notion of victim (or potential victim)
itself – may I stress this point - marks presence already at this stage, irrespective of the decision as
to the merits (cf. supra).
77. Provisional measures have, in recent years, been protecting growing numbers of persons
in situations of vulnerability, transformed into a true jurisdictional guarantee of preventive
character51. Hence the autonomy of the international responsibility that non-compliance with them
promptly generates. A study of the matter encompasses the general principles of law, always of
great relevance52. Attention is to be focused on the common mission of contemporary international
tribunals of realization of justice53 as from an essentially humanist outlook54.
X. INTERNATIONAL LAW AND THE TEMPORAL DIMENSION.
78. A consideration of the aforementioned preventive dimension, furthermore, brings to the
fore the time factor, and in particular the relationship between international law and the temporal
dimension. Such relationship is an ineluctable one, requiring far more attention than the one
dispensed to it by international legal doctrine so far. In effect, the temporal dimension underlies the
whole domain of international law, being interpreted and applied within time.
50 Cf., to this effect, ICJ, (merged) cases of Certain Activities Carried out by Nicaragua in the Border Area
(Costa Rica versus Nicaragua) and Construction of a Road in Costa Rica along the San Juan River, Order of 22.11.2013,
Separate Opinion of Judge Cançado Trindade, paras. 20-31 and 40. - The right of access to justice, also in the present
domain (cf. para. 68, supra), is to be understood lato sensu, encompassing not only the formal access to a competent
tribunal, but also the due process of law (equality of arms), and the faithful compliance with the decision; for a general
study, cf. A.A. Cançado Trindade, El Derecho de Acceso a la Justicia en Su Amplia Dimensión, 2nd. ed., Santiago de
Chile, Ed. Librotecnia, 2012, pp. 79-574; A.A. Cançado Trindade, The Access of Individuals to International Justice,
Oxford, Oxford University Press, 2011, pp. 1-236.
51 Cf. A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol. III, Porto Alegre,
S.A. Fabris Ed., 2003, pp. 80-83; 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, “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, “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.
52 Cf., e.g., inter alia, A.A. Cançado Trindade, Princípios do Direito Internacional Contemporâneo, 2nd. rev. ed.,
Brasília, FUNAG, 2017, pp. 25-454; A.A. Cançado Trindade, “Foundations of International Law: The Role and
Importance of Its Basic Principles”, in XXX Curso de Derecho Internacional Organizado por el Comité Jurídico
Interamericano - OAS (2003) pp. 359-415.
53 A.A. Cançado Trindade, Os Tribunais Internacionais e a Realização da Justiça, 2nd. ed., Belo Horizonte, Edit.
Del Rey, 2017, pp. 29-468.
54 Cf. A.A. Cançado Trindade, A Visão Humanista da Missão dos Tribunais Internacionais Contemporâneos, The
Hague/Fortaleza, IBDH/IIDH, 2016, pp. 11-283; A.A. Cançado Trindade, Los Tribunales Internacionales
Contemporáneos y la Humanización del Derecho Internacional, Buenos Aires, Ed. Ad-Hoc, 2013, pp. 7-185.
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79. It ineluctably encompasses provisional measures of protection. In my Dissenting Opinion
appended to the ICJ’s Order of 28.05.2009 in the case of the Obligation to Prosecute or Extradite
(Belgium versus Senegal), I warned inter alia that “[i]t is imperative to reduce or bridge the
décalage between the time of victimized human beings and the time of human justice” (para. 49).
Subsequently, I devote the whole of my Separate Opinion (paras. 1-117) appended to the ICJ’s
Order of 18.07.2011 in the case of the Temple of Préah Vihéar (Cambodia versus Thailand) to
distinct aspects of the temporal dimension in international law and its incidence on the granting of
provisional measures of protection55.
80. After all, it is in the nature of Law to accompany the regulatory function in society
undergoing changes, - contrary to what legal positivists assume in their static view of the legal
order. The evolution of international law - acknowledged by the ICJ in an obiter dictum of its
célèbre Advisory Opinion on Namibia (of 21.06.1971, para. 53) - responds to the changing needs
of all subjects of international law (including individuals) and of the international community as a
whole.
