625

                         SEPARATE OPINION
                    OF JUDGE CANÇADO TRINDADE

                               table of contents

                                                                         Paragraphs

     I. PROLEGOMENA                                                            1-3
 II. Basis of Jurisdiction: Its Importance for the Protection of
     the Vulnerable under UN Human Rights Conventions                         4-10

 III. The Rationale of the Compromissory Clause of the
      CERD Convention (Article 22)                                           11-28
        1. Compromissory clause and the justiciables’ right of access
           to justice                                                        12-24
        2. Compromissory clause within a victim-oriented human
           rights convention                                                 25-28
 IV. Rationale of the Local Remedies Rule in International
     Human Rights Protection: Protection and Redress,
     Rather than Exhaustion                                                  29-43

        1. Undue invocation of the rule, in the case of Application of
           the CERD Convention, opposing Qatar to UAE                        30-32
        2. Undue invocation of the rule, in the case of Application of
           the CERD Convention, opposing Ukraine to Russian Fed-
           eration                                                           33-38
        3. The overriding importance of redress                              39-43
     V. The Relevance of Jurisdiction in Face of the Need to
        Secure Protection to Those in Situations of Vulnerability            44-51
        1. Protection in face of vulnerability                               45-48
        2. Protection against arbitrariness                                  49-51
 VI. Concluding Considerations                                               52-68
VII. Epilogue: A Recapitulation                                              69-78

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626      application of the icsft and cerd (sep. op. cançado trindade)

                             I. PROLEGOMENA

   1. I have concurred, with my vote, for the adoption today, 8 November
2019, of the present Judgment of the International Court of Justice (ICJ),
wherein it dismisses the preliminary objections raised before it in the present
case of Application of the Convention for the Suppression of the Financing of
Terrorism and of the Convention on the Elimination of All Forms of Racial
Discrimination (Ukraine v. Russian Federation) (hereinafter the Application
of the ICSFT and CERD (Ukraine v. Russian Federation) case). In an earlier
case (of 2011) concerning also the Application of the International Conven-
tion on the Elimination of All Forms of Racial Discrimination (Georgia v.
Russian Federation) (hereinafter the Application of the CERD Convention
(Georgia v. Russian Federation) case), as the ICJ decided to uphold one of
the four preliminary objections (the second) raised by the Respondent, thus
ﬁnding itself without jurisdiction, I appended a lengthy dissenting opinion
to the Judgment (of 1 April 2011), in support of the ICJ’s jurisdiction for the
reasons which I carefully examined.
   2. Eight years later, I ﬁnd that some of the reﬂections that I developed
therein remain relevant for the consideration of the present case as well. I
proceed thus to recall them, in relation to the cas d’espèce as well, singling
out some points. I ﬁnd it necessary to do so in the present separate opin-
ion, as I reach the same decision of the ICJ to dismiss all preliminary
objections in the present case, on the basis of a distinct reasoning in
respect of the selected points, which, in my perception, require further
attention on the part of the Court.
   3. I shall focus on the following points: (a) basis of jurisdiction : its
importance for the protection of the vulnerable under UN human rights
conventions; (b) the rationale of the compromissory clause of the
CERD Convention (Article 22); (c) the rationale of the local remedies
rule in the international safeguard of human rights : protection and
redress, rather than exhaustion; (d) the relevance of jurisdiction in face of
the need to secure protection to those in situations of vulnerability;
(e) concluding considerations. After examination of the whole matter at
issue, the way will then be paved for the presentation, in an epilogue, of a
recapitulation of all the points that I sustain in the present separate
opinion.

      II. Basis of Jurisdiction: Its Importance for the Protection
                         of the Vulnerable under
                     UN Human Rights Conventions

  4. In the decision the ICJ has just taken today, in the case concerning
the Application of the ICSFT and CERD (Ukraine v. Russian Federation),
the Court moved a step forward in relation to its earlier decision in the
case of Application of the CERD Convention (Georgia v. Russian Federa-

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tion); yet, it has not succeeded in freeing itself from the outdated and
unfounded view of ascribing utmost importance to State consent in rela-
tion to its own jurisdiction. Once again, the ICJ, keeping in mind Arti-
cle 22 of the CERD Convention 1 (cf. infra), stated that “its jurisdiction is
based on the consent of the parties and is conﬁned to the extent accepted
by them” (Judgment, para. 33).

   5. This being so, I deem it necessary to recall here that, contrary to the
Court’s majority and in my ﬁrm support of the ICJ’s jurisdiction in the
earlier case of Application of the CERD Convention (Georgia v. Russian
Federation), I warned in my dissenting opinion that the rationale of
human rights conventions cannot be overlooked by the ICJ’s “mechanical
and reiterated search for State consent”, continued in time and placed
above the “fundamental values” underlying those conventions (Prelimi-
nary Objections, Judgment, I.C.J. Reports 2011 (I), p. 298, para. 140 and
p. 318, para. 202). In my understanding, human rights and values stand
well above a State’s “will” or “interests” (ibid., p. 298, para. 139 and
p. 316, para. 194), and access to justice is not conditioned by any require-
ment of “prior negotiations” (ibid., p. 298, para. 138).

   6. I further held, in my dissenting opinion, that one cannot keep on
approaching the Court’s jurisdiction from an outdated voluntarist out-
look privileging State consent, as done almost one century ago (ibid.,
p. 257, para. 44). In our times, human rights conventions go beyond the
strict inter-State dimension, so as to ensure the safeguard of the rights of
the human person, in light of the principle pro persona humana, pro vic-
tima (ibid., p. 270, para. 72). There is need to endeavour, I proceeded, to
secure the progressive development of international law (ibid., pp. 257-258,
para. 45), attentive to the relevance of compulsory jurisdiction for the
realization of justice (ibid., p. 63, para. 60, pp. 265-266, para. 65, p. 267,
para. 68 and p. 298, para. 141).

   7. Moreover, I drew attention to the importance of keeping in mind
the vulnerability or defencelessness of the members of the victimized seg-
ments of the population (ibid., p. 300, para. 146), as shown in that case by
the human tragedy surrounding the victims and their need for justice
(ibid., pp. 305-306, paras. 163-165 and p. 321, para. 208). Those in situa-
tions of vulnerability or adversity stood in need of a higher standard of
protection, not conditioned by State “consent” (ibid., p. 305, para. 162).

   8. These pitiless situations, and not the old notions of State’s “will” or
“interests”, required far more attention (ibid., p. 316, para. 196 and
p. 317, para. 199). After all, I concluded on this issue, the realization of

     1
     In addition to Article 24 (1) of the Convention for the Suppression of the Financing
of Terrorism (ICSFT).

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justice under a human rights convention like CERD can only be achieved
taking due account and properly valuing the suﬀerings and needs of pro-
tection of the members of the victimized segments of the population
(I.C.J. Reports 2011 (I), p. 316, para. 194 and p. 321, para. 209).
   9. May I here add that attention to the need to preserve human
beings from their own violence and propensity to destruction has been
constant in human history and thinking 2, until current times 3, at
times focusing attention on certain historical occurrences 4. Already in
antiquity, there were endeavours in search of the recta
    2 For an aetiology of evil in the historical evolution of human thinking,

cf. A.-D. Sertillanges, Le problème du mal, Paris, Aubier/Ed. Montaigne, 1948, pp. 5-412;
A. J. Toynbee, Civilization on Trial, Oxford/N.Y., Oxford University Press, 1948, pp. 3-263;
A. J. Toynbee, Guerra y Civilización (1952), Madrid/Buenos Aires, Alianza/Emecé Eds.,
1984 (reed.), pp. 7-169; S. Weil, Force et malheur (1933), Bordeaux, Ed. La Tempête, 2019
(reed.), pp. 21-50, and cf. pp. 197-209; S. Weil, L’agonie d’une civilisation (1943), Saint
Clément de Rivière, Ed. Fata Morgana, 2017 (reed.), pp. 9-51; S. Weil, Œuvres (1929-
1943), Paris, Gallimard, 1999 (reed.), pp. 449-462 and 503-507; R. Rolland and S. Zweig,
Correspondence (1910-1919), Paris, Ed. A. Michel, 2014, pp. 73-622; S. Zweig, Seuls les
vivants créent le monde (1914-1918), Paris, Ed. R. Laﬀont, 2018, pp. 25-160; A. Schweitzer,
Pilgrimage to Humanity (1961), N.Y., Philosophical Library Ed., 1961, pp. 1-106; and
cf., subsequently, e.g., G. Bataille, La littérature et le mal (1957), Paris, Gallimard, 2016
(reed.), pp. 9-201; F. Alberoni, Las Razones del Bien y del Mal, Mexico, Ed. Gedisa, 1988,
pp. 9-196; P. Ricœur, Le mal — Un défi à la philosophie et à la théologie, 3rd ed., Geneva,
Ed. Labor et Fides, 2004, pp. 19-65; P. Ricoeur, A Simbólica do Mal, Lisbon, Edic. 70, 2017,
pp. 17-375; C. Crignon (coord.), Le mal, Paris, Flammarion, 2000, pp. 11-232; M. Buber,
Imágenes del Bien y del Mal, Buenos Aires, Ed. Lilmod, 2006, pp. 11-227; among others.
    3 Cf., e.g., N. Dubos (coord.), Le mal extrême — La guerre civile vue par les philos-

