                     371

                                             SEPARATE OPINION
                                        OF JUDGE CANÇADO TRINDADE

                                                     table of contents

                                                                                Paragraphs

                          I. Introduction                                                      1‑2
                       II. Submissions of the Parties in the Course of the Present
                           Proceedings	                                                       3-19
                             1. Submissions in the written phase                               3‑5
                             2. First round of oral arguments                                 6‑11
                             3. Second round of oral arguments                               12‑15
                             4. General assessment                                           16‑19
                      III. The Configuration of the Autonomous Legal Régime of
                           Provisional Measures of Protection                                20-28
                             1. The task of international tribunals                          20‑24
                             2. A reassuring jurisprudential construction (2000‑2013)        25‑28

                      IV. The Ongoing Construction of an Autonomous Legal
                          Régime of Provisional Measures of Protection                       29‑31
                          V. Final Considerations                                            32‑40

                                                             *

                                                     I. Introduction

                        1. In its previous Order, of 16 July 2013, in the present case opposing
                     Costa Rica to Nicaragua, in which the International Court of Justice [ICJ]
                     refrained from indicating new provisional measures of protection, I pre-
                     sented a dissenting opinion expressing the foundations of my personal posi-
                     tion on the matter ; today, 22 November 2013, as the Court has now decided
                     to order new provisional measures of protection in the case concerning Cer‑
                     tain Activities Carried Out by Nicaragua in the Border Area, I have concurred
                     with my vote to the adoption of the present Order. As there are still a couple
                     of points which appear to me deserving of closer attention, I feel thus obliged
                     to leave on the records the reflections which form the present separate opin-
                     ion, wherein I care — under the merciless pressure of time — to address
                     those points and to lay the foundation of my personal position thereon.
                        2. To start with, I deem it appropriate to extract, from the corresponding
                     dossier of the present case, the submissions of the Parties which seem to me

                     21

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                     372 certain activities ; construction of a road (sep. op. cançado trindade)

                     particularly pertinent for the consideration of the new factual situation
                     brought to the attention of the Court. I shall then move onto the juridico‑
                     epistemological level, so as to focus on the questions of the configuration
                     of the autonomous legal régime (as I perceive and conceive it) of provisional
                     measures of protection. In doing so, I shall address the task of interna-
                     tional tribunals, and a reassuring jurisprudential construction (2000‑2013).
                     I shall, in sequence, overview the ongoing construction of an autonomous
                     legal régime of provisional measures of protection. The way will then be
                     paved for the presentation of my final considerations on the matter.

                                 II. Submissions of the Parties in the Course of
                                            the Present Proceedings

                                         1. Submissions in the Written Phase
                        3. May I start at the factual level. In its new request for provisional
                     measures lodged with the Court on 24 September 2013, Costa Rica stated
                     that this new request was “an independent request based on new facts”
                     (para. 4). After invoking its rights to territorial sovereignty and integrity,
                     and to non‑interference with its land and environmentally‑protected areas
                     (paras. 21‑22), Costa Rica asked the Court for four provisional measures,
                     transcribed in paragraph 15 of the present Order. The next facts brought
                     to the Court’s attention in the present request for new provisional mea-
                     sures in the cas d’espèce concerning Certain Activities Carried Out
                     by Nicaragua in the Border Area, are in fact, all of them, subsequent to
                     the Court’s previous Orders in the present case (of 8 March 2011
                     and 16 July 2013), and pertain to the construction of two “caños”, and
                     the existence of a Nicaraguan military encampment, allegedly in the “dis-
                     puted territory”.

                        4. Costa Rica argued that the new dredging and dumping activities
                     allegedly conducted by Nicaragua were affecting the disputed territory
                     and its ecology (paras. 2 and 10‑11). For its part, in a diplomatic Note
                     of 18 September 2013, Nicaragua opposed those contentions, arguing
                     that, in its previous Order of 16 July 2013, the ICJ determined that the
                     provisional measures previously indicated (on 8 March 2011) could not
                     be modified, as Costa Rica had not demonstrated urgency nor risk of
                     irreparable harm (pp. 1‑2).

                       5. The present proceedings concerning Certain Activities Carried Out
                     by Nicaragua in the Border Area have demonstrated the importance of
                     holding public sittings of the ICJ, in the matter of provisional measures,
                     for the clarification of a given factual situation. After all, to the effect of
                     the adoption of its Orders on such matters, the ICJ gathers prima facie —
                     rather than substantial — evidence (summaria cognitio), and then renders

                     22

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                     373 certain activities ; construction of a road (sep. op. cançado trindade)

                     a binding decision, as its provisional measures are endowed with a
                     conventional basis (Article 41 of its Statute).

                                            2. First Round of Oral Arguments
                       6. It was, in effect, in the oral proceedings (rather than in the written
                     phase) that the two contending Parties found the occasion to present to
                     the ICJ their submissions in a more elaborate way. The public hearings
                     of 14‑17 October 2013 were in my view essential for the clarification of
                     the position of the Parties as to the newly requested provisional measures
                     of protection lodged with the Court. I shall next review such submissions,
                     and then proceed to a general assessment of them.

                        7. In the first round of oral arguments, Costa Rica argued that, despite
                     the provisional measures of protection indicated by the Court in its Order
                     of 8 March 2011 1, and its concerns expressed in its Order of 16 July 2013,
                     “Nicaragua continues to send groups of Nicaraguan nationals to the dis-
                     puted area”, and, furthermore, “it is engaged in the construction of two
                     new caños in the northern part of Isla Portillos”, with a “real risk” of
                     creating “a fait accompli involving irreparable damage”, before the case
                     is finally settled by the ICJ 2. There has thus been, Costa Rica pro-
                     ceeded, an “egregious breach” of the provisional measures 3. Costa Rica
                     then stated that

                          “[s]ince that time, work on the Pastora first caño has been continued,
                          including by more than 10,000 Sandinista youth who have been offi-
                          cially brought to the area to further Nicaragua’s policies. (. . .) Nica-
                          raguan personnel have been in the disputed territory carrying out
                          dredging and other works, as late as 18 September 2013” 4.

                        8. After the Court’s Order of 8 March 2011, Costa Rica pro-
                     ceeded, Nicaragua “changed the existing situation by occupying the terri-
                     tory”, and continuing “to send government personnel and, in particular,
                     the head of the works, Commander Pastora, as well as numerous contin-
                     gents of Nicaraguans who, by the Respondent’s own admission, are
                     engaging in so-called ‘environmental’ activities” 5. In Costa Rica’s percep-
                     tion, “Nicaragua has resorted to a piece of ‘sophistry’”, namely, that the

                         1 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v.

                     Nicaragua), Provisional Measures, Order of 8 March 2011, I.C.J. Reports 2011 (I), p. 6.
                         2 Compte rendu (CR) 2013/24, p. 14, para. 8.
                         3 Costa Rica added that, moreover, Nicaragua announced, “at the very last moment”,

                      that “it had withdrawn from the disputed territory, though without admitting it had ever
                      been there (. . .) in the first place” (ibid., p. 34, para. 1).
                         4 Ibid., p. 36, para. 7, and cf. p. 44, para. 32.
                         5 Ibid., p. 54, para. 24.

