                    189

                                           SEPARATE OPINION
                                      OF JUDGE CANÇADO TRINDADE

                                               table of contents
                                                                                Paragraphs

                         I. Introduction                                                   1-3
                        II. “Implied” and “Inherent Powers” Revisited : Some Preci-
                            sions4-6
                        III. Kompetenz Kompetenz/La Compétence de la Compé-
                             tence, Inherent to the Exercise of the International
                             Judicial Function                                             7-9
                        IV. The Sound Administration of Justice, and Joinders avant
                            la lettre10-12

                        V. The Idea of Justice Guiding the Sound Administration of
                           Justice13-18
                        VI. The Sound Administration of Justice and the Procedural
                            Equality of the Parties                                     19-23
                    VII. Epilogue : Final Considerations                                24-27

                                                        *

                                                I. Introduction

                       1. I have concurred with my vote to the adoption by the International
                    Court of Justice (ICJ) of its Order of today, 17 April 2013, whereby it
                    decides to join the proceedings in the present case concerning Construc‑
                    tion of a Road in Costa Rica along the San Juan River (Nicaragua v.
                    Costa Rica) with the proceedings in the case concerning Certain Activities
                    Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua).
                    The ratio decidendi in the present decision of the Court (paras. 13‑17) is
                    clear ; yet, it touches on foundations which have not been examined or
                    developed by the Court in the present Order, and to which I attach great
                    importance. I feel thus obliged to leave on the records my reflections
                    thereon, in support of my personal position on the matter.
                       2. I shall, first, address the issue of “implied” and “inherent powers”,
                    so as to provide some precisions in respect of the exercise of the interna-

                    9

5 CIJ1044.indb 54                                                                                11/04/14 10:56

                    190 	     construction of a road (sep. op. cançado trindade)

                    tional judicial function. Secondly, I shall dwell upon the issue of the Kom‑
                    petenz Kompetenz/la compétence de la compétence, inherent to the exercise
                    of the international judicial function. Thirdly, I shall review the sound
                    administration of justice, and focus attention on joinders effected by the
                    Hague Court (PCIJ and ICJ) avant la lettre. Fourthly, I shall consider
                    what I perceive as the idea of justice guiding the sound administration of
                    justice (la bonne administration de la justice). And fifthly, I shall examine
                    the sound administration of justice (la bonne administration de la justice)
                    and the procedural equality of the parties. The way will then be paved for
                    the presentation, in the epilogue, of my brief final considerations.
                       3. It is not my intention, in the following consideration of these issues,
                    to be exhaustive ; I could hardly be so, writing this separate opinion, as I
                    have been, under the merciless and unnecessary pressure of time. I do so,
                    struggling stubbornly against time, moved by a sense of duty, and endeav-
                    ouring to provide the reasoning which I can hardly find in the present
                    Order in support of the decision taken. The ratio decidendi, yes, it is in the
                    Order, but I cannot behold therein the obiter dicta supporting it. As I
                    have concurred with the Court’s decision in the present Order, I feel
                    bound to take the care to elaborate on the foundations of the matter dealt
                    with, the way I perceive and conceive them.

                                        II. “Implied” and “Inherent Powers”
                                              Revisited : Some Precisions

                       4. May I begin by making a brief incursion, for a specific purpose, into
                    the law of international organizations, which — may I observe in pas‑
                    sim — marks its discreet presence in the present Order (para. 3). With the
                    rise of international organizations, the conceptions of “inherent powers”
                    as well as “implied powers” took shape in that context, with the contribu-
                    tion of the case law of the ICJ. One year after the Advisory Opinion of
                    the ICJ in respect of Certain Expenses of the United Nations (Article 17,
                    paragraph 2, of the Charter) (of 20 July 1962), the doctrinal formulation
                    of F. Seyersted (1963) found the light of the day 1, invoking the “inherent
                    powers” of the UN, and seeking to demonstrate them, by means of an
                    arguable analogy — which promptly attracted criticisms — with the legal
                    position of States.

