                    211

                                            SEPARATE OPINION
                                       OF JUDGE CANÇADO TRINDADE

                                                 table of contents

                                                                                Paragraphs

                          I. Prolegomena: Initial Considerations	                             1-7
                         II. “Countermeasures” in Breach of the Foundations of the
                             Law of Nations, and of State Responsibility                     8-13
                         III. Criticisms of “Countermeasures” in Corresponding
                              Debates of the United Nations International Law
                              Commission                                                   14-29
                         IV. Criticisms of “Countermeasures” in Corresponding
                             Debates of the VI Committee of the United Nations
                             General Assembly                                              30-38
                         V. The Prevalence of the Imperative of Judicial S
                                                                          ettlement
                            over the State’s “Will”                                         39-53
                            1. Further criticisms of so-called “countermeasures”           40-41
                            2. Earlier lessons on the importance of the realization of
                               justice                                                     42-44
                            3. Human conscience above voluntas                              45-53
                         VI. International Legal Thinking and the Prevalence of
                             Human Conscience (Recta Ratio) over the “Will”                 54-74
                     VII. The Universal Juridical Conscience in the Rejection of
                          Voluntarism and “Countermeasures”                                 75-78
                    VIII. Law and Justice Interrelated: General Principles of Law
                          in the Foundations of the New Jus Gentium                        79-100

                            1. Basic considerations of humanity in the corpus juris
                               gentium80-82
                            2. Human suffering and the need of protection to victims 83-86

                            3. The interrelationship between law and justice orienting
                               jurisprudential construction                               87-100
                         IX. Epilogue: Final Considerations	                              101-114

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                                       I. Prolegomena: Initial Considerations

                       1. I have accompanied the majority of the International Court of Jus-
                    tice (ICJ), in voting in support of the adoption today, 14 July 2020, of its
                    present Judgments dismissing the appeals raised by the applicant States in
                    the present correlated cases of Appeal relating to the Jurisdiction of the
                    ICAO Council under Article II, Section 2, of the 1944 International Air
                    Services Transit Agreement (Bahrain, Egypt and United Arab Emirates
                    [UAE] v. Qatar) [hereinafter “ICAOB case”], and of Appeal relating to
                    the Jurisdiction of the ICAO Council under Article 84 of the Convention on
                    International Civil Aviation (Bahrain, Egypt, Saudi Arabia and United
                    Arab Emirates [UAE] v. Qatar) [hereinafter “ICAOA case”].
                       2. I arrive likewise at the conclusions of the ICJ set forth in the disposi‑
                    tif of the two present Judgments (ICAOB Judgment, para. 127; ICAOA
                    Judgment, para. 126), also for the dismissal of all appeals raised by the
                    applicant States. This does not mean that my own reasoning coincides
                    entirely with that of the ICJ in the handling of all successive points in the
                    two present cases in this respect. This being so, I feel obliged to present
                    my current separate opinion, in order to express my own position in rela-
                    tion to one of the arguments raised by the appellant States, in the two
                    present cases, namely, the argument concerning so-called “countermea-
                    sures”.

                       3. May I initially recall, at this preliminary stage, that, in general
                    terms, the appellant States in both cases base their first ground of appeal,
                    as to the alleged lack of jurisdiction of the International Civil Aviation
                    Organization Council (hereinafter “ICAO Council”), on the argument
                    that the airspace restrictions adopted by them were taken as lawful “coun-
                    termeasures” in response to Qatar’s alleged prior breaches of obligations
                    arising under customary international law, as well as of resolutions of the
                    Security Council, and of the Riyadh Agreements 1. The appellant States
                    further claim that, in their view, “countermeasures” constitute a circum-
                    stance precluding wrongfulness under general international law, having
                    been, to them, specially recognized under the Riyadh Agreements 2.

                       1 Memorials (ICAOA and ICAOB), paras. 1.2 (b) and 1.4-1.5; Memorial (ICAOA),

                    paras. 1.21, 1.25-1.27, 1.31-1.32, 2.9 and 2.53-2.55; Memorial (ICAOB), paras. 1.22, 1.26-
                    1.28, 1.32-1.33, 2.8 and 2.52‑2.54; Memorials, (ICAOA and ICAOB), paras. 3.22 (a),
                    7.3-7.4 and 7.8; Replies (ICAOA and ICAOB), paras. 2.1-2.4; Reply (ICAOA), paras. 2.35-
                    2.47; and Reply (ICAOB), paras. 2.35-2.45; Replies (ICAOA and ICAOB), para. 4.14;
                    CR 2019/13, of 2 December 2019, pp. 19 and 21-22, paras. 3-4 and 12-14; ibid., pp. 22 and
                    24, paras. 2 and 11-13; ibid., pp. 26‑28, paras. 8‑10 and 13; ibid., pp. 29‑30, paras. 7-8 and
                    12-14; ibid., pp. 33 and 38-41, paras. 7 and 23-34; ibid., pp. 58 and 65‑66, paras. 12 and 35-39
                       2 Memorial (ICAOA), paras. 2.56-2.67; Memorial (ICAOB), paras. 2.55-2.66; Replies

                    (ICAOA and ICAOB), paras. 1.4, 1.6 and 2.7; CR 2019/13, of 2 December 2019, p. 30,
                    paras. 12-13; ibid., pp. 33‑34 and 37, paras. 7-8 and 18-20; ibid., pp. 70 and 74, paras. 6

                    44

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                       4. The appellant States further contend that the disagreement submit-
                    ted by Qatar to the ICAO Council would require the Council to adjudi-
                    cate upon matters falling outside its jurisdiction, in a forum that is not
                    properly equipped to hear the matters at issue 3. They argue that their
                    objection is to be distinguished from the earlier case concerning the
                    Appeal Relating to the Jurisdiction of the ICAO Council (India v. Paki‑
                    stan) (Judgment, I.C.J. Reports 1972, p. 46) because in the present case
                    the invocation of “countermeasures” 4 has taken the dispute outside the
                    scope of civil aviation and the respective treaties (the Chicago Conven-
                    tion in the ICAOA case and the IASTA Agreement in the ICAOB case) 5.

                       5. In the present separate opinion, I shall at first address “countermea-
                    sures” in breach of the foundations of the law of nations, and of State
                    responsibility. In sequence, I shall survey the lengthy and strong criti-
                    cisms of “countermeasures” presented in the corresponding debates of
                    both the UN International Law Commission, as well as of the VI Com-
                    mittee of the UN General Assembly (Parts III and IV). Following that, I
                    shall focus on the prevalence of the imperative of judicial settlement over
                    the State’s “will”. I shall then present my own reflections, first, on inter-
                    national legal thinking and the prevalence of human conscience (recta
                    ratio) over the “will”; secondly, on the universal juridical conscience in
                    the rejection of voluntarism and “countermeasures”; and thirdly, on law
                    and justice interrelated, with general principles of law in the foundations
                    of the new jus gentium. The way shall then be paved for the presentation
                    of my final considerations, in an epilogue, with the points dealt with
                    herein.

                    and 21; CR 2019/16, of 5 December 2019, pp. 28 and 37-38, paras. 2 and 34. The Riyadh
                    Agreements were seen by the applicant States as an approach to address the alleged threats
                    to regional security, stability and peace. The Riyadh Agreements were seen by States
                    parties as binding; Qatar rejected that it had breached them, held that they were breached
                    by the applicant States, and further rejected that the Riyadh Agreements paved the way
                    for “countermeasures”; CR 2019/15, of 3 December 2019, p. 18, para. 14; ibid., pp. 40‑41,
                    para. 20; CR 2019/17, of 6 December 2019, p. 16, para. 9.
                       3 Memorial (ICAOA), paras. 1.23 and 1.33-1.39; Memorial (ICAOB), paras. 1.24-1.40;

                    Memorials (ICAOA and ICAOB), paras. 5.2 (a), 5.4-5.5, 5.27-5.42, 5.71-5.83, 5.95, 5.119,
                    5.121-5.122, 5.126, 5.128 (b), 5.130 and 5.133; Replies (ICAOA and ICAOB), paras. 1.7-1.8,
                    4.7, 4.18, 4.28, 4.33-4.55 and 6.3; CR 2019/13, of 2 December 2019, pp. 34, 36 and 41-42,
                    paras. 8-10, 15-17 and 35-36; ibid., pp. 54 and 61-64, paras. 2 and 21-34; CR 2019/14, of
                    2 December 2019, pp. 15‑19, paras. 31 and 34-37; CR 2019/16, of 5 December 2019, p. 15,
                    para. 6; ibid., p. 38, paras. 37-38; ibid., p. 56, para. 17.
                       4 Replies (ICAOA and ICAOB), paras. 4.25-4.27; CR 2019/13, of 2 December 2019,

                    p. 27, para. 10, and p. 36, para. 17.
                       5 Memorials (ICAOA and ICAOB), para. 5.91; CR 2019/13, of 2 December 2019, p. 67,

                    paras. 46-47; CR 2019/16, of 5 December 2019, pp. 28‑32, paras. 3-13.