                     23

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                     374 certain activities ; construction of a road (sep. op. cançado trindade)

                     provisional measures ordered by the ICJ “prevented Nicaraguan person-
                     nel, but not citizens, from entering the disputed territory and planting
                     trees” 6. And Costa Rica added that :
                              “Nicaragua has undertaken action on that territory on a major scale,
                              with dredgers and chainsaws, which it has taken several weeks to
                              carry out. It is thus not sufficient to remind the Parties of the existing
                              obligation not to send personnel, but it is necessary to order a meas-
                              ure requiring the cessation of all canalization, dredging or other
                              works in the disputed territory, and that no further works should be
                              carried out in the future. It also requires that Nicaragua be ordered
                              to dismantle all infrastructure on the territory and to refrain from
                              introducing any more pendente lite. The same applies to the equip-
                              ment used to carry out the works of canalization. (. . .) [T]he provi-
                              sional measures of 2011 are incapable of preventing canalization or
                              other works being continued or resumed.” 7
                       9. Nicaragua retorted that Costa Rica also violated the Court’s Order
                     “by overflights and visits to the disputed area” without fulfilling its
                     requirements, and by the construction of the road “running along 160 km
                     of the border of Nicaragua and Costa Rica and along the margin of the
                     greater part of the San Juan River (. . .) without any environmental
                     impact assessment and without any notice to Nicaragua” 8. Nicaragua
                     then denied that 10,000 members of the Guardabarranco group had been
                     in the territory in dispute, as alleged by Costa Rica ; there were only
                     “small groups of youngsters” visiting “the place for a short period of
                     time” ; they “have not performed any work on the caño”, and they caused
                     no damages to the disputed territory 9.

                        10. Nicaragua then added that Mr. E. Pastora “was wrong” in claim-
                     ing (in a television interview in a news programme) that his works of
                     “clearing or constructing caños” at the mouth of the San Juan River were
                     conducted “in areas not covered by the Court’s Order” 10. Nicaragua
                     observed that it “had not authorized any dredging or caño clearing activ-
                     ities in the disputed area”, to comply “fully” with the Court’s Order of
                     8 March 2011. And Nicaragua added :

                                 “Mr. Pastora himself knew that this was Nicaragua’s policy. In the
                              television interview (. . .) he insisted repeatedly that his actions were

                          6
                          CR 2013/24, pp. 59‑60, para. 37.
                          7
                          Ibid., pp. 55‑56, paras. 28‑29.
                        8 CR 2013/25, pp. 9‑10, paras. 6‑7.
                        9 Ibid., pp. 12‑13, paras. 20‑22.
                        10 In its clarification, it was “plain to Nicaragua from Mr. Pastora’s indication of

                     the location of his activities that they were inside the disputed territory, as defined in the
                     Order” (ibid., p. 22, para. 17).

                     24

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                     375
                         certain activities ; construction of a road (sep. op. cançado trindade)

                               consistent with the Court’s Order, as he understood it. Of course, he
                               was wrong ; and this does not exonerate Nicaragua of responsibility
                               for his behaviour. Nicaragua has never said otherwise. But it does
                               explain what happened. (. . .) There was no intention by Nicaragua
                               to change the natural course of the San Juan River. What happened
                               was that Mr. Pastora exceeded his mandate, and engaged in activities
                               in the disputed area because he had an erroneous understanding of
                               the Court’s Order, specifically in regard to what constituted the dis-
                               puted area, which was different from Nicaragua’s understanding, and
                               which Nicaragua did not appreciate, until 18 September [2013]. Since
                               that date, when it learned of his activities, Nicaragua has not denied
                               that they occurred or that they were inconsistent with the Court’s
                               Order. To the contrary, what Nicaragua contends, what it has con-
                               sistently contended, is that it did not instruct or intend for Mr. Pas-
                               tora to conduct any activities in the disputed area. They were the
                               result of a misunderstanding, not a conspiracy.” 11

                        11. Nicaragua further added that it had not intended to send
                     Mr. E. Pastora “into the disputed area”, but only “to clean up the river
                     and the channels in Nicaragua’s undisputed waters. It accepts responsibil-
                     ity for his mistaken and unauthorized actions in the disputed area, and
                     has taken concrete steps to prevent their recurrence” 12. Yet, it went on,
                     the problem now raised before the ICJ is not whether Nicaragua is
                     responsible for the acts ultra vires of Mr. E. Pastora ; it is a distinct one 13.

                                             3. Second Round of Oral Arguments
                        12. In the second round of oral arguments, Costa Rica began by stat-
                     ing that “Mr. Pastora and the National Port Authority were organs of
                     the Nicaraguan State”, with “actual authority” (at least until 22 Septem-
                     ber 2013) “to carry out the works in the disputed territory” 14. Costa Rica
                     stressed that
                               “[t]he only evidence on the record is the specific authorization for
                               Mr. Pastora and the National Port Authority to carry out the project
                               for the ‘Improvement of Navigation on the San Juan de Nicaragua
                               River’. We heard nothing about ultra vires action on the previous
                               request.” 15

                          11CR 2013/25, pp. 22‑23, paras. 20‑21.
                          12Ibid., pp. 28‑29, paras. 42‑43.
                        13 Ibid., pp. 50‑51, paras. 21‑22.
                        14 Costa Rica added that, following the Court’s Order of 8 March 2011, “they were

                     never prohibited from doing so by any Nicaraguan instruction in evidence” (CR 2013/26,
                     p. 12, para. 12).
                        15 Ibid., p. 12, para. 13.

                     25

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                     376
                         certain activities ; construction of a road (sep. op. cançado trindade)

                       Costa Rica then added that :
                                  “Nicaragua now finally accepts that its personnel were constructing
                               and dredging the caños (. . .), its personnel have entered the disputed
                               territory in breach of [the Court’s] Order and carried out activities
                               there. It finally accepts that its army, camped in close and convenient
                               proximity to the lagoon at the end of the eastern caño, must have
                               known of it. It accepts that it is responsible for the acts of Mr. Pas-
                               tora, its government delegate, and it is responsible for the acts of its
                               government department, the National Port Authority. These reluc-
                               tant concessions can hardly be considered timely : they finally came
                               yesterday, 36 days after we wrote to protest, 36 days after we provided
                               the co‑ordinates of the new caños. But Nicaragua has still not admit-
                               ted that its Mr. Pastora, his dredgers and the National Port Author-
                               ity personnel were authorized to go there in the first place. (. . .) [T]hey
                               had ostensible authority to do so, and there is nothing in the eviden-
                               tiary record to suggest otherwise.” 16

                        13. Moreover, Costa Rica retorted that “the construction of the new
                     caños” could not be portrayed as a “simple blunder”. It insisted on its
                     argument pertaining to the presence of “the Sandinista youths” in the
                     “disputed area”, stating that there was evidence to this effect. Thus, its
                     Note to Nicaragua of 16 September 2013 “not only protested the con-
                     struction of new caños, but it pointed out that the Nicaraguan media
                     reported on 9 September that some 10,000 youths had already visited the
                     area” 17. Costa Rica further stated that “Nicaragua admitted that it has
                     breached the 2011 Order” ; yet, it has provided “no evidence (. . .) about
                     the present state of the caño, its depth, its carrying capacity, its length” 18.
                     To Costa Rica,
                                  “Nicaragua’s belated explanations (. . .) do not provide sufficient
                               protection of Costa Rica’s rights. (. . .) Yesterday Nicaragua told [the
                               ICJ] that it had breached [its] 2011 Order. (. . .) the measures
                               Costa Rica requests are urgently needed to prevent irreparable pre
                               judice to its rights. (. . .) Costa Rica merely asks the Court to exercise
                               its power to preserve and protect Costa Rica’s rights ; rights which
                               are at imminent risk of being irreparably harmed.” 19

                       14. For its part, Nicaragua, at the second round of oral arguments,
                     began by stating that “Mr. Pastora did what he did, and Nicaragua does
                     not deny responsibility for his actions. (. . .) The evidence shows that
                     Nicaragua did not ‘send’ Mr. Pastora to the disputed area, or ‘maintain’

                          16 CR 2013/26, pp. 20‑21, para. 43, and cf. paras. 40 and 46.
                          17 Ibid., p. 22, para. 47.
                          18 Ibid., p. 22, para. 48.
                          19 Ibid., p. 34, para. 3.