ophes, Paris, CNRS Ed., 2010, pp. V-XXI and 1-361; H. Bouchilloux, Qu’est-ce que le
mal?, 2nd ed., Paris, Ed. J. Vrin, 2010, pp. 7-124; J. Waller, Becoming Evil — How Ordi-
nary People Commit Genocide and Mass Killing, 2nd ed., Oxford University Press, 2007,
pp. 3-330; L. Svendsen, A Philosophy of Evil, 2nd ed., Champaign, Dalkey Archive Press,
2011, pp. 17-282; S. Baron-Cohen, The Science of Evil — On Empathy and the Origins of
Cruelty, N.Y., Basic Books Ed., 2012, pp. 1-194; D. J. Goldhagen, Worse than War —
Genocide, Eliminationism, and the Ongoing Assault on Humanity, London, Abacus, 2012
(reed.), pp. 3-628; E. Barnavi, Dix thèses sur la guerre, Paris, Flammarion, 2014, pp. 7-137;
S. Neiman, Evil in Modern Thought — An Alternative History of Philosophy, Princeton/
Oxford, Princeton University Press, 2015, pp. 1-359; [Various Authors], Le sarcasme du
mal — Histoire de la cruauté de la Renaissance à nos jours (eds. F. Chauvaud, A. Rauch and
M. Tsikounas), Rennes, Presses Universitaires de Rennes, 2016, pp. 9-356; F.-X. Putallaz,
Le mal, Paris, Ed. du Cerf, 2017, pp. 7-185; L. Devillairs, Etre quelqu’un de bien — Philoso-
phie du bien et du mal, Paris, PUF, 2019, pp. 9-217; among others.
    4 Cf., e.g., J. de Romilly, La Grèce antique contre la violence, Paris, Ed. de Fallois,

2000, pp. 7-214; K. Mann, Contre la barbarie (1925-1948), Paris, Ed. Phébus, 2009 (reed.),
pp. 19-436; C. G. Jung, Aspects du drame contemporain, Geneva/Paris, Libr. Univ. Georg/
Eds. Colonne Vendôme, 1948, pp. 71-233; K. Jaspers, The Question of German Guilt
(1947), N.Y., Fordham University Press, 2000 (reed.), pp. 1-117; H. Arendt, Compreensão
e Política e Outros Ensaios (1930-1954), Lisbon, Antropos/Relógio d’Agua Ed., 2001,
pp. 41-287, esp. pp. 61-75; H. Arendt, Responsabilité et jugement, Paris, Ed. Payot
& Rivages, 2009 (reed.), pp. 57-359; S. Sontag, Regarding the Pain of Others, London,
Penguin Books, 2004 (reed.), pp. 3-113; R. Muchembled, Une histoire de la violence — De
la fin du Moyen Age à nos jours, Paris, Ed. du Seuil, 2008, pp. 7-460; Ph. Spencer, Genocide
since 1945, London/N.Y., Routledge, 2012, pp. 1-142; J.-J. Becker, Comment meurent les
civilisations, Paris, Vendémiaire Ed., 2013, pp. 5-182; D. Muchnik, La Humanidad frente

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629       application of the icsft and cerd (sep. op. cançado trindade)

ratio 5 (as in the writings of Cicero, and in the Moral Letters to Lucilius of
Seneca), as the search of the perfection of reason. The exponents of the
school of thinking of stoicism (Seneca, Epictetus, Marcus Aurelius)
always valued the use of reason, seeking the correct attitude in face of the
fragility of human life, dedicating particular attention to the ethical ques-
tions.
   10. In face of the presence of evil, there has been advice given which
has maintained its perennial value over the centuries. For example, the
words of Seneca’s Of Anger, dated from the year 49 ad, seem to have
been written nowadays :
         “There is nothing more dangerous than animosity: it is anger that
      breeds this. Nothing is more deadly than war (. . .); it repudiates
      human nature, (. . .) while it incites hatred (. . .) to do harm. (. . .)
      [O]ne may learn (. . .): how much evil is inherent in anger when it has
      at its service all the power of extremely powerful men (. . .).
         (. . .) [O]ne should take into account the boundaries of our human
      condition, if we are to be fair judges of all that happens (. . .). Let us
      grant to our soul that peace which will be provided by constant study
      of beneﬁcial instruction, by noble actions, and a mind ﬁxed on desire
      only for what is honourable.
         (. . .) The beneﬁts of life are not to be squandered (. . .). Fate stands
      above our heads and numbers our days as they go by, drawing nearer
      and nearer to us (. . .). Let us rather spend the brief span we have left
      in rest and peace (. . .). [L]et us behave as men should; let us not be
      a cause of fear or danger to anyone (. . .)”. 6

        III. The Rationale of the Compromissory Clause of the
                    CERD Convention (Article 22)

   11. Keeping in mind the importance of the basis of jurisdiction for the
protection of vulnerable persons under UN human rights conventions, I
shall now turn to my consideration to the rationale of the compromissory
clause of the CERD Convention (Art. 22), as related to the justiciables’
right of access to justice. This is a key point that I have been addressing
within the ICJ over this last decade. Once again, in the present separate
opinion, I shall stress the need and relevance of a proper understanding
of the compromissory clause within a victim-oriented human rights con-
vention, like CERD.

a la Barbarie — Reflexiones sobre la Guerra, la Muerte y la Supervivencia, Buenos Aires,
Ariel, 2017, pp. 13-194; among others.
   5 And virtue itself was at times described as recta ratio.
   6 Seneca, Of Anger (circa 49 ad), Book 3, Parts 5, 13, 26 and 41-43.

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1. Compromissory Clause and the Justiciables’ Right of Access to Justice
   12. In eﬀect, over the years, the ICJ has unfortunately been experienc-
ing an unnecessary diﬃculty in understanding the rationale of a compro-
missory clause within a human rights convention. May I recall that, in the
aforementioned earlier case of the Application of the CERD Convention
(Georgia v. Russian Federation), I found it necessary to present my strong
and extensive dissenting opinion furthermore sustaining that the ICJ’s
strict interpretation of its compromissory clause (Art. 22) of
the CERD Convention was mistaken: in my understanding — I
explained — compromissory clauses such as that of Article 22 of the
CERD Convention are directly linked to the justiciables’ right of access to
justice itself, under human rights treaties (I.C.J. Reports 2011 (I), p. 320,
para. 207).
   13. In that case, the ICJ should have, in my understanding, dismissed
the preliminary objections, by means of the interpretation of the compro-
missory clause in the light of the CERD Convention as a whole, keeping
in mind its legal nature, its material content, and its object and purpose
(ibid., pp. 265-276, paras. 64-78), mainly to protect the justiciables in situ-
ations of particular vulnerability (ibid., p. 313, para. 185). Only in this
way it would secure the CERD Convention’s proper eﬀects, to the beneﬁt
of human beings in need of protection (ibid., p. 276, para. 78).
   14. In that decision of 2011, the ICJ, in declaring itself without compe-
tence to proceed to the examination of the claim as to the merits, in my
understanding failed to value, from the correct humanist perspective, the
suﬀerings and needs of protection of the victimized population (summum
jus, summa injuria) (ibid., pp. 300-307, paras. 145-166). Human rights
conventions are essentially victim-oriented, and can only be properly
interpreted and applied from a humanist outlook, and not at all from a
State-centric and voluntarist one.
   15. In my aforementioned dissenting opinion I further sustained that
the compromissory clause (Art. 22) of the CERD Convention ought to be
interpreted bearing in mind the nature and material content of that Con-
vention, besides its object and purpose, as a human rights treaty (ibid.,
pp. 265-291, paras. 64-118), and I underlined the pressing need of the
realization of justice on the basis of that compromissory clause ; I thus
disagreed with the voluntarist and restrictive posture assumed by the
Court’s majority in the cas d’espèce (ibid., pp. 240-322, paras. 1-214).
   16. In the present case of Application of the ICSFT and CERD (Ukraine
v. Russian Federation), the ICJ once again reiterated its ﬁnding in the
case of Application of the CERD Convention (Georgia v. Russian Federa-
tion) that the phrase any dispute which is “not settled by negotiation or
by the procedures expressly provided for in this Convention” sets up pro-
cedural “preconditions” to be fulﬁlled by the Parties for the Court to be
validly seized (Judgment, para. 106).
   17. On my part, just as I explained in my dissenting opinion attached
to the ICJ Judgment of eight years ago in the aforementioned case oppos-