                    45

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                       6. The two ICAOB and ICAOA cases are interrelated, as their presen-
                    tation and arguments indicate. The two joint Applications instituting pro-
                    ceedings, received by the ICJ on 4 July 2018, contain appeals against two
                    decisions rendered by the ICAO Council on 29 June 2018. The present
                    case, of Appeal relating to the Jurisdiction of the ICAO Council under Arti‑
                    cle II, Section 2, of the 1944 International Air Services Transit Agreement
                    (ICAOB), was presented, as already indicated, by Bahrain, Egypt and
                    UAE, to constitute an appeal against the decision rendered by the ICAO
                    Council in the proceedings also initiated by Qatar against those three
                    States, pursuant to Article II, Section 2, of the International Air Services
                    Transit Agreement (the “IASTA”). In those proceedings before the ICAO
                    Council, Qatar claimed that those airspace restrictions violated the
                    IASTA 6.

                       7. The dispute between the Parties is mainly focused on whether the
                    ICAO Council had jurisdiction to decide on the applications submitted
                    by Qatar on alleged violations of the IASTA (ICAOB case) or the Chi-
                    cago Convention (ICAOA case), and alternatively, whether the applica-
                    tions submitted by Qatar are admissible 7. As I have already pointed out,
                    in both ICAOB and ICAOA cases I have selected one point raised by the
                    applicant States, namely, that of so-called “countermeasures”, so as to
                    examine herein their lack of legal foundations and their negative effects
                    on the law of nations and on State responsibility.

                             II. “Countermeasures” in Breach of the Foundations
                              of the Law of Nations, and of State Responsibility

                       8. The appellant States, as just seen, have decided to rely inter alia on
                    “countermeasures”, bringing to the fore an unfortunate initiative taken
                    by the UN International Law Commission (International Law Commis-
                    sion) in its prolonged discussions on the matter in the 1990s and until
                    2001 (infra). This having been so, I feel bound to begin my own consid-
                    erations of “countermeasures” in breach of the foundations of the law of
                    nations, and of State responsibility, and to present, in sequence, the criti-
                    cisms of “countermeasures” in corresponding debates of the International
                    Law Commission, as well as of the VI Committee of the UN General
                    Assembly.

                       6 This case is dealt with in the Judgment concerning the Appeal relating to the Jurisdic‑

                    tion of the ICAO Council under Article II, Section 2, of the 1944 International Air Services
                    Transit Agreement, which thus mainly concerns the IASTA Agreement.
                       7 There is also a separate point of contention as to the grounds — or otherwise — of

                    the ICAO Council’s decisions.

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                       9. In effect, the International Law Commission consumed many years
                    of its work on the elaboration and adoption of its Articles on State
                    Responsibility (2001), which disclosed also some resistance to certain
                    innovations not in accordance with the foundations of the law of nations.
                    Such was the case — as I warned in my general course delivered at the
                    Hague Academy of International Law in 2005 — of the space occupied,
                    in the elaboration of those Articles,

                         “by so-called ‘countermeasures’ (Articles 22 and 49-54), in compari-
                         son with the much more succinct space devoted to serious breaches
                         of obligations under peremptory norms of general international law
                         (Articles 40-41). Ubi societas, ibi jus. It should not pass unnoticed that
                         countermeasures (. . .) ha[ve] now been taken to the centre of the
                         domain of State responsibility without originally and intrinsically
                         belonging to it. Countermeasures are reminiscent of the old practice
                         of retaliation, and, — whether one wishes to admit it or not, — they
                         rely upon force rather than conscience. Recourse to them discloses
                         the insufficient degree of development of the treatment of State
                         responsibility.” 8

                       10. In this respect, there have been warnings as to resort to “counter-
                    measures”: as the international legal order is based upon justice rather
                    than force, it has been criticized that to confer a high standing to “coun-
                    termeasures” in the domain of State responsibility is “to elevate to a posi-
                    tion of high dignity one of [international] society’s least dignified and
                    least sociable aspects”, thus condemning that society “to be what it is” 9.
                    Other criticisms have emanated from lucid trends of international legal
                    doctrine.
                       11. It has been recalled, e.g. that resort to “countermeasures” in prac-
                    tice ensues mainly from the domain of “the reciprocity of State interests”
                    rather than principles, disclosing clear risks of retaliations 10, which are to
                    be avoided. Judicial control of “countermeasures” was contemplated by
                    International Law Commission’s Rapporteur Gaetano Arangio-Ruiz, in
                    his seventh Report (of 1995), stressing the need of an institutionalized

                       8 A. A. Cançado Trindade, International Law for Humankind — Towards a New Jus

                    Gentium, 3rd rev. ed., The Hague: Nijhoff/Hague Academy of International Law, 2020,
                    pp. 454‑455; text originally presented in: A. A. Cançado Trindade, “International Law
                    for Humankind: Towards a New Jus Gentium — General Course on Public International
                    Law — Part I”, 316 Recueil des cours de l’Académie de droit international de la Haye
                    (RCADI) (2005), pp. 31‑439; A. A. Cançado Trindade, “International Law for Human-
                    kind: Towards a New Jus Gentium — General Course on Public International Law —
                    Part II”, 317 RCADI (2005), pp. 19‑312.
                       9 Ph. Allott, “State Responsibility and the Unmaking of International Law”, 29

                    Harvard International Law Journal (1988), pp. 23‑24.
                       10 M. Virally, “Panorama du droit international contemporain — Cours général de

                    droit international public”, 183 RCADI (1983), pp. 217‑218.

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                    216 	            icao council (sep. op. cançado trindade)

                    reaction — within the ambit of the United Nations — of the “organized
                    international community” 11, — and the idea of a neutral control of
                    “countermeasures” remained alive 12.
                       12. I have recalled such criticisms in my aforementioned general course
                    delivered at the Hague Academy of International Law (2005), and I have
                    further warned that
                         “[t]he much larger space occupied by ‘countermeasures’ than by other
                         truly fundamental aspects of State responsibility in the 2001 Interna-
                         tional Law Commission Articles on the subject discloses an apparent
                         lack of confidence in the role of law for attaining justice; the greater
                         emphasis is therein shifted to coercive means — envisaged as ‘legal’
                         ones — rather than on conscience and the prevalence of opinio juris
                         communis.
                            Yet, in a domain of international law endowed with a specificity of
                         its own, such as the international law of human rights, the overall
                         picture is rather different. This is a domain which has rendered pos-
                         sible a re-encounter with the very foundations of the international
                         responsibility of States. Herein attention is correctly focused on law
                         rather than force, on conscience rather than ‘will’, to the greater effec-
                         tiveness of public international law itself 13.” 14

                       13. These criticisms have called for further attention to the matter, in
                    particular to the step backwards taken by the insertion of “countermea-
                    sures” in the 2001 Articles on State Responsibility (cf. infra). Such inser-
                    tion took place despite the successive and strong criticisms of
                    “countermeasures” in the prolonged debates on the matter, of the Inter-
                    national Law Commission as well as of the VI Committee of the UN
                    General Assembly (infra). I much regret that “countermeasures” have
                    been raised by the appellant States in the present ICAOB and ICAOA
                    cases; all the mistakes of the past in the raising and stating of the point,
                    with all its legal consequences, should not be forgotten in the present, at
                    least by those of us who believe in international law and work for its
                    prevalence.

                        11 G. Arangio-Ruiz, “Séptimo Informe sobre la Responsabilidad de los Estados”,

                    UN doc. A/CN.4/469, of 9 May 1995, pp. 30‑37, 42-43, 46, 49 and 52.
                        12 Cf., e.g. M. E. O’Connell, “Controlling Countermeasures”, International Responsi‑

                    bility Today — Essays in Memory of O. Schachter (ed. M. Ragazzi), Leiden: Nijhoff, 2005,
                    pp. 49‑62.
                        13 A. A. Cançado Trindade, “Memorial por um Novo Jus Gentium, o Direito Inter-

                    nacional da Humanidade”, 45 Revista da Faculdade de Direito da Universidade Federal de
                    Minas Gerais, Belo Horizonte/Brazil (2004), pp. 17‑36.
                        14 A. A. Cançado Trindade, International Law for Humankind — Towards a New Jus

                    Gentium, 3rd rev. ed., op. cit. supra note 8, pp. 454‑456.