                       5. After all, the ICJ itself had clarified, in its celebrated obiter dictum in
                    the Advisory Opinion on Reparations for Injuries Suffered in the Service
                    of the United Nations (of 11 April 1949), that while the State is endowed
                    with the totality of rights and duties recognized by international law, the
                    rights and duties of an entity such as the UN ought to depend on the
                    purposes and functions, specified or implicit in their constitutive docu-

                      1 F. Seyersted, Objective International Personality of Intergovernmental Organizations,

                    Copenhagen, 1963, pp. 28‑29, 35‑36, 40, 45‑46.

                    10

5 CIJ1044.indb 56                                                                                11/04/14 10:56

                    191 	     construction of a road (sep. op. cançado trindade)

                    ments and developed in practice 2. The ICJ thus espoused to the doctrine
                    of “implied powers” 3, surely distinct from that of “inherent powers”,
                    inspired in an analogy with comparative constitutional law.

                       6. While the doctrinal construction of “implied powers” was intended
                    to set up limits to powers transcending the letter of constitutive charters —
                    limits found in the purposes and functions of the international organiza-
                    tion at issue 4 — the doctrinal construction of “inherent powers”, quite
                    distinctly, was intended to assert the powers of the juridical person at issue
                    for the accomplishment of its goals, as provided for in its constitutive
                    charter. The point I wish here to make is that the same expression —
                    “inherent powers” — has at times been invoked in respect of the operation
                    of international judicial entities ; yet, though the expression is the same, its
                    rationale and connotation are different, when it comes to be employed by
                    reference to international tribunals. Another precision is here called for,
                    for a proper understanding of the operation of these latter. Understanding
                    and operation go hand in hand : ad intelligendum et ad agendum.

                                  III. Kompetenz Kompetenz/La Compétence
                                  de la Compétence, Inherent to the Exercise
                                     of the International Judicial Function

                       7. International tribunals, to start with, are endowed with competence
                    to resolve any controversy raised with regard to their own jurisdictions :
                    this amounts to a basic principle of international procedural law 5. As
                    master of its own jurisdiction, the international tribunal concerned has
                    the compétence de la compétence (Kompetenz Kompetenz). Such power of
                    determination is inherent to every contemporary international tribunal,
                    responding to an imperative of juridical security : it goes without saying
                    that the determination of the scope of its own jurisdiction belongs to the
                    international tribunal concerned, as it cannot be left in the hands, and at
                    the mercy, of the contending parties. In any circumstances, the interna-
                    tional tribunal concerned is master of its own jurisdiction 6.
                       8. International tribunals, as courts of law, judicial entities, stand on a
                    firmer ground than arbitral tribunals, in so far as the determination of

                         2
                         I.C.J. Reports 1949, p. 180.
                         3
                         Cf. also, subsequently, its Advisory Opinion of 13 July 1954, on the Effect of Awards
                    of Compensation Made by the United Nations Administrative Tribunal, wherein the ICJ
                    again dwelt on the doctrine of “implied powers”.
                       4 Thereby not attributing carte blanche to this latter ; cf. Rahmatullah Khan, Implied

                    Powers of the United Nations, Delhi/Bombay/Bangalore, Vikas Publishing, 1970, pp. 1‑222.
                       5 IACtHR, case of Hilaire, Benjamin and Constantine and Others v. Trinidad and

                    Tobago (preliminary objections, judgment of 1 September 2001), separate opinion of Judge
                    A. A. Cançado Trindade, paras. 2 and 15.
                       6 IACtHR, case of Barrios Altos v. Peru (judgment of 14 March 2001), concurring

                    opinion of Judge A. A. Cançado Trindade, para. 2.

                    11

5 CIJ1044.indb 58                                                                                11/04/14 10:56

                    192 	     construction of a road (sep. op. cançado trindade)