                     26

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                     377
                         certain activities ; construction of a road (sep. op. cançado trindade)

                     him there, as prohibited by the first operative paragraph of the Court’s
                     March 2011 Order” 20. And Nicaragua added that

                                 “It is notable that Costa Rica’s request for new provisional meas-
                               ures does not complain about the presence of this military camp,
                               which is in plain sight. (. . .) This is offered as evidence that a crew of
                               workmen was clearing caños in the wetland, not that Nicaragua is
                               unlawfully (. . .) maintaining a small military camp on the beach.
                               There is no mention of the military camp anywhere in Costa Rica’s
                               request.” 21

                       15. As to the works carried out under the direction of Mr. E. Pastora —
                     which Costa Rica alleges were undertaken in the “contested territory” —
                     Nicaragua argues that, in requesting
                               “the withdrawal of the small Nicaraguan detachment stationed on the
                               left bank, Costa Rica is modifying the very definition of the ‘disputed
                               territory’ (. . .). [T]his constitutes a new claim, which cannot be made
                               at this stage : it is the Application which defines the limits of the case
                               (. . .). Costa Rica cannot today go back on what it wrote in order to
                               enlarge the scope of its Application by surreptitiously redefining its
                               territorial scope.” 22
                     Yet, it conceded that :
                               “Nicaragua was ‘perhaps’ responsible for the actions of Mr. Pastora.
                               (. . .) [E]ven if he is not minister, but only treated as a senior govern-
                               ment official, Mr. Pastora does exercise official duties ; (. . .) the work
                               on the canals (. . .) is, without any doubt, incompatible with the terms
                               of your Order of 2011 ; and these terms (. . .) are legally binding on
                               the Parties.” 23

                                                      4. General Assessment
                        16. The point which was object of most submissions of the Parties
                     (supra) during the oral hearings of 14‑17 October 2013 was the dredg-
                     ing and dumping works undertaken, allegedly by Nicaragua, after
                     June 2013, in the construction of the two “caños” in the disputed area. In
                     its own assessment, the Court found, in the present Order, that, in the
                     new situation thus created in the “disputed territory”, the requisites of
                     urgency and real and imminent risk of “irreparable prejudice” are present
                     therein (paras. 49‑50), requiring from it new provisional measures of
                     protection.

                          20 CR 2013/27, p. 13, para. 22.
                          21 Ibid., p. 17, para. 36.
                          22 Ibid., p. 31, para. 13.
                          23 Ibid., p. 33, para. 18.

                     27

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                     378
                         certain activities ; construction of a road (sep. op. cançado trindade)

                        17. The dredging operations for the construction of the two “caños”,
                     the Court added, “were carried out by a group of [Nicaraguan] nationals
                     led by Mr. Pastora”, who was officially appointed “to carry out this proj-
                     ect” (para. 45). In carrying out such construction and the digging of the
                     trench, they have caused “a change in the situation in the disputed terri-
                     tory”, after its recent Order of 16 July 2013 (para. 44). The Court then
                     decided to indicate the new provisional measures contained in the Order
                     it has just adopted today, 22 November 2013.
                        18. As to the other point which was the object of submissions of the
                     Parties, concerning the Nicaraguan military encampment in the area, it
                     appears from the arguments of the Parties during the oral hearings held
                     in October 2013 24, and from the complementing evidence which the Par-
                     ties submitted to the Court (photographs and satellite images), that a
                     Nicaraguan military encampment indeed exists in the region, and after
                     the Court’s previous Order of 8 March 2011. As to its location, the con-
                     tending Parties submitted arguments as to its presence within “disputed
                     territory” 25, as defined by the Court’s Order of 8 March 2011 26.
                        19. The evidence submitted to the Court, however, led to its finding
                     that the military encampment is indeed located within the “disputed ter-
                     ritory”, as the Court has concluded in the present Order (para. 46) ; the
                     Court added that the “ongoing presence of this encampment” is con-
                     firmed by recent satellite images and [a] photograph (para. 46). Recalling,
                     in this respect, that the previous Order of 8 March 2011 determined that
                     the Parties ought to “refrain from sending to, or maintaining in the dis-
                     puted territory, including the caño, any personnel, whether civilian, police
                     or security” (para. 86 (1)), it has become undisputable that the presence
                     of the Nicaraguan military encampment in the disputed territory, after
                     the Order of 8 March 2011, is in clear breach of that Order.

                            III. The Configuration of the Autonomous Legal Régime
                                     of Provisional Measures of Protection

                                          1. The Task of International Tribunals
                       20. The new facts of the present case (supra) bring to the fore, in a
                     prominent way, the issue of the necessary compliance with provisional mea-
                        24 CR 2013/26, pp. 19‑20, paras. 35‑39 (Costa Rica) ; CR 2013/25, p. 29, paras. 43‑44

                     (Nicaragua) ; and CR 2013/27, pp. 16‑17, paras. 35‑37 (Nicaragua).
                        25 The Court defined the “disputed territory” as “the northern part of Isla Portillos,

                     that is to say, the area of wetland of some 3 square kilometres between the right bank of
                     the disputed caño, the right bank of the San Juan River up to its mouth at the Caribbean
                     Sea and the Harbor Head Lagoon” (Order, para. 55).
                        26 While Costa Rica claimed that the encampment is within the “disputed territory” as

                     defined by the Court, Nicaragua contended that Costa Rica did not complain about the
                     camps until the first day of the hearings, and that, in any event, the encampment is not
                     located within the “disputed territory” as defined by the Court. Cf., e.g., doc. CR 2013/25,
                     p. 29, paras. 43‑44, and cf. also doc. CR 2013/27, pp. 16‑17, paras. 35‑37.

                     28

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                     379    certain activities ; construction of a road (sep. op. cançado trindade)

                     sures of protection. This issue can be properly addressed, in my under-
                     standing, within the framework of what I behold as the autonomous legal
                     régime of those measures. To embark on this task, I move from the factual
                     context onto my considerations at the juridico‑epistemological level. Pre-
                     liminarily, I deem it fit to point out that, it has been in the era of contem-
                     porary international tribunals that provisional measures of protection have
                     seen the light of day, and have flourished, in international legal procedure.
                        21. It was indeed with the advent of international tribunals that the
                     conditions were met to move ahead with provisional measures, in the pur-
                     suit of the realization of justice, to the benefit of the justiciables in distinct
                     domains of international law. In the historical trajectory of international
                     tribunals, there are antecedents disclosing that, even at an early stage, one
                     purported to ascribe obligatory character to provisional measures indi-
                     cated or ordered by them. This is pointed out, for example, in a pioneer-
                     ing study on the matter by Paul Guggenheim, given to the public
                     in 1931 27. Yet, progress in this respect has been very slow : for example, it
                     has taken more than half a century for the ICJ to reach the obvious con-
                     clusion, in 2001, that provisional measures are, under its Statute 28, binding.