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ing Georgia to the Russian Federation, I keep on sustaining that Arti-
cle 22 of the CERD Convention does not provide that “preconditions”
should be fulﬁlled for seizing the ICJ (I.C.J. Reports 2011 (I), p. 282,
para. 92). As I then stressed, Article 22 of the CERD Convention, taking
into account the object and purpose of the Convention, “a victim-oriented
human rights treaty”, should have led the ICJ to interpret it as not setting
forth any procedural “precondition” (ibid., pp. 282-284, paras. 92-96).
   18. As to the present Judgment of the ICJ in the case of Application of
the ICSFT and CERD, I can live — not entirely pleased — with its ﬁnding
that the “preconditions” set forth in Article 22 are not “cumulative”, as
such characterization would not be reasonable in respect of the relevant
CERD provisions ; the “cumulative” approach creates an unnecessary
obstacle to access to justice, and the ICJ itself ponders that this would not
be reasonable (Judgment, para. 110). Although I do not agree with the
view that Article 22 of the CERD Convention sets out “preconditions”
(supra), as the Court’s majority here interprets rather distinctly that
“preconditions” are alternative (not at all cumulative), I can then live
with that, to the extent that it preserves the ICJ’s jurisdiction.

   19. In the present case of Application of the ICSFT and CERD (Ukraine
v. Russian Federation), the ICJ, in addressing what it considers the “pre-
conditions” under Article 22 of the CERD Convention, rightly concluded
that Article 22 “must also be interpreted in light of the object and pur-
pose of the Convention” (Judgment, para. 111, and cf. also para. 112). In
this respect, I go further than the ICJ. The due attention to the object and
purpose of a human rights convention like CERD also calls, in my under-
standing, for a proper understanding of the relevance of the basis of juris-
diction under human rights conventions (Article 22 of CERD), as I have
already pointed out, with fundamental human rights and values standing
well above a misguided search for State “consent” (paras. 4-10 supra).

  20. After all, the approach (of alternatives) adopted by the ICJ in the
cas d’espèce is conﬁrmed by the nature and substance of the CERD Con-
vention, a victim-oriented human rights treaty. To attempt to consider
that the “preconditions” would be “cumulative” would be contrary to the
object and purpose of the CERD Convention, as I warned in my dissent-
ing opinion in the previous ICJ decision in the case of Application of the
CERD Convention (Georgia v. Russian Federation) (I.C.J. Reports
2011 (I), pp. 283-284, para. 96). And as I further stated in my dissenting
opinion in that earlier case,
      “with regard to the question whether the previous engagement in nego-
      tiations and recourse to the procedures expressly provided for in the
      CERD Convention (referred to in Article 22) are cumulative or alterna-
      tive, the conjunction ‘or’ indicates that the draftsmen of the CERD Con-

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         vention clearly considered ‘negotiation’ or ‘the procedures expressly
         provided for in this Convention’ as alternatives. The Court could well —
         and should — have discarded any doubts that could persist on this
         point; instead, it deliberately preferred to abstain from pronouncing
         (para. 183) on this aspect of the controversy raised before it. Instead of
         clarifying the point, of saying what the law is (juris dictio), it felt there
         was ‘no need’ to do so.” (I.C.J. Reports 2011 (I), p. 290, para. 116.)
   21. In the present case of Application of the ICSFT and CERD (Ukraine
v. Russian Federation), once again, throughout the arguments of the Par-
ties on preliminary objections submitted to the ICJ, attention has been
concentrated on Article 22 of the CERD Convention 7, from two distinct
approaches. Thus, in the preliminary objections it submitted, the Russian
Federation presents its view that the requirements contained in Article 22
are cumulative, requiring Ukraine to have exhausted negotiations and to
have attempted to resolve the dispute using the special procedures pro-
vided for in the CERD Convention itself (Preliminary Objections of the
Russian Federation, paras. 373-410) 8. Russia further refers to four other
human rights conventions 9, arguing that the compromissory clauses
found in them are similar to those in the CERD Convention, and that the
cumulative requirements are to be complied with by the applicant State
before seizing the ICJ (ibid., paras. 404-410).
   22. For its part, Ukraine, in its written statement, ﬁrmly contests this
view, holding that Article 22 of the CERD Convention does not contain
preconditions, there being a misconstruction in reading Article 22 as
requiring a dispute to be referred to the CERD Committee after negotia-
tions have failed and before seizing the ICJ. Ukraine relies on the ordi-
nary meaning of the disjunctive word “or” in interpreting Article 22 of
the CERD Convention, indicating alternatives (ibid., para. 314). To
Ukraine, this is the most natural reading and the ordinary meaning of
Article 22 (ibid., para. 315).

     7   Which reads as follows:
            “Any dispute between two or more States Parties with respect to the interpreta-
         tion or application of this Convention, which is not settled by negotiation or by the
         procedures expressly provided for in this Convention, shall, at the request of any of
         the parties to the dispute, be referred to the International Court of Justice for deci-
         sion, unless the disputants agree to another mode of settlement.”

     8
     On their view of the “cumulative meaning” of Article 22, cf. also paragraphs 376, 378
and 387-403 of the Preliminary Objections of the Russian Federation.
   9 Namely, Convention against Torture and Other Cruel, Inhuman or Degrading Treat-

ment or Punishment (CAT), Convention on the Protection of the Rights of All Migrant
Workers and Members of their Families (CMW), Convention for the Protection of All
Persons from Enforced Disappearance (CED), and Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW).

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633       application of the icsft and cerd (sep. op. cançado trindade)

   23. Ukraine contends that the CERD Committee procedures referred
to in Article 22 are voluntary and not mandatory, and the respondent
State’s interpretation of it would deprive the compromissory clause of
eﬀect ; moreover, Article 11 concerns only the application of the Conven-
tion. Ukraine adds that if the draftsmen of the CERD Convention had
intended the ICJ’s jurisdiction to be contingent upon the use of the
CERD Committee procedures, they would have addressed such condi-
tions in Part II and not in Part III of the Convention (Preliminary Objec-
tions of the Russian Federation, paras. 316-323).

  24. According to Ukraine, the drafting history of Article 22, and the
object and purpose of the CERD Convention (the prompt elimination of
racial discrimination), support the conclusion that Article 22 does not
require recourse to the CERD Convention inter-State complaints pro-
cedure (ibid., paras. 324-327). In considering the ICJ’s treatment of
Article 22 of the CERD Convention in the earlier case of Application of
the CERD Convention (Georgia v. Russian Federation), ibid., paras. 341-
348, Ukraine submits that the better interpretation of Article 22 (ibid.,
para. 346) is to read it as creating no “precondition” to the ICJ’s juris-
diction to hear disputes concerning the interpretation or application of
the CERD Convention.

     2. Compromissory Clause Within a Victim-Oriented Human Rights
                              Convention
   25. On my part, may I recall that, in my dissenting opinion in the ear-
lier Judgment of the ICJ (of 1 April 2011) in the case of Application of the
CERD Convention (Georgia v. Russian Federation), I sustained the under-
standing that Article 22 of the CERD Convention does not set up “pre-
conditions” for the ICJ to be seized (I.C.J. Reports 2011 (I), p. 283,
para. 92); this is in conformity with the object and purpose of the Con-
vention, “a victim-oriented” human rights treaty (ibid., p. 284, para. 96).
As I clearly explained in my dissenting opinion of eight years ago,
         “In eﬀect, Article 22 is located in Part III of the CERD Conven-
      tion, dealing with the settlement of disputes concerning the interpre-
      tation and application of the Convention as a whole. Article 11,
      located in Part II of the CERD Convention, establishes a special
      complaints procedure, which is not mandatory. The location of Arti-
      cle 22 in a part of the Convention distinct from that which governs
      the functioning of the Committee (Part II) is thus not without rele-
      vance, and should not pass unnoticed. A brief analysis of the special
      complaints procedure contained in Article 11 of the CERD Conven-
      tion indicates that Article 22 of the CERD Convention is not to be
      read as requiring prior ‘exhaustion’ of the procedures set forth in
      Articles 11 and 12 of the CERD Convention, as an alleged ‘precon-
      dition’ to the Court’s jurisdiction.