                    their competence is concerned. They are the guardians and masters of their
                    own respective jurisdiction (jurisdiction, jus dicere, the prerogative or
                    power to declare the law). In this way, they discard permissive practices
                    (remnant of international arbitrations of the past), and preserve the integ-
                    rity of their own jurisdiction. Contending parties, on their turn, are bound
                    to comply with their conventional obligations (of a substantive as well as
                    of a procedural nature), so as to secure to the conventional provisions at
                    issue their proper effects in their respective domestic legal orders. This also
                    corresponds to a general principle of law — ut res magis valeat quam
                    pereat —, widely known as the principle of effectiveness (of effet utile) 7.
                       9. The compétence de la compétence (Kompetenz Kompetenz) of inter-
                    national tribunals extends to the interpretation of the provisions of their
                    respective jurisdictional instruments, as well as to the determination of the
                    nature of the controversy at issue and the characterization of its factual
                    context ; moreover, the prerogative of international tribunals to determine
                    their own jurisdiction starts at the time they are seized of the disputes at
                    issue 8. The ICJ itself stated, six decades ago, in its Judgment (of 18 Novem-
                    ber 1953) in the Nottebohm case, that the compétence de la compétence
                         “assumes particular force when the international tribunal is no longer
                         an arbitral tribunal constituted by virtue of a special agreement
                         between the parties for the purpose of adjudicating on a particular
                         dispute, but is an institution which has been pre‑established by an
                         international instrument defining its jurisdiction and regulating its
                         operation and is (. . .) the principal judicial organ of the United Nations”
                         (Nottebohm (Liechtenstein v. Guatemala), Preliminary Objection,
                         Judgment, I.C.J. Reports 1953, p. 119).

                                     IV. The Sound Administration of Justice,
                                          and Joinders avant la lettre

                      10. Thus, keeping these precisions in mind, may I briefly recall that the
                    ICJ developed its practice on joinder of proceedings well before the insti-
                    tute of joinder was enshrined, in 1978, into the Rules of Court (Art. 47) 9.

                       7 For examples of the preservation, by contemporary international tribunals, of the

                    integrity of their own jurisdiction, cf. A. A. Cançado Trindade, El Ejercicio de la Función
                    Judicial Internacional — Memorias de la Corte Interamericana de Derechos Humanos,
                    2nd ed., Belo Horizonte/Brazil, Edit. Del Rey, 2013, pp. 5‑10, 29-52, 145-149 and 215.
                       8 I. F. I. Shihata, The Power of the International Court to Determine Its Own Jurisdic‑

                    tion, The Hague, Martinus Nijhoff, 1965, pp. 1‑304.
                       9 Article 47 of the Rules of Court provides that :

                            “The Court may at any time direct that the proceedings in two or more cases be
                         joined. It may also direct that the written or oral proceedings, including the calling
                         of witnesses, be in common ; or the Court may, without effecting any formal joinder,
                         direct common action in any of these respects.”

                    12

5 CIJ1044.indb 60                                                                                11/04/14 10:56

                    193 	     construction of a road (sep. op. cançado trindade)

                    By then, the Court counted only on a very general provision of its Stat-
                    ute, on its prerogative to deliver Orders for the conduct of the case at
                    issue (Art. 48). References can be made to its decisions on joinders in the
                    South West African cases (1961), and the North Sea Continental Shelf
                    cases (1968) 10. The joinders effected by the ICJ on those occasions tran-
                    scended the letter of its interna corporis. The Court was guided by its
                    awareness of the sound administration of justice.
                       11. These two decisions of the ICJ were preceded by three other deci-
                    sions of its predecessor, the PCIJ, in the cases of Certain German Interests
                    in Polish Upper Silesia (1926), the Legal Status of the South‑Eastern Ter‑
                    ritory of Greenland (1932), and the Appeals from Certain Judgments of the
                    Hungaro‑Czechoslovak Mixed Arbitral Tribunal (1933). Thus, both the
                    PCIJ and the ICJ ordered the joinder of proceedings avant la lettre,
                    despite the absence of an express provision on it in their interna corporis.
                    They ordered the joinder as a measure of judicial administration, so as to
                    secure the sound administration of justice (la bonne administration de la
                    justice), well before the institute of joinder was at last inserted, and found
                    its place, in the 1978 ICJ’s Rules of Court.
                       12. In the course of the proceedings, the Court may be faced with a
                    situation which requires from it a decision (at procedural level), even if it
                    does not squarely fit into its interna corporis. This has often happened in
                    practice, — and the aforementioned decisions are not exhaustive. As early
                    as in 1937, G. Morelli perspicaciously pondered that “[s]ettling a legal
                    dispute means substituting certainty for uncertainty regarding the existing
                    legal situation” 11. And he added, in his sharp criticism of State volun-
                    tarism, that the generation of legal effects cannot be subsumed under the
                    “will” of States, or under what they agree upon inter se ; legal effects of
                    the international corpus juris stand “above the will of States” (“au‑dessus
                    de la volonté des Etats”) 12.