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                            III. Criticisms of “Countermeasures” in Corresponding
                                 Debates of the United Nations International
                                                 Law Commission

                       14. Strong criticisms to “countermeasures” were formulated in succes-
                    sive debates of the International Law Commission itself, in the period of
                    1992-2001, centred on the issue. Thus, one of the International Law Com-
                    mission members, Mr. Jiuyong Shi (China), took a categorical position
                    against them, warning as to the “impropriety” of the concept of “counter-
                    measures” under general international law; to him, States allegedly
                    “injured” which took “countermeasures” were “often themselves the
                    wrongdoing States” 15. Thus, for Mr. Shi, the application of reprisals or
                    countermeasures disclosed the outcome of the relationship between “pow-
                    erful” States and “weak and small” States which were “unable to assert
                    their rights under international law.
                       15. For that reason, many small States regarded “the concept of repri-
                    sals or countermeasures as synonymous with aggression or intervention,
                    whether armed or unarmed” 16. “Countermeasures”, — he added, — were
                    “controversial” and should not be included in the law of State responsi-
                    bility, being “certainly” to “the advantage of the more powerful States” 17.
                    Instead of reflecting general rules of international law, — Mr. Shi con-
                    cluded, — “countermeasures” remained “controversial”, reflecting “sim-
                    ply power relationships”, and should then “be excluded from the topic of
                    State responsibility” 18.

                       16. Another International Law Commission member who took like-
                    wise a categorical position against “counter‑measures” was Mr. Carlos
                    Calero Rodrigues (Brazil), who strongly criticized them; he warned that,
                    if the International Law Commission “was to be faithful to its duty of
                    contributing to the progressive development of international law, it must
                    try to establish limits to countermeasures in order to correct some of the
                    more glaring injustices to which their broad application might give rise” 19.
                    He advocated the “clear and unrestricted” prohibition of “countermea-
                    sures”, which “should not be considered legitimate” in threatening the
                    territorial integrity or independence of the State against which they were
                    applied; such “extreme coercion”, — he added, — “should not be
                    allowed” 20.
                       17. Mr. Carlos Calero Rodrigues stressed his own “faithfulness to the
                    traditional Latin American position on that matter”, and reasserted his
                    own “endorsement of a strict prohibition of countermeasures which
                      15 UN, Yearbook of the International Law Commission (YILC) (1992)-I, p. 88, para, 32;

                    and cf. p. 133, para. 74.
                      16 Ibid., p. 88, para. 32.
                      17 Ibid., paras. 31 and 33.
                      18 Ibid., p. 133, para. 73.
                      19 YILC (1992)-I, p. 135, para. 5.
                      20 Ibid., p. 160, paras. 27 and 29.

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                    endangered the territorial integrity or political independence of a State” 21.
                    He was firm in further warning that “countermeasures should not infringe
                    on fundamental human rights, diplomatic relations, the rules of jus cogens
                    or the rights or third States” 22.
                      18. Within the International Law Commission, as it can be seen, there
                    were those aforementioned members who remained strongly opposed to
                    the initiative of inserting into the Draft Articles a reference to so‑called
                    “countermeasures” all the time (supra). In addition, there were those
                    members who were critical of them from the start, though ending up not
                    opposing their insertion into Article 50 (2) of the Draft Articles. As to
                    these latter, one International Law Commission member, Mr. Awn Al-
                    Khasawneh (Jordan), warned that States resorting to “countermeasures”
                    “took the law into their own hands”, forgetful of the rule of law at inter-
                    national legal level. To him, “countermeasures” raised the “likelihood of
                    abuse, largely because of power disparities among States”; furthermore,
                    there is the “punitive” function and intent of “countermeasures” 23.
                      19. Another International Law Commission member, Mr. Pemmaraju
                    Sreenivasa Rao (India), also warned that “countermeasures” reflected the
                    position of the “stronger party”, and one should have care not to trans-
                    pose such political “power relationships” into the domain of law; more-
                    over, “punitive reprisals or countermeasures” should be expressly
                    prohibited 24. This point, originally made by him in 1992, was subsequently
                    taken again by him at the International Law Commission, in 1996, when
                    he expressly stated his “complete disagreement” with Chapter III of the
                    draft Articles on the controversial “countermeasures” 25. The International
                    Law Commission ended up with “an unsupportable, contradictory and
                    unjustified regime for countermeasures”; after all, he added, “[n]o State
                    should be encouraged to decide unilaterally to take the law into its own
                    hands, no matter how real the provocation to which it reacted” 26.
                      20. It seemed “advisable” to Mr. Sreenivasa Rao “to refer expressly to
                    the provisions of the [UN] Charter which dealt with the non-use of force
                    and the different methods for the peaceful settlement of disputes” 27.
                    In conclusion, he identified the “trouble with the existing wording”,
                    namely:
                              “if the State accused of the internationally wrongful act defaulted, the
                              injured State would be free to act as it saw fit, and that was tanta-
                              mount to making the law of the strongest prevail. It would be pref-

                         21
                         YILC (1992)-I, p. 160, para. 29.
                         22
                         Ibid., p. 161, para. 30.
                      23 Ibid., pp. 157‑158, para. 15; p. 158, paras. 17-18; and cf. p. 159, para. 22.
                      24 Ibid., p. 137, paras. 19 and 21; and p. 161, para. 35; and cf. pp. 162‑163, paras. 37

                    and 45.
                      25 YILC (1996)-I, pp. 157‑158, paras. 67 and 69-70.
                      26 Ibid., p. 158, para. 70.
                      27 Ibid., para. 74.

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                         erable if the dispute settlement procedure that had been initiated
                         continued to apply” 28.
                       21. In the International Law Commission’s debates of two years ear-
                    lier, Mr. John de Saram (Sri Lanka) pointed out that even when consider-
                    ing “countermeasures”, attention should be turned to multilateral (or
                    even bilateral) treaties, as from the UN Charter, in the light of their pro-
                    visions on “peaceful settlement of disputes” 29. Even when this latter is
                    not achieved, — he added, — endeavours should be undertaken to avoid
                    “chaos” resulting from “the taking by individuals States of countermea-
                    sures in an uncoordinated manner” 30.
                       22. Shortly afterwards at the International Law Commission,
                    Mr. Václav Mikulka (Czech Republic) pondered, as to the “consequences
                    of State crimes”, that “priority should be given to the collective response
                    of the international community”, so as to avoid “countermeasures”; in his
                    view, it would here be desirable for the International Law Commission “to
                    establish the regime of responsibility for State crimes” 31. The International
                    Law Commission members also counted, in mid-1994, on the intervention
                    of their guest speaker, Mr. Chengyuan Tang, Secretary‑General of the
                    Asian-African Legal Consultative Committee (AALCC), who acknowl-
                    edged the concern expressed at the International Law Commission as to
                    the formulation of a “regime of unilateral countermeasures” with its
                    “inherent danger of abuse”, as to the “recourse to reprisals”, as well as to
                    a “resort to unlawful or disproportionate countermeasures” 32.
                       23. Subsequently, in the International Law Commission’s debates,
                    Mr. Peter Kabatsi (Uganda) made clear that he was “totally opposed to
                    legalizing unilateral self-help at the international level by one State against
                    another, as that would only serve the interests of the strong against the
                    weak and the rich against the poor” 33. He added that Chapter III of the
                    draft Articles contained passages that, if retained, “would further aggra-
                    vate the situation of the State against which the countermeasures were
                    directed” 34. Likewise, there were those International Law Commission
                    members who criticized strongly “countermeasures”, though not oppos-
                    ing them until the end, despite the negative effects of resort to them.
                       24. One of those International Law Commission members (Mr. Julio
                    Barboza) wrote thoughtfully later (in 2003) that “countermeasures”

                       28 YILC (1996)-I, p. 158, para. 76. In the last year of work (2001) of the International

                    Law Commission on the matter, Mr. Sreenivasa Rao reiterated his criticisms to the inser-
                    tion of “countermeasures” in the draft Articles on the matter; cf. YILC (2001)-I, pp. 56‑57,
                    paras. 38 and 42-43.
                       29 YILC (1994)-I, p. 77, para. 27.
                       30 Ibid., para. 28.
                       31 Ibid., p. 101, para. 5.
                       32 Ibid., p. 150, para. 51.
                       33 YILC (1996)-I, p. 156, para. 56.
                       34 Ibid., para. 57.

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                    amounting to reprisals faced the prohibition found in General Assembly
                    resolution 2625 (XXX) 35. Prevalence was acknowledged to the obliga-
                    tions of protection of the human person, in the international law of
                    human rights and in international humanitarian law 36. There is no point
                    at all, — he added, — in “countermeasures”, in cases lodged with an
                    international tribunal, which can anyway order provisional measures of
                    protection before delivering its decision on the merits; to resort to “coun-
                    termeasures” without a test of their legality is a “step backwards” 37.

                       25. This critical point was in effect made also in the remaining debates
                    (in 2000-2001) of International Law Commission members on the matter.
                    Thus, in 2000, Mr. Maurice Kamto (Cameroon) pointed out that he had
                    kept his reservations to “countermeasures”, for being “a step backwards
                    at a time when the trend was in the opposite direction, towards the regu-
                    lation of international relations through dispute settlement machinery,
                    including judicial machinery”; this was, in his view, a wrong step taken by
                    the International Law Commission, as there was no basis in general cus-
                    tomary law for “countermeasures”, being a wrongful resort to sanc-
                    tions 38. To him, it should be kept in mind that countermeasures were
                    unduly devised in the late 1970s and early 1980s, considerably weakening
                    the Security Council’s authority and expanding “private justice” 39.