81. The evolving international law is permeated by a major enigma, which, for its part, also
permeates the existence of all subjects of law (including individuals): the passage of time.
International law, emerging ultimately from human conscience, - the universal juridical conscience,
- also has a protective function endowed with a preventive dimension, as illustrated by the
significant expansion of provisional measures of protection in recent years56. Keeping the passage
of time in mind, it is important to prevent or avoid harm that may occur in the future (hence the
acknowledgment of potential or prospective victims), as well as to put an end to continuing
situations already affecting individual rights. Past, present and future come and go together.
XI. PROVISIONAL MEASURES OF PROTECTION IN CONTINUING SITUATIONS.
82. In the present case of Application of the CERD Convention (Qatar versus UAE), at this
stage of request of provisional measures of protection, there are some other considerations that I
deem it fit to present, in this Separate Opinion, with regard to the alleged continuing situation in
breach of human rights, in addition to those I have already made (cf. section VI.3, supra). Even if
the evidence already presented to the ICJ so far may appear insufficient, there are sources of it that
may be regarded relevant to the consideration of such continuing situation at this stage.
83. In this respect, for example, the Report of the United Nations Office of the High
Commissioner for Human Rights (OHCHR - of December 2017)57, - brought to the attention of the
ICJ in the present proceedings, - gave an account of a continuing situation (an “ongoing crisis on
human rights”, with “continuing implications”, and “cases of temporary or potentially durable
55 I pondered inter alia that, when the protection by means of provisional measures is intended to extend to “the
spiritual needs of human beings”, bringing to the fore, as in the cas d’espèce, “the safeguard of cultural and spiritual
world heritage”, the time dimension is even wider, bringing back “timelessness” (para. 101).
56 Cf. A.A. Cançado Trindade, International Law for Humankind - Towards a New Jus Gentium, 2nd. rev. ed.,
Leiden/The Hague, Nijhoff/The Hague Academy of International Law, 2013, pp. 31-34, 38-47 and 50-51.
57 The OHCHR Technical Mission visited Qatar on 17-24.11.2017, where it conducted its research on documents
provided by distinct entities, besides interviews with “about 40 individuals” (paras. 4-6).
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separation of families”, among other “long-standing human rights issues”, to the detriment, e.g., of
“migrant workers”)58.
84. The OHCHR, having decided to monitor in loco the consequences on human rights of the
UAE’s decision or announcement of 05.06.2017, reported, one semester later, on the suspension
and “considerable restrictions” on freedom of movement “to and from Qatar” (paras. 23 and 26),
with “continuing implications to date”; such restrictions disrupted family life, affected the right to
education, as Qatari students were prevented from pursuing their studies where they were
(paras. 26 and 50). The aforementioned OHCHR Report (of December 2017) referred to “cases of
temporary or potentially durable separation of families”, with all their consequences (para. 32).
85. There was also an impact on the right to health, with humanitarian consequences
(para. 43), as some people had to travel abroad to receive their medical treatment or to undergo
surgery (para. 44). As to the restrictions on freedom of expression, the OHCHR reported that the
unilateral measures have been accompanied by a “widespread defamation and hatred campaign
against Qatar and Qataris in various media” (paras. 14 and 19). The Report, furthermore, addressed
another long-standing human rights issue, affecting the rights of migrant workers and non-citizens
(paras. 54-58). The Report at last considered the restrictive unilateral measures as arbitrary
(para. 60).
86. Likewise, a Joint Communication from the U.N. Special Procedures Mandate Holders of
the U.N. Human Rights Council to the UAE59, of 18.08.2017, the Special Rapporteurs warned that
the decision announced by the UAE on 05.06.2017 “has threatened the most vulnerable groups,
including women, children, persons with disabilities and older persons” (p. 1). It has, furthermore, -
it continued, - led to the separation of families, the interruption of studies in schools or universities,
and has also affected the right to health (pp. 2-3 and 5), among others. The Special Rapporteurs
then drew attention to “the urgency of the matter” and the “extreme gravity” of the situation, and
urged that “all necessary interim measures be taken to halt the alleged violations and prevent their
reoccurrence” (p. 7).