                                             V. The Idea of Justice
                                   Guiding the Sound Administration of Justice

                      13. In recent times, much discussion has taken place as to whether the
                    sound administration of justice (la bonne administration de la justice) is a
                    maxim or a principle, or whether such a distinction is immaterial 13. Be that

                       10 Yet, in the Fisheries Jurisdiction cases (1972) and the Nuclear Test cases (1973),

                    however, the ICJ decided not to join the proceedings.
                       11 G. Morelli, “La théorie générale du procès international”, 61 Recueil des cours de

                    l´Académie de droit international de La Haye (1937), p. 260 [translation by the Registry].
                       12 Ibid., p. 263.
                       13 Cf., inter alia, e.g., R. Kolb, “Les maximes juridiques en droit international

                    public : questions historiques et théoriques”, 32 Revue belge de droit international (1999),
                    pp. 407‑434 ; A. Lelarge, “L’émergence d’un principe de bonne administration de la justice
                    internationale dans la jurisprudence internationale antérieure à 1945”, 27 L’observateur des
                    Nations Unies (2009), pp. 23‑51.

                    13

5 CIJ1044.indb 62                                                                                11/04/14 10:56

                    194 	     construction of a road (sep. op. cançado trindade)

                    as it may, if it flourished as a maxim, this latter clearly gave expression to a
                    principle. The proper exercise of the international judicial function requires
                    the blend of logic and experience (la sagesse et l’expérience), deeply‑rooted
                    in legal thinking (of comparative domestic law and of international law).
                    Such blend of logic and experience seeks to secure the sound administration
                    of justice. Positivists try in vain to subsume this latter under the interna
                    corporis of the international tribunal at issue, in their well‑known incapac-
                    ity to explain anything that transcends the regulatory texts.
                       14. I have already referred to joinders effected by the ICJ avant la lettre,
                    despite the absence of an express provision regulating the matter, and
                    before the institute of joinder was inserted into the Rules of Court
                    (cf. supra). In my understanding, the Court did not do so pursuant to an
                    “implied power” ensuing from the regulatory texts, but rather, and more
                    precisely, pursuant to an “inherent power”, proper to the exercise of the
                    international judicial function. It is an “inherent power” of the interna-
                    tional tribunal concerned to see to it that the procedure functions prop-
                    erly, so that justice is done and is seen to be done. It is an “inherent power”
                    of an international tribunal such as the ICJ to see to it that the procedure
                    operates in a balanced way, ensuring procedural equality and the guaran-
                    tees of due process, so as to preserve the integrity of its judicial function.
                       15. The sound administration of justice enables the international tribu-
                    nal at issue to tackle questions of procedure even if these latter have
                    “escaped” the regulations of its interna corporis. It is, in my perception,
                    the idea of an objective justice that, ultimately, guides the sound adminis-
                    tration of justice (la bonne administration de la justice), in the line of jus-
                    naturalist thinking. The proper pursuit of justice is in conformity with the
                    general principles of law. With the reassuring evolution and expansion of
                    judicial settlement in recent decades, there has been, not surprisingly, an
                    increasing recourse to the maxim la bonne administration de la justice —
                    which gives expression to a general principle of law, captured by human
                    conscience 14.

                       16. Writing at the time of the emergence and consolidation of judicial
                    settlement of international disputes, M. Bourquin pondered that many
                    international controversies pertained to a disagreement, not as to the inter-
                    pretation or application of positive law (jus positum), but rather as to the
                    value of that law. Accordingly, the exercise of the international judicial
                    function is not — cannot be — limited to a simple application of positive
                    law in the cas d’espèce ; there is a certain element of creativity inherent to it,
                    and there are always “superior principles of justice” to be kept in mind 15.

