                    242

                                            DISSENTING OPINION
                                       OF JUDGE CANÇADO TRINDADE

                                                   table of contents

                                                                                Paragraphs

                         I. Prolegomena                                                   1-4
                      II. Provisional Measures of Protection : The Concomitant
                          New Requests by Costa Rica and Nicaragua                        5-7
                     III. Technical Missions in Loco Pursuant to the Ramsar Con-
                          vention8-14
                     IV. The Position of the Parties as to the Purported Expansion
                         of Provisional Measures : The Request of Costa Rica            15-19
                         V. Urgency and Risk of Harm in the Form of Bodily Injury
                            or Death                                                    20-23
                     VI. The Position of the Parties as to the Purported Expansion
                         of Provisional Measures : The Request of Nicaragua             24-28
                    VII. General Assessment of the Request of Costa Rica and
                         Nicaragua29-37
                            1. Costa Rica’s request                                     29-33
                            2. Nicaragua’s request                                      34-37
                    VIII. Effects of Provisional Measures of Protection beyond the
                          Strict Territorialist Outlook                                 38-43
                     IX. The Beneficiaries of Provisional Measures of Protection,
                         beyond the Traditional Inter‑State Dimension                   44-50
                      X. Effects of Provisional Measures of Protection beyond the
                         Traditional Inter‑State Dimension                              51-56
                     XI. The Proper Exercise of the International Judicial Func-
                         tion : A Rebuttal of So‑Called “Judicial Self‑Restraint”,
                         or L’Art de ne Rien Faire57-68
                    XII. Epilogue : Towards an Autonomous Legal Regime of Pro-
                         visional Measures of Protection                                69-76

                                                          *

                    16

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

                                                           I. Prolegomena

                       1. I regret not to be able to concur with the decision taken by the
                    majority of the Court (first resolutory point) not to indicate new provi-
                    sional measures in the cas d’espèce. My perception is that the Court
                    majority’s reasoning and decision, data venia, suffer from an ineluctable
                    incongruence : having admitted that there is a change in the situation
                    (paras. 25, 31 and 36), it extracts no consequence therefrom, as in its view
                    “the conditions have not been fulfilled” for it to modify the measures it
                    indicated in its previous Order of 8 March 2011 (para. 36). In limiting
                    itself to simply reaffirming its previous provisional measures, it expresses
                    its concerns at the new situation created in the disputed area (para. 37),
                    with the presence therein no longer of personnel (whether civilian, police
                    or security), but rather of “organized groups” of individuals.

                       2. My position is, a contrario sensu, that the changing circumstances
                    surrounding the present cases (joined), opposing Costa Rica to Nicaragua
                    and vice versa, concerning, respectively, Certain Activities Carried Out by
                    Nicaragua in the Border Area, and the Construction of a Road in Costa Rica
                    along the San Juan River, require from the International Court of Justice
                    (ICJ), in the light of the relevant provisions of its interna corporis 1, the
                    exercise of its powers to indicate new provisional measures in order to
                    face the new situation, which is one of urgency and of probability of
                    irreparable harm, in the form of bodily injury or death of the persons
                    staying in the disputed area.
                       3. Given the high importance that I attach to the issues raised in the
                    present Order, I feel obliged to present and leave on the records, in the
                    present dissenting opinion, the foundations of my position on the matter.
                    I thus take the care to examine herein its aspects, as to the facts and as to
                    the law. I shall start by reviewing the concomitant new requests of addi-
                    tional provisional measures of protection on the part of Costa Rica as
                    well as Nicaragua, and the position taken by them, in their respective
                    requests, as to the purported expansion of provisional measures of pro-
                    tection. After reviewing the technical missions in loco pursuant to the
                    1971 Ramsar Convention, I shall consider the requisites of urgency, and
                    risk or probability of harm (in the form of bodily injury or death, of the
                    persons staying in the disputed area), before proceeding to a general
                    assessment of the requests of Costa Rica and of Nicaragua.

                      4. I shall then turn my attention to the aspects of the matter as to the
                    law, as I perceive them, namely : (a) the effects of provisional measures of
                    protection beyond the strict territorialist outlook ; (b) the beneficiaries of
                    provisional measures of protection, beyond the traditional inter‑State
                    dimension ; and (c) the effects of provisional measures of protection

                         1   Article 76 (1) of the Rules of Court, in addition to Article 41 of its Statute.

                    17

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

                    beyond the traditional inter‑State dimension. The way will then be paved
                    for my considerations on the proper exercise of the international judicial
                    function (in the present domain of provisional measures) in the form of a
                    rebuttal of so‑called “judicial self‑restraint”, or l’art de ne rien faire. Last
                    but not least, I shall present my concluding reflections towards an autono‑
                    mous legal regime of provisional measures of protection.

                         II. Provisional Measures of Protection : The Concomitant New
                                      Requests by Costa Rica and Nicaragua

                      5. May it be recalled, to start with, that, on 18 November 2010, the Inter-
                    national Court of Justice (ICJ) was seised of a request by Costa Rica for
                    the indication of provisional measures in the case, opposing it to Nicaragua,
                    concerning Certain Activities Carried Out by Nicaragua in the Border Area.
                    After the holding of public hearings, the ICJ issued its Order on provisional
                    measures of protection, of 8 March 2011, whereby it determined that
                             “(1) Each Party shall refrain from sending to, or maintaining in
                          the disputed territory, including the caño, any personnel, whether
                          civilian, police or security ;
                             (2) Notwithstanding point (1) above, Costa Rica may dispatch
                          civilian personnel charged with the protection of the environment to
                          the disputed territory, including the caño, but only in so far as it is
                          necessary to avoid irreparable prejudice being caused to the part of
                          the wetland where that territory is situated ; Costa Rica shall consult
                          with the Secretariat of the Ramsar Convention in regard to these
                          actions, give Nicaragua prior notice of them and use its best endeav-
                          ours to find common solutions with Nicaragua in this respect ;

                            (3) Each Party shall refrain from any action which might aggravate
                          or extend the dispute before the Court or make it more difficult to
                          resolve ;
                            (4) Each Party shall inform the Court as to its compliance with the
                          above provisional measures.” 2
                    Shortly afterwards, on 21 December 2011, Nicaragua filed a case against
                    Costa Rica with the ICJ, concerning the Construction of a Road in
                    Costa Rica along the San Juan River. Subsequently, by its Order
                    of 17 April 2013, the ICJ decided to join the proceedings in the two cases.
                      6. One month later, on 23 May 2013, Costa Rica filed a request 3 for
                    the modification of the aforementioned Order of provisional measures of
                    8 March 2011. Nicaragua was invited to present written observations

                        2 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), pp. 27-28.
                        3 Request by Costa Rica for the Modification of the Court’s Order Indicating Provi-

                    sional Measures, doc. of 23 May 2013 [hereinafter “request by Costa Rica”].

                    18

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

                    concerning Costa Rica’s request 4. On the stipulated date (14 June 2013),
                    Nicaragua submitted its written observations on Costa Rica’s request,
                    and presented its own request for the modification of the same Order of
                    8 March 2011 5. Costa Rica, for its part, submitted (on 20 June 2013) its
                    own written observations on Nicaragua’s request, within the stipulated
                    time-limit by the Court 6.
                       7. The Court thus had before it two requests (Costa Rica’s and Nica-
                    ragua’s) and the pieces it needed to proceed to its deliberation on the
                    matter. It should not pass unnoticed that, since the Court issued its Order
                    of provisional measures of 8 March 2011, there have been 16 communica-
                    tions submitted by the Parties to the Court in relation to compliance with
                    the Order 7. This discloses the importance ascribed by both contending
                    Parties, Costa Rica and Nicaragua, to the provisional measures of protec-
                    tion in the two respective cases, the proceedings of which having been
                    joined by the ICJ 8.

                                III. Technical Missions in Loco Pursuant to the
                                              Ramsar Convention

                       8. The Convention on Wetlands of International Importance Espe-
                    cially as Waterfowl Habitat (known as the Ramsar Convention, adopted
                    in Ramsar, Iran, in 1971, and entered into force on 21 December 1975) 9
                    states in its preamble that “the conservation of wetlands and their flora
                    and fauna can be ensured by combining far‑sighted national policies with
                    co‑ordinated international action”. Both Costa Rica and Nicaragua are
                    parties to it 10. In its Order of 8 March 2011 11, the Court pointed out that,
                    pursuant to Article 2 of the Ramsar Convention, Costa Rica has desig-
                    nated the “Humedal Caribe Noreste” wetland “for inclusion in [the] List
                    of Wetlands of International Importance (. . .) maintained by the [con-
                    tinuing] bureau” established by the Convention, while Nicaragua has pro-

                         4
                         On 24 May 2013.
                         5
                         Written observations of Nicaragua and Request by Nicaragua for the Modification
                    of the Order in Light of the Joinder of the Proceedings in the Two Cases, doc. of 14 June
                    2013 [hereinafter “written observations of Nicaragua”].
                       6 Written observations of Costa Rica on Nicaragua’s Request for the Modification of

                    the Court’s Order Indicating Provisional Measures in the Costa Rica v. Nicaragua case,
                    doc. of 20 June 2013 [hereinafter “written observations of Costa Rica”].
                       7 Parties’ communications to the Court in 2011, 2012 and 2013.
                       8 Pursuant to the Court’s two Orders of 17 April 2013.
                       9 Cf. United Nations Treaty Series (UNTS), Vol. 996, No. I‑14583, p. 245. The text of

                    the Ramsar Convention was amended by the Protocol of 3 December 1982 and the amend-
                    ments of 28 May 1987.
                       10 Costa Rica has been a party to it since 27 April 1992, and Nicaragua since 30 November

                    1997. The Convention counts today (early July 2013), on 168 States Parties.
                       11 Cf. 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.