87. Among other reports referred to in the course of the present proceedings before the ICJ,
were those of non-governmental organizations (NGOs) with much experience at international level,
such as, inter alia, Amnesty International and Human Rights Watch. In its very recent Report (of
05.06.2018), Amnesty International referred to the situation of continuity harming separated
families, and individuals (among whom migrant workers, children and students)60. Accordingly, it
58 Paragraphs 4(i), 26, 32-33 and 54, respectively. The Report reiteratedly referred to the problem of continuing
separations of families (paras. 32-33, 37 and 64). It warned that “measures targeting individuals on the basis of their
Qatari nationality or their links with Qatar can be qualified as non-disproportionate and discriminatory” (para. 61). It
further warned that such unilateral measures were “premeditated” and “accompanied by a widespread defamation and
hatred campaign” (paras. 14-15).
59 Namely: Special Rapporteur on the human rights of migrants; Special Rapporteur on the promotion and
protection of the right to freedom of opinion and expression; Special Rapporteur on the right of everyone to the
enjoyment of the highest attainable standard of physical and mental health; Special Rapporteur on contemporary forms of
racism, racial discrimination, xenophobia and related intolerance; Special Rapporteur on the promotion and protection of
human rights while countering terrorism; and Special Rapporteur on the right to education (pursuant to U.N. Human
Rights Council resolutions 34/18, 33/9, 34/21, 34/35, 31/3, and 26/17).
60 Amnesty International, [Report:] One Year Since the Gulf Crisis, Families are Left Facing an Uncertain
Future, of 05.06.2018, p. 1.
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called upon the States concerned61 to “immediately lift all arbitrary restrictions” imposed on Qatari
nationals, and to respect human rights62.
88. For its part, Human Rights Watch, in its earlier Report (of 12.07.2017), likewise warned
against “human rights violations” in the separation of families, the deprivation of migrant workers,
the discrimination against women, the interruption of medical treatment, and the interruption of
education63. Both Human Rights Watch and Amnesty International have provided accounts, in their
respective reports, of information obtained from interviews with those victimized in loco.
89. In effect, the continuing situation in breach of human rights is a point which has had an
incidence in other cases before the ICJ as well, at distinct stages of the proceedings. May I briefly
recall here three examples, along the last decade. In the case concerning the Obligation to
Prosecute or Extradite (Belgium versus Senegal), as the ICJ in its Order of 28.05.2009 decided not
to indicate provisional measures, I appended thereto a Dissenting Opinion, wherein - as already
pointed out (para. 79, supra) - I drew attention to the décalage to be bridged between the time of
human beings and the time of human justice (paras. 35-64).
90. Urgency and probability of irreparable damage, - I proceeded, - were quite clear, in the
continuing situation of lack of access to justice of the victims of the Hissène Habré regime (1982-
1990) in Chad. This right of access to justice assumed a “paramount importance” (paras. 29 and 74-
77), - I added, - in the cas d’espèce, under the U.N. Convention against Torture; furthermore, I
dwelt upon the component elements of the autonomous legal regime of provisional measures of
protection (paras. 8-14, 26-29 and 65-73). Such measures were necessary for the safeguard of the
right to the realization of justice (paras. 78-96 and 101).
91. In the case on Jurisdictional Immunities of the State (Germany versus Italy), as the ICJ,
in its Order of 06.07.2010 found the counter-claim of Italy inadmissible, once again I appended
thereto a Dissenting Opinion, wherein I examined at depth the notion of “continuing situation” in
the factual context of the cas d’espèce, as debated between the contending parties (paras. 55-59 and
92-100). My Dissenting Opinion encompassed the origins of a “continuing situation” in
international legal doctrine (paras. 60-64); the configuration of a “continuing situation” in
international litigation and case-law (paras. 65-83); the configuration of a “continuing situation” in
international legal conceptualization at normative level (paras. 84-91).