                       26. For his part, on the same occasion in the International Law Com-
                    mission, Mr. Christopher John Robert Dugard (South Africa) pondered
                    that international lawyers disliked “countermeasures” and reprisals as
                    they were “primitive and lacked the means for law enforcement”; so-
                    called “reciprocal countermeasures” were thus to be rejected 40. He fur-
                    ther warned that “[m]ost countermeasures inevitably had some adverse
                    impact on some human rights, particularly in the social and economic
                    field” 41. Shortly afterwards, Mr. Nabil Elaraby (Egypt) also criticized
                    countermeasures for being “highly controversial”, and for underlining the
                    “imbalance” and widening “the gap between rich and powerful States and
                    the rest”, having thus been “used and abused” in the contemporary
                    world 42. In the following year of 2001, Mr. James Kateka (Tanzania)
                    likewise declared that he “remained opposed” to countermeasures, as

                       35 J. Barboza, “Contramedidas en la Reciente Codificación de la Responsabilidad de

                    los Estados — Fronteras con la Legítima Defensa y el Estado de Necesidad”, 12 Anuario
                    Argentino de Derecho Internacional (2003), p. 39.
                       36 Ibid., pp. 39‑40.
                       37 Ibid., pp. 43‑44.
                       38 YILC (2000)-I, p. 279, paras. 26-27.
                       39 Ibid., p. 280, para. 29.
                       40 Ibid., p. 283, paras. 1 and 3.
                       41 Ibid., p. 284, para. 6.
                       42 Ibid., para. 9.

                    52

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                    “they continued to be a threat to small and weak States and gave the
                    more powerful States another weapon” 43.

                       27. At the final stage of consideration of the Draft Articles on State
                    Responsibility, the International Law Commission counted on relevant
                    comments received from States (at the original request from the UN Gen-
                    eral Assembly), reproduced in its Yearbook (1998 and 2001). In 1998,
                    Mexico and Argentina presented their criticisms of the inclusion of
                    “countermeasures” thereon 44. Denmark, on behalf of the Nordic coun-
                    tries, stated that “there is no room for countermeasures where a manda-
                    tory system of dispute settlement exists as between the conflicting
                    parties” 45. And the Czech Republic held that “countermeasures are not
                    considered to constitute a ‘right’ per se of an injured State” 46.

                       28. Later on, in 2001, China criticized the reference to “countermea-
                    sures”, and called for “appropriate restrictions on their use” 47. Japan, for
                    its part, likewise warned as to the risk of abuse of “countermeasures”,
                    and fully shared “the concern expressed by quite a few States in the
                    VI Committee on the risk of the abuse of countermeasures”, which needed
                    “substantial and procedural restrictions” 48. Mexico, for its part, much
                    regretted the decision of inclusion of “countermeasures” into the Draft
                    under consideration, which “would open the way to abuse” which “could
                    aggravate an existing conflict”; the result could be “extremely risky, espe-
                    cially for the weakest States”, and such risks should be minimized, avoid-
                    ing their use “for punitive purposes” 49.

                       29. Argentina was likewise critical, warning against “the exceptional
                    nature of countermeasures”, and the need “to minimize the possibility of
                    abuses” 50. Shortly after the adoption of the International Law Commis-
                    sion’s Articles on State Responsibility (2001), the Rapporteur, Mr. James
                    Crawford, in the commentaries he published, observed critically that the
                    chapter containing countermeasures “was the most controversial aspect
                    of the provisional text adopted in 2000. Concerns were expressed at vari-
                    ous levels” (e.g. in relation to implementation of State responsibility; in
                    respect of obligations not subject to countermeasures; and by reference to
                    the so-called “collective” countermeasures). After recalling that at least

                          43 YILC (2001)-I, p. 114, para. 75.
                          44 YILC (1998)-II, Part I, pp. 132 and 151, respectively.
                          45 Ibid., p. 152, para. 2.
                          46 Ibid.
                          47 YILC (2001)-II, Part I, p. 80.
                          48 Ibid., p. 81, paras. 1-2.
                          49 Ibid., paras. 1-3.
                          50 Ibid., paras. 1-2.

                    53

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                    one State (Greece) argued that “countermeasures should be prohibited
                    entirely”, he added that “the International Law Commission did not
                    endorse that position 51.

                          IV. Criticisms of “Countermeasures” in Corresponding Debates
                           of the VI Committee of the United Nations General Assembly

                      30. Criticisms of countermeasures were, furthermore, firmly expressed
                    in the parallel and corresponding debates of successive sessions (1992-
                    2000) of the VI Committee of the UN General Assembly. Thus, e.g. in the
                    debates of 4 November 1992 of the VI Committee, the delegate of Indo-
                    nesia (Mr. Abdul Nasier) warned that “countermeasures generally tended
                    to be punitive”; in particular, “armed countermeasures were contrary” to
                    Article 2 (3) and (4) of the UN Charter, and, “[a]ccordingly, countermea-
                    sures had no place in the law on State responsibility” 52.

                       31. Other criticisms along the years of debates on the matter in the
                    VI Committee were firmly formulated and sustained by the Cuban dele-
                    gation. Thus, in the debates of 5 November 1992, the delegate of Cuba
                    (Ms Olga Valdés) warned that, in resorting to “reprisals or countermea-
                    sures”, powerful or rich countries “easily enjoy an advantage over weak
                    or poor countries” 53. She added that they contain “the seeds of aggres-
                    sion”, being moreover surrounded by uncertainty 54; accordingly, they are
                    not desirable in international law 55.

                      32. The Cuban delegation insisted on its position against “counter
                    measures”. Thus, subsequently, in the debates of the VI Committee
                    of 4 December 2000, the delegate of Cuba (Ms Soraya Alvarez
                    Núñez) opposed “countermeasures” are being “most controversial”,
                    and as amounting to “armed reprisals”, involving “collective sanctions
                    or collective interventions” 56. She added that such reprisals “tended
                    to aggravate disputes between States” by resorting to “the wrongful
                    use of force” 57. Such politically motivated tactic was “in violation

                       51 J. Crawford, The International Law Commission’s Articles on State Responsibility —

                    Introduction, Text and Commentaries, Cambridge University Press, 2002, pp. 48‑49.
                       52 United Nations, Official Records of the General Assembly (UNGAOR),

                    doc. A/C.6/47/SR.28 (1992), p. 15, para. 65.
                       53 UNGAOR, doc. A/C.6/47/SR.29 (1992), p. 13, para. 58.
                       54 Ibid., para. 59.
                       55 Ibid., para. 60.
                       56 UNGAOR, doc. A/C.6/55/SR.18 (2000), p. 11, paras. 59-60.
                       57 Ibid., p. 11, paras. 60 and 61.

                    54

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                    of the principles of the Charter of the United Nations and [of] interna-
                    tional law” 58.
                       33. There were other strong criticisms by States’ representatives of
                    “countermeasures” in the work of the VI Committee of the General
                    Assembly. Thus, e.g. in its debates of 4 November 1993 on the matter, the
                    delegate of Mexico (Mr. Juan Manuel Gómez Robledo) warned that “the
                    imposition of unilateral sanctions by one or more States” in reaction to
                    the conduct of another State was a breach of international law, that
                    “might exacerbate international conflicts”, and thus all provisions or ref-
                    erences to “countermeasures should be deleted” 59.

                       34. There were other manifestations of criticism of, and opposition to,
                    “countermeasures”, in the prolonged debates of the VI Committee of the
                    General Assembly on the matter. For example, in the debates of
                    13 November 2000, the delegate of India (Mr. Prem Gupta) strongly crit-
                    icized that resort of “States to take countermeasures was open to serious
                    abuse”, and thus the point should be excluded “altogether from the scope
                    of State responsibility, leaving issues concerning such measures to be
                    dealt with under general international law, especially under the Charter
                    of the United Nations” 60.
                       35. He added that “countermeasures” were “merely sanctions under
                    another name”, which “should not be used to punish a State”. The dele-
                    gate of India stressed that there was a duty to keep in mind “their human-
                    itarian consequences and the need to protect civilian populations
                    from their adverse effects”; in his understanding, “countermeasures
                    could not be taken and, if taken, must be immediately suspended, if an
                    internationally wrongful act had ceased or if the dispute had been submit-
                    ted to a court or tribunal with authority to hand down binding
                    decisions” 61.
                       36. On his part, the delegate of Pakistan (Mr. Akhtar Ali Kazi) was
                    likewise critical: in the debates of the VI Committee of 5 November 1992,
                    for example, he warned that opinions within the International Law Com-
                    mission were “divided as to whether provisions on countermeasures
                    should be included in the draft”, given the difficulties surrounding them
                    deriving from the “the disparities in the size, power and level of develop-
                    ment of States” 62. “Countermeasures”, he continued, gave advantage to
                    “powerful or rich” States over “weak or poor” States; these latter required
                    “particular attention” in the context of “countermeasures”, “in order to
                    prevent the regime from becoming a tool of power politics” 63.