                    19

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

                    ceeded likewise in respect of the “Refugio de Vida Silvestre Río San
                    Juan” wetland, of which Harbor Head Lagoon is part (para. 79).

                      9. Furthermore, the Court, having acknowledged that the disputed
                    area is situated in the “Humedal Caribe Noreste” wetland, in respect of
                    which Costa Rica bears obligations under the Ramsar Convention, fur-
                    ther considered that,
                              “pending delivery of the Judgment on the merits, Costa Rica must be
                              in a position to avoid irreparable prejudice being caused to the part
                              of that wetland where that territory is situated ; (. . .) for that purpose
                              Costa Rica must be able to dispatch civilian personnel charged with
                              the protection of the environment to the said territory, including the
                              caño, but only in so far as it is necessary to ensure that no such pre
                              judice be caused ; and (. . .) Costa Rica shall consult with the Secre-
                              tariat of the Ramsar Convention in regard to these actions, give
                              Nicaragua prior notice of them and use its best endeavours to find
                              common solutions with Nicaragua in this respect” (para. 80).

                      10. In this line of reasoning, the Court ordered, in the resolutory
                    point (2) of the dispositif of its aforementioned Order, that :
                                 “Notwithstanding point (1) above, Costa Rica may dispatch civil-
                              ian personnel charged with the protection of the environment to the
                              disputed territory, including the caño, but only in so far as it is nec-
                              essary to avoid irreparable prejudice being caused to the part of the
                              wetland where that territory is situated ; Costa Rica shall consult with
                              the Secretariat of the Ramsar Convention in regard to these actions,
                              give Nicaragua prior notice of them and use its best endeavours to
                              find common solutions with Nicaragua in this respect.”

                      Thus, it stems from the Court’s Order of 8 March 2011, that, pursuant
                    to the Ramsar Convention (cf. Article 3 (2) 12), Costa Rica has a duty
                    thereunder to monitor the disputed area which forms part of a protected
                    wetland registered by Costa Rica under the Ramsar Convention.

                         12   Article 3 (2) of the Ramsar Convention stipulates that :
                                 “Each Contracting Party shall arrange to be informed at the earliest possible
                              time if the ecological character of any wetland in its territory and included in the
                              List has changed, is changing or is likely to change as the result of technological
                              developments, pollution or other human interference. Information on such changes
                              shall be passed without delay to the organization or government responsible for the
                              continuing bureau duties specified in Article 8.”

                    20

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                       11. According to those communications submitted to the ICJ, there
                    have been three technical visits, conducted by Costa Rica in the disputed
                    area 13, in accordance with the Order (resolutory point (2), supra). The
                    first visit in loco took place in April 2011 14, in order to determine the situ-
                    ation of the wetland and to take “those actions deemed necessary with the
                    aim of avoiding an irreparable damage to the wetlands indicated by the
                    Court in its providence” 15. It is reported that the mission acknowledged
                    “the valuable technical work accomplished at the site during the day of
                    5 April, which allowed them to gather the technical elements necessary in
                    order to determine the actual condition of the wetland”. It is also stated
                    that “because of the lack of security measures to guarantee the personal
                    safety of the experts as a result of actions outside the control of the Gov-
                    ernment of Costa Rica, the decision was taken not to return to the ground
                    area and only use the over flight option to compliment the information” 16.
                       12. This joint Ramsar‑Costa Rica first visit included members of the
                    Technical Advisory Mission of the Secretariat of the Ramsar Convention
                    and Costa Rican civilian technicians in charge of the protection of the
                    environment 17. Costa Rica further alleges that, during this visit,
                    Costa Rican personnel and members of the Ramsar Mission were “aggres-
                    sively harassed by Nicaraguan protestors and journalists”. The mission
                    acknowledged “the valuable technical work” accomplished on 5 April
                    2011, which enabled them to gather the technical elements necessary “in
                    order to determine the actual condition of the wetland”. Yet, “because of
                    the lack of security measures to guarantee the personal safety of the
                    experts as a result of actions outside the control of the Government of
                    Costa Rica”, Costa Rica adds, “the decision was taken not to return to
                    the ground area” 18.

                       13. The second visit in loco took place in January 2012. Costa Rica
                    informed the Court that its purpose was to “continue the assessment of the
                    conditions of that wetland in order to avoid irreparable damage” 19. Costa
                    Rica claims that the visit formed “part of the action plan proposed to the
                    Secretariat of the Ramsar Convention, and agreed to by the Secretariat” 20.

                        13 Nicaragua’s communication to the Court of 7 April 2011 ; Costa Rica’s communica-

                    tion to the Court of 11 April 2011 ; Costa Rica’s communication to the Court of 13 April
                    2011 ; Costa Rica’s communication to the Court of 30 January 2012 ; Costa Rica’s commu-
                    nication to the Court of 1 March 2013.
                        14 Nicaragua’s communication to the Court of 7 April 2011 ; Costa Rica’s communication

                    to the Court of 11 April 2011, and Costa Rica’s communication to the Court of 13 April 2011.
                        15 Nicaragua’s communication to the Court of 7 April 2011.
                        16 Costa Rica’s communication to the Court of 13 April 2011 ; there was the correspon-

                    dence “Minutes, Co-ordination Meeting, Advisory Technical Mission of the Secretariat of
                    the Ramsar Convention and Representatives of the Ministry for the Environment, Energy
                    and Telecommunications”.
                        17 Nicaragua’s communication to the Court of 7 April 2011.
                        18 Costa Rica’s communication to the Court of 13 April 2011.
                        19 Costa Rica’s communication to the Court of 30 January 2012.
                        20 Ibid.

                    21

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

                       14. The third visit occurred in March 2013, Costa Rica having informed
                    the Court that its civilian personnel charged with the protection of the
                    environment were to conduct a visit on site. It further communicated to
                    the Court two correspondences, whereby Costa Rica informed the
                    Ramsar Convention Secretariat and Nicaragua of this site visit 21. And it
                    also reported that this third technical site visit was “carried out in accor-
                    dance with the Working Plan” contained in the report presented by
                    Costa Rica to the Ramsar Secretariat on 28 October 2011, which was
                    approved by the Ramsar Secretariat in a note dated 7 November 2011.
                    The stated purpose of the visit was to “avoid irreparable prejudice to that
                    part of the northeast Caribbean Wetland” 22.

                         IV. The Position of the Parties as to the Purported Expansion
                              of Provisional Measures : The Request of Costa Rica

                       15. In its request of 23 May 2013 to “modify” the Order of provi-
                    sional measures of 8 March 2011, Costa Rica calls for three new measures
                    to be added to it, namely, to order :

                          “(1) the immediate and unconditional withdrawal of all Nicaraguan
                               persons from the Area indicated by the Court in its Order on
                               provisional measures of 8 March 2011 ;

                              (2) that both Parties take all necessary measures to prevent any per-
                                  son (other than the persons whose presence is authorized by par-
                                  agraph 86 (2) of the Order) coming from their respective territory
                                  from accessing the area indicated by the Court in its Order on
                                  provisional measures of 8 March 2011 ; and

                              (3) That each Party shall inform the Court as to its compliance with
                                  the above provisional measures within two weeks of the issue of
                                  the modified Order.” 23

                        16. It is, in fact, in my perception, a request for an expansion of
                     rovisional measures of protection. Costa Rica contends that its request
                    p
                    is prompted by “Nicaragua’s sending to the area indicated by the
                    Court in its Order [. . .] and maintaining thereon large numbers of
                    persons, and by the activities undertaken by these persons affecting that
                     territory and its ecology” (para. 2). It adds that there is a change in
                     the situation (para. 4), in the light of Article 76 (2) of the Rules of

                         21 Costa Rica’s communication to the Court of 1 March 2013.
                         22 Ibid.
                         23 Request by Costa Rica.

                    22

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

                    Court 24. Costa Rica further claims that the presence of Nicaraguan
                    nationals in the disputed area causes a risk of irremediable harm in the
                    form of bodily injury or death (paras. 18‑19). Costa Rica at last contends
                    that there is urgency, since in its view there is a real risk that, without
                    such modification of the Court’s Order, action prejudicial to Costa
                    Rica’s rights will occur before the Court renders its decision on the merits
                    (paras. 18‑20).
                       17. Costa Rica purports to explain further its requested new provi-
                    sional measures. It alleges that Nicaragua sponsors the continuous pres-
                    ence, in the disputed area, of a large number of Nicaraguan nationals, by
                    its operation of an “academic” programme whereby they are sent thereto
                    to carry out activities. In the annexes to its request, Costa Rica refers to
                    press reports on the matter, and adds that it has kept the Court informed
                    about these activities, has formally protested to Nicaragua against them,
                    and has exhausted all efforts to resolve the dispute by diplomatic means,
                    which have failed. Costa Rica claims that the activities at issue have con-
                    sisted in : (a) deliberately interfering with a site visit ; (b) carrying out
                    works in an attempt to keep the artificial caño open ; (c) engaging in
                    uncontrolled planting of trees in the area ; (d) raising of cattle in the
                    area ; and (e) erecting fences in the area to the north of, and alongside,
                    the caño (paras. 4‑9) 25. This presence of Nicaraguan nationals in the dis-
                    puted area, and their described activities thereon, are, in Costa Rica’s
                    view, in breach of the Court’s Order, and create a new situation, requir-
                    ing the “modification” of the Court’s Order (paras. 10‑14) — in the sense
                    of the expansion of the provisional measures of protection.