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634           application of the icsft and cerd (sep. op. cançado trindade)

             It may be recalled that Article 11 (1) of the CERD Convention
          establishes a distinct procedure that allows a State party to bring to
          the attention of the CERD Committee its concerns as to acts or omis-
          sions of another State party. The language provides that a State party
          ‘may’ (not ‘shall’) invoke this procedure if it wishes to do so; this
          makes it clear that it is not required to refer to this procedure for any
          further purpose. The language is clearly not mandatory, and this is
          not the only indication to this eﬀect.

              It is noteworthy, moreover, that Article 11 (2) of the CERD Con-
          vention, which deals with the right to return to the CERD Committee
          ‘if the matter is not adjusted’, is subject to two procedural conditions,
          namely: (a) the right must be exercised within six months from the
          receipt by the receiving State of the initial communication to the Com-
          mittee; and (b) the Committee must have determined that the matter
          has not been adjusted to the satisfaction of both Parties, either by
          bilateral negotiations or by any other procedure open to them. In case
          these two conditions were not met, the State concerned could not go
          back to the CERD Committee.

             This conﬁrms that, when the draftsmen of the CERD Convention
          considered it necessary to establish a procedural condition, they
          clearly did so, leaving no margin or room for further interpretation
          or doubts. If no such condition was clearly set forth, it could not at
          all be simply inferred, as that would not be in conformity with the
          nature and substance of the CERD Convention, a victim-oriented
          human rights treaty, and would clearly militate against the fulﬁlment
          of its object and purpose. This discloses the ordinary meaning of Arti-
          cle 22 of the CERD Convention.” (I.C.J. Reports 2011 (I), pp. 283-
          284, paras. 93-96.) 10
   26. Moreover, from the standpoint of the justiciables, a compromis-
sory clause such as that of Article 22 of the CERD Convention is directly
related to their access to justice ; the realization of justice thereunder can
hardly be attained from a strict State-centered voluntarist perspective,
and a recurring search for State “consent”. As I further sustained in that
dissenting opinion,
             “[I]n my understanding, consent is not ‘fundamental’, it is not even
          a ‘principle’. What is ‘fundamental’, i.e., what lays in the foundations
          of this Court, since its creation, is the imperative of the realization of

     10
      I added that the travaux préparatoires of the CERD Convention do not support or
conﬁrm the conclusion of the Court’s majority (paras. 97-109), and that resort to negotia-
tion was generally referred to as a factual eﬀort or attempt only, rather than as a resolutory
obligation (para. 101).

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635       application of the icsft and cerd (sep. op. cançado trindade)

      justice, by means of compulsory jurisdiction. State consent is but a
      rule to be observed in the exercise of compulsory jurisdiction for the
      realization of justice. It is a means, not an end, it is a procedural
      requirement, not an element of treaty interpretation; it surely does
      not belong to the domain of the prima principia. (. . .)

         Fundamental principles are those of pacta sunt servanda, of equal-
      ity and non-discrimination (at substantive law level), of equality of
      arms (égalité des armes — at procedural law level). Fundamental prin-
      ciple is, furthermore, that of humanity (permeating the whole corpus
      juris of international human rights law, international humanitarian
      law, and international refugee law). Fundamental principle is, more-
      over, that of the dignity of the human person (laying a foundation of
      international human rights law). (. . .)
         These are some of the true prima principia, which confer to the
      international legal order its ineluctable axiological dimension. These
      are some of the true prima principia, which reveal the values which
      inspire the corpus juris of the international legal order, and which,
      ultimately, provide its foundations themselves.” (I.C.J. Reports
      2011 (I), pp. 321-322, paras. 211-213.)
   27. In sum, in my aforementioned dissenting opinion of 2011, I ﬁrmly
disagreed with the Court’s majority in the cas d’espèce, and I stressed that
Article 22 of the CERD Convention does not establish “preconditions”
to the Court’s jurisdiction ; neither the ordinary meaning of Article 22,
nor its drafting history, would support any such formal “preconditions”
to the ICJ’s jurisdiction. Article 22 refers only to “alternatives”, pursuant
to a teleological approach, ensuring and rendering eﬀective human rights
protection under the CERD Convention (ibid., p. 290, para. 116). Arti-
cle 22 must therefore be interpreted in a manner that is conducive to
ensuring human rights protection. To this eﬀect, the ICJ is to construe
the options contained in Article 22 as alternatives, and not at all as “pre-
conditions”.
   28. As I have already pointed out, in its present Judgment in the case
of Application of the ICSFT and CERD (Ukraine v. Russian Federation),
the ICJ does not reiterate the strict outlook that it adopted in the earlier
case of Application of the CERD Convention (Georgia v. Russian Federa-
tion), also under the CERD Convention, and does not sustain any of the
corresponding preliminary objections ; it correctly dismisses them. Yet, I
ﬁnd it necessary to reiterate my dissenting reﬂections of 2011 at this end
of the present decade (2019), so as to keep on contributing to achieve a
proper understanding of the rationale of the compromissory clause of the
CERD Convention (Art. 22) as well as of other UN human rights con-
ventions.

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      IV. Rationale of the Local Remedies Rule in International
      Human Rights Protection: Protection and Redress, Rather
                           than Exhaustion

  29. May I turn to the next selected point to consider, namely, that of
the rationale of the local remedies rule under human rights conventions.
Once again, the point is raised in respect of the CERD Convention. I
shall ﬁrst review the undue invocation of the rule in the recent case of
Application of the International Convention on the Elimination of All Forms
of Racial Discrimination (Qatar v. United Arab Emirates) (hereinafter
Application of the CERD Convention (Qatar v. United Arab Emirates)).
Then, I shall proceed to consider the undue invocation of the rule in the
present case of Application of the ICSFT and CERD, opposing Ukraine to
the Russian Federation. I shall then examine the overriding importance
of redress.

      1. Undue Invocation of the Rule, in the Case of Application of the
                CERD Convention, Opposing Qatar to UAE
   30. Moving now to the other point, this is not the ﬁrst time that I deem
it necessary to warn against the inadequacy of the invocation of the local
remedies rule in an inter-State case before the ICJ pertaining to the appli-
cation of the CERD Convention. In a recent case of the kind, opposing
Qatar to UAE, for example, I appended a separate opinion to the ICJ’s
Order of 23 July 2018, where I began by ﬁnding entirely inadequate and
regrettable the invocation of the rule of exhaustion of local remedies at
the early stage of a request for provisional measures of protection, and
not on admissibility (Provisional Measures, Order of 23 July 2018,
I.C.J. Reports 2018 (II), p. 454, para. 48).

   31. And I added that the incidence of the local remedies rule in human
rights protection is certainly distinct from its application in the practice of
diplomatic protection of nationals abroad, there being nothing to hinder
the application of that rule with greater or lesser rigour in such diﬀerent
domains (ibid., para. 49). And I then pondered that

         “Its rationale is quite distinct in the two contexts. In the domain of
      the safeguard of the rights of the human person, attention is focused
      on the need to secure the faithful realization of the object and purpose
      of human rights treaties, and on the need of eﬀectiveness of local
      remedies; attention is focused, in sum, on the needs of protection. The
      rationale of the local remedies rule in the context of diplomatic pro-
      tection is entirely distinct, focusing on the process of exhaustion of
      such remedies.

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             Local remedies, in turn, form an integral part of the very system of
          international human rights protection, the emphasis falling on the
          element of redress rather than on the process of exhaustion. The local
          remedies rule bears witness of the interaction between international
          law and domestic law in the present context of protection 11. We are
          here before a droit de protection, with a speciﬁcity of its own, funda-
          mentally victim-oriented, concerned with the rights of individual
          human beings rather than of States. Such rights are accompanied by
          obligations of States.

             Generally recognized rules of international law (which the formu-
          lation of the local remedies rule in human rights treaties refers to),
          besides following an evolution of their own in the distinct contexts in
          which they apply, necessarily undergo, when inserted in human rights
          treaties, a certain degree of adjustment or adaptation, dictated by the
          special character of the object and purpose of those treaties
          and by the widely recognized speciﬁcity of the international protec-
          tion of human rights.” (I.C.J. Reports 2018 (II), pp. 454-455,
          paras. 50-52.)
   32. In my same separate opinion in the case of Application of the
CERD Convention (Qatar v. United Arab Emirates), I further pointed out
that, in its handling of successive cases under the CERD Convention, for
example, the Committee on the Elimination of Racial Discrimination
(CERD Committee) has deemed it necessary to single out that petitioners
are only required to exhaust local remedies which are effective in the cir-
cumstances of the cas d’espèce (ibid., p. 455, paras. 53-54). And I con-
cluded, on this point, that
             “The local remedies rule has a rationale of its own under human
          rights treaties; this cannot be distorted by the invocation of the hand-
          ling of inter-State cases in the exercise of diplomatic protection,
          where the local remedies rule has an entirely distinct rationale. The
          former stresses redress, the latter outlines exhaustion. One cannot
          deprive a human rights convention of its effet utile by using the dis-
          tinct rationale of the rule in diplomatic protection.