                          58 UNGAOR, doc. A/C.6/55/SR.18 (2000), p. 11, para. 62.
                          59 UNGAOR, doc. A/C.6/48/SR.27 (1993), p. 14, para. 60.
                          60 UNGAOR, doc. A/C.6/55/SR.15 (2000), p. 5, para. 29.
                          61 Ibid.
                          62 UNGAOR, doc. A/C.6/47/SR.29 (1992), p. 14, para. 62.
                          63 Ibid.

                    55

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                       37. In the same debates of the VI Committee of 5 November 1992,
                    strong criticisms were also proffered by the delegate of Algeria (Mr. Sidi
                    Abed), who began by warning that so-called “countermeasures” origi-
                    nated from the practice of “the most powerful” States 64. “Countermea-
                    sures” thus required, — he added, — “the most careful safeguards”,
                    taking into account the “de facto inequalities between States” so as to
                    avoid a “questionable” practice leading to “abuses”, and to remedy a
                    “situation when the rules of international law were violated” 65.

                       38. As seen above (Parts III and IV), “countermeasures” were heavily
                    criticized throughout the whole preparatory work of the corresponding
                    provisions of the International Law Commission’s Draft Articles on State
                    Responsibility. It is somehow surprising and regrettable that, despite all
                    the firm criticisms against them, they counted on supporters for their
                    inclusion in those Draft Articles, without any juridical grounds; it is like-
                    wise surprising and regrettable that the ICJ itself referred to “counter-
                    measures” in its Judgment of 25 September 1997 in the case of
                    Gabčíkovo- Nagymaros Project (Hungary/Slovakia) (Judgment, I.C.J.
                    Reports 1997, pp. 55‑56, paras. 82-85), and again referred to it in the pres-
                    ent Judgments of the ICJ of today in the two cases of ICAOB and
                    ICAOA (paragraph 49 of both Judgments).

                               V. The Prevalence of the Imperative of Judicial Settlement
                                                over the State’s “Will”

                       39. There were further criticisms to the initiative of consideration of
                    so-called “countermeasures” (cf. infra). There are other points to take
                    here into account, e.g. there were, on the other hand, those who, in super-
                    ficially favouring “countermeasures”, appeared clearly oblivious of the
                    earlier lessons of true jurists on the importance of the realization of jus-
                    tice. Once again, in the present case, the ICJ reiterates its view that juris-
                    diction is based on State consent, which I have always opposed within the
                    Court: in my perception, human conscience stands above voluntas.

                                    1. Further Criticisms of So-Called “Countermeasures”
                      40. Further criticisms of the controversial initiative of considering
                    “countermeasures” were promptly raised from distinct sources. In the
                    mid-1990s (in 1994), e.g. it was timely warned that “[u]nilateral counter-
                    measures” were, “without doubt, extremely difficult and perhaps even
                    dangerous to codify”, remaining always “prone to abuse on the part of

                          64   UNGAOR, doc. A/C.6/47/SR.29 (1992), p. 16, para. 70.
                          65   Ibid., p. 16, paras. 70-71.

                    56

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                    225 	             icao council (sep. op. cançado trindade)

                    the strong against the weak” 66. Even a narrative study (of 2000) of the
                    International Law Commission draft, shortly before its adoption, did not
                    prescind from acknowledging “the controversial issue of countermea-
                    sures”, and the fact that “several members” of the International Law
                    Commission “continued to voice concern that smaller States may suffer
                    the abuse of countermeasures by powerful States” 67.

                       41. Still earlier (also in 1994), another criticism was advanced recalling
                    that “many [International Law Commission] members shared the concern
                    expressed forcefully by the Special Rapporteur that the unilateral charac-
                    ter of countermeasures opens up the possibility of their abuse, especially
                    (but not only) by powerful States” 68. It was then recalled that the Inter-
                    national Law Commission, in its Report of 1993, criticized that unilateral
                    “countermeasures” were to “the detriment of the principles of equality
                    and justice”; furthermore, they let the deciding State to exercise coercion,
                    to which those in favour of “compulsory dispute settlement” were clearly
                    opposed, focusing on the “common interest” of preventing “their illicit
                    and arbitrary use” 69.

                                2. Earlier Lessons on the Importance of the Realization
                                                       of Justice
                       42. Moreover, may I here add that it is to keep in mind likewise some
                    lessons from a more distant past, identified by learned international
                    jurists, in a distinct and wider horizon. Thus, to recall one early example,
                    in his thoughtful book La justice internationale, published in 1924,
                    four years after the adoption of the Statute of the old Permanent
                    Court of International Justice (PCIJ), Nicolas Politis, in recalling the his-
                    torical development from private justice to public justice, advocated for
                    the evolution, at international level, from optional to compulsory juris-
                    diction 70.
                       43. Subsequently, in the earlier years of the new era of the ICJ, in 1952,
                    A. Truyol y Serra firmly criticized legal positivism, and stressed the
                    importance of general principles of international law, based upon natural
                       66 B. Simma, “Counter-     measures and Dispute Settlement: A Plea for a Different
                    Balance”, 5 European Journal of International Law (1994), p. 102.
                       67 B. Simma, “The Work of the International Law Commission at Its Fifty-            Second
                    Session (2000)”, 70 Nordic Journal of International Law (2001), p. 200, and cf. pp. 200‑205
                    for a narrative review of the ILC draft.
                       68 O. Schachter, “Dispute Settlement and Countermeasures in the International Law

                    Commission”, 88 American Journal of International Law (1994), p. 472.
                       69 Ibid., pp. 472 and 477.
                       70 N. Politis, La justice internationale, Paris: Hachette, 1924, pp. 7‑255, esp. pp. 193‑194

                    and 249-250. Four decades later, Clarence Wilfred Jenks pondered that the foundation of
                    compulsory jurisdiction lies, ultimately, in the confidence in the rule of law at international
                    level; C. W. Jenks, The Prospects of International Adjudication, London: Stevens, 1964,
                    pp. 101, 117, 757, 762 and 770.

                    57

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                    226 	             icao council (sep. op. cançado trindade)

                    law, for the interpretation and application of the norms of the interna-
                    tional legal order, thus assuring the realization of justice 71. He invoked
                    earlier writings, e.g. of Alfred Verdross, and stressed the relevance of
                    recta ratio, for securing what he identified as the universality of the new
                    international law 72.
                       44. Still in the evolving years of the era of the ICJ, Maurice Bourquin
                    pondered, in 1960, that an international dispute may be lodged with an
                    international tribunal once it comes into existence, irrespectively of any
                    insistence on further exhaustion of diplomatic means or initiatives 73.
                    Recourse to judicial settlement is attentive to the existence of a disagree-
                    ment between the parties as to points of law or fact 74. The existence of the
                    dispute is already established in being submitted to the international tri-
                    bunal, to l’empire du droit, even if its object is not necessarily set up in “a
                    clear and definitive manner” 75.

                                          3. Human Conscience above Voluntas
                       45. The Judgment of the ICJ in the present case contains several cross-
                    references (in paragraphs 67, 88, 90 and 93) to its own decisions (Order of
                    15 October 2008, and Judgment on preliminary objections of 1 April
                    2011) in the case of Application of the International Convention on
                    the Elimination of All Forms of Racial Discrimination (Georgia v. Russian
                    Federation). The ICJ reiterates, in the present Judgment, its understand-
                    ing that “jurisdiction is based on consent” (para. 55). Within the ICJ,
                    I have always expressed my strong criticism of this misunderstanding.

                       46. May I here recall that, in my dissenting opinion in the case of
                    Application of the International Convention on the Elimination of All Forms
                    of Racial Discrimination (Georgia v. Russian Federation) I firmly criti-
                    cized the ICJ’s majority for reaching, as one of its conclusions, the view
                    that Article 22 of the CERD Convention “imposes preconditions” to be
                    complied with (Preliminary Objections, Judgment, I.C.J. Reports 2011 (I),
                    p. 128, para. 142, and p. 130, para. 148), before a State could refer a dis-
                    pute to the ICJ thereunder. In my dissenting opinion, I then pondered:

                             “The fact is that there is no conclusive indication to that effect in
                          the travaux préparatoires of the CERD Convention, nor is there any
                          statement as to the existence of a resolutory obligation incumbent
                       71 A. Truyol [y Serra], Noções Fundamentais de Direito Internacional Público, Coimbra:

                    A. Amado Ed., 1952, pp. 90, 98-100 and 104-105.
                       72 Ibid., pp. 146 and 159.
                       73 M. Bourquin, “Dans quelle mesure le recours à des négociations diplomatiques

                    est-il nécessaire avant qu’un différend puisse être soumis à la juridiction internationale ?”,
                    Hommage d’une génération de juristes au Président Basdevant, Paris : Pedone, 1960,
                    pp. 48‑49.
                       74 Ibid., p. 51, and cf. p. 52.
                       75 Ibid., pp. 54‑55.