                      18. In its written observations, Nicaragua, in turn, retorts that
                    Costa Rica’s request, in its view, is “groundless”, as there has been no
                    change in the situation that would call for a “modification” of the Court’s
                    Order in the way described by Costa Rica, and it has not breached the
                    provisional measures indicated by the Court (paras. 1‑3). Nicaragua adds
                    that the presence of private individuals is not a new issue under the

                         24   Article 76 of the Rules of Court reads as follows :
                          “1. At the request of a party the Court may, at any time before the final judgment in
                              the case, revoke or modify any decision concerning provisional measures if, in its
                              opinion, some change in the situation justifies such revocation or modification.

                              2. Any application by a party proposing such a revocation or modification shall
                                 specify the change in the situation considered to be relevant.

                              3. Before taking any decision under paragraph 1 of this Article the Court shall afford
                                 the parties an opportunity of presenting their observations on the subject.”
                       25 Costa Rica further recalls that Nicaragua maintains the position that the Court’s

                    Order does not prevent private citizens from accessing the area and carrying activities
                    thereon ; in its Counter‑Memorial, Nicaragua recognizes the presence of its nationals in
                    the area. Costa Rica controverts Nicaragua’s views (Request by Costa Rica, paras. 10‑14).

                    23

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

                    Court’s Order (para. 13). And as to the presence of members of the
                    Guardabarranco Environment Movement referred to by Costa Rica,
                    Nicaragua claims that Costa Rica did not ask, in its request for the indi-
                    cation of provisional measures, for the withdrawal of private individuals,
                    and adds that the members of the Guardabarranco Environment Move-
                    ment are “private individuals”, as conceded by Costa Rica ; it alleges that
                    they are neither part of the Nicaraguan Government, nor are they acting
                    under Nicaragua’s control (paras. 6‑14).
                        19. In its written observations on Nicaragua’s request, Costa Rica reit-
                    erates its perceived change in the situation, pointing out that Nicaragua
                    does not deny, in its own written observations, that it is sponsoring,
                    sending and maintaining large number of persons in the area (para. 7). In
                     Costa Rica’s view, the unlawful presence of Nicaraguan nationals in the
                     area is not in dispute. Costa Rica then claims that this is a new situation
                     that did not exist at the time of the oral hearings on provisional measures,
                     as then only military personnel were in the area ; the Court did not implic-
                     itly recognize in its Order of 8 March 2011 that private individuals could
                     enter, remain on, and carry out unsupervised, unpoliced activities in the
                     area. Costa Rica maintains that the presence of Nicaraguan nationals in
                     the area is unlawful, and increases the risk of incidents likely to cause
                     irremediable harm 26.

                                              V. Urgency and Risk of Harm
                                         in the Form of Bodily Injury or Death

                       20. In its Order of provisional measures of protection of 8 March 2011
                    the ICJ, recalling the competing claims over the disputed area and Nica-
                    ragua’s intention to carry out thereon, “if only occasionally”, certain acti-
                    vities, noted, in paragraph 75, the ensuing risk of irremediable harm in
                    the form of bodily injury or death. The Court stated that such situation
                    created
                              “an imminent risk of irreparable prejudice to Costa Rica’s claimed
                              title to sovereignty over the said territory and to the rights deriving
                              therefrom ; (. . .) this situation moreover gives rise to a real and pres-
                              ent risk of incidents liable to cause irremediable harm in the form of
                              bodily injury or death” (para. 75).

                    Under these circumstances, the Court decided that provisional measures
                    should be indicated 27.
                         26
                          Written observations of Costa Rica, paras. 25‑29.
                         27
                          Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nica‑
                    ragua), Provisional Measures, Order of 8 March 2011, I.C.J. Reports 2011 (I), pp. 24-25,
                    para. 76.

                    24

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

                       21. The ICJ thus took into account the risk of incidents likely to cause
                    irremediable harm in the form of bodily injury or death, and then ordered
                    the requested measures. From the arguments more recently submitted to
                    the Court, it seems that similar concerns about a risk of incidents that
                    could cause irremediable harm in the form of bodily injury or death call
                    for additional provisional measures to be adopted by the Court. To this
                    effect, Costa Rica claims that the presence of Nicaraguan nationals in the
                    disputed territory poses the risk of such irremediable harm 28. In its
                    request, Costa Rica sustains that there is “a real and present risk of inci-
                    dents liable to cause irremediable harm in the form of bodily injury or
                    death” (para. 18) ; in particular, it links the presence of Nicaraguan
                    nationals in the disputed area to the risk of irremediable harm in the form
                    of bodily injury or death, and it adds that there is “real urgency”. There
                    is, furthermore, in its view, “a serious threat to its internationally‑
                    protected wetlands and forests” (ibid.).
                       22. In its written observations, Costa Rica also argues that there is
                    urgency. Costa Rica links the urgency of the situation to the “real and
                    present risk of incidents liable to cause irremediable harm in the form of
                    bodily injury or death” in the disputed area (para. 29), and stresses this
                    risk (paras. 25 and 28). Costa Rica asserts that, pursuant to the Court’s
                    Order, it has prevented its police force and residents from entering the
                    area, while Nicaragua has refused to ensure that people from its territory
                    do not enter the area, and continues to maintain therein a constant pres-
                    ence of “substantial numbers of Nicaraguan persons”. Costa Rica then
                    submits that “[t]here is a real risk that, without a modification of the
                    Court’s Order of 8 March 2011, action prejudicial to the rights of
                    Costa Rica will occur before the Court has the opportunity to render its
                    final decision on the questions for determination set out in the Applica-
                    tion” (para. 19).

                       23. For its part, in its written observations Nicaragua retorts that,
                    after three technical visits to the site, Costa Rica has in its view failed to
                    demonstrate the existence of any “serious threat” to the disputed terri-
                    tory, or any “incidents liable to cause irremediable harm in the form of
                    bodily injury or death” (para. 37). It adds that Costa Rica first made such
                    assertions in its Memorial, but they had been rebutted by Nicaragua in its
                    Counter-Memorial. Thus, Nicaragua denies any urgency in the situation,
                    and adds that Costa Rica’s new allegations could be more properly
                    addressed in the merits phase. Nicaragua claims that, since the Order, it
                    has acted with due diligence to ensure that the area remains free of Nica-
                    raguan personnel ; as to the presence in the area of members of the
                    Guardabarranco Environment Movement referred to by Costa Rica,

                       28 Request by Costa Rica, paras. 18‑20 ; it further alleges that there have lately been

                    incidents in the area, where Nicaraguan nationals have subjected Costa Rican environ-
                    mental personnel to harassment and verbal abuse, posing a risk of incidents that might
                    cause bodily injury or death.

                    25

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

                    Nicaragua argues that Costa Rica had not asked, in its earlier request
                    for the indication of provisional measures, for the withdrawal of “private
                    individuals” (paras. 6‑14).

                         VI. The Position of the Parties as to the Purported Expansion
                              of Provisional Measures : The Request of Nicaragua

                       24. On 14 June 2013, Nicaragua submitted its written observations on
                    Costa Rica’s request, and made its own request for modification of the
                    Court’s Order 29 on the basis of an alleged new factual situation, that is,
                    the construction of a 160-km‑long road along the San Juan River and the
                    joinder of the proceedings. Nicaragua argues, in its written observations
                    and request, that, despite its call on Costa Rica for halting the construc-
                    tion without an appropriate transboundary environmental impact assess-
                    ment, Costa Rica announced that the work is about to be restarted.
                    Nicaragua argues that the construction of the road has resulted in
                    increased sedimentation and pollution of the river, adverse impact on
                    water quality, aquatic life, navigation and other general uses of the river
                    by the population (paras. 43‑46).

                       25. Nicaragua further argues that the Court’s Order of 8 March 2011
                    should be adjusted to take into account the “harmful environmental effect
                    of the works in and along the San Juan River on the fragile fluvial ecosys-
                    tem (including protected nature preserves in and along the river)”, which
                    cover the area in dispute located at the mouth of the river. Nicaragua also
                    refers to the UNITAR/UNOSAT report observing that the area in dis-
                    pute is being affected by the accumulation of fluvial sediments including
                    those of bank erosion, attributable in part by sediments transmitted to
                    the river by the road construction activities. Nicaragua maintains that the
                    Order should be adjusted to take this into account. Both Parties should

                       29 Nicaragua requests that the provisional measure ordered by the Court in resolutory

                    point (2) be modified to read :
                             “Notwithstanding point (1) above, both Parties may dispatch civilian personnel
                          charged with the protection of the environment to the disputed territory, including
                          the caño, but only in so far as it is necessary to avoid irreparable prejudice being
                          caused to the part of the wetland where that territory is situated ; both Parties shall
                          consult in regard to these actions and use their best endeavours to find common solu-
                          tions with the other Party in this respect.”
                      The third measure ordered by the Court should be modified to read as follows :
                             “Each Party shall refrain from any action, which might aggravate or extend the
                          dispute before the Court in either of the joined cases or make it more difficult to
                          resolve, and will take those actions necessary for avoiding such aggravation or exten-
                          sion of the dispute before the Court.”