     11
      Cf. A. A. Cançado Trindade, The Application of the Rule of Exhaustion of Local
Remedies in International Law, Cambridge University Press, 1983, pp. 1-445; A. A. Cançado
Trindade, O Esgotamento de Recursos Internos no Direito Internacional, 2nd ed., Brasília,
Edit. University of Brasília, 1997, pp. 1-327; A. A. Cançado Trindade, “Origin and Histor-
ical Development of the Rule of Exhaustion of Local Remedies in International Law”, 12
Revue belge de droit international/Belgisch Tijdschrift voor internationaal Recht, Brussels
(1976), pp. 499-527.

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638           application of the icsft and cerd (sep. op. cançado trindade)

             Contemporary international tribunals share the common mission
          of realization of justice. There is here a fundamental unity of concep-
          tion and mission. International human rights tribunals, created by
          conventions at regional levels, operate within the conceptual frame-
          work of the universality of human rights. International human rights
          tribunals have been faithful to the rationale of eﬀectiveness of local
          remedies and redress 12. There is in this respect a complementarity in
          outlook between mechanisms of dispute-settlement at UN and
          regional levels, all operating under the conceptualized universality of
          the rights inherent to the human person.” (I.C.J. Reports 2018 (II),
          pp. 455-456, paras. 55-56.)

        2. Undue Invocation of the Rule, in the Case of Application of
      the CERD Convention 13, Opposing Ukraine to Russian Federation
   33. In its Judgment in the present case opposing Ukraine to the Rus-
sian Federation, the ICJ, in the part relating to the CERD Convention,
rightly dismissed the preliminary objection of alleged non-exhaustion of
local remedies. In its submission, the Russian Federation intended to
widen its scope (p. 223, para. 447) so as to cover any claim under the
CERD Convention, — in the light of its Articles 11 (3) and 14 (7) (a), —
including inter-State claims (p. 224, paras. 448-449).

   34. Ukraine, for its part, contested the applicability of the local rem-
edies rule in this context, and held that this rule applied only in claims by
a State on behalf of speciﬁc individuals or entities ; in the present case,
however, —Ukraine added, —its claims under the CERD Convention
related to “a broad pattern of conduct” by the respondent State resulting
in breaches of its obligations under the CERD Convention (p. 199,
para. 373).
   35. As to my own position on the matter at issue, it is clear from the
wording of Article 11 (3) of the CERD Convention that the local rem-
edies rule only applies to procedures before the CERD Committee. More

     12To this eﬀect, cf., for an analysis of the vast case law of the ECtHR on the matter,
e.g., P. van Dijk, F. van Hoof, A. van Rijn and Leo Zwaak, Theory and Practice of the
European Convention on Human Rights, 4th ed., Antwerp/Oxford, Intersentia, 2006,
pp. 125-161 and 560-563; D. J. Harris, M. O’Boyle, E. P. Bates and C. M. Buckley, Law
of the European Convention on Human Rights, 2nd ed., Oxford University Press, 2009,
pp. 759-776; as to the case law of the IACtHR, cf. A. A. Cançado Trindade, El Agota-
miento de los Recursos Internos en el Sistema Interamericano de Protección de los Derechos
Humanos, San José/C.R., IIDH, 1991, pp. 1-60; and as to the case law of the African Court
on Human and Peoples’ Rights (AfCtHPR), cf. M. Löﬀelmann, Recent Jurisprudence of
the African Court on Human and Peoples’ Rights — Developments 2014 to 2016, Arusha,
Tanzania/Eschborn, Germany, Deutsche Gesellschaft für Internationale Zusammenarbeit
(GIZ), 2016, pp. 1-63, esp. pp. 5-8, 22, 24-26 and 29-30.
     13   Besides the Convention for the Suppression of the Financing of Terrorism (ICSFT).

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639       application of the icsft and cerd (sep. op. cançado trindade)

speciﬁcally, it is only when the dispute is brought before the CERD Com-
mittee for the second time, because the matter is not adjusted to the sat-
isfaction of both parties, that the Committee will ascertain that local
remedies have been exhausted in the case at issue.
   36. This is in contrast with the respondent State’s argument of drawing
the relevance of the wording in Articles 11 (3) and 14 (7) (a) of the
CERD Convention, which cannot be sustained 14. On the contrary, Arti-
cle 22 of the CERD Convention, as the compromissory clause on the
basis of which the ICJ is seized, makes no mention of a requirement to
exhaust local remedies prior to seizing the Court. In eﬀect, Article 22 is to
be interpreted in a way conducive to ensuring human rights protection,
and thus provides alternative (not cumulative) options.

  37. In the present case, Ukraine, instead of protecting nationals, com-
plains of an alleged internationally wrongful act of the respondent State
against it, in breach of the CERD Convention. As such, it cannot be liti-
gated in domestic courts of another State, and the local remedies rule
does not apply. Ukraine is thus correct in pointing to the impossibility of
bringing such a case in the respondent State’s domestic courts.

   38. It is clear that individual rights are here also at stake, and human
rights treaties such as the CERD Convention protect them to the beneﬁt
of the human persons concerned. But a breach of the CERD Convention
also entails the commission of an internationally wrongful act by a State,
and here the Convention’s enforcement does not require the application
of the rule of exhaustion of local remedies. In the cas d’espèce, Ukraine
points out that it does bring its claim on behalf of the individuals con-
cerned, but rather in its own right ; as a result, the respondent State’s
preliminary objection of alleged non-exhaustion of local remedies does
not stand, and has been rightly dismissed by the ICJ.

                    3. The Overriding Importance of Redress
   39. In any case, the ultimate beneﬁciaries of the application of the
CERD Convention, among other human rights treaties, are the human
beings protected by them, even in an inter-State claim thereunder, as the
present one. It is necessary to keep in mind that the fundamental rights of
human beings stand well above the States, which were historically created
to secure those rights. After all, States exist for human beings, and not
vice versa.

   14 The respondent State’s invocation of those provisions is linked to its unsustainable

view that Article 22 of the CERD Convention contains cumulative requirements to be
fulﬁlled for the Court to have jurisdiction over the case.

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640           application of the icsft and cerd (sep. op. cançado trindade)

   40. The prevalence of human beings over States marked presence in
the writings of the “founding fathers” of the law of nations, already atten-
tive to the need of redress for the harm done to the human person. This
concern marks presence in the writings of the “founding fathers” of the
sixteenth century, namely : Francisco de Vitoria (Second Relectio — De
Indis, 1538-1539) 15; Juan de la Peña (De Bello contra Insulanos, 1545) ;
Bartolomé de Las Casas (De Regia Potestate, 1571) ; Juan Roa Dávila
(De Regnorum Justitia, 1591) ; and Alberico Gentili (De Jure Belli, 1598).
   41. Attention to the need of redress is likewise present in the writings
of the “founding fathers” of the following seventeenth century, namely :
Juan Zapata y Sandoval (De Justitia Distributiva et Acceptione Persona-
rum ei Opposita Disceptatio, 1609) ; Francisco Suárez (De Legibus ac Deo
Legislatore, 1612) ; Hugo Grotius (De Jure Belli ac Pacis, 1625, Book II,
Chap. 17) ; and Samuel Pufendorf (Elementorum Jurisprudentiae Univer-
salis — Libri Duo, 1672 ; and On the Duty of Man and Citizen According
to Natural Law, 1673) ; and is also present in the writings of other think-
ers of the eighteenth century. This is to be kept in mind.
   42. The rationale of the local remedies rule in human rights protection
discloses the overriding importance of the element of redress, the provi-
sion of which being a matter of ordre public ; what ultimately matters is
the redress obtained for the wrongs complained of, and not the mechani-
cal exhaustion of local remedies. The incidence of the local remedies rule
in human rights protection is certainly distinct from its application in dip-
lomatic protection ; as those two contexts are also distinct, there is noth-
ing to hinder the application of that rule with lesser or greater rigour in
such diﬀerent situations 16.