                    58

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                          upon States Parties, to do all they can to settle their disputes
                          reviously by negotiation, before they can seize the ICJ. Resort
                          p
                          to negotiation was generally referred to as a factual effort or
                          attempt only, rather than as a resolutory obligation.” (I.C.J. Reports
                          2011 (I), p. 286, para. 101.)
                       47. I then added that the position of the ICJ’s majority in the cas
                    d’espèce, as to Article 22 of the CERD Convention, in my perception,
                    “does not stand”; in this connection, I recalled that, in the travaux
                    préparatoires of the CERD Convention, there were clearly those “who
                    were sensitive to the regulation of social relations under the CERD Con-
                    vention, and who favoured possible recourse to the ICJ without ‘precon-
                    ditions’” (ibid., pp. 287‑288, para. 107).
                       48. I next recalled that, at an earlier stage of proceedings in the case of
                    the Application of the CERD Convention (Georgia v. Russian Federation)
                    (Provisional Measures, Order of 15 October 2008, I.C.J. Reports 2008,
                    p. 353), the ICJ held that Article 22 of that Convention does not suggest
                    that formal negotiations thereunder would constitute “preconditions” to
                    be fulfilled before the seising of the ICJ; despite this timely clarification
                    made by the ICJ itself in its Order of 15 October 2008, in its subsequent
                    Judgment (Preliminary Objections, of 1 April 2011) in the same case, — I
                    warned in my dissenting opinion, — it “was incomprehensibly made dead
                    letter by the Court itself (Judgment, para. 129), which thus ran against
                    and deconstructed its own res interpretata” (Preliminary Objections, Judg‑
                    ment, I.C.J. Reports 2011 (I), pp. 289‑290, paras. 112 and 114).

                       49. I expressed regret as to the outcome of the ICJ’s decision in the
                    case of the Application of the CERD Convention (1 April 2011), with “the
                    ineluctable consequence of inaptly and wrongfully giving pride of place to
                    State consent, even above the fundamental values at stake, underlying the
                    CERD Convention, which call for the realization of justice” (ibid., p. 318,
                    para. 202). I then again warned that the ICJ “cannot keep on privileging
                    State consent above everything, time and time again, even after such con-
                    sent has already been given by States at the time of ratification” of human
                    rights conventions (ibid., p. 320, para. 205).

                      50. It is further to be kept in mind, — I proceeded, — the “humanist
                    optics” whereby “the justiciables are, ultimately, the human beings con-
                    cerned” (well in keeping with the creation itself of the PCIJ and the ICJ);
                    thus, “to erect a mandatory ‘precondition’ of prior negotiations for the
                    exercise of the Court’s jurisdiction amounts to erecting, in my view, a
                    groundless and most regrettable obstacle to justice” (ibid., p. 321,
                    para. 208). And I then at last pondered, on this particular issue, that

                            “The Court cannot remain hostage of State consent. It cannot keep
                          displaying an instinctive and continuing search for State consent,

                    59

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                          (. . .) to the point of losing sight of the imperative of realization of
                          justice. The moment State consent is manifested is when the State
                          concerned decides to become a party to a treaty, — such as the human
                          rights treaty in the present case, the CERD Convention. The herme-
                          neutics and proper application of that treaty cannot be continuously
                          subjected to a recurring search for State consent. This would unduly
                          render the letter of the treaty dead, and human rights treaties are
                          meant to be living instruments, let alone their spirit.

                          �����������������������������������������������������������������������������������������������������������������
                              As this [tragedy] persists, being seemingly proper to the human
                          condition, the need also persists to alleviate human suffering, by
                          means of the realization of justice. This latter is an imperative which
                          the World Court is to keep in mind. This goal — the realization of
                          justice — can hardly be attained from a strict State-centred volunta-
                          rist perspective, and a recurring search for State consent. This Court
                          cannot, in my view, keep on paying lip service to what it assumes as
                          representing the State’s ‘intentions’ or ‘will’.

                          �����������������������������������������������������������������������������������������������������������������
                              In the present Judgment, the Court entirely missed this point: it
                          rather embarked on the usual exaltation of State consent, labelled, in
                          paragraph 110, as ‘the fundamental principle of consent’. I do not at
                          all subscribe to its view, as, in my understanding, consent is not ‘fun-
                          damental’, it is not even a ‘principle’. What is ‘fundamental’, i.e., what
                          lays in the foundations of this Court, since its creation, is the impera-
                          tive of the realization of justice, by means of compulsory jurisdiction.
                          State consent is but a rule to be observed in the exercise of compulsory
                          jurisdiction for the realization of justice. It is a means, not an end, it
                          is a procedural requirement, not an element of treaty interpretation;
                          it surely does not belong to the domain of the prima principia. This is
                          what I have been endeavouring to demonstrate in the present dissent-
                          ing opinion.” (I.C.J. Reports 2011 (I), p. 317, para. 198 and
                          pp. 321‑322, paras. 209 and 211.)

                       51. The awareness of the importance of the imperative of judicial set-
                    tlement of international disputes for the realization of justice and its prev-
                    alence over the State’s “will”, found support in international legal
                    thinking as from the beginning of the era of international tribunals
                    (cf. supra). Furthermore, international law, since its historical origins, has
                    been a law of nations, a droit des gens, and not a strictly inter-State
                    law; the human person was considered from the start as a subject of
                    law 76. In effect, the historical process of the humanization of the law of

                      76 On the historical evolution of legal personality in the law of nations, cf. H. Mosler,

                    “Réflexions sur la personnalité juridique en droit international public”, Mélanges offerts à

                    60

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                    229 	             icao council (sep. op. cançado trindade)

                    nations has stressed the relevance of the international legal titularity of
                    the human being, the centrality of which corresponds to the new ethos of
                    our times 77.
                       52. The fidelity to the original lessons and legacy of the “founding
                    fathers” of the law of nations (Part VI, infra) accounts for the reconstruc-
                    tion and evolution of the jus gentium in our times, in conformity with the
                    recta ratio, as a new and truly universal law of humankind. It is thus more
                    sensitive to the identification and realization of superior common values
                    and goals, concerning humankind as a whole. The historical trajectory of
                    the new jus gentium of our times calls for our attention, keeping in mind
                    the factual context of the two present cases (ICAOB and ICAOA) before
                    the ICJ.
                       53. Before turning to the examination of this historical formation and
                    development of the new jus gentium, may I here recall that in the present
                    ICAOB and ICAOA cases, the appellant States have asserted (in their
                    second ground of appeal) that the ICAO Council “erred in fact and in
                    law in rejecting [their] first preliminary objection in respect of the compe-
                    tence of the ICAO Council” 78. The appellant States have thus requested
                    the Court to adjudge that the Council did not have jurisdiction to enter-
                    tain Qatar’s application submitted to the ICAO Council 79.

                    H. Rolin — Problèmes de droit des gens, Paris, Pedone, 1964, pp. 228‑251 ; G. Arangio-Ruiz,
                    Diritto Internazionale e Personalità Giuridica, Bologna, Coop. Libr. Univ., 1972, pp. 9‑268;
                    G. Scelle, “Some Reflections on Juridical Personality in International Law”, Law and
                    Politics in the World Community (ed. G. A. Lipsky), Berkeley/Los Angeles, University of
                    California Press, 1953, pp. 49‑58 and 336; J. A. Barberis, “Nouvelles questions concernant
                    la personnalité juridique internationale”, 179 RCADI (1983), pp. 157‑238; A. A. Cançado
                    Trindade, “The Interpretation of the International Law of Human Rights by the Two
                    Regional Human Rights Courts”, Contemporary International Law Issues: Conflicts and
                    Convergence (Proceedings of the III Joint Conference ASIL/T. M. C. Asser Instituut, The
                    Hague, July 1995), The Hague, T. M. C. Asser Instituut, 1996, pp. 157‑162 and 166-167.
                       77 Cf., for a general study, A. A. Cançado Trindade, Tratado de Direito Internacional dos

                    Direitos Humanos, Porto Alegre: S. A. Fabris Ed., Vol. I, 2nd ed., 2003, pp. 1‑640; Vol. II,
                    1st ed., 1999, pp. 1‑440; and Vol. III, 2nd ed., 2003, pp. 1‑663; and cf. A. A. Cançado
                    Trindade, “Memorial por um Novo Jus Gentium, o Direito Internacional da Humani-
                    dade”, 45 Revista da Faculdade de Direito da Universidade Federal de Minas Gerais (2004),
                    pp. 17‑36.
                       78 Application instituting proceedings (ICAOA), p. 14, para. 30; Application instituting

                    proceedings (ICAOB), p. 14, para. 31. In sequence, in the ICAOB case, the appellant
                    States have maintained that the ICAO Council lacks jurisdiction ratione materiae under
                    the IASTA Agreement, specifically on the lawfulness of the countermeasures. They have
                    argued that the real issue in dispute between the contending Parties concerns “Qatar’s
                    long-standing violations of its obligations under international law” (Memorial (ICAOB),
                    p. 152, para. 5.82), thus exceeding the jurisdiction of the ICAO Council as defined under
                    Article II, Section 2, of the International Air Services Transit Agreement, Memorial
                    (ICAOB), pp. 128‑134, paras. 5.27-5.42).
                       79 Memorial (ICAOB), p. 217, para. 2.2), Submissions.