                    26

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

                    be precluded from undertaking any activities that unilaterally increase the
                    “accumulation of fluvial sediments” in the area (paras. 47‑52).

                       26. As to the joinder of proceedings (cf. supra), Nicaragua claims that
                    the Order should be made applicable to the two joined cases, in relation
                    to all activities by either Party that might harm the environment in the
                    area, in order not to aggravate the dispute. Nicaragua recalls a list of
                    urgent measures to prevent further damages to the river which it described
                    in its Memorial in the case concerning the Construction of a Road in
                    Costa Rica along the San Juan River : reducing the rate and frequency of
                    road fill failure, slumps and landslides ; eliminating or significantly reduc-
                    ing the risk of future erosion and sediment delivery at all stream crossings
                    along route 1856 ; immediately reducing road surface erosion and sedi-
                    ment delivery ; controlling surface erosion and resultant sediment delivery
                    from bare soil areas (paras. 47‑52).

                        27. For its part, in its written observations on Nicaragua’s request,
                    Costa Rica argues that the request at issue must be rejected on a number
                    of reasons (para. 6). First, the Court had explicitly held that “Costa
                    Rica’s claim to title over Isla Portillos was ‘plausible’”, whereas it had
                    made “no such finding with respect to Nicaragua” (paras. 7‑10). Sec-
                    ondly, the Court had explicitly held that Costa Rica “must be able to
                    dispatch civilian personnel charged with the protection of the environ-
                    ment” to the area, whereas it made no such indication for Nicaragua
                    (paras. 11‑13). Thirdly, only Costa Rica, and not Nicaragua, has an
                    obligation to monitor the area forming part of a protected wetland regis-
                     tered by Costa Rica under the Ramsar Convention (paras. 14‑18).
                     Fourthly, Costa Rica adds that the basis for the Court’s Order was that
                     neither Party should send persons to the area or maintain them there
                     (paras. 19‑21).

                       28. Fifthly, Costa Rica further claims that the sponsoring of activities
                    calculated to change the status quo of the area is completely inconsistent
                    with the provisional measures actually indicated by the Court and with
                    the whole object and purpose of provisional measures in general
                    (paras. 22‑24). Sixthly, Nicaragua’s proposed modification implies the
                    possibility of concomitant exercise of public environmental activities by
                    two different States in the same area, increasing the risk of serious inci-
                    dents (paras. 25-29). Seventhly, Costa Rica argues that Nicaragua’s pro-
                    posed deletion of the Ramsar Secretariat from the provisional measure
                    (second resolutory point of the Order) is an attempt to vitiate the role of
                    that supervisory organ in supporting Costa Rica in the environmental
                    recovery process of the disputed area in line with the Ramsar Conven-
                    tion, to which Nicaragua is also a party (paras. 30‑31). Finally, Costa Rica

                    27

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

                    claims that the case concerning the Construction of a Road in Costa Rica
                    along the San Juan River, as well as the joinder of proceedings of this case
                    with those of the case concerning Certain Activities Carried Out by Nica‑
                    ragua in the Border Area, in its view are not valid reasons to modify the
                    previous provisional measure and to authorize the presence of Nicara-
                    guan personnel charged with the protection of the environment in the
                    area (paras. 32‑33) 30.

                                      VII. General Assessment of the Requests
                                          of Costa Rica and of Nicaragua

                                                   1. Costa Rica’s Request
                       29. In support of its request, Costa Rica recalls that, at the time of the
                    public hearings preceding the previous Order of the ICJ on provisional
                    measures, it claimed that Nicaraguan personnel should leave the disputed
                    area, as it then appeared that only military personnel was present therein.
                    At that time, it did not seem that there was a concern with the presence
                    of “private individuals”. Indeed, it appears that there is a change in the
                    situation. In its written observations, Nicaragua does not seem to object
                    to this assertion by Costa Rica, as it claims that Costa Rica did not
                    request at that time, provisional measures in respect of the withdrawal of
                    “private individuals” from the area (cf. para. 11).

                      30. The situation, as it appears today, from the evidence and the argu-
                    ments submitted to the Court, is that “private individuals”, holding Nica-
                    raguan flags, are present in the disputed area. Again, in its written
                    observations, Nicaragua does not seem to contest this fact (cf. paras. 11‑
                    14) 31. It thus appears that there is indeed a change in the situation. The
                    change seems to lie in the fact that, at the time of the issuance of the
                    Court’s Order of 8 March 2011, there seemed to be no Nicaraguan pri-
                    vate citizens in the disputed area, but only the presence of Nicaraguan
                    military personnel. The fact that the Court mentioned in the operative
                    paragraphs of the Order the withdrawal of Nicaraguan personnel, reflects
                    the situation as it stood at the time of the adoption of its Order of
                    8 March 2011.

                        30 Costa Rica further argues that the proper avenue for Nicaragua to proceed with its

                    request for the indication of provisional measures in the case it lodged with the Court is by
                    way of a new Application for the indication of provisional measures, and not by asking for
                    a modification of the Court’s Order of 8 March 2011 (paras. 34‑39). Costa Rica adds that
                    the mitigation works for the protection of the environment that it is undertaking on the
                    road (entirely on Costa Rican territory) are an issue for the merits phase of the proceedings
                    in the case lodged by Nicaragua, not to be dealt with by way of a request for modification
                    of the Court’s Order of 8 March 2011 (paras. 40‑41).
                        31 And cf. also written observations of Costa Rica, para. 26.

                    28

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

                       31. It does not necessarily mean that the Court, by using the word
                    “personnel”, was thereby allowing the presence of any and all Nicara-
                    guan persons other than civilian, security or police personnel. Accord-
                    ingly, the presence of private individuals in the disputed area does not
                    seem to be in line with the objective of safeguarding “Costa Rica’s claimed
                    title to sovereignty over the said territory and to the rights deriving there-
                    from” or avoiding “incidents liable to cause irremediable harm in the
                    form of bodily injury or death”, in the line of its reasoning in para-
                    graph 75 of the Order of 8 March 2011.

                       32. Thus, on the basis of the foregoing, the presence of private indi-
                    viduals in the disputed area amounts to a change in the original situation,
                    as presented to the Court in the public hearings on provisional measures
                    which preceded its Order of 8 March 2011. The presence of “private indi-
                    viduals” does not seem to be in line with the reasoning of the Court, nor
                    with the objectives of the provisional measures it indicated, in its Order of
                    8 March 2011.
                       33. It seems uncontested that there are currently Nicaraguan nationals
                    present in the disputed area, conforming a new situation posing a risk of
                    incidents in the disputed area. With the change in the situation now cre-
                    ated (on the basis of the documents and arguments presented to the
                    Court), there appears to be a risk of irremediable harm in the form of
                    bodily injury or death (in the terms of paragraph 75 of its Order of
                    8 March 2011) that would warrant a “modification” — or, more pre-
                    cisely, an expansion — of the Order, so as to avoid that risk. It further
                    appears that there is urgency, in view of a further risk of damage to the
                    disputed area.

                                              2. Nicaragua’s Request
                       34. The questions that Nicaragua raises in its request for “modifica-
                    tion” or expansion of the Court’s previous Order of 8 March 2011, are
                    centred on important points. In fact, the relevance of the construction of
                    the road to the examination of the whole dispute between the Parties has
                    been recognized by the Court in the previous Order on the joinder of
                    proceedings, of 17 April 2013, wherein the Court stated that :
                            “A decision to join the proceedings will allow the Court to address
                         simultaneously the totality of the various interrelated and contested
                         issues raised by the Parties, including any questions of fact or law that
                         are common to the disputes presented. In the view of the Court, hear-
                         ing and deciding the two cases together will have significant advan-
                         tages. The Court does not expect any undue delay in rendering its
                         Judgment in the two cases.” (Para. 17.)

                    29

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

                       35. Be that as it may, the construction of the road, albeit an important
                    question, does not appear to be a matter to be treated in an Order for the
                    “modification” or expansion of a previous Order of provisional measures
                    (of 8 March 2011). The Court does not seem to be satisfied that the con-
                    struction of the road, as allegedly an entirely new issue, is endowed with
                    urgency, so as to be treated in the form of a new provisional measure.
                    May it be recalled that Nicaragua brought this issue before the Court
                    on 21 December 2011, when it lodged the case concerning the Construc‑
                    tion of a Road in Costa Rica along the San Juan River with the Court.

                       36. Moreover, the joinder of the proceedings of the cases concerning
                    Certain Activities Carried Out by Nicaragua in the Border Area and the
                    Construction of a Road in Costa Rica along the San Juan River, does not
                    appear by itself to support a “modification” of the Order of 8 March
                    2011. This Order was based on the situation as then argued by the Par-
                    ties, concerning the disputed area. It rested upon an assessment by the
                    ICJ that the situation, as presented to it, gave rise to “a real and present
                    risk of incidents liable to cause irremediable harm in the form of bodily
                    injury or death” ; on this basis, the Court decided to indicate the provi-
                    sional measures of protection appropriate to that situation.

                       37. Thus, the joinder of proceedings in the two aforementioned cases
                    does not amount to a change of the situation, as presented to the Court
                    at the time of the hearings that led to the adoption of its Order of 8 March
                    2011 ; nor does it seem to amount to a new fact that would warrant a
                    “modification” of that Order. Keeping in mind the foregoing, and
                    acknowledging that the questions raised by Nicaragua concerning the
                    construction of the road along the San Juan River are relevant, the best
                    course to take is to deal with them in the merits phase of the case con-
                    cerning the Construction of a Road in Costa Rica along the San Juan River.