                       14 On human conscience — the universal juridical conscience — as the ultimate

                    material source of international law, cf. A. A. Cançado Trindade, International Law for
                    Humankind — Towards a New Jus Gentium, 1st ed., Leiden/The Hague, Martinus Nijhoff/
                    The Hague Academy of International Law, 2010, Chap. VI, pp. 139‑161.
                       15 M. Bourquin, “Stabilité et mouvement dans l’ordre juridique international”, 64 Recueil

                    des cours de l’Académie de droit international de La Haye (1938), pp. 371, 408 and 422.

                    14

5 CIJ1044.indb 64                                                                                11/04/14 10:56

                    195 	     construction of a road (sep. op. cançado trindade)

                       17. The proper handling of international procedure is thus endowed
                    with particular relevance. After all, we are here confronted with common
                    sense, which often appears to be the least common of all senses. As to
                    such proper handling of international procedure, for the sake of the real-
                    ization of justice, M. Bourquin deemed it fit to warn that

                            “The quality of procedures is undoubtedly a factor which must be
                         taken into account. The right procedure helps resolve any difficulties.
                         The wrong procedure, on the other hand, does more harm than good.
                         However, a mechanism, even one that is exceptionally well designed,
                         cannot of itself suffice to resolve such an issue. What is required above
                         all here is a certain mindset, one from which we seem, unfortunately,
                         to be far removed. What is required is calm reason ; in other words,
                         that simple yet rare thing called common sense.” 16

                       18. An international tribunal such as the ICJ has the “inherent power”
                    to take motu propio the measures necessary to secure the sound adminis-
                    tration of justice. In doing so, ex officio, the Court is exercising its compé‑
                    tence de la compétence, a prerogative which is “essentially inherent in its
                    judicial function” 17. International legal procedure has a specificity and a
                    dynamics of its own, and general principles of law applicable therein are
                    not to be assumed to be identical, in operation, to those sedimented in
                    national legal systems 18. Positivists, anyway, do not feel at ease with gen-
                    eral principles of law ; they thus keep on trying, repetitiously and in vain,
                    to minimize their presence and relevance.

                                    VI. The Sound Administration of Justice
                                   and the Procedural Equality of the Parties

                       19. The sound administration of justice (la bonne administration de la jus‑
                    tice) is not an isolated illustration of the kind — of the incidence and rele-
                    vance of a general principle. Other such examples could be recalled, such as,
                    inter alia, that of the maxim audiatur et altera pars (or audi alteram partem),
                    which gave expression to the general principle of law providing for proce‑

                        16 M. Bourquin, “Stabilité et mouvement dans l’ordre juridique international”, op. cit.

                    supra note 15, p. 472 [translation by the Registry].
                        17 M. Kawano, “The Administration of Justice by the International Court of

                    Justice and the Parties”, Multiculturalism and International Law — Essays in Honour of
                    Edward McWhinney (eds. Sienho Yee and J.‑Y. Morin), Leiden, Martinus Nijhoff, 2009,
                    pp. 298‑299, and cf. pp. 286 and 293‑294.
                        18 A word of caution has been uttered as to such an analogy ; cf., e.g., H. von Mangoldt,

                    “La comparaison des systèmes de droit comme moyen d’élaboration de la procédure des
                    tribunaux internationaux”, 40 Zeitschrift für ausländisches öffentliches Recht und Völker‑
                    recht (1980), pp. 554‑572.

                    15

5 CIJ1044.indb 66                                                                                11/04/14 10:56

                    196 	     construction of a road (sep. op. cançado trindade)