   43. This law of protection of the rights of the human person, within the
framework of which international and domestic law appear in constant
interaction, is inspired by common superior values : this goes pari passu
with an increasing emphasis on the State’s duty to provide eﬀective local
remedies. In sum, as I have been pointing out over the years,

          “local remedies form an integral part of the very system of interna-
          tional human rights protection, the emphasis falling on the element
          of redress rather than on the process of exhaustion. The local remedies

     15
      Already in his pioneering writings, F. de Vitoria conceived the law of nations (droit
des gens) as regulating an international community (totus orbis) comprising human beings
organized socially in emerging States and conforming humanity; the reparation of viola-
tions of their rights reﬂected an international necessity addressed by the law of nations
(droit des gens), with the same principles of justice applying likewise to States and indi-
viduals and peoples conforming them. Cf. A. A. Cançado Trindade, “Totus Orbis: A Visão
Universalista e Pluralista do Jus Gentium: Sentido e Atualidade da Obra de Francisco de
Vitoria”, 24 Revista da Academia Brasileira de Letras Jurídicas, Rio de Janeiro (2008),
No. 32, pp. 197-212.
   16 A. A. Cançado Trindade, The Access of Individuals to International Justice, Oxford

University Press, 2011, pp. 101, 103 and 105.

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641       application of the icsft and cerd (sep. op. cançado trindade)

      rule bears witness to the interaction between international law and
      domestic law in the present domain of protection, applying only when
      those remedies are indeed eﬀective and capable to provide redress.
      We are here before a droit de protection, with a speciﬁcity of its own,
      fundamentally victim-oriented, concerned with the rights of individual
      human beings rather than of States. Generally recognized rules of
      international law (which the formulation of the local remedies rule in
      human rights treaties refers to), besides following an evolution of their
      own in the distinct contexts in which they apply, necessarily undergo,
      when inserted in human rights treaties, a certain degree of adjustment
      or adaptation, dictated by the special character of the object and
      purpose of those treaties and by the widely recognized speciﬁcity of
      the international protection of human rights.” 17

  V. The Relevance of Jurisdiction in Face of the Need to Secure
       Protection to Those in Situations of Vulnerability

  44. My considerations in the present separate opinion leave it clear
that there are aggravating circumstances which increase the need to secure
protection to those directly aﬀected by them. This is another point which
cannot pass here unnoticed. The factual context of the present case of
Application of the ICSFT and the CERD Conventions discloses that those
who seek protection ﬁnd themselves in utmost vulnerability, if not
defencelessness, and, in addition, in need to safeguard themselves against
arbitrariness. The ICJ cannot, and does not, make abstraction of such
increased need of protection.

                     1. Protection in Face of Vulnerability
   45. In eﬀect, even in an earlier stage of the handling of the cas d’espèce, I
had appended a separate opinion to the ICJ’s Order (of 19 April 2017) on
provisional measures of protection, wherein I dwelt upon the importance of
such measures in face of the aggravated human vulnerability and defence-
lessness of the segments of the population aﬀected (I.C.J. Reports 2017,
pp. 164-166, paras. 21-29). As shown in the course of the proceedings, indis-
criminate shelling against civilians (in eastern Ukraine) struck and damaged
residential buildings, hospitals, schools, kindergartens, ambulances (ibid.,
pp. 166-167, paras. 30-31), causing physical injuries and imposing limita-
tions on freedom of movement (ibid., pp. 168-169, paras. 32-35).

   17 Cf. supra note 16, p. 107; and cf. A. A. Cançado Trindade, The Application of the

Rule of Exhaustion of Local Remedies in International Law, op. cit. supra note 11, 1983,
pp. 1-443.

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  46. Hence the importance — I proceeded — of due consideration of
the test of human vulnerability, insuﬃciently considered by the ICJ at
that stage (I.C.J. Reports 2017, p. 169, para. 36 and pp. 170-171,
paras. 41-44). I then deemed it ﬁt to recall that
          “the CERD Convention is a core UN human rights convention
          intended to protect rights of the human person at intra-State level.
          Accordingly, concern for the protection of vulnerable segments of the
          population must inform the Court’s ﬁnding that the test of human
          vulnerability here applies, requiring provisional measures of protec-
          tion” (ibid., p. 172, para. 48).

   47. In eﬀect, this is a consideration to be kept in mind in all stages of
the handling of the present case, including the present one on preliminary
objections, here duly dismissed. I then stressed that “the vulnerability of
victims, with its implications, are (. . .) clearly acknowledged in contem-
porary international case law, of distinct international tribunals” (ibid.,
p. 173, para. 53). I recalled, e.g., that the European Court of Human
Rights (ECtHR), has likewise been seized, since 2015, of two cases of
Ukraine v. Russian Federation (ibid., pp. 176-177, paras. 60-61), — the
matter remaining pending with it 18 to date (November 2019).

   48. I then pointed out that the handling of the present case of the
Application of the ICSFT Convention and of the CERD Convention
requires “a humanist outlook”, going beyond the strict inter-State dimen-
sion, given the great need of protection of those in situations of great
vulnerability or even defencelessness (ibid., pp. 184-185, paras. 84 and
86). I added that here “[t]he principle of humanity comes to the fore” ; it
“permeates the whole corpus juris of contemporary international law”
with “a clear incidence on the protection of persons in situations of great
vulnerability. The raison d’humanité prevails here over the raison d’Etat.
Human beings stand in need, ultimately, of protection against evil, which
lies within themselves” (ibid., p. 186, paras. 90-91).

                         2. Protection against Arbitrariness
   49. In cases of extreme violence like the present one, human
beings stand in need of protection against arbitrariness on the part not
only of State authorities, but also of other (unidentiﬁed) individuals. In a
wider horizon, human beings need protection ultimately against them-
selves 19. Human rights conventions, like CERD, enable the exercise of

     18
      Cf. ECtHR, Press Release ECHR 173 (2018), of 9 May 2018, pp. 1-3.
     19
      Extreme violence has regrettably accompanied human relations over the centuries.
Even those who survived acts of brutality became deeply harmed physically and psycho-
logically by them for the rest of their lives. To recall only one example, of the mid-twentieth

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643            application of the icsft and cerd (sep. op. cançado trindade)

protection against arbitrariness, in any circumstances. There is an abso-
lute prohibition of arbitrariness in the rationale of those conventions, in
support of the imperative of access to justice lato sensu, the right to the
Law (le droit au Droit, el derecho al Derecho), to secure the realization of
justice even in situations of utmost human vulnerability 20.
   50. Fundamental principles of law reveal the right to the Law of which
are titulaires all human beings in need of protection. Those principles do
not depend on the State’s “will” or “consent”, and the inalienable rights
under human rights conventions, like CERD, rest on the foundations of
jus gentium itself 21. Human beings in situations of great vulnerability or
adversity stand in need of a higher standard of protection under human
rights conventions, like CERD. The Court cannot remain hostage of
State “consent” to the point of losing sight of the imperative of realiza-
tion of justice, also in these situations.

   51. After all, the safeguard and prevalence of dignity of the human
person, — even amidst utmost vulnerability and facing arbitrariness, —
are identiﬁed with the end itself of Law. General principles of law con-
form the substratum of the legal order itself, guaranteeing its unity,
integrity and cohesion. Such indispensable principles, consubstantial to
the international legal order itself, form the jus necessarium (not a jus
voluntarium), prior and superior to the State’s “will”, and expressing an
idea of objective justice, in the line of jusnaturalist thinking.

                            VI. Concluding Considerations

  52. In eﬀect, UN human rights conventions, like CERD, attribute a
central place to the human person in the domain of protection of rights

century, a survival of the acts of cruelty of the Second World War, Elie Wiesel, expressed
in his reﬂections (of 1958-1961) his deep anguish. In referring to “the tragic fate of those
who came back, left over, living-dead”, he pondered:

             “Anyone who has seen what they have seen cannot be like the others, cannot
          laugh, love, pray, bargain, suﬀer, have fun, or forget. (. . .) Something in them shud-
          ders and makes you turn your eyes away. These people have been amputated; they
          haven’t lost their legs or eyes but their will and their taste for life. (. . .) What it
          comes down to is that man lives while dying, that he represents death to the living,
          and that’s where tragedy begins.” E. Wiesel, The Night Trilogy — Night, Dawn, Day
          (1958-1961), N.Y., Hill and Wang, 2008 (reed.), pp. 295-296 and 298.
     20
      Cf. A. A. Cançado Trindade, El Principio Básico de Igualdad y No-Discriminación:
Construcción Jurisprudencial, Santiago de Chile, Ed. Librotecnia, 2013, pp. 308 and
706-708.
   21 A. A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos,

Vol. III, Porto Alegre/Brazil, S.A. Fabris Ed., 2003, pp. 524-525, and cf. pp. 376-380, 383,
386 and 389-390.

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644         application of the icsft and cerd (sep. op. cançado trindade)

inherent to her, setting limits to State voluntarism, and thus safeguarding
their integrity and the primacy of considerations of ordre public over the
“will” of individual States. May I recall that, in the ICJ Judgment in the
case of Jurisdictional Immunities of the State (Germany v. Italy: Greece
intervening), Judgment, I.C.J. Reports 2012 (I), where the Court upheld
the sovereign immunities of Germany in the cas d’espèce (originated his-
torically in the crimes of the Third Reich in the Second World War, in
1943-1945), I presented my extensive dissenting opinion (ibid., pp. 179-290,
paras. 1-316), strongly opposing the ICJ’s voluntarist-positivist approach,
based on the “will” of the States; I further singled out that situations of
injustice are unsustainable.