                                   VIII. Effects of Provisional Measures
                          of Protection beyond the Strict Territorialist Outlook

                       38. The factual context before the Court takes us beyond the tradi-
                    tional outlook of State territorial sovereignty. The concerns expressed
                    before the Court encompass living conditions of people in their natural
                    habitat, and the required environmental protection. International case
                    law on the matter (of distinct international tribunals) has so far sought to
                    clarify the juridical nature of provisional measures, stressing its essentially
                    preventive character. In effect, the likelihood or probability of irreparable
                    damage, and the urgency of a situation, become evident when, e.g., a
                    growing number of people are about to be injured or murdered, as in
                    cases concerning armed conflicts (cf. infra). Whenever ordered provisional

                    30

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

                    measures protect rights of individuals, they appear endowed with a
                    character, more than precautionary, truly tutelary 32, besides preserving
                    the parties’ (States’) rights at stake 33.

                       39. The circumstances of certain cases before the Court have led this
                    latter, in its decisions on provisional measures, to shift its attention on to
                    the protection of people in territory (e.g., the case of the Frontier Dispute
                    (Burkina Faso/Republic of Mali), 1986 ; the case of the Land and Mari‑
                    time Boundary between Cameroon and Nigeria (Cameroon v. Nigeria),
                    1996 ; the case of Armed Activities on the Territory of the Congo (Demo‑
                    cratic Republic of the Congo v. Uganda), 2000 ; the case concerning the
                    Application of the International Convention on the Elimination of All Forms
                    of Racial Discrimination (Georgia v. Russian Federation), 2008 —
                    cf. infra). In those decisions, among others, the ICJ became attentive also
                    to the fate of persons.

                       40. The ICJ thus looked (moved) beyond the strict territorialist out-
                    look. The fact is that, in successive cases lodged with the Court, the ben-
                    eficiaries of provisional measures of protection are identified well beyond
                    the traditional inter‑State dimension. The present cases concerning Cer‑
                    tain Activities Carried Out by Nicaragua in the Border Area, and the Con‑
                    struction of a Road in Costa Rica along the San Juan River, provide yet
                    new illustrations to this effect, in so far as the persons currently found in
                    the disputed area are concerned.

                       41. It should not pass unnoticed that provisional measures of protec-
                    tion have lately invited the Court to move its reasoning beyond the strict
                    territorialist approach, as I observed in my separate opinion in the recent
                    Order of the Court of provisional measures of protection 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) [hereinafter Request for Interpretation] after
                       32 Cf. R. St. J. MacDonald, “Interim Measures in International Law, with Special

                    Reference to the European System for the Protection of Human Rights”, 52 Zeitschrift für
                    ausländisches öffentliches Recht und Völkerrecht (1993), pp. 703‑740 ; A. A. Cançado Trin-
                    dade, “Les mesures provisoires de protection dans la jurisprudence de la Cour inter
                    américaine des droits de l’homme”, in Mesures conservatoires et droits fondamentaux (eds.
                    G. Cohen‑Jonathan and J.‑F. Flauss), Brussels, Bruylant/Nemesis, 2005, pp. 145‑163, and
                    in 4 Revista do Instituto Brasileiro de Direitos Humanos (2003), pp. 13‑25 ; A. Saccucci, Le
                    Misure Provvisorie nella Protezione Internazionale dei Diritii Umani, Torino, Giappichelli
                    Ed., 2006, pp. 103‑241 and 447‑507.
                       33 Cf. E. Hambro, “The Binding Character of the Provisional Measures of Protec-

                    tion Indicated by the International Court of Justice”, in Rechtsfragen der Internationalen
                    Organisation — Festschrift für Hans Wehberg (eds. W. Schätzel and H.‑J. Schlochauer),
                    Frankfurt a/M, 1956, pp. 152‑171.

                    31

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

                    dwelling upon the relationship between time and law, I moved to consid-
                    erations pertaining to space and law, relating (territorial) space to the
                    human element of statehood : the population (paras. 43‑44 and 62‑63).
                    International law in a way endeavours to be anticipatory in the regulation
                    of social facts, so as to avoid disorder and chaos, as well as irreparable
                    harm ; we are here before the raison d’être of provisional measures of pro-
                    tection, i.e., to prevent and avoid irreparable harm in situations of gravity
                    and urgency. Endowed with a notorious preventive character, they are
                    anticipatory in nature, looking forward in time ; they thus disclose the
                    preventive dimension of the safeguard of rights (para. 64).

                      42. In my separate opinion, I sustained that there was epistemologi-
                    cally no impossibility or inadequacy for provisional measures, of the kind
                    of the ones indicated in that Order, to extend protection — as they
                    should — also to human life, as well as to cultural and spiritual world
                    heritage. In fact, the reassuring effects of the provisional measures indi-
                    cated in that recent Order of the ICJ were precisely that they extended
                    protection not only to the territorial zone at issue, but also, by asserting
                    the prohibition of the use or threat of force — pursuant to a fundamental
                    principle of international law — to the life and personal integrity of
                    human beings who live or happen to be in that zone or near it, as well as
                    to the Temple of Preah Vihear itself, situated in the aforementioned zone,
                    and all that the Temple represents (para. 66).

                      43. I then added, in my separate opinion in the case of the Request for
                    Interpretation (provisional measures), that the Court should be prepared,
                    in our days, to give proper weight to the human factor (para. 97), thus
                    bringing people and territory together ; and I pondered that :
                             “Not everything can be subsumed under territorial sovereignty.
                         The fundamental human right to life is not at all subsumed under
                         State sovereignty. The human right not to be forcefully displaced or
                         evacuated from one’s home is not to be equated with territorial sov-
                         ereignty. The Court needs to adjust its conceptual framework and its
                         language to the new needs of protection, when it decides to indicate
                         or order the provisional measures requested from it.
                             If we add, to the aforementioned, the protection of cultural and
                         spiritual world heritage (cf. supra), for the purposes of provisional
                         measures, the resulting picture will appear even more complex, and
                         the strict territorialist approach even more unsatisfactory. The human
                         factor is the most prominent one here. It shows how multifaceted, in
                         these circumstances, the protection provided by provisional measures
                         can be. It goes well beyond State territorial sovereignty, bringing
                         territory, people and human values together.” (I.C.J. Reports 2011 (II),
                          pp. 599‑600, paras. 99‑100.)

                    32

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

                         IX. The Beneficiaries of Provisional Measures of Protection,
                                beyond the Traditional Inter‑State Dimension

                       44. In the international litigation before the ICJ, only States, as con-
                    tending parties, can request provisional measures. Yet, in recent years,
                    such requests have invoked rights which go beyond the strictly inter‑State
                    dimension 34. In successive cases, the ultimate beneficiaries were meant to
                    be the individuals concerned, and to that end the requesting States
                    advanced their arguments to obtain the Court’s Orders of provisional
                    measures of protection, in distinct contexts. Thus, in its Order
                    of 15 December 1979, in the Hostages case (United States Diplomatic and
                    Consular Staff in Tehran (United States of America v. Iran), Provisional
                    Measures, Order of 15 December 1979, I.C.J. Reports 1979, p. 7) the
                    Court took into account the State’s arguments to protect the life, freedom
                    and personal security of its nationals (para. 37), and indicated provisional
                    measures of protection of those rights (resolutory point I (A)), after refer-
                    ring to the “imperatives obligations” under the 1961 Vienna Convention
                    on Diplomatic Relations and the 1963 Vienna Convention on Consular
                    Relations (para. 41), and pondering that

                          “continuance of the situation the subject of the present request exposes
                          the human beings concerned to privation, hardship, anguish and even
                          danger to life and health and thus to a serious possibility of irrepara-
                          ble harm” (para. 42).
                       45. Half a decade later, in its Order of 10 May 1984, in Military and
                    Paramilitary Activities in and against Nicaragua (Nicaragua v. United
                    States of America) (I.C.J. Reports 1984, p. 169), the ICJ indicated provi-
                    sional measures (resolutory point B (2)) after taking note of the request-
                    ing State’s argument calling for protection of the rights to life, to freedom
                    and to personal security of Nicaraguan citizens (para. 32). Shortly after-
                    wards, in its celebrated Order of 10 January 1986 in the Frontier Dispute
                    (Burkina Faso/Republic of Mali) (I.C.J. Reports 1986, p. 3), duly com-
                    plied with by the contending Parties, the Court’s Chamber took note of
                    the concern expressed by the Parties with the personal integrity and safety
                    of those persons who were in the zone under dispute (paras. 6 and 21).
                    One decade later, in its Order of 15 March 1996 in the case of the Land
                    and Maritime Boundary between Cameroon and Nigeria (Cameroon v.
                    Nigeria) (I.C.J. Reports 1996 (I), p. 58), the Court took note of the
                    requesting State’s warning that continuing armed clashes in the region

                        34 In the triad Breard/LaGrand/Avena cases, for example, provisional measures were

                    requested to prevent an irreparable damage to the right to life of the convicted persons
                    (stay of execution), in the circumstances of their cases (cf. provisional measures in the
                    Court’s Orders of 9 April 1998, 3 March 1999, and 5 February 2003, respectively).

                    33

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

                    were notably causing “irremediable loss of life as well as human suffering
                    and substantial material damage” (para. 19).