                    61

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                          VI. International Legal Thinking and the Prevalence of
                             Human Conscience (Recta Ratio) over the “Will”

                        54. Keeping all this in mind, may I now recall here that the identifica-
                     tion of recta ratio flourished in this historical humanization of the law of
                     nations as from the writings of its “founding fathers” in the sixteenth and
                     seventeenth centuries, focusing the emerging new jus gentium in the realm
                    of natural law. This evolution found inspiration in the much earlier
                    scholastic philosophy of this outlook, in particular in the Aristotelian-
                           Thomist conception of recta ratio and justice, which conceived
                     Stoic-
                     human beings as endowed with intrinsic dignity. The recta ratio came to
                     be seen as indispensable to the prevalence of the law of nations itself. It
                     was Cicero who effectively formulated the best-known characterization
                     of recta ratio, even if its roots go back to the thinking of ancient Greeks
                     (Plato and Aristotle), corresponding to its orthos logos 80.

                        55. In conformity with the principles of recta ratio, each subject of law
                    is to behave with justice, as such principles emanate from human con-
                    science, asserting the ineluctable relationship between law and ethics.
                    Natural law reflects the dictates of recta ratio, where justice has its foun-
                     dations. In his ancient time, Marcus Tullius Cicero attributed (in
                    De Republica, Book III, Chap. XXII, para. 33) to recta ratio perennial
                    validity, extending to all nations in all epochs. In his well-known De
                    Legibus (On the Laws, Book II, circa 51-43 bc), he pondered that nothing
                     was “more destructive” than “the use of violence in public affairs” 81.
                     Cicero left a relevant legacy to the “founding fathers” of the law of
                     nations, in situating the recta ratio in the foundations of the jus gentium
                     itself.
                        56. The classical jus gentium of Roman law 82, in transcending with the
                     passing of time its origins of private law, was wholly transformed, in

                       80 Cf. D. P. Dryer, “Aristotle’s Conception of Orthos Logos”, 66 The Monist (1983),

                    pp. 106‑119; according to this latter, the recta ratio turns to what is good. The Stoics
                    pursued further the path of ethical virtue, whereby all that is correct is determined, in
                    many aspects, by orthos logos; cf. J. M. Rist, “An Early Dispute about Right Reason”, 66
                    The Monist (1983), pp. 39‑48.
                       81 Cicero, On the Commonwealth and on the Laws (ed. J. E. G. Zetzel), Cambridge

                    University Press, 2003 [reed.], Book III, ibid., p. 172. And again in his De Republica (circa
                    end of the years 50 and 46 bc), Cicero opposed the destructive use of force ignoring law
                    and justice; Cicero, The Republic — The Laws, Oxford University Press, 1998, p. 166
                    (Book III, para. 42).
                       82 Cf., e.g. G. Lombardi, Ricerche in Tema di ‘Ius Gentium’, Milan: Giuffrè, 1946,

                    pp. 3‑272; G. Lombardi, Sul Concetto di ‘Ius Gentium’, Rome: Istituto di Diritto Romano,
                    1947, pp. 3‑390; W. Kunkel, Historia del Derecho Romano, 9th ed., Barcelona: Ed. Ariel,
                    1999, pp. 85‑87; H. C. Clark, “Jus Gentium — Its Origin and History”, 14 Illinois Law
                    Review (1919), pp. 243‑265 and 341-355.

                    62

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                    associating itself with the emerging law of nations 83, — to what decisively
                    contributed the writings of the “founding fathers” of this latter, particu-
                    larly those of Francisco de Vitoria, Francisco Suárez, Alberico Gentili,
                    Hugo Grotius, Cornelius van Bynkershoek, Samuel Pufendorf and Chris-
                    tian Wolff, among others. The new jus gentium, as from the sixteenth and
                    seventeenth, came to be associated with humankind itself, engaged in
                    securing its unity and in attending its needs and aspirations 84, in confor-
                    mity with an essentially universalist conception 85.
                       57. The jus communicationis of Francisco de Vitoria, for example, was
                    conceived as a law for all human beings. Thus, already in the sixteenth
                    and seventeenth centuries, to de Vitoria and Suárez the emerging State
                    was not an exclusive subject of the law of nations, which comprised more-
                    over peoples and individuals; humankind was taken into account even
                    before the emerging States 86. The international legal order was necessary
                    rather than “voluntary”, with recta ratio in its foundations 87.

                       58. It may here be recalled that, in the sixteenth century, in his well-
                    acclaimed Relecciones Teológicas (1538-1539), de Vitoria sustained, as to
                    the legal order, that the international community (totus orbis) has pri-
                    macy over the “will” of each individual State 88; furthermore, it is coexten-
                    sive with humankind itself. The new jus gentium secured the unity of
                    societas gentium 89, and provided the foundations — emanating from a lex

                       83 P. Guggenheim, “Contribution à l’histoire des sources du droit des gens”, 94 RCADI

                    (1958), pp. 21‑23 and 25.
                       84 J. Moreau-Reibel, “Le droit de société interhumaine et le ‘jus gentium’ : Essai sur les

                    origines et le développement des notions jusqu’à Grotius”, 77 RCADI (1950), pp. 500‑501,
                    504 and 506-510.
                       85 A. Miele, La Comunità Internazionale, Vol. I, 3rd ed., Turin: Giappichelli, 2000,

                    pp. 75, 77-78, 80 and 89.
                       86 S. Laghmani, Histoire du droit des gens — du jus gentium impérial au jus publicum

                    europaeum, Paris : Pedone, 2003, pp. 90‑94.
                       87 Even before the “founding fathers” of the law of nations, already in the thir-

                    teenth century Thomas Aquinas (1225‑1274), in his Summa Theologiae, expressed the
                    understanding that jus gentium did not need the authority of the legislator, as it could be
                    apprehended by natural reason itself (being thus more perfect than positive law), revealing
                    a conscience of the temporal dimension and being endowed with a universal validity;
                    J.-P. Rentto, “Jus Gentium: A Lesson from Aquinas”, 3 Finnish Yearbook of Interna‑
                    tional Law (1992), pp. 103, 105, 108-110, 112-113 and 121-122. To Aquinas, law should
                    contribute to the realization of the common good, and thus to the realization of justice,
                    in pursuance of recta ratio; T. Aquinas, Treatise on Law, Washington, DC: Gateway Ed.,
                    2001 [reprint], p. 44; and cf. R. McInerny, Ethica Thomistica — The Moral Philosophy of
                    Thomas Aquinas, rev. ed., Washington DC, Catholic University of America Press, 1997
                    [reprint], pp. 26, 38 and 46. The jus gentium sought to regulate human relations on an
                    ethical basis, in search of the realization of the common good.
                       88 Cf. F. de Vitoria, Relecciones — del Estado, de los Indios, y del Derecho de la Guerra,

                    Mexico: Porrúa, 1985, pp. 1‑101; and cf. F. de Vitoria, De Indis — Relectio Prior (1538-
                    1539), Obras de Francisco de Vitoria — Relecciones Teológicas (ed. T. Urdanoz), Madrid:
                    BAC, 1960, p. 675.
                       89 F. de Vitoria defined this new jus gentium as quod naturalis ratio inter omnes

                    gentes constituit, vocatur jus gentium. This latter could not derive from the “will” of

                    63

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                    praeceptiva of natural law — for the totus orbis, susceptible of being
                    found by the recta ratio inherent to humankind 90. The way was thus
                    paved for a universal jus gentium, for the apprehension by reason of jus
                    gentium as a true jus necessarium, transcending the limitations of the jus
                    voluntarium 91.
                       59. From the whole work of Francisco de Vitoria, and in particular
                    from his Relectio De Indis Prior, the conception emerged of a jus gentium
                    entirely emancipated from its origin of private law — in Roman law —
                    endowed with a humanist vision, at universal level 92. Furthermore, repa-
                    ration for violations of human rights came to reflect an international need
                    assisted by the law of nations, in conformity with the recta ratio, with the
                    same principles of justice applying to emerging States as well as to indi-
                    viduals or peoples forming them 93. In echoing likewise the universalist
                    vision of the law of nations, Alberico Gentili (author of De Jure Belli,
                    1598), sustained, at the end of the sixteenth century, that it is the law
                    which regulates the relationship between the members of the universal
                    societas gentium 94.
                       60. In the seventeenth century, in the vision of Francisco Suárez
                    (author of Tractatus De Legibus Ac Deo Legislatore, 1612), the subjects of
                    law (emerging States and others) needed a universal legal system to regu-
                    late their relations as members of the universal community 95. The new jus
                    gentium is formed by the uses and customs common to humankind, being
                    conformed by natural reason for the humankind as a whole as an univer-