                        22. Yet, since the beginning of the evolution of provisional measures
                     of protection in international legal procedure, the issue of compliance
                     with them was already present, but was not sufficiently studied and culti-
                     vated, and, after several decades, there still remains nowadays much to be
                     studied and cultivated in this matter. Already in the days of the Perma-
                     nent Court of International Justice (PCIJ), there were indications that
                     provisional measures were meant to be obligatory, in particular those
                     ordered by the PCIJ and other international tribunals (such as the old
                     Central American Court of Justice) 29; already in the era of the League of
                     Nations, those measures were meant to have legal effects 30.
                        23. In his early study, Paul Guggenheim lucidly drew attention to the
                     importance of provisional measures of protection, ultimately, to the pro-
                     gressive development of international law itself 31. Writing in 1931, the
                     learned author warned that one of the points to be solved in the future,
                     was to secure compliance with, and the faithful execution of, those provi-
                     sional measures 32. And the learned author added, with insight, as to the
                     consequences of breach of provisional measures, that

                         27 Cf. P. Guggenheim, Les mesures provisoires de procédure internationale et leur

                     influence sur le développement du droit des gens, Paris, Rec. Sirey, 1931, p. 177.
                         28 I.e., endowed with a conventional basis (Art. 41).
                         29 Cf., in this sense, P. Guggenheim, op. cit. supra note 27, pp. 24‑25, 71‑72, 177

                     and 187, and cf. p. 33.
                         30 Ibid., p. 58.
                         31 Cf. ibid., pp. 195‑196.
                         32 As “today, international law, most often, does not yet have the means to secure

                     compliance with its orders or, at the very least, to supervise the execution of orders issued
                     by its collective bodies” (ibid., p. 175, and cf. p. 59).

                     29

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                     380         certain activities ; construction of a road (sep. op. cançado trindade)

                               “[s]ooner or later, the case law of the Permanent Court of Interna-
                               tional Justice or of competent tribunals will assuredly succeed in gain-
                               ing acceptance of the fact that non-compliance with provisional
                               measures ordered by such courts, must, by reason of the harm caused
                               (regardless of the fault, or otherwise, of the author), have the effect
                               in law of giving rise to a right to reparation.
                               �����������������������������������������������������������������������������������������������������������������
                                   [I]n my view, the responsibility ultimately incumbent upon those
                               members [of the international community itself] cannot be replaced
                               by provisional measures of the collective bodies established by them.
                               Nevertheless, the major ‘final’ decisions of international life – whether
                               political or legal – are themselves, in the end, also provisional, in
                               keeping with the adage, so profoundly true : ‘Il n’y a que le provisoire
                               qui dure’ (only the provisional endures).” 33
                        24. As I pointed out almost one decade ago, the gradual conceptual-
                     ization of the autonomous international responsibility in respect of provi-
                     sional measures of protection owes much to the expansion of those
                     measures at international level in our times, calling for the configuration
                     of a legal régime of their own 34, thanks to the operation of contemporary
                     international tribunals. In our days, there is indeed a growing attention to
                     the importance of provisional measures of protection in expert writing 35,
                     but advances in case law remain rather slow, as international tribunals
                     have not yet elaborated on their autonomous legal régime, nor have they
                     so far extracted the legal consequences of non‑compliance with those
                     measures. But at least the issue has been identified for forthcoming devel-
                     opments, hopefully.

                                               2. A Reassuring Jurisprudential Construction
                                                              (2000‑2013)
                        25. And there have, however, been some endeavours clearly to this
                     effect. Within the ICJ, for example, in my dissenting opinion in the

                          33P. Guggenheim, op. cit. supra note 27, pp. 197‑198 [translation by the Registry].
                          34Cf. A. A. Cançado Trindade, “Les mesures provisoires de protection dans la juris-
                     prudence de la Cour interaméricaine des droits de l’homme”, Mesures conservatoires et
                     droits fondamentaux (eds. G. Cohen Jonathan and J.‑F. Flauss), Brussels, Bruylant/
                     Nemesis, 2005, pp. 145‑163.
                         35 Cf., inter alia, e.g., [Various Authors], Le contentieux de l’urgence et l’urgence dans le

                     contentieux devant les juridictions internationales : regards croisés (eds. H. Ruiz Fabri and
                     J.‑M. Sorel), Paris, Pedone, 2003, pp. 7‑180 and 205-210 ; A. A. Cançado Trindade, “La
                     Expansión y la Consolidación de las Medidas Provisionales de Protección en la Jurisdicción
                     Internacional Contemporánea”, Retos de la Jurisdicción Internacional (eds. S. Sanz Cabal-
                     lero and R. Abril Stoffels), Cizur Menor (Navarra), Civitas/Thomson Reuters, 2012,
                     pp. 99‑117 ; T. Treves, “Mesures conservatoires et obligations environnementales — Tribunal
                     international du droit de la mer et Cour internationale de Justice”, ibid., pp. 119‑137 ; and
                     cf., for a general study, Eva Rieter, Preventing Irreparable Harm — Provisional Measures in
                     International Human Rights Adjudication, Maastricht, Intersentia, 2010, pp. 3‑1109.

                     30

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                     381
                         certain activities ; construction of a road (sep. op. cançado trindade)

                     Court’s Order (of 28 May 2009) in the case of Questions relating to the
                     Obligation to Prosecute or Extradite (Belgium v. Senegal), in which the
                     Court refrained from indicating the requested provisional measures of
                     protection, I deemed it fit to examine, inter alia, the transposition of such
                     measures from legal proceedings in comparative domestic procedural law
                     onto the international legal procedure (paras. 5‑7) and their juridical
                     nature and effects (paras. 8‑13). I then drew attention to the relevance of
                     compliance with provisional measures of protection, which has “a direct
                     bearing upon the rights invoked by the contending parties” (para. 14).
                        26. In reality, depending on the rights which are at stake, provisional
                     measures may assume a character, more than precautionary, truly tute‑
                     lary, directly related, as they are, to the realization of justice itself. In that
                     same dissenting opinion I pondered that, this being so, provisional mea-
                     sures of protection, “with their preventive dimension, can indeed contrib-
                     ute to the development of international law” (para. 94). For that to
                     happen, there remains a long way to go, in the refinement of their auto
                     nomous legal régime, as I have further pointed out on earlier occasions.