                       46. In deciding to order provisional measures, the ICJ pondered that
                    the rights at stake were not only claimed State rights, but also rights of
                    the persons concerned (paras. 38‑39 and 42). In fact, in the circumstances
                    of that case, the victimization of human beings resulting from armed con-
                    flicts of greater intensity, I would say that the purpose of the provisional
                    measures was to extend protection mainly to persons. Another Order illus-
                    trative of the overcoming of the strictly inter‑State dimension in the
                    acknowledgement of the rights to be preserved by means of provisional
                    measures pertains to the case of Armed Activities on the Territory of the
                    Congo (Democratic Republic of the Congo v. Uganda) (I.C.J. Reports
                    2000, p. 111). In its Order of 1 July 2000 in this case, the ICJ took into
                    account the requesting State’s denunciation of alleged “human rights vio-
                    lations” — invoking international instruments for their protection
                    (paras. 4‑5 and 18‑19), — and of its plea for protection for its inhabitants
                    (para. 31) as well as for its own “rights to respect for the rules of interna-
                    tional humanitarian law and for the instruments relating to the protection
                    of human rights” (para. 40).

                       47. The Court, recognizing the pressing need to indicate provisional
                    measures of protection (paras. 43‑44), found that it was “not disputed
                    that grave and repeated violations of human rights and international
                    humanitarian law, including massacres and other atrocities”, had been
                    committed on the territory of the Democratic Republic of the Congo
                    (para. 42). The Court, accordingly, ordered both Parties inter alia to
                    “take all measures necessary to ensure full respect within the zone of con-
                    flict for fundamental human rights and for the applicable provisions of
                    humanitarian law” (resolutory point 3).
                       48. In its Order of 8 April 1993 in the case concerning the Application
                    of the Convention on the Prevention and Punishment of the Crime of Geno‑
                    cide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro))
                    (I.C.J. Reports 1993, p. 3) the Court, after finding “a grave risk” to
                    human life, indicated provisional measures 35. In the subsequent Order
                    of 13 September 1993 in the same case (ibid., p. 325), the Court again
                    expressed its concern for the protection of human rights and the rights of
                    peoples (para. 38). In its subsequent Order of 15 October 2008 in the case

                        35 The Court, furthermore, recalled General Assembly resolution 96 (I) of 11 December

                    1946 (referred to in its own Advisory Opinion of 1951 on Reservations to the Convention
                    on the Prevention and Punishment of the Crime of Genocide), to the effect that the crime of
                    genocide “shocks the conscience of mankind, results in great losses to humanity (. . .) and
                    is contrary to moral law and to the spirit and aims of the United Nations” (I.C.J. Reports
                    1993, p. 23, para. 49).

                    34

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

                    concerning the Application of the International Convention on the Elimina‑
                    tion of All Forms of Racial Discrimination (Georgia v. Russian Federation)
                    (I.C.J. Reports 2008, p. 412), the ICJ once again disclosed its concern for
                    the preservation of human life and personal integrity (paras. 122 and
                    142‑143).

                       49. From the survey above it can be seen that, along the last three
                    decades, the ICJ has gradually overcome the strictly inter‑State outlook
                    in the acknowledgement of the rights to be preserved by means of its
                    Orders of provisional measures of protection. Nostalgics of the past,
                    clinging to their own dogmatism, can hardly deny that, nowadays, States
                    litigating before this Court, despite its inter‑State contentious procedure,
                    have conceded that they no longer have the monopoly of the rights to be
                    preserved, and, much to their credit, they recognize so, in pleading before
                    this Court on behalf also of individuals, their nationals, or even in a
                    larger framework, their inhabitants.

                       50. Facts tend to come before the norms, requiring of these latter the
                    aptitude to cover new situations they are meant to regulate, with due
                    attention to superior values 36. Before this Court, States keep on holding
                    the monopoly of jus standi, as well as locus standi in judicio, in so far as
                    requests for provisional measures are concerned, but this has not proved
                    incompatible with the preservation of the rights of the human person,
                    together with those of States. The ultimate beneficiaries of the rights to be
                    thereby preserved have been, not seldom and ultimately, human beings,
                    alongside the States wherein they live. Provisional measures indicated in
                    successive Orders of the ICJ have transcended the artificial inter‑State
                    dimension of the past, and have come to preserve also rights whose ulti-
                    mate subjects (titulaires) are human beings.

                                X. Effects of Provisional Measures of Protection
                                 beyond the Traditional Inter‑State Dimension

                       51. In the case concerning Questions relating to the Obligation to
                     rosecute or to Extradite (Belgium v. Senegal) (Order of 28 May 2009,
                    P
                    I.C.J. Reports 2009, p. 139), the ICJ decided not to indicate provisional
                    measures. On the occasion, I warned, in my extensive dissenting opinion,
                    that the basic right at issue pertained to the realization of justice, which
                    assumed a central place in the case, one of a paramount importance,
                    deserving of particular attention. The strictly inter‑State dimension

                       36 Cf., inter alia, G. Morin, La révolte du droit contre le code — La révision nécessaire

                    des concepts juridiques, Paris, Libr. Rec. Sirey, 1945, pp. 2, 6‑7 and 109‑115.

                    35

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

                    seemed to have been overcome in the acknowledgement of the rights to
                    be preserved, in particular as the search for justice (the right to the realiza-
                    tion of justice) was (and remains to date) at stake. In that case, opposing
                    Belgium to Senegal, the crucial factor was — as I stressed in my dissent-
                    ing opinion — the endurance by the victims of an ungrateful two‑decade
                    search for justice, in vain until now, for the reported atrocities of the
                    Habré regime in Chad (para. 56).

                       52. I further pointed out in that dissenting opinion (para. 97) that, the
                    fact that the binding character of provisional measures of protection is
                    nowadays beyond question (moving from the pre‑history into the history
                    of the matter in the ICJ case law), on the basis of the res interpretata of
                    the ICJ itself, does not mean that we have reached a culminating point in
                    the evolution of the ICJ case law on this matter. Quite on the contrary, I
                    can hardly escape the impression that we are still living the infancy of this
                    jurisprudential development. The review of the matter (supra) in the
                    present separate opinion indicates that, although some advances have
                    been achieved, there remains a long way to go.
                       53. The determination of urgency and the probability of irreparable
                    damage are exercises which the ICJ is nowadays used to ; yet, although
                    the identification of the legal nature and the material content of the
                    right(s) to be preserved seem not to raise great difficulties, the same can-
                    not be said of the consideration of the legal effects and consequences of
                    the right at issue, in particular when provisional measures are not indi-
                    cated or ordered by the Court. We here move to the effects of provisional
                    measures of protection, beyond the traditional inter‑State dimension. In
                    this respect, there seems to remain still a long way to go.

                       54. In the cas d’espèce before the Court, opposing two Latin American
                    countries, the new provisional measures of protection envisaged in
                    Costa Rica’s request seek the protection of individuals against “harm in
                    the form of bodily injury or death” (supra), by making sure that they do
                    not remain in the disputed area ; the new provisional measures are
                    requested not only in respect of agents of the public power (personnel),
                    but also in respect of individuals (simples particuliers), well beyond the
                    traditional inter‑State dimension.
                       55. In this connection, the expressions used, by both Nicaragua and
                    Costa Rica, in their arguments presented to the Court, should not pass
                    unnoticed. In its written observations 37, Nicaragua refers to “private
                    individuals” (paras. 11 and 13‑14), “private persons” (para. 12), “Nicara-
                    guan nationals” (paras. 16 and 30), and “a group of young people”
                    (para. 29). Costa Rica, for its part, in its request 38 refers to “Nicaraguan
                    nationals” (paras. 7‑8, 10‑11 and 17‑18), “Nicaraguans” (paras. 13‑14),
                    “Nicaraguan persons” (paras. 19‑21), “individuals” (para. 9), and “citi-

                         37   Written observations of Nicaragua.
                         38   Request by Costa Rica.

                    36

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                    zens” (para. 10) ; and, in its written observations 39, Costa Rica refers to
                    “Nicaraguan nationals” (paras. 17‑18, 25‑27 and 29), “Nicaraguans”
                    (para. 28), Nicaraguan “volunteers” (para. 21), “private individuals”
                    (para. 27), and “persons” (paras. 7 and 28). Both Nicaragua and
                    Costa Rica clearly have in mind human beings, of flesh and bones and
                    soul.

                       56. States are bound to protect all persons under their respective juris-
                    dictions. Provisional measures, with their preventive nature, appear as
                    truly tutelary, rather than only precautionary, purporting to protect indi-
                    viduals also against harassment and threats, thus avoiding “harm in the
                    form of bodily injury or death”. After all, the beneficiaries of the compli-
                    ance with, and due performance of, obligations under ordered provisional
                    measures of protection, are not only States, but also human beings. A
                    strictly inter‑State outlook does not reflect this important point. The
                    strictly inter‑State dimension has long been surpassed, and seems insuffi-
                    cient, if not inadequate, to address obligations under provisional mea-
                    sures of protection.

                     XI. The Proper Exercise of the International Judicial Function :
                           A Rebuttal of So‑Called “Judicial Self‑Restraint”,
                                       or L’Art de ne Rien Faire

                       57. The present Order of the Court, on requests for provisional mea-
                    sures in the cases concerning Certain Activities Carried Out by Nicaragua
                    in the Border Area (Costa Rica v. Nicaragua), and the Construction of a
                    Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica),
                    suffers from a stark incongruence. The Court reviews the arguments of
                    the Parties, and concludes, in respect of Costa Rica’s request, that a
                    change in the situation has occurred, as “organized groups of persons” —
                    whose presence was not contemplated when it issued its previous decision
                    to indicate provisional measures — are now “regularly staying in the dis-
                    puted territory” (para. 25). Though the Court admits a change in the situ-
                    ation, it extracts no consequence therefrom.