92. And, once again, I warned against the pitfalls of State voluntarism (paras. 101-123).
Suffice it here only to refer to my lengthy reflections on the notion of “continuing situation” in the
case on Jurisdictional Immunities of the State, as I see no need to reiterate them expressis verbis
herein. What cannot pass unnoticed is that a continuing situation in breach of human rights has had
an incidence at distinct stages of the proceedings before the ICJ: in addition to decisions - as just
seen - on provisional measures and counter-claim (supra), it has also been addressed in decision as
to the merits.
93. This is illustrated by the aforementioned case of A.S. Diallo (Guinea versus D.R. Congo,
merits, Judgment of 30.11.2010). Its factual context disclosed a continuing situation of breaches of
Mr. A.S. Diallo’s individual rights in the period extending from 1988 to 1996. The griefs suffered
61 The UAE, Saudi Arabia and Bahrain.
62 Amnesty International, op. cit. supra n. (60), p. 3.
63 Human Rights Watch, [Report:] “Qatar: Isolation Causing Rights Abuses”, of 12.07.2017, pp. 1, 3-4 and 6-10.
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by the victim extended in time (the arrests and detentions of 1988-1989 followed by those of 1995-
1996, prior to his expulsion from the country of residence), in breach of the relevant provisions of
human rights treaties (the U.N. Covenant on Civil and Political Rights and the African Charter on
Human and Peoples’ Rights) as well as Article 36(1)(b) of the Vienna Convention on Consular
Relations). His griefs were surrounded by arbitrariness on the part of State authorities64, and
amounted to a wrongful continuing situation, marked by the prolonged lack of access to justice.
XII. EPILOGUE: A RECAPITULATION.
94. This is, as seen, the third case under the CERD Convention in which provisional
measures of protection have been rightly ordered by the ICJ, in this new era of its international
adjudication of human rights cases. The fact that a case is an inter-State one, characteristic of the
contentieux before the ICJ, does not mean that the Court is to reason likewise on a strictly interstate
basis. Not at all. It is the nature of a case that will call for a reasoning, so as to reach a
solution. The present case of Application of the CERD Convention (Qatar versus UAE) concerns
the rights protected thereunder, which are the rights of human beings, and not rights of States.
95. This has a direct bearing on the consideration of a request for provisional measures of
protection under a human rights Convention. Provisional measures, with a preventive dimension,
have been undergoing a significant evolution, moving further towards the consolidation of the
autonomous legal regime of their own, to the benefit of the titulaires of rights. In another
endeavour to keep paving this path, may I, last but not least, proceed to a brief recapitulation of the
main points I deemed it fit to make, particularly in respect of such provisional measures, under the
CERD Convention, in the course of the present Separate Opinion.
96. Primus: The principle of equality and non-discrimination lies in the foundations of the
rights protected under the CERD Convention also by means of provisional measures. The historical
formation of the corpus juris of international protection of human rights has much contributed to a
growing awareness of the importance of the prevalence of the basic principle of equality and nondiscrimination.
Secundus: The work of U.N. supervisory organs - among which the CERD
Committee - bears witness of such growing awareness.
97. Tertius: It is necessary nowadays that the advances in respect of the basic principle of
equality and non-discrimination, at normative and jurisprudential levels, are also accompanied by
the international legal doctrine, which so far has not dedicated sufficient attention to that
fundamental principle. Quartus: The protection sought under the CERD Convention is also against
arbitrariness, as in the cas d’espèce. This point has not escaped the attention of other international
tribunals, entrusted with the interpretation and application of distinct human rights Conventions.