                        27. It is necessary, to start with, to bear in mind the advances already
                     achieved in international case law in this respect. One decade ago, in 2000,
                     I had the occasion, in another international jurisdiction, to dwell upon
                     the legal nature of provisional measures of protection 36. Half a decade
                     later the time seemed ripe, on the basis of the experience accumulated on
                     the matter, to dwell upon the autonomous legal régime of those mea-
                     sures 37. Thus, in the case of the Community of Peace of San José of
                     Apartadó (provisional measures of 2 February 2006), I stated that

                          “[p]rovisional measures of protection bring about obligations for the
                          States at issue, which are distinguished from the obligations which
                          emanate from the judgments as to the merits of the respective cases.
                          There are effectively obligations emanated from provisional measures
                          of protection per se. They are entirely distinct from the obligations
                          which eventually ensue from a judgment as to the merits (and also,
                          reparations) in the cas d’espèce. This means that provisional measures
                          of protection constitute a juridical institute endowed with an auto
                          nomy of its own, what, in turn, reveals the high relevance of the pre‑
                          ventive dimension (. . .). Provisional measures of protection, endowed
                        36 Cf. Inter-American Court of Human Rights [IACtHR], case of the Haitians and

                     Dominicans of Haitian Origin in the Dominican Republic v. Dominican Republic (provisional
                     measures of 18 August 2000), concurring opinion of Judge Cançado Trindade, paras 13‑25.
                        37 Cf. IACtHR, case of Eloísa Barrios and Others v. Venezuela (provisional measures

                     of 29 June 2005), concurring opinion of Judge Cançado Trindade, paras. 4‑11 ; IACtHR,
                     case of Eloísa Barrios and Others v. Venezuela (provisional measures of 22 September
                     2005), concurring opinion of Judge Cançado Trindade, paras. 2‑9 ; IACtHR, case of the
                     Children and Adolescents Deprived of Their Freedom in the ‘Complex of Tatuapé’ of FEBEM
                     v. Brazil (decision of 17 November 2005), concurring opinion of Judge Cançado Trindade,
                     paras. 1‑10.

                     31

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                     382    certain activities ; construction of a road (sep. op. cançado trindade)

                           as they are with autonomy, have a legal régime of their own, and
                           non‑compliance with them generates the responsibility of the State,
                           has legal consequences, besides singling out the central position of the
                           victim (of such non‑compliance), without prejudice to the examina-
                           tion and resolution of the concrete case as to the merits.” 38
                        28. One has here in mind, of course, provisional measures of protec-
                     tion endowed with a conventional basis, and ordered or indicated by inter-
                     national tribunals. The figure of the “injured party” may thus also appear,
                     in my perception, in the realm of provisional measures of protection, in
                     case of non‑compliance with them. Accordingly, non‑compliance with, or
                     breach of, such measures, engages autonomously the international
                     responsibility of the State at issue, within the domain of provisional mea-
                     sures of protection 39, irrespective of the subsequent judgments as to the
                     merits of the concrete cases. Hence the utmost importance of compliance
                     with those measures 40, for the realization of justice itself.

                       IV. The Ongoing Construction of an Autonomous Legal Régime
                                  of Provisional Measures of Protection

                        29. In the previous Court’s Order of 16 July 2013, where it refrained
                     from indicating the requested provisional measures of protection, I pre-
                     sented a dissenting opinion wherein, inter alia, I sought to demonstrate
                     the need to proceed in the conceptual construction of an autonomous legal
                     régime of provisional measures of protection (paras. 69‑76). To that end,
                     I pondered that
                           “[c]ompliance with provisional measures of protection runs parallel
                           to the course of proceedings leading to the Court’s subsequent deci-
                           sion on the merits of the cases at issue. Should the Court find, e.g., a
                           breach of international law in its decision on the merits of a given
                           case, and, parallel to that, it further finds non‑compliance with its
                         38 IACtHR, case of the Community of Peace of San José of Apartadó v. Colombia

                     (provisional measures of 2 February 2006), concurring opinion of Judge Cançado Trin-
                     dade, paras. 6‑7, and cf. also paras. 4 and 8‑10 ; and cf., to the same effect, IACtHR,
                     case of the Communities of Jiguamiandó and Curbaradó v. Colombia (provisional measures
                     of 7 February 2006), concurring opinion of Judge Cançado Trindade, paras. 6‑7, and
                     cf. also paras. 4 and 8‑11.
                         39 Cf. also, in this sense, IACtHR, case of the Prisons of Mendoza v. Argentina (provi-

                     sional measures of 30 March 2006), concurring opinion of Judge Cançado Trindade,
                     paras. 11‑12 ; IACtHR, case of the Prison of Araraquara v. Brazil (provisional measures
                     of 30 September 2006), concurring opinion of Judge Cançado Trindade, paras. 24‑25.
                         40 Cf. in this sense, IACtHR, case of the Communities of Jiguamiandó and Curbaradó v.

                     Colombia (provisional measures of 15 March 2005), concurring opinion of Judge Cançado
                     Trindade, paras. 4 and 10 ; case of the Community of Peace of San José of Apartadó v.
                     Colombia (provisional measures of 15 March 2005), concurring opinion of Judge Cançado
                     Trindade, paras. 4 and 10 ; case of the Indigenous People of Sarayaku v. Ecuador (provisional
                     measures of 6 July 2004), concurring opinion of Judge Cançado Trindade, paras. 2 and 30.

                     32

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                     383 certain activities ; construction of a road (sep. op. cançado trindade)

                          provisional measures, this latter is an additional breach of an interna-
                          tional obligation. In its work in the present context, the Court still
                          has before itself the task of elaborating on the legal consequences of
                          non‑compliance with provisional measures, endowed, in my percep-
                          tion, with an autonomy of their own.

                             Provisional measures of protection indicated or ordered by the ICJ
                          (or other international tribunals) generate per se obligations for the
                          States concerned, which are distinct from the obligations which ema-
                          nate from the Court’s (subsequent) judgments on the merits (and on
                          reparations) of the respective cases. In this sense, in my conception,
                          provisional measures have an autonomous legal régime of their own,
                          disclosing the high relevance of their preventive dimension. Parallel to
                          the Court’s (subsequent) decisions on the merits, the international
                          responsibility of a State may be engaged for non‑compliance with, or
                          breach of, a provisional measure of protection ordered by the Court
                          (or other international tribunals).
                             My thesis, in sum, is that provisional measures, endowed with a
                          conventional basis — such as those of the ICJ (under Article 41 of
                          the Statute) — are also endowed with autonomy, have a legal régime
                          of their own, and non‑compliance with them generates the responsi-
                          bility of the State, entails legal consequences, without prejudice of the
                          examination and resolution of the concrete cases as to the merits. This
                          discloses their important preventive dimension, in their wide scope.
                          The proper treatment of this subject‑matter is the task before this
                          Court, now and in the years to come.” (Paras. 70‑72.)

                       30. This is, after all, I then proceeded, a matter of much importance
                     for the progressive development of international law (para. 74). A related
                     aspect to be kept in mind, I continued, is

                             “The juridical nature of provisional measures, with their preventive
                          dimension, has lately been clarified by a growing case law on the mat-
                          ter, as those measures came to be increasingly indicated or ordered, in
                          recent years, by contemporary international 41, as well as national 42,
                          tribunals 43. Soon the recourse to provisional measures of protection,

                       41 Cf. R. Bernhardt (ed.), Interim Measures Indicated by International Courts, Berlin/

                     Heidelberg, Springer‑Verlag, 1994, pp. 1‑152.
                        42 Cf. E. García de Enterria, La Batalla por las Medidas Cautelares, 2nd [enlarged] ed.,

                     Madrid, Civitas, 1995, pp. 25‑385.
                        43 Cf. also L. Collins, “Provisional and Protective Measures in International Litiga-

                     tion”, 234 Recueil des cours de l’Académie de droit international de La Haye (1992), pp. 23,
                     214 and 234.

                     33

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                     384
                         certain activities ; construction of a road (sep. op. cançado trindade)

                          also at international level, had the effect of expanding the domain of
                          international jurisdiction, with the consequent reduction of the
                          so‑called ‘reserved domain’ of the State 44. This grows in importance
                          in respect of régimes of protection, such as those of the human person
                          as well as of the environment. The clarification of the juridical nature
                          of provisional measures is, however, still the initial stage of the evolu-
                          tion of the matter, — to be followed, in our days, in my understanding,
                          by the elaboration on the legal consequences of non‑compliance with
                          those measures, and the conceptual development of what I deem it fit
                          to call their autonomous legal régime. (. . .)