                    dural equality between the contending parties in the course of judicial pro-
                    ceedings 19. Another principle, of international procedural law, is that of jura
                    novit curia : originated in Roman law (civil procedure, as from the seven-
                    teenth century), it acknowledges the freedom and autonomy of the judge in
                    searching for and determining the law applicable to a given dispute, without
                    being restrained by the arguments of the parties. The examples abound.
                       20. In my perception, the presence of the idea of justice, guiding the
                    sound administration of justice, is ineluctable. Not seldom the text of the
                    Court’s interna corporis does not suffice ; in order to impart justice, in cir-
                    cumstances of this kind, an international tribunal such as the ICJ is guided
                    by the prima principia. To attempt to offer a definition of the sound admin-
                    istration of justice that would encompass all possible situations that could
                    arise would be far too pretentious, and fruitless. An endless diversity of
                    situations may be faced by the ICJ, leading it — in its pursuit of the realiza-
                    tion of justice — to deem it fit to have recourse to the principle of the sound
                    administration of justice (la bonne administration de la justice) ; this general
                    principle, in sum, finds application in the most diverse circumstances.
                       21. Moving from the general to the particular, the incidence or applica-
                    tion of this general principle has enabled international tribunals to secure
                    the procedural equality of the contending parties. The ICJ has, on succes-
                    sive occasions, expressed its concern as to the need to secure such proce-
                    dural equality. Thus, in its most recent Advisory Opinion, of 1 February
                    2012, on the Judgment No. 2867 of the Administrative Tribunal of the Inter‑
                    national Labour Organization upon a Complaint Filed against the Interna‑
                    tional Fund for Agricultural Development, the ICJ insisted on “the right to
                    equality in the proceedings” (I.C.J. Reports 2012 (I), p. 24, para. 30), on
                    “the principle of equality before the Court” as “a central aspect of the
                    good administration of justice” (ibid., pp. 25 and 29, paras. 35 and 44), on
                    “equality of access” to justice (ibid., pp. 26‑27, 29 and 31, paras. 37, 39, 43
                    and 48), on “the concept of equality before courts and tribunals” (ibid.,
                    pp. 26‑27, paras. 38 and 40), on the guarantee of “equal access and equal-
                    ity of arms” (ibid., p. 27, para. 39), on “the principle of equality in the
                    proceedings before the Court, required by its inherent judicial character
                    and by the good administration of justice” (ibid., p. 30, para. 47).
                       22. In my separate opinion (ibid., pp. 81‑93, paras. 82‑118) appended
                    to this recent Advisory Opinion of the ICJ of 2012, I have dwelt in depth
                    upon the imperative of securing the equality of the parties in the interna-
                    tional legal process. Earlier on, the Court itself related the “principle of
                    procedural fairness” to the “sound administration of justice” (case con-
                    cerning the Legality of Use of Force (Serbia and Montenegro v. Belgium),
                    Preliminary Objections, Judgment, I.C.J. Reports 2004 (I), p. 325,
                    para. 116). Almost two decades earlier, the ICJ stated that “the equality
                    of the parties to the dispute must remain the basic principle for the Court”
                    (Military and Paramilitary Activities in and against Nicaragua (Nicaragua

                       19 Bin Cheng, General Principles of Law as Applied by International Courts and Tribu‑

                    nals, London, Stevens, 1953, p. 291.

                    16

5 CIJ1044.indb 68                                                                                11/04/14 10:56

                    197 	   construction of a road (sep. op. cançado trindade)

                    v. United States of America), Merits, Judgment, I.C.J. Reports 1986,
                    p. 26, para. 31). The ICJ again stressed the relevance of “the principle of
                    equality of the parties” in its Advisory Opinion of 20 July 1982, regarding
                    an Application for Review of Judgement No. 273 of the United Nations
                    Administrative Tribunal (I.C.J. Reports 1982, pp. 338‑340 and 365-366,
                    paras. 29‑32 and 79).
                       23. Three decades earlier, the ICJ had again relied upon that principle
                    in its Advisory Opinion of 23 October 1956 on Judgments of the Adminis‑
                    trative Tribunal of the ILO upon Complaints Made against Unesco (I.C.J.
                    Reports 1956, pp. 85‑86) ; on that occasion, the Court stated, in a rather
                    clumsy way, that the “principle of equality of the parties follows from the
                    requirements of good administration of justice” (ibid., p. 86). The Court,
                    in my understanding, would have been more precise had it stated that the
                    principle of equality of the parties orients or guides the requirements of
                    good administration of justice. Principles (prima principia) stand higher
                    than rules or requirements, and orient them.