                        58. The Court limits itself to say that, “despite the change that has
                    occurred in the situation”, in its view “the conditions have not been ful-
                    filled for it to modify the measures” that it indicated in its previous Order
                    of 8 March 2011 (para. 36). This conclusion simply begs the question.
                    The Court’s majority expressly admits that “the presence of organized
                    groups of Nicaraguan nationals in the disputed area” is an aggravating
                    circumstance (para. 37). Yet it does nothing. It further admits that this
                         39   Written observations of Costa Rica.

                    37

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                    new situation “is exacerbated” (!) by “the limited size of the area and the
                    numbers of Nicaraguan nationals who are regularly present there”
                    (para. 37). Yet it does nothing. Moreover, it admits that incidents may at
                    any time occur. What kind of incidents ? Those entailing “bodily injury or
                    death” of the individuals staying there — as warned by the Court itself,
                    already in its previous Order of 8 March 2011 (cf. para. 20, supra) — in
                    addition to environmental damage. Yet it does nothing.

                       59. Contrariwise, it is crystal clear to me that the new situation created
                    in the disputed area in the cas d’espèce, endowed with the prerequisites of
                    urgency and probability of irreparable harm, undoubtedly calls for new
                    provisional measures, in order to prevent or avoid irreparable harm to the
                    persons concerned and to the environment. These new provisional mea-
                    sures, which the Court’s majority failed to adopt, would make it clear
                    that each Party should refrain from sending to, or maintaining in, the
                    disputed area, including the caño, not only any personnel (whether civil-
                    ian, police or security), but also any “organized groups” of individuals, or
                    any “private individuals”.
                       60. As a matter of fact, this is not the first time that the Court discloses
                    its unjustified “judicial self‑restraint” (so praised in traditionally conser-
                    vative, if not reactionary, segments of the legal profession) in respect of
                    provisional measures of protection, even when faced with the presence of
                    the prerequisites of urgency and the probability of irreparable harm. Four
                    years ago, it did so in its Order of 28 May 2009 in the case concerning the
                    Questions relating to the Obligation to Prosecute or Extradite (Belgium v.
                    Senegal) (I.C.J. Reports 2009, p. 139), wherein it refrained from ordering
                    or indicating the requested provisional measures of protection.

                       61. On the occasion, I appended an extensive dissenting opinion
                    (paras. 1‑105) to that Order, seeking to preserve the integrity of the cor‑
                    pus juris of the 1984 UN Convention against Torture. Shortly after the
                    Court’s Order of 28 May 2009 wherein it found that the circumstances of
                    the case were, in its view, not such as to require the exercise of its power
                    under Article 41 of the Statute to indicate provisional measures, there fol-
                    lowed a succession of uncertainties (infra), amidst the emptiness of the
                    Court’s self‑imposed “restraint”, and its apparent insensitiveness towards
                    the underlying human values.
                       62. On that occasion, contrary to the Court’s majority, I sought to
                    demonstrate that there was manifest urgency in the situation affecting
                    surviving victims of torture, or their close relatives, in respect of their
                    right to the realization of justice under the UN Convention against Tor-
                    ture. As I have recently recapitulated 40, the Court preferred to rely com-

                       40 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal),

                    Judgment, I.C.J. Reports 2012 (II), separate opinion of Judge Cançado Trindade,
                    pp. 518‑527, paras. 82‑103.

                    38

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                    fortably on a unilateral act of promise (conceptualized in the traditional
                    framework of inter‑State relations) made by the respondent State in the
                    course of the legal proceedings before itself. That pledge, in my view, did
                    not remove the prerequisites of urgency and probability of irreparable
                    harm for the indication of provisional measures 41, nor did it efface the
                    longstanding sufferings of the Habré regime, in their saga of more than
                    two decades in search of the realization of justice.

                       63. Yet the Court took a passive posture, reduced to that of a specta-
                    tor of subsequent events. In effect, following the Court’s Order of 28 May
                    2009, no initiative was taken in the respondent State towards the trial of
                    Mr. Hissène Habré in Senegal ; the return to Mr. H. Habré to Chad was
                    announced, as well as his imminent expulsion from Senegal, which was
                    then cancelled in the last minute under public pressure 42. The Court was
                    lucky that Mr. H. Habré did not escape from his house surveillance in
                    Dakar, and that he was not expelled from Senegal. Instead of assuming
                    its own control over the situation, the self‑restrained Court preferred to
                    count on the imponderable, on la fortuna. The Court cannot keep on
                    counting on the imponderable, as la fortuna may at any time turn against
                    it. As Sophocles, in his perennial wisdom, warned, through the voices of
                    the chorus of one of his tragedies : count no man happy till he passed the
                    final threshold of his life secure from pain 43 (bodily or spiritual harm).

                       64. In the present Order that the Court has just adopted today, 16 July
                    2013, it has exercised self‑restraint once again : this time, after finding that
                    there has been a change in the situation, it has added that the circum-
                    stances presented to it, nevertheless, are not such as to require modifica-
                    tion of its previous Order of 8 March 2011, which is simply reaffirmed.
                    Moreover, it “does not see (. . .) the evidence of urgency” (para. 35). The
                    Court’s reasoning rests on a petitio principii, adducing no persuasive
                    argument to support its decision not to order new provisional measures in
                    face of the new situation. The Court limits itself to reasserting the previ-
                    ous provisional measures, addressed to a new and distinct situation,
                    which the Court admits has now changed.

                       65. The Court has preferred to indulge in an unfortunate formalism,
                    limiting itself to add that, despite the change in the situation, “the condi-
                    tions have not been fulfilled for it to modify the measures that it indicated
                    in its Order of 8 March 2011” (paras. 25, 31, 35‑36). This is a petitio prin‑
                    cipii, whereby the Court unduly establishes a further test for the indica-
                    tion of provisional measures, rendering it more difficult — or simply
                    avoiding — to order these latter, at variance with its interna corporis. The

                         41 Cf. I.C.J. Reports 2012 (II), p. 517, para. 79.
                         42 Cf. ibid., pp. 515‑516, paras. 73‑75.
                         43 Sophocles, Oedipus the King (circa 429 bc), verse 1684.

                    39

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                    Court does not elaborate on its dictum, nor does it provide any demon-
                    stration whatsoever to corroborate its assertion. Its ineluctable incongru-
                    ence lies in the fact that, once it finds that there is a change in the situation,
                    it fails to modify — or rather expand — its previous Order, so as to
                    face the new situation, endowed with the requisite elements of risk (in
                    the form of bodily harm or death, and harm to the environment) and
                    urgency.

                       66. The ICJ has not adopted new provisional measures in the present
                    Order simply because it did not want to adopt them, for reasons which
                    escape my comprehension. The Court, from now on, will once again only
                    hope for the best, but not without expressing its “concerns” with regard
                    to the new situation (para. 37), given the ostensible risk and the probabil-
                    ity of harm posed by it. Instead of remaining preoccupied, the ICJ should
                    have ordered the new provisional measures required by the new situation
                    created in the disputed area. Once again, the Court will nourish the hope
                    that fate is on its side, oblivious of the extreme care with which someone
                    so familiar with human suffering and tragedy like Cicero approached
                    fate, in one of his fragmented reflections 44. Even so, despite all his aware-
                    ness, Cicero did not cross over the final threshold of his life secure from
                    pain : at the end of his path, he suffered bodily injuries and a violent
                    death . . .

                       67. The ICJ, on 8 March 2011, ordered provisional measures not sim-
                    ply because the persons present in the disputed area were personnel
                    (whether civilian, police or security), but also because their presence
                    therein presented a risk to the fragile ecosystem of the disputed area, and
                    a risk of irreparable harm in the form of bodily injury or death (para. 75).
                    The new situation, i.e., the presence of “organized groups” of private indi‑
                    viduals in the disputed area, discloses in my view new circumstances,
                    which clearly call for the indication of additional provisional measures.
                    The change in the situation, endowed with urgency and the probability of
                    irreparable harm, thus provides a basis for the modification of the Court’s
                    previous Order, in the light of the provisions of Article 41 of the Statute
                    and Article 76 (1) of the Rules of Court.

                       68. Moreover, the Court’s reasoning is far from coherent when, at the
                    end of the present Order, it recognizes that the presence of “organized
                    groups” of individuals in the disputed area is liable to create “the risk of
                    incidents which might aggravate the present dispute”, taking into account
                    in particular “the limited size of the area” at issue and the “numbers of
                    Nicaraguan nationals” staying there (para. 37). If the Court expressly rec-
                    ognizes such risk, and further expresses its “concerns” with this new situ-
                    ation (ibid.), it is then clear that the provisional measures already ordered
                         44   M. T. Cicero, On Fate (De Fato) (circa 44 bc), fragments 41‑43.

                    40

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

                    should be modified, or expanded, so as to face this new situation. That
                    the Court has not done so, in face of the likelihood of bodily harm or
                    death of the individuals staying in the disputed area, is a cause of concern
                    to me, as the rights at issue — and the corresponding obligations — are
                    beyond the strictly inter‑State dimension, and the Court seems not to
                    have valued this as it should.