                             In effect, the notion of victim (or of potential victim 45), or injured
                          party, can thus emerge also in the context proper to provisional meas-
                          ures of protection, parallel to the merits (and reparations) of the cas
                          d’espèce. Provisional measures of protection generate obligations (of
                          prevention) for the States concerned, which are distinct from the obli-
                          gations which emanate from the judgments of the Court as to the
                          merits (and reparations) of the respective cases. This ensues from their
                          autonomous legal régime, as I conceive it. There is, in my perception,
                          pressing need nowadays to refine and to develop conceptually this
                          autonomous legal régime — focused, in particular, on the contempo-
                          rary expansion of provisional measures, the means to secure due and
                          prompt compliance with them, and the legal consequences of non‑com-
                          pliance — to the benefit of those protected thereunder.” (Paras. 73
                          and 75.)

                        31. By means of the construction of the propounded autonomous
                     legal régime of provisional measures of protection, I added, contempo-
                     rary international tribunals can
                          “contribute effectively to the avoidance or prevention of irreparable
                          harm in situations of urgency, to the ultimate benefit of all subjects
                          of international law, — States as well as groups of individuals, and
                          simples particuliers. After all, the human person (living in harmony in
                          her natural habitat) occupies a central place in the new jus gentium of
                          our times.” (Para. 76.)
                       The contribution of contemporary international tribunals to the con-
                     ceptualization of the legal régime of provisional measures of protection

                        44 Paul Guggenheim, op. cit. supra note 27, pp. 15, 174, 186, 188 and cf. pp. 6‑7 and

                     61‑62.
                        45 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 Mecha-
                     nisms 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), Chap. XI,
                     pp. 243‑299, esp. pp. 271‑292.

                     34

5 Ord 1051.indb 64                                                                                24/06/14 15:58

                     385
                         certain activities ; construction of a road (sep. op. cançado trindade)

                     has been taking place, is ongoing ; yet, there is still much to be done and
                     there remains a long way to go, in the perennial search for the realization
                     of justice.

                                                V. Final Considerations

                        32. In the domain of provisional measures of protection, the ICJ has
                     recently moved forward, in ordering provisional measures, in the case of
                     the Request for Interpretation of the Judgment of 15 June 1962 in the Case
                     concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambo‑
                     dia v. Thailand), Provisional Measures (Order of 18 July 2011, I.C.J. Rep
                     orts 2011 (II), p. 537) to the effect of the withdrawal of military per-
                     sonnel from a provisional demilitarized zone that it defined in the Order
                     itself (para. 62). In my separate opinion appended to it, I dwelt upon the
                     relation between time and law (paras. 3‑42), and the legal effects of the
                     aforementioned measures in connection with the importance of preven-
                     tion of irreparable harm for the protection of people in territory, and of
                     cultural and spiritual heritage, altogether (paras. 64‑70, 82‑94 and 96‑117).
                     There is thus reason for hope that, on the basis of this precedent, the
                     Court will keep on advancing in the present domain of provisional mea-
                     sures of protection, to the benefit of the justiciables.
                        33. In the present Order that it has just adopted today, 22 November
                     2013, the Court finds that there has indeed been “a change in the situa-
                     tion in the disputed territory” (para. 44) since it adopted its last Order
                     (of 16 July 2013). Accordingly, the Court, in the present Order, decided,
                     at last, that three earlier provisional measures (indicated in the Order
                     of 8 March 2011) “must be reinforced and supplemented” (para. 55),
                     especially concerning, in addition, the presence of private individuals in
                     the “disputed territory” (para. 56). However, in its previous Order
                     of 16 July 2013 concerning the Parties’ requests for modification of the
                     Court’s Order of 8 March 2011, the Court did not find, on the basis of the
                     facts presented to it, any “evidence of urgency that would justify the indi-
                     cation of further provisional measures” ; the Court thus decided — with
                     my dissent — that it had then not yet been sufficiently demonstrated that
                     there was a risk of irreparable prejudice to the rights claimed by
                     Costa Rica 46.
                        34. Yet, the presence of private individuals in the disputed territory
                     already configured a change in the situation, by the time the Order
                     of 16 July 2003 was adopted ; the Court should then, four months ago,
                     have modified the earlier Order of 8 March 2011, by means of its Order
                     of 16 July 2003, so as expressly to provide for the prohibition not only of

                        46 When Costa Rica requested (on 23 May 2013) it to do so alleging that there were

                     private Nicaraguan nationals present in the disputed territory (cf. para. 35).

                     35

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                     386
                         certain activities ; construction of a road (sep. op. cançado trindade)

                     the presence of personnel, but also of incursion of private individuals as
                     well into the disputed territory. By then, last July, in my perception there
                     had already occurred a change in the situation in the disputed territory,
                     disclosing urgency and the risk of irreparable harm, thus calling for the
                     ordering of new provisional measures.
                        35. Indeed, the new, changed situation had already been clearly formed
                     by the time the ICJ was called to issue its Order of 16 July 2013 ; the ear-
                     lier Order of 8 March 2011, having referred only to “personnel”, had
                     become too narrow. In the Order of 16 July 2013 the Court took note of
                     the presence of Nicaraguan private individuals in the disputed area as an
                     aggravating circumstance, yet it did nothing concrete about it. Only now,
                     in the present Order of 22 November 2013, it has done so, in order to
                     prevent the deterioration of the situation. The Court has at last clarified
                     that the disputed area is to be free of all persons, comprising personnel
                     and private individuals (apart from the remediation work to be promptly
                     done in the eastern caño).

                        36. So, only with the worsening of the situation (with the dredging and
                     construction of the two new caños) in the disputed territory, the Court
                     reconsidered its previous “self-restrained” approach. This worsening of
                     the situation once again demonstrates that the worst possible posture that
                     an international tribunal can take is that of judicial inactivism. Fortu-
                     nately the Court has now taken a distinct stand. This time, four months
                     later, the provisional measures just indicated or ordered today (22 Novem-
                     ber 2013) by the Court address both personnel and private persons, to be
                     kept all away from the disputed territory (resolutory points 2 (C) and
                     (D)) ; they also order the cessation of any dredging and other activities in
                     the disputed territory (resolutory point 2 (A)), in addition to what I per-
                     ceive as remediation work in respect of the eastern caño (resolutory
                     point 2 (B)).

                        37. The two contending Parties do not actually controvert the respon-
                     sibility for non‑compliance (cf. supra) with the Court’s earlier Order
                     of 8 March 2011 47. The only point surrounded by some controversy is
                     that of the attribution of responsibility (cf. supra) for such non‑compli-
                     ance. To me, this point is clear, as responsibility for non‑compliance is
                     necessarily accompanied by the attribution of that responsibility to the
                     State concerned. There is an autonomous breach of a conventional obli-
                     gation (concerning provisional measures), without prejudice to what will
                     later be decided by the Court as to the merits.
                        38. Had the Court last July, on the occasion of the adoption of its
                     Order of 16 July 2013, indicated or ordered the provisional measures of

                        47 Admitted by the respondent State itself, as pointed out by the Court in the present

                     Order (cf. CR 2013/27, p. 33, para. 18, and CR 2013/25, pp. 22‑23, paras. 20‑21, trans-
                     cribed supra).