                                     VII. Epilogue : Final Considerations

                      24. In its Order of joinder of the proceedings in the present case con-
                    cerning Construction of a Road in Costa Rica along the San Juan River
                    (Nicaragua v. Costa Rica) with those in the case concerning Certain
                    Activities Carried Out by Nicaragua in the Border Area (Costa Rica v.
                    Nicaragua) concerning, the ICJ has taken into due account that
                            “The two cases here concerned involve the same Parties and relate
                         to the area where the common border between them runs along the
                         right bank of the San Juan River.
                            Both cases are based on facts relating to works being carried out
                         in, along, or in close proximity to the San Juan River, namely the
                         dredging of the river by Nicaragua and the construction of a road
                         along its right bank by Costa Rica. Both sets of proceedings are
                         about the effect of the aforementioned works on the local environ-
                         ment and on the free navigation on, and access to, the San Juan River.
                         In this regard, both Parties refer to the risk of sedimentation of the
                         San Juan River.
                            In the present case and in the Costa Rica v. Nicaragua case, the
                         Parties make reference, in addition, to the harmful environmental effect
                         of the works in and along the San Juan River on the fragile fluvial
                         ecosystem (including protected nature preserves in and along the river).
                            In both cases, the Parties refer to violations of the 1858 Treaty of
                         Limits, the Cleveland Award, the Alexander Awards and the Ram
                         sar Convention.
                            A decision to join the proceedings will allow the Court to address
                         simultaneously the totality of the various interrelated and contested
                         issues raised by the Parties. (. . .)” (Paras. 13-17.)

                    17

5 CIJ1044.indb 70                                                                                11/04/14 10:56

                    198 	     construction of a road (sep. op. cançado trindade)

                       25. Such is the ratio decidendi of the present decision of the Court. Its
                    foundations lie in the realm of principles, as I have endeavoured to dem-
                    onstrate in the present separate opinion. The Kompetenz Kompetenz/la
                    compétence de la compétence of an international tribunal such as the ICJ
                    is inherent to its exercise of the international judicial function. The
                    ICJ and its predecessor, the PCIJ, have both effected joinders avant la
                    lettre, even in the absence (before 1978) of a provision to that effect in
                    their interna corporis. The idea of justice guides the sound administration
                    of justice, as manifested, e.g., in decisions aiming at securing the proce‑
                    dural equality of the contending parties.

                       26. General principles of law have always marked presence in the pur-
                    suit of the realization of justice. In my understanding, they comprise not
                    only those principles acknowledged in national legal systems 20, but like-
                    wise the general principles of international law. They have been repeat-
                    edly reaffirmed, time and time again, and — even if regrettably neglected
                    by segments of contemporary legal doctrine — they retain their full valid-
                    ity in our days. An international tribunal like the ICJ has consistently had
                    recourse to them in its jurisprudence constante. Despite the characteristic
                    attitude of legal positivism to attempt, in vain, to minimize their role, the
                    truth remains that, without principles, there is no legal system at all, at
                    either national or international level.
                       27. General principles of law inform and conform the norms and rules
                    of legal systems. In my understanding, sedimented along the years, gen-
                    eral principles of law form the substratum of the national and interna-
                    tional legal orders, they are indispensable (forming the jus necessarium,
                    going well beyond the mere jus voluntarium), and they give expression to
                    the idea of an objective justice (proper of jusnaturalist thinking), of uni-
                    versal scope. Last but not least, it is the general principles of law that
                    inspire the interpretation and application of legal norms, and also the
                    law‑making process itself 21. In the present case concerning Construction
                    of a Road in Costa Rica along the San Juan River (Nicaragua v.
                    Costa Rica), the ICJ has relied on the provision on joinder of Article 47
                    of the Rules of Court, and has significantly acknowledged that the join-
                    der it has effected was in accordance with the principle of the sound
                    administration of justice (la bonne administration de la justice) 22.

                                                (Signed) Antônio Augusto Cançado Trindade.

                       20 Cf. H. Mosler, “To What Extent Does the Variety of Legal Systems of the World

                    Influence the Application of the General Principles of Law within the Meaning of
                    Article 38 (1) (c) of the Statute of the International Court of Justice”, International Law
                    and the Grotian Heritage (Hague Colloquium of 1983), The Hague, T. M. C. Asser Insti-
                    tuut, 1985, pp. 173‑185.
                       21 A. A. Cançado Trindade, International Law for Humankind : Towards a New Jus

                    Gentium, op. cit. supra note 14, Chap. III, pp. 85‑121, esp. pp. 90‑92.
                       22 Paras. 18 and 24.

                    18

5 CIJ1044.indb 72                                                                                11/04/14 10:57