64 At the time of his arrests and detention. Mr. A.S. Diallo was not informed of the charges against him, nor could
he have availed himself without delay of his right to information on consular assistance. - For its part, the CERD
Committee, in its practice, has also been particularly attentive to the prohibition of discriminatory measures against
members of vulnerable groups (such as, e.g., migrants); cf. R. de Gouttes, “Regards comparatifs sur deux organes
internationaux chargés de la lutte contre le racisme: le Comité des Nations Unies pour l´Élimination de la Discrimination
Raciale (CERD) et la Commission Européenne contre le Racisme et l´Intolérance (ECRI)”, in Réciprocité et universalité:
Sources et regimes du Droit international des droits de l´homme - Mélanges en l´honneur du Prof. E. Decaux, Paris,
Pédone, 2017, pp. 1015-1022, esp. pp. 1017 and 1020.
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98. Quintus: Human rights treaties, - including the CERD Convention, conform a Law of
protection (a droit de protection), oriented towards the safeguard of the ostensibly weaker party
(the real or potential victim), and the prohibition of arbitrary measures, so as also to secure the
prevalence of the rule of law (la prééminence du droit). Sextus: As to the points discussed in the
present proceedings of the cas d’espèce, there are two of them that require clarification: the
rationale of the local remedies rule in the international protection of human rights, and the
implications of a continuing situation affecting or breaching human rights.
99. Septimus: The local remedies rule, as a condition of admissibility of international claims,
cannot be invoked as a “precondition” for the consideration of urgent requests of provisional
measures of protection. Octavus: The rationale of the local remedies rule in human rights
protection is entirely distinct from that of its application in the practice of diplomatic protection of
nationals abroad: in human rights protection the rule is focused on effectiveness of local remedies
and redress, while in diplomatic protection it is focused on the process of exhaustion of such
remedies.
100. Nonus: The CERD Committee itself has underlined the components of effectiveness of
local remedies and redress. Human rights protection is victim-oriented, it is a Law of protection of
the weaker party (droit de protection), as upheld by international human rights tribunals;
discretionary diplomatic protection, for its part, remains State-oriented. Decimus: There is no
ground for attempting to add, to the so-called “plausibility” of rights, the so-called “plausibility” of
admissibility, as an additional “precondition” for provisional measures of protection.
101. Undecimus: In a continuing situation, the rights requiring protection are clearly known,
their being no sense to wonder whether they are “plausible”. Duodecimus: The proper
understanding of compromissory clauses under human rights Conventions is necessarily attentive
to the nature and substance of those Conventions, as well as to their object and purpose; such
clauses cannot be interpreted attempting to find “preconditions”, rendering access to justice under
human rights Conventions particularly difficult.
102. Tertius decimus: The aforementioned prohibition of arbitrariness brings to the fore the
issue of the vulnerability of those affected by discriminatory measures; requests of provisional
measures of protection, in cases like the present, are intended to put an end to a continuing situation
of vulnerability of the affected persons (potential victims). Quartus decimus: Human vulnerability
is a test more compelling than so-called ‘plausibility’ of rights for the ordering of provisional
measures of protection under human rights treaties.
103. Quintus decimus: There has been an advance towards the consolidation of what I have
been calling, along the years, the autonomous legal regime of provisional measures of protection.
Sextus decimus: Provisional measures of protection have, in recent years, been protecting growing
numbers of persons in situations of vulnerability; they have thus been transformed into a true
jurisdictional guarantee of preventive character. Septimus decimus: Such preventive character
brings to the fore the temporal dimension in the application of the provisional measures of
protection, e.g., when they are intended, as in the present case, to put an end to a continuing
situation affecting individual rights.
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104. Duodevicesimus: In respect of the present case, there have been U.N. reports and other
documents giving accounts of a continuing situation affecting human rights under the CERD
Convention. Undevicesimus: The continuing situation in breach of human rights is a point which
has had an incidence in earlier cases before the ICJ as well, at distinct stages of the proceedings.
Vicesimus: The determination and ordering of provisional measures of protection under human
rights Conventions can only be properly undertaken from a humanist perspective, necessarily
avoiding the pitfalls of an outdated and impertinent State voluntarism.
(Signed) Antônio Augusto CANÇADO TRINDADE.
___________