                     36

5 Ord 1051.indb 68                                                                                24/06/14 15:58

                     387
                         certain activities ; construction of a road (sep. op. cançado trindade)

                     protection requested, probably the present situation in the disputed terri-
                     tory (created in the last four months) would not have arisen. Be that as it
                     may, this new situation has been created, and the Court now, in the Order
                     of today (22 November 2013), has just taken the right decision to order
                     the present provisional measures of protection. Better late — and still in
                     time — than never.
                        39. In any case, in the handling of the present controversy between two
                     States which share the long-standing and respectable Latin American tra-
                     dition in international legal doctrine, the ICJ has been provided with the
                     occasion to dwell at greater depth upon the legal nature and effects of
                     provisional measures, endowed with a relevant preventive dimension. The
                     Court could have gone further than it did, in its analysis of this legal
                     issue, — an analysis which does not need to be deferred to the merits. The
                     present case reveals an additional ground of responsibility (irrespective of
                     any decision on the merits), for non‑compliance with provisional mea-
                     sures.

                        40. The legal effects of these latter, without prejudice to the subsequent
                     decision of the Court as to the merits of the case, can be more appropri-
                     ately examined within the framework of the autonomous legal régime of
                     provisional measures of protection. Non‑compliance with such measures
                     entails an additional ground of responsibility ; the task ahead of us is to
                     extract the consequences ensuing therefrom. The day this is done, an
                     additional service will be rendered to the cause of the realization of justice
                     at international level.

                                             (Signed) Antônio Augusto Cançado Trindade.

                     37

5 Ord 1051.indb 70                                                                                24/06/14 15:58


152

an un Bp &

62

ANNEXE

DOCUMENTS SOUMIS A LA COUR

A. — PIÈCES DÉPOSÉES AU NOM DU GOUVERNEMENT FRANÇAIS.

. Pro memoria du 28 mars 1899 remis au prince Georges par les consuls

généraux de France, de Grande-Bretagne, d’Italie et de Russie a La
Canée.

. Note verbale remise le 19 septembre 1911 par l’ambassade de France a

Constantinople au ministére impérial des Affaires étrangéres.

. Note verbale remise le 25 octobre I91I par le ministère impérial des

Affaires étrangères à Vambassade de France à Constantinople.

. Lettre en date du 12/25 avril 1911 du conseiller pour les Finances de la

Commission administrative révolutionnaire crétoise à l’agence des Phares.

. Traité de paix signé & Londres le 17/30 mai 1913 entre la Bulgarie,

la Grèce, le Montenegro, la Serbie et la Turquie (art. 4 et 5).

. Traité de paix signé à Athènes le 1eT/r4 novembre 1913 entre la Grèce

et la Turquie (art. 15).

. Décision des Puissances notifiée au Gouvernement hellénique le 13 février

1914. .

. Traité de paix signé à Lausanne le 24 juillet 1923 (art. 12).
. Protocole XII relatif à certaines concessions accordées dans l’Empire

ottoman, joint au Traité de Lausanne du 24 juillet 1923.

. Note verbale du 17 juillet 1934 adressée par le ministère des Affaires

étrangères hellénique à la légation de la République française.

. Lettre de l'Administration des Phares au ministre de la Marine (4 oct.

1911).

. Lettre de Musurus Pacha à lord Granville (9 août 1884).

. Résumé de la note de lord Granville (5 nov. 1884).

. Lettre de M. Collas au ministre de la Marine (30 août 1884).

. Télégramme de M. Madrilly à M. Naman (rer sept. 1884).

. Lettre de M. Naman au Haut-Commissaire de Chypre (6 sept. 1884).
. Note de l’agent du Gouvernement français du 3 juillet 1937, avec annexes

ayant trait respectivement à la question des pavillons dans l’île de
Crète en 1913 (incident du Yarmouth, 14 févr. 1913), à l'exploitation
des phares à Samos et à la situation politique dans l’île de Samos
en Igi2.

B. — PIÈCES DÉPOSÉES AU NOM DU GOUVERNEMENT HELLÉNIQUE.

. Lettre de l’ambassadeur de France à Saint-Pétersbourg au ministre des

Affaires étrangères de France (19 avril 1897).

. Lettre du ministre des Affaires étrangères de France à l’ambassadeur de

France à Saint-Pétersbourg (15 avril 1897).

. Projet de règlement provisoire .de la Crète (18 déc. 1897).
. Extrait du règlement du régime provisoire de la Crète (23 août 1898).
. Pro memoria remis au roi Georges par les ministres à Athènes des

quatre grandes Puissances le 26 novembre 1898.

. Allocution du prince Georges à l’Assemblée crétoise le 20 février 1890.
153 A/B 71. — PHARES EN CRÈTE ET A SAMOS

63

. Communication à la Sublime-Porte de la nomination du prince Georges

par les ambassadeurs à Constantinople des quatre grandes Puissances
(30 nov. 1898).

. Remarques des représentants des quatre grandes Puissances à Rome sur

le projet de Constitution crétoise (mars et avril 1899).

. Constitution de Vile de Crète du 29 avril 1899.
. Pro memoria remis au roi des Hellènes par les ministres à Athènes des

quatre grandes Puissances le 1er/14 août 1906.

. Constitution de l’île de Crète du 8 février 1907.

. Extrait du Traité de Londres du 17 mai 1913 (non ratifié).

. Extrait du Traité d'Athènes du 1/14 novembre 1913.

. Extrait du Traité de Bucarest du 28 juillet/io août 1913.

. Lettre de l'ambassadeur de France à Berlin au ministre des Affaires

étrangères de France (19 mars 1898).

. Lettre du ministre des Affaires étrangères de France (27 mars 1898).
. Procès-verbal des représentants des quatre grandes Puissances à Rome

sur l'autonomie douanière de la Crète (rer juillet 1899).

. Traités du 4 juin 1878 et du rer juillet 1878 sur l’île de Chypre.

. Lettre de l'Office du secrétariat colonial de Chypre au consul de Grèce à

Larnaca (7 sept. 1935; en anglais, avec trad. française).

. Lettre du même Office (14 oct. 1935; en anglais, avec trad. française).

. Hatt du 22 décembre 1832 pour l'île de Samos.

. Hatt du 16 septembre 1852 pour la même ile.

. Proclamation de I’union de la Crète avec la Grèce (24 sept. 1908).

. Décision de la Chambre crétoise (30 sept. 1908).

. Déclaration des Puissances protectrices (1¢T/14 sept. 1911).

. Décret de l’Assemblée révolutionnaire des Crétois (2 mars 1912).

. Déclaration du Gouvernement hellénique au Gouvernement crétois

(ret oct. 1912).

. Nomination de M. Dragoumis comme gouverneur général de I’ile de Crète

(zx oct. 1912).

. Préliminaires de paix proposés aux Alliés balkaniques (20 mars 1913).

. Préliminaires de paix proposés au Gouvernement ottoman (31 mars 1913).
. Acceptation par la Turquie des préliminaires de paix (ref avril 1913).

. Rapport du conseiller des Finances de Crète (7 janv. 1905).

. Idem (23 janv. 1906).

. Adresse des Puissances protectrices au peuple crétois (10/23 juillet 1906).

. Déclaration des Puissances protectrices au sujet des droits de phares

{io mai 1912).

. Note de l’agent-adjoint du Gouvernement hellénique, du 3 juillet 1937,

ayant trait a la situation politique dans l’île de Samos en 1972.