   53. There have unfortunately been other recent examples to the same
eﬀect, wherein I have appended other lengthy dissenting opinions 22. The
central place — may I here reiterate — as clearly indicated by cases con-
cerning human rights, is that of the human person, and the basic posture
is principiste, without making undue concessions to State voluntarism.
The assertion of an objective law, beyond the “will” of individual States,
is, in my perception, a revival of jusnaturalist thinking.
   54. After all, the basic foundations of international law, the law of
nations (droit des gens), emanate ultimately from the human conscience,
from the universal juridical conscience, and not from the “will” of indi-
vidual States. Human rights conventions, like CERD, are people-centered
and victim-oriented (rather than State-centric), focusing on the protection
of human beings, in particular in situations of vulnerability or defense-
lessness. They acknowledge the need, in the adjudication of cases, to go
beyond the strict inter-State outlook, with due attention to the persons in
need of protection, in pursuance of a humanist outlook, and in the light
of the principle of humanity 23.

     22 For example, in its Judgment (of 3 February 2015) in the case of the Application of the

Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), the
ICJ held that, while the prohibition of genocide has the character of jus cogens, with obliga-
tions erga omnes, its own jurisdiction is based on consent, on which it depends even when
the dispute submitted to it relates to alleged violation of norms having peremptory char-
acter. After its own examination of the facts, it decided to reject the Applicant’s claim, and
once again I appended an extensive dissenting opinion (I.C.J. Reports 2015 (I), pp. 202-380,
paras. 1-547). Other recent examples to the same eﬀect can be found in the three recent Judg-
ments (of 10 May 2016) of the ICJ in the three cases of Obligations concerning Negotiations
relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands
v. India/Pakistan/United Kingdom). The ICJ decided, by a split-majority, to uphold one of the
preliminary objections, grounded on the alleged absence of a dispute between the contending
parties, and, thus, not to proceed to the merits of the cases. Once again, I appended three
extensive dissenting opinions of over three hundred paragraphs to those three Judgments.
    23 For a recent study, cf. A. A. Cançado Trindade, “Reﬂexiones sobre la Presencia de

la Persona Humana en el Contencioso Interestatal ante la Corte Internacional de Justicia:
Desarrollos Recientes”, 17 Anuario de los Cursos de Derechos Humanos de Donostia-San
Sebastián, Universidad del País Vasco (2017), pp. 223-271.

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   55. In the course of the recent public hearings before the ICJ (of June
2019) on preliminary objections in the present case of Application of the
ICSFT and the CERD Conventions, the contending Parties, in addition to
their arguments on speciﬁc legal points, also addressed the factual context
of the cas d’espèce. In doing so, occurrences of extreme violence were
referred to by Ukraine 24 and the Russian Federation 25 (for example, the
indiscriminate shelling victimizing civilians in Eastern Ukraine : Mariu-
pol, Volnovakha, Kramatorsk and Avdiivka). This shows that, in a case
like the present one, in my perception, one cannot make abstraction of
events of extreme violence in the examination of preliminary objections
themselves.
   56. The decision of the ICJ, in the present case opposing Ukraine to
the Russian Federation, to dismiss the preliminary objections, is in con-
formity with the rationale of human rights conventions, like CERD, but
its reasoning could also have been likewise, if the Court had not once
again relied mechanically upon the relevance it is used to attribute to
State “consent” (cf. supra). Conscience stands above the “will”. Human
beings, even in the most adverse conditions, stand as subjects of interna-
tional law, endowed under human rights conventions with juridical per-
sonality together with procedural capacity.
   57. This is the position that I have been sustaining for a long time. For
example, almost two decades ago I pondered, in another international
jurisdiction 26, that
             “The considerable scientiﬁc-technological advances of our times
          has much increased the capacity of the human being to do all that is
          both good and evil. As to this latter, one cannot deny nowadays the
          importance and pressing need to devote greater attention to victimi-
          zation, human suﬀering, and rehabilitation of the victims, — keeping
          in mind the current diversiﬁcation of the sources of violations of
          human rights. The systematic violations of human rights and the
          growth of violence (in its multiple forms) in our days and everywhere
          disclose that, regrettably, the much praised material progress (enjoyed,
          in reality, by very few) has simply not been accompanied pari pasu of
          concomitant advances at spiritual level.” 27

  58. Attention is to remain turned to the victimized persons, rather than
to inter-State susceptibilities. In my perception, legal positivism has

     24
      Cf. CR 2019/10, of 4 June 2019, p. 13, paras. 8-9, and pp. 42-44, paras. 59-62
and 68-71; CR 2019/12, of 7 June 2019, p. 32, para. 6, p. 39, paras. 41-42, and pp. 40-42,
paras. 50-54 and 58-59.
   25 Cf. CR 2019/9, of 3 June 2019, p. 18, paras. 22-23, and pp. 29-31, pp. 39-42;

CR 2019/11, of 6 June 2019, pp. 23-24, paras. 44-48.
   26 The Inter-American Court of Human Rights (IACtHR).
   27 Separate opinion (para. 23) of Judge Cançado Trindade, in the case of the “Street

Children” (Villagrán Morales and Others v. Guatemala), IACtHR’s Judgment (repara-
tions) of 26 May 2001.

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always been subservient to the established power (irrespective of the ori-
entation of this latter), paving the way for decisions that do not realize
justice. This cannot be overlooked, in particular in cases under human
rights conventions ; law cannot prescind from justice, they come inelucta-
bly together.

   59. Cases under UN human rights conventions, like the cas d’espèce,
call for a reasoning beyond the strict inter-State outlook, and transcend-
ing the “will” of States. The voluntarist outlook is unsustainable. Nowa-
days, more than ever, human beings stand in need of protection from
themselves. The basic foundations and the evolution of contemporary jus
gentium emanates from human conscience, the universal juridical con-
science, rather than the inscrutable “will” of States.

   60. I have already made the point that the jus gentium of our times
ﬁnds its historical roots in the conception and the ideals of the “founding
fathers” of the law of nations during the sixteenth and seventeenth centu-
ries (cf. paras. 40-41 supra). Theirs was, in my own perception, a univer-
salist perspective (the civitas maxima gentium),
          “going beyond purely inter-State relations. Its foundations are
          independent of the ‘will’ of its legal subjects (States or others). It
          is ultimately the product of human conscience and is based on ethi-
          cal principles that integrate fundamental values shared by the
          international community as a whole and by humanity.” 28

   61. It may be argued that the world wherein the “founding fathers”
lived in the sixteenth and seventeenth centuries is quite distinct from the
world of our times; yet, the ideals and aspirations are recurring for the
realization of justice (also at international level). I have considered this
point in an address that I delivered in Athens half a decade ago, wherein
I pondered that
             “Although the contemporary international scene is (undeniably)
          entirely diﬀerent from that of the era of the renowned ‘founding
          fathers’ of international law who propounded a civitas maxima gov-
          erned by the law of nations, there is a recurrent human aspiration,

     28
      A. A. Cançado Trindade, “Le droit international contemporain et la personne
humaine”, 120 Revue générale de droit international public (2016), No. 3, p. 501. And, on
the perennial legacy of the “founding fathers” of the law of nations, cf. A. A. Cançado
Trindade, “La Perennidad del Legado de los ‘Padres Fundadores’ del Derecho Interna-
cional”, 13 Revista Interdisciplinar de Direito da Faculdade de Direito de Valença (2016),
No. 2, pp. 15-43 ; A. A. Cançado Trindade, “La Perennidad del Legado de los ‘Padres
Fundadores’ del Derecho Internacional”, Discurso del Acto de Investidura como Doctor
Honoris Causa del Profesor A. A. Cançado Trindade, Madrid, Ed. Universidad Autónoma
de Madrid, 20 May 2016, pp. 17-55, esp. pp. 25-26, 38, 42 and 55.