                          XII. Epilogue : Towards an Autonomous Legal Regime of
                                    Provisional Measures of Protection

                       69. I have already made the point that the strictly inter‑State dimen-
                    sion has long been surpassed, and appears inappropriate to address obli-
                    gations under provisional measures of protection ; I have done so in other
                    cases taken before the ICJ, as well as in another international jurisdic-
                    tion 45, and I have deemed it fit to dwell further upon it in the present
                    dissenting opinion (supra). The handling of cases from a strict and exclu-
                    sively inter‑State perspective or dimension, irrespective of their circum-
                    stances, no longer reflects the complexity of the contemporary international
                    legal order. In my understanding, the institute of provisional measures of
                    protection stands in need of a conceptual refinement, in all its aspects.
                    This leads me into the last point of the present dissenting opinion, namely,
                    the needed construction of an autonomous legal regime of provisional
                    measures of protection, as I perceive it.
                       70. Compliance with provisional measures of protection runs parallel
                    to the course of proceedings leading to the Court’s subsequent decision
                    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 provisional measures, this
                    latter is an additional breach of an international 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 perception, with an autonomy of their own.

                      71. Provisional measures of protection indicated or ordered by the ICJ
                    (or other international tribunals) generate per se obligations for the States

                       45 Cf. A. A. Cançado Trindade, Derecho Internacional de los Derechos Humanos —

                    Esencia y Trascendencia (Votos en la Corte Interamericana de Derechos Humanos, 1991-
                    2006), Mexico, Edit. Porrúa/Universidad Iberoamericana, 2007, pp. 925, 935, 947, 952,
                    958, 974, 977, 981, 985, 991, 1010 and 1014 ; A. A. Cançado Trindade, Los Tribunales Inter‑
                    nacionales Contemporáneos y la Humanización del Derecho Internacional, Buenos Aires,
                    Edit. Ad‑Hoc, 2013, pp. 22‑28, 77‑90, 106‑113 and 175‑179 ; A. A. Cançado Trindade, “La
                    Humanización del Derecho Internacional y los Límites de la Razón de Estado”, 40 Revista
                    da Faculdade de Direito da Universidade Federal de Minas Gerais — Belo Horizonte/Brazil
                    (2001), pp. 11‑23.

                    41

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

                    concerned, which are distinct from the obligations which emanate 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 regime of their own, disclosing the high rele-
                    vance 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).

                      72. 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 regime of their
                    own, and non‑compliance with them generates the responsibility 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 treat-
                    ment of this subject‑matter is the task before this Court, now and in the
                    years to come.

                       73. The juridical nature of provisional measures, with their preventive
                    dimension, has lately been clarified by a growing case law on the matter,
                    as those measures came to be increasingly indicated or ordered, in recent
                    years, by contemporary international 46, as well as national 47, tribunals 48.
                    Soon the recourse to provisional measures of protection, also at interna-
                    tional level, had the effect of expanding the domain of international juris-
                    diction, with the consequent reduction of the so‑called “reserved domain”
                    of the State 49. This grows in importance in respect of regimes of protec‑
                    tion, such as those of the human person 50 as well as of the environment.
                    The clarification of the juridical nature of provisional measures is, how-

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

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

                    Madrid, Civitas, 1995, pp. 25‑385.
                       48 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.
                       49 P. Guggenheim, Les mesures provisoires de procédure internationale et leur influence

                    sur le développement du droit des gens, Paris, Libr. Rec. Sirey, 1931, pp. 14-15, 174, 186, 188
                    and cf. pp. 6‑7 and 61‑62.
                       50 Cf., e.g., E. R. Rieter, Preventing Irreparable Harm — Provisional Measures in

                    International Human Rights Adjudication, Maastricht, Intersentia, 2010, pp. 3‑1109 ;
                    C. Burbano Herrera, Provisional Measures in the Case Law of the Inter‑American Court of
                    Human Rights, Antwerp, Intersentia, 2010, pp. 1‑221 ; among others. On the needed new
                    mentality, and its benefits, in the present domain of protection, cf., in general [Various
                    Authors], Le particularisme interaméricain des droits de l’homme (eds. L. Hennebel and
                    H. Tigroudja), Paris, Pedone, 2009, pp. 3‑413.

                    42

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

                    ever, still the initial stage of the evolution of the matter, — to be fol-
                    lowed, 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 regime.

                      74. What leads me to leave on the records, in the present dissenting
                    opinion, my position on the matter — which I have been sustaining for
                    years 51 — is not a lack of confidence in the contending Parties complying
                    with them : I dare to nourish the hope that they will, and the 16 commu-
                    nications (already referred to) that they have submitted to the ICJ, seek-
                    ing to comply with its Order of 8 March 2011, disclose their awareness
                    and goodwill. The two contending Parties come both from a part of the
                    world, Latin America, with a longstanding and strong tradition in inter-
                    national legal doctrine. What leads me to leave on the records my dissent-
                    ing position, is the Court’s self‑restraint, and the incongruence of its
                    reasoning (cf. supra), in a matter of such importance for the progressive
                    development of international law. I have cared to take the time and work
                    to leave on the records the present dissenting opinion, so as to render a
                    service to our mission of imparting justice.

                       75. In effect, the notion of victim (or of potential victim 52), or injured
                    party, can thus emerge also in the context proper to provisional measures
                    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 obligations which
                    emanate from the judgments of the Court as to the merits (and repara-
                    tions) of the respective cases. This ensues from their autonomous legal
                    regime, as I conceive it. There is, in my perception, pressing need nowa-
                    days to refine and to develop conceptually this autonomous legal regime,
                    focused, in particular, on the contemporary expansion of provisional
                    measures, the means to secure due and prompt compliance with them,
                    and the legal consequences of non‑compliance — to the benefit of those
                    protected thereunder.

                      76. In this matter, the worst possible posture would be that of passive-
                    ness, if not indifference, that of judicial inactivism. As I warned in an

                       51 Cf. A. A. Cançado Trindade, El Ejercicio de la Función Judicial Internacional —

                    Memorias de la Corte Interamericana de Derechos Humanos, 2nd ed., Belo Horizonte/
                    Brazil, Edit. Del Rey, 2013 Chap. XXI : “The Preventive Dimension : The Binding Chara-
                    cter and the Expansion of Provisional Measures of Protection”, pp. 177‑186.
                       52 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.

                    43

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

                    earlier dissenting opinion (cf. supra) and reiterate now in the present one,
                    the matter before the Court calls for a more pro‑active posture on its
                    part 53, so as not only to settle the controversies filed with it, but also to
                    tell what the law is (juris dictio), and thus to contribute effectively to the
                    avoidance or prevention of irreparable harm in situations of urgency, to
                    the ultimate benefit of all subjects of international law — States as well as
                    groups of individuals, and simples particuliers. After all, the human per-
                    son (living in harmony in her natural habitat) occupies a central place in
                    the new jus gentium of our times.

                                                (Signed) Antônio Augusto Cançado Trindade.

                        53 In likewise advocating such pro‑active posture of the Court in respect of provisional

                    measures of protection, in my earlier dissenting opinion in the Court’s Order of 28 May
                    2009 in the case of Questions relating to the Obligation to Prosecute or Extradite (Belgium
                    v. Senegal), I deemed it fit to recall that the Court is not restricted by the arguments of
                    the parties, as confirmed by Article 75 (1) and (2) of the Rules of Court. Article 75 (1)
                    sets forth that “[t]he Court may at any time decide to examine proprio motu whether the
                    circumstances of the case require the indication of provisional measures which ought to
                    be taken or complied with by any or all of the parties.” And Article 75 (2) determines
                    that “[w]hen a request for provisional measures has been made, the Court may indicate
                    measures that are in whole or in part other than those requested, or that ought to be taken
                    or complied with by the party which has itself made the request.” Article 75 (1) and (2) of
                    the Rules of Court — I proceeded in my dissenting opinion — thus expressly entitles it to
                    indicate, motu proprio, provisional measures that it regards as necessary, even if they are
                    wholly or in part distinct from those that are requested. A decision of the ICJ indicating
                    provisional measures in the present case — as I sustained — “would have set up a remark-
                    able precedent in the long search for justice in the theory and practice of international
                    law”, as this was “the first case lodged with the ICJ on the basis of the 1984 United Nations
                    Convention against Torture”, the first human rights treaty incorporating the principle of
                    universal jurisdiction as an international obligation of all States parties (para. 80). And I
                    further recalled (para. 81) that the ICJ has made use of its prerogatives under Article 75 of
                    its Rules on some previous occasions, as illustrated by its Orders of provisional measures,
                    invoking Article 75 (2), in the cases concerning the Application of the Convention on the
                    Prevention and Punishment of the Crime of Genocide (Bosnia‑Herzegovina v. Yugoslavia)
                    (Order of 8 April 1993, I.C.J. Reports 1993, p. 22, para. 46), the Land and Maritime
                    Boundary between Cameroon and Nigeria (Cameroon v. Nigeria) (Order of 15 March 1996,
                    I.C.J. Reports 1996 (I), p. 24, para. 48), the Armed Activities on the Territory of the Congo
                    (Democratic Republic of the Congo v. Uganda) (Order of 1 July 2000, I.C.J. Reports 2000,
                    p. 128, para. 43), and, more lately, the Application of the International Convention on the
                    Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation) (Order
                    of 15 October 2008, I.C.J. Reports 2008, p. 397, para. 145).

                    44

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