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE L’INTERHANDEL

(SUISSE c. ÉTATS-UNIS D’AMERIQUE)

ORDONNANCE DU 26 JUIN 1958

1958

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

INTERHANDEL CASE

(SWITZERLAND v. UNITED STATES OF AMERICA)

ORDER OF JUNE 26th, 1958
La présente ordonnance doit étre citée comme suit :

« Affaire de l Interhandel,
Ordonnance du 26 juin 1958: C.I.]. Recueil 1958, p. 31.»

This Order should be cited as follows:

“Interhandel Case,
Order of June 26th, 1958: I.C.J. Reports 1958, p. 31.”

Ne de vente: 188
Sales number

31

INTERNATIONAL COURT OF JUSTICE

YEAR 1958

June 26th, 1958

INTERHANDEL CASE

(SWITZERLAND v. UNITED STATES OF AMERICA)

ORDER

The President of the International Court of Justice,
having regard to Article 48 of the Statute of the Court,
having regard to Article 62 of the Rules of Court;

Having regard to the Order of October 24th, 1957, in the Inter-
handel case, fixing the time-limits for the filing of the Memorial and
Counter-Memorial (or Preliminary Objections) and reserving the
rest of the procedure for further decision;

Having regard to the Order of January 15th, 1958, whereby, on
the joint request of the Parties, expressed in letters from the Agents
both dated January 1oth, 1958, the time-limits for the filing of the
Memorial and Counter-Memorial (or Preliminary Objections) were
extended to April rst and June 16th respectively, the subsequent
procedure remaining reserved for further decision;

Whereas within the first of these time-limits, the Government of
the Swiss Confederation filed its Memorial and whereas within the
second time-limit the Government of the United States of America
filed a document setting forth certain preliminary objections to the
jurisdiction of the Court;

Whereas accordingly, by virtue of the provisions of Article 62,
paragraph 3 of the Rules of Court, the proceedings on the merits
are suspended and a time-limit should be fixed for the presentation

4

1958
June 26th
General List :
No. 34
INTERHANDEL (ORDER OF 26 VI 58) 32

by the other Party of a written statement of its Observations and
Submissions in regard to the said Preliminary Objections;

Whereas in their letters of January roth, 1958, upon which the
Order of January 15th, 1958, was made, the Agents of the Parties
both referred to August Ist as the time-limit for the filing of this
Pleading ;

Whereas however, by a letter dated June 18th, 1958, a copy of
which was transmitted on June rgth to the Agent of the Govern-
ment of the United States of America, the Agent of the Govern-
ment of the Swiss Confederation requested that October Ist, 1958,
should be fixed as the time-limit ;

Whereas, in support of his request, he relied upon the fact that
it was agreed between the Agents that they would consult each
other with a view to reaching an agreement regarding this time-
limit, which agreement was established by an exchange of letters
dated February 7th, 1958, in the case of Switzerland and February
25th, 1958, in the case of the acceptance of the United States of
America, copies of which he transmitted to the Registry; whereas
he also relied upon the complexity of the questions raised in the
Preliminary Objections as well as the novel character of one of the
Objections;

Whereas by a letter dated June 25th, 1958, the Chargé d’affaires
ad interim of the United States of America to the Netherlands
stated that his Government had agreed to the request of the Agent
of the Government of the Swiss Confederation;

Fixes September 22nd, 1958, as the time-limit within which the
Government of the Swiss Confederation may present a written
statement of its Observations and Submissions in regard to the
Preliminary Objections raised by the Government of the United
States of America.

Done in French and in English, the French text being authorita-
tive, at the Peace Palace, The Hague, this twenty-sixth day of
June, one thousand nine hundred and fifty-eight, in three copies,
one of which will be placed in the archives of the Court and the
others transmitted to the Government of the Swiss Confederation
and to the Government of the United States of America, respectively.

(Signed) HELGE KLAESTAD,
President.

(Signed) J. Lopez OLIVAN,
Registrar.


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING QUESTIONS OF
INTERPRETATION AND APPLICATION OF
THE 1971 MONTREAL CONVENTION ARISING
FROM THE AERIAL INCIDENT
AT LOCKERBIE

(LIBYAN ARAB JAMAHIRIYA v. UNITED KINGDOM)

ORDER OF 17 DECEMBER 1998

1998

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A DES QUESTIONS
D'INTERPRÉTATION ET D’APPLICATION
DE LA CONVENTION DE MONTREAL DE 1971
RESULTANT DE L’INCIDENT AERIEN
DE LOCKERBIE

(JAMAHIRIYA ARABE LIBYENNE c. ROYAUME-UNI)

ORDONNANCE DU 17 DECEMBRE 1998
Official citation:

Questions of Interpretation and Application of the 1971 Montreal Conven-

tion arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya

v. United Kingdom), Order of 17 December 1998, I.C.J. Reports 1998,
p. 746

Mode officiel de citation:
Questions d'interprétation et d'application de la convention de Montréal de
1971 résultant de l'incident aérien de Lockerbie (Jamahiriya arabe libyenne
c. Royaume-Uni), ordonnance du 17 décembre 1998, C.ILJ. Recueil 1998,
p. 746

Sales number
ISSN 0074-4441 N° de vente: 7 1 7

ISBN 92-1-070786-9

746

INTERNATIONAL COURT OF JUSTICE

1998 YEAR 1998
17 December
General List
No. 88 17 December 1998

CASE CONCERNING QUESTIONS OF
INTERPRETATION AND APPLICATION OF
THE 1971 MONTREAL CONVENTION ARISING
FROM THE AERIAL INCIDENT
AT LOCKERBIE

(LIBYAN ARAB JAMAHIRIYA v. UNITED KINGDOM)

ORDER

The senior judge, acting President of the International Court of Justice
under Article 13, paragraph 3, of the Rules of Court,

Having regard to Article 48 of the Statute of the Court and Article 44,
paragraphs 3 and 4, of the Rules of Court,

Having regard to the Order of 30 March 1998, whereby the Court,
taking into account the views of the Parties, fixed 30 December 1998
as the time-limit for the filing of the Counter-Memorial of the United
Kingdom;

Whereas, by letter dated 8 December 1998, the Agent of the United
Kingdom referred to recent diplomatic initiatives and invited the Court
to consider a possible suspension or prolongation, for a fixed period, of
the time-limit for the filing of the Counter-Memorial of his Government;
and whereas, on receipt of that letter, the Deputy-Registrar transmitted a
copy thereof to the Agent of Libya;

Whereas, by letter dated 14 December 1998, the Agent of Libya indi-
cated that his Government objected, for reasons stated in that letter, to
any suspension or prolongation of the time-limit;

4
747 1971 MONTREAL CONVENTION (ORDER 17 XII 98)

Taking into account the preliminary exchange of views held by the
Court on the matter,

Extends to 31 March 1999 the time-limit for the filing of the Counter-
Memorial of the United Kingdom; and
Reserves the subsequent procedure for further decision.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this seventeenth day of December, one
thousand nine hundred and ninety-eight, in three copies, one of which
will be placed in the archives of the Court and the others transmitted to
the Government of the Great Socialist People’s Libyan Arab Jamahiriya
and the Government of the United Kingdom of Great Britain and
Northern Ireland, respectively.

(Signed) Shigeru Opa,
Senior Judge.

( Signed} Eduardo VALENCIA-OsPINA,
Registrar.