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          passed down from generation to generation over the centuries,
          which has led to the construction of an international legal order
          applicable both to States (and international organizations) and to
          individuals, in accordance with certain universal standards of justice.
          This explains the importance assumed, in this new corpus juris of
          protection, by the international legal personality of the individual,
          as subject of both domestic and international law.” 29
   62. States have humane ends, emanating from recta ratio, human con-
science, resting on the foundations of jus gentium, as propounded by the
jusnaturalist vision. The rights inherent to the human person are anterior
and superior to the States, thus deauthorizing the archaic positivist
dogma which intended to reduce such rights to those “granted” by the
States. The State is not an end in itself, it was created for human beings,
and conceived to be law-abiding (état de Droit), so as to achieve its
humane ends.
   63. Over nine decades ago, Nicolas Politis had warned that the State is
subjected to Law, which has always the same end, namely, “it is aimed at
human beings, and human beings alone. This is so evident that it would
be needless to dwell on the point, had not the mists of sovereignty
obscured the most basic of truths” 30. Human societies, he added, “exist
only to ensure that human beings have the possibility to live and
develop” 31. There are other related points that can here be added, in the
light of the evolution of contemporary international law.
   64. Thus, the principle of humanity, with its wide dimension, gives
expression to the raison d’humanité imposing limits to the raison d’Etat. It
identiﬁes itself, in my perception, with the aim of the international legal
order, in acknowledging the [relevance of the] rights inherent to the
human person. As I have been pointing out within the ICJ 32, the principle
of humanity permeates the whole corpus juris gentium, enhancing the
international protection of the rights of the human person.

  65. Furthermore, the principle of humanity extends itself, in my per-
ception, to conventional and customary international law, having an inci-
dence on all and any circumstances, in particular when persons seeking
protection are in situations of great vulnerability or defencelessness. The
principle of humanity counts on judicial recognition in a corpus juris gen-

     29
      A. A. Cançado Trindade, “L’humanisation du droit international : la personne
humaine en tant que sujet du droit des gens”/“The Humanization of International Law :
The Human Person as Subject of the Law of Nations” [Discours de doctorat honoris
causa], TIMH/Hommage à A. A. Cançado Trindade for a Humanized International Law,
Athens, I. Sideris Ed., 1 July 2014, pp. 32-33.
   30 N. Politis, Les nouvelles tendances du droit international, Paris, Libr. Hachette, 1927,

pp. 76-78.
   31 Ibid., pp. 78-79.
   32 Cf., earlier on, e.g., my dissenting opinion in the case of the Application of the Conven-

tion on the Prevention and Punishment of the Crime of Genocide (Judgment of 3 February
2015), paras. 65, 68-69, 84 and 523.

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tium oriented towards the victims, in the line — as I have already pointed
out — of jusnaturalist thinking. Human rights conventions have enriched
this corpus juris, conforming a true law of protection (droit de protec-
tion), well beyond the outdated and strict inter-State dimension.
   66. Such conception has thus paved the way to the evolution of the law
of nations itself. The imperative of the realization of justice acknowledges
that conscience (recta ratio), the universal juridical conscience, necessar-
ily stands well above the “will” of States. It is in this understanding that
the realization of justice at international level has been assuming a much
wider dimension. There is nowadays a vast corpus juris communis on mat-
ters of concern to the international community as a whole (e.g., those
dealt with by UN human rights conventions), overcoming the traditional
inter-State paradigm of the international legal order.

   67. In eﬀect, the inter-State mechanism of the contentieux before the
ICJ cannot be invoked in justiﬁcation for a strictly inter-State reasoning
in cases concerning the safeguard of vulnerable or defenceless human
beings. The nature and substance of a case of the kind before the ICJ, on
the basis of a human rights convention like CERD, thus calls for a rea-
soning going well beyond that strict inter-State dimension, with atten-
tion focused on victimized human beings, in pursuance of a humanist
outlook.
   68. In sum, the law of nations is endowed with universality, with
human conscience (recta ratio) prevailing over the “will” of States, of all
legal subjects. Moreover, the concomitant expansion of international
jurisdiction, responsibility, personality and capacity, rescues and enhances
the position of the human person as subject of international law. As I
have been ﬁrmly sustaining over the years, the evolution of contemporary
jus gentium does not emanate from the inscrutable “will” of the States,
but rather from human conscience (recta ratio), — the universal juridical
conscience as the ultimate material source of the law of nations.

                   VII. Epilogue: A Recapitulation

   69. I deem it ﬁt, at this ﬁnal stage of my present separate opinion in the
cas d’espèce, to recapitulate brieﬂy, in this epilogue, the points of my own
reasoning developed herein, for the sake of clarity, and in order to stress
their interrelatedness. Primus: The rationale of UN human rights conven-
tions, like CERD, cannot be overlooked by a misguided search for State
“consent”. Secundus: Attention is to focus on the relevance of the basis of
jurisdiction for the protection of the vulnerable under human rights con-
ventions.

  70. Tertius : Human rights conventions, like CERD, go beyond the
outdated inter-State outlook, ascribing a central position to the individ-

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ual victims, rather than to their States. Quartus : In doing so, human
rights conventions, like CERD, are turned to securing the eﬀective pro-
tection of the rights of the human person, in light of the principle pro
persona humana, pro victima. Quintus : Had the inter-State dimension not
been surmounted, not much development would have taken place in the
present domain.

   71. Sextus : Careful account is to be taken of the needs of protection of
persons in situations of vulnerability or defencelessness. Septimus : The
realization of justice, with the judicial recognition of the suﬀerings of the
victims, is an imperative. Octavus : The compromissory clause of a victim-
oriented human rights convention, like CERD (Art. 22), is related to the
justiciables’ right of access to justice. Nonus : This requires a necessary
humanist outlook, and not at all a State-centric and voluntarist one.

   72. Decimus : In the consideration of utmost vulnerability or defence-
lessness of the human person, the principle of humanity comes to the
fore. Undecimus : The principle of humanity assumes a clear incidence in
the protection of human beings, in particular in situations of vulnerability
or defencelessness of those victimized. Duodecimus : The principle of
humanity, which has met with judicial recognition, permeates human
rights conventions, and the whole corpus juris of protection of human
beings.
   73. Tertius decimus : The principle of humanity is in line with the long-
standing jusnaturalist thinking (recta ratio), permeating likewise the law
of the United Nations. Quartus decimus : General principles of law
enshrine common and superior values, shared by the international com-
munity as a whole. Quintus decimus : Article 22 of the CERD Convention
does not set forth “preconditions” ; in any case, the ICJ’s jurisdiction is
rightly preserved in the cas d’espèce, with due attention to be given to the
object and purpose of the Convention, as a victim-oriented human rights
treaty.
   74. Sextus decimus : We are here before a law of protection (droit de
protection), where the local remedies rule has a rationale entirely distinct
from the one in diplomatic protection : the former stresses redress, the
latter outlines exhaustion. Septimus decimus : The prevalence of
human beings over States marked presence in the writings of the “found-
ing fathers” of the law of nations (sixteenth-seventeenth centuries),
already attentive to the need of redress for the harm done to the human
person.
   75. Duodevicesimus : Human beings stand in need of protection against
evil, they need protection ultimately against themselves. Undevicesimus :
Furthermore, they stand in need of protection against arbitrariness, hence
the importance of the imperative of access to justice lato sensu, the right
to the Law (le droit au Droit, el derecho al Derecho), to secure the realiza-
tion of justice also in situations of utmost human vulnerability. Vicesi-

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mus : Fundamental principles of law conform the substratum of the jus
necessarium (not a jus voluntarium) in protection of human beings,
expressing an idea of objective justice, in the line of jusnaturalist
thinking.
   76. Vicesimus primus : The basic foundations of the law of nations
emanate ultimately from the universal juridical conscience. Vicesimus
secundus : Human beings are subjects of the law of nations, and attention
is to remain turned to the victimized persons, rather than to inter-State
susceptibilities. Vicesimus tertius : Overcoming the limitations of legal
positivism, attention is to focus on the humane ends of States, emanating
from recta ratio, as propounded by the jusnaturalist vision. Vicesimus
quartus : Rights inherent to the human person are anterior and superior
to the States.
   77. Vicesimus quintus : The principle of humanity counts on judicial
recognition in a corpus juris gentium oriented towards the victims, in the
line of jusnaturalist thinking. Vicesimus sextus : The universal juridical
conscience (recta ratio) necessarily prevails over the “will” of States. Vic-
esimus septimus : A decision under human rights conventions, like CERD,
calls for a reasoning going well beyond the strict inter-State dimension,
with attention turned to victimized human beings, in pursuance of a
humanist outlook.
   78. Vicesimus octavus : The concomitant expansion of international
jurisdiction, responsibility, personality and capacity, rescues and enhances
the position of the human person as subject of international law. Vicesimus
nonus : The law of nations is endowed with universality, with human
conscience (recta ratio) prevailing over the “will” (of any of the sub-
jects of law), as its ultimate material source. Trigesimus : The prevalence
of the universal juridical conscience as the ultimate material source of the
law of nations points to securing the realization of justice in any circum-
stances.

                      (Signed) Antônio Augusto Cançado Trindade.

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