                    its subjects of law (including the emerging national States), but was based rather on a
                    lex praeceptiva, apprehended by human reason. Cf. A. A. Cançado Trindade, A Recta
                    Ratio nos Fundamentos do Jus Gentium como Direito Internacional da Humanidade, Rio
                    de Janeiro/Belo Horizonte: Academia Brasileira de Letras Jurídicas/Edit. Del Rey, 2005,
                    pp. 21‑61.
                        90 P. Guggenheim, “Contribution à l’histoire des sources . . .”, op. cit. supra note 83,

                    pp. 21‑23 and 25.
                        91 Earlier on, in his De Lege, Francisco de Vitoria, in sustaining the needed search

                    of the common good, added that natural law is found in recta ratio, not in the “will”;
                    F. de Vitoria, La Ley (De Lege — Commentarium in Primam Secundae), Madrid:
                    Tecnos, 1995, pp. 5, 23 and 77. And cf. also G. Fourlanos, Sovereignty and the Ingress
                    of Aliens, Stockholm: Almqvist & Wiksell, 1986, p. 17, and cf. pp. 19‑23, 79-81, 160-161
                    and 174-175.
                        92 The universal jus gentium of Francisco de Vitoria regulated, on the basis of principles

                    of the law of nations (natural law) and of recta ratio, the relations among all peoples,
                    with due respect to their rights, including their freedom of movement (jus communica‑
                    tionis).
                        93 A. A. Cançado Trindade, “Co-existence and Co-ordination of Mechanisms of Inter-

                    national Protection of Human Rights (At Global and Regional Levels)”, 202 RCADI
                    (1987), p. 411; J. Brown Scott, The Spanish Origin of International Law — Francisco de
                    Vitoria and His Law of Nations, Oxford/London, Clarendon Press/H. Milford — Carn-
                    egie Endowment for International Peace, 1934, pp. 140, 150, 163-165, 172, 272-273 and
                    282-283.
                        94 A. Gómez Robledo, Fundadores del Derecho Internacional, Mexico, UNAM, 1989,

                    pp. 48‑55.
                        95 Cf. Association Internationale Vitoria-Suarez, Vitoria et Suarez — Contribution des

                    théologiens au droit international moderne, Paris : Pedone, 1939, pp. 169‑170.

                    64

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                    sal law 96. F. Suárez also drew attention to the precepts of jus gentium
                    encompassing equity and justice, in whole harmony with natural law,
                    wherefrom its norms emanate disclosing its truly universal character 97.

                       61. The contribution of Francisco de Vitoria and Francisco Suárez,
                    from the Spanish theological school, to the consolidation of the new jus
                    gentium was clear. On his part, de Vitoria sought to adapt the Thomist
                    thinking to the historical reality of the sixteenth century, while Suárez
                    presented a formulation of the matter which paved the way for the work
                    of Hugo Grotius. Together, de Vitoria and Suárez, set up the bases of a
                    law of universal application (commune omnibus gentibus), of a law for
                    humankind as a whole.
                       62. In the conception of jus gentium of Hugo Grotius (De Jure Belli ac
                    Pacis, 1625), it is made clear that the State is not an end in itself, but a
                    means to secure the social order, and to perfect civil society which “com-
                    prises the whole of humankind” 98. The State is to pursue the common
                    good, respectful of the rights of human beings; in his view, the raison
                    d’Etat has limits, and the rights of individuals can be protected against
                    their own State 99. The writings of Grotius make it clear that one cannot
                    pretend to base the international community itself on the voluntas of each
                    State individually.

                       63. Grotius sustained that international relations were subject to the
                    legal norms, and not to the raison d’Etat, which is incompatible with the
                    existence itself of the international community: this latter cannot prescind
                    from law 100. In this line of thinking, Samuel Pufendorf (author of De Jure
                    Naturae et Gentium Libri Octo, 1672) likewise identified natural law itself
                    with recta ratio 101. On his turn, Christian Wolff (author of Jus Gentium
                    Methodo Scientifica Pertractatum, 1749), pondered that, as individuals

                        96 F. Suárez, Selections from Three Works [De Legibus ac Deo Legislatore, 1612] (orgs.

                    G. L. Williams et alii), Vol. II, Oxford: Clarendon Press, 1944, pp. 326‑327 and 341.
                        97 Ibid., pp. 352 and 357; and cf. B. F. Brown, “The Natural Law as the Moral Basis of

                    International Justice”, 8 Loyola Law Review (1955-1956), p. 60.
                        98 Cf. A. García y García, “The Spanish School of the Sixteenth and Seventeenth

                    Centuries: A Precursor of the Theory of Human Rights”, 10 Ratio Juris, University of
                    Bologna (1997), pp. 27 and 29; P. P. Remec, The Position of the Individual in International
                    Law according to Grotius and Vattel, The Hague: Nijhoff, 1960, pp. 216 and 203.
                        99 P. P. Remec, The Position of the Individual . . ., op. cit. supra note 98, pp. 217, 219-221

                    and 243.
                        100 Cf., in this respect, H. Lauterpacht, “The Grotian Tradition in International Law”,

                    23 British Yearbook of International Law (1946), pp. 1‑53. The human person and his or
                    her well-being occupy a central position in the system of international relations; H. Lauter-
                    pacht, “The Law of Nations, the Law of Nature and the Rights of Man”, 29 Transactions
                    of the Grotius Society (1943), pp. 7 and 21-31.
                        101 S. Pufendorf, De Jure Naturae et Gentium Libri Octo (eds. C. H. Oldfather and

                    W. A. Oldfather), Vol. II, Buffalo/N.Y.: W. S. Hein, 1995 [reprint], pp. 202‑203.

                    65

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                    have to promote the common good, the State has, on its turn, the cor-
                    relative duty to seek its perfection 102.
                       64. Following that, the personification of the powerful State, inspired
                    in the legal philosophy of Georg Wilhelm Friedrich Hegel, had unfortu-
                    nately a most regrettable influence upon international law by the end of
                    the nineteenth century and in the first decades of the twentieth century.
                    Regrettably, the universal outlook and the legacy of the “founding
                    fathers” of international law (supra) 103 were discarded by the emergence
                    of legal positivism, endowing States with a “will” of their own, and reduc-
                    ing the rights of human beings to those “granted” by States.
                       65. Voluntarist positivism, grounded on the consent or “will” of States,
                    became the predominant criterion, denying jus standi to human beings,
                    and envisaging a strictly inter-State law, no longer above but between sov-
                    ereign States 104. It resisted to the ideal of emancipation of human beings
                    and their recognition as subjects of international law, keeping them under
                    the absolute control of the State. Yet, the idea of the absolute State sov-
                    ereignty (with which legal positivism aligned itself, ineluctably subservient
                    to power), which led to the irresponsibility and the alleged omnipotence
                    of the State, not impeding the successive atrocities committed by it against
                    human beings, with the passing of time became entirely groundless, as the
                    disastrous consequences of such distortion had become widely known.

                       66. The truth is that, from the “founding fathers” of the law of nations
                    grounded on the recta ratio until our times, the jusnaturalist thinking in
                    international law has never faded away 105; it overcame all crises, in its
                    perennial reaction of human conscience against successive atrocities com-
                    mitted against human beings, which regrettably counted on the subservi-
                    ence and cowardice of legal positivism. It could be argued that the
                    contemporary world is entirely distinct from that of the epoch of the
                    “founding fathers” of the law of nations, who supported a civitas maxima
                    ruled by the droit des gens.

                       102 For references to recta ratio and to conscience in the doctrine of mid-

                    nineteenth century, cf., e.g. J. J. Burlamaqui, The Principles of Natural and Politic Law
                    (reprint of 7th ed.), Columbus: J. H. Riley, 1859, pp. 136, 138-139 and 156‑163.
                       103 C. W. Jenks, The Common Law of Mankind, London: Stevens, 1958, pp. 66‑69;

                    and cf. also R.-J. Dupuy, La communauté internationale entre le mythe et l’histoire, Paris:
                    Economica/UNESCO, 1986, pp. 164‑165. It may here be recalled that, in a similar line
                    of thinking to that of the ancient Greeks and of Cicero in ancient Rome, in opposing
                    himself to resort to force, Emmanuel Kant eloquently warned, at the end of the eigh-
                    teenth century, in his well-known essay on the Perpetual Peace (1795), that human beings
                    cannot be utilized by States for killing, which would not be in accordance with “the law
                    of humankind in our own person”; La paix (Textes choisis, ed. M. Lequan), Paris: Flam-
                    marion, 1998, pp. 173‑174.
                       104 P. P. Remec, The Position of the Individual…, op. cit. supra note 98, pp. 36‑37.
                       105 Cf., J. Maritain, “The Philosophical Foundations of Natural Law”, Natural Law

                    and World Law — Essays to Commemorate the Sixtieth Birthday of Kotaro Tanaka,
                    Yuhikaku: Japan Academy, 1954, pp. 133‑143.

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                       67. Even if one has two distinct world scenarios (no one would contest
                    it), there is no way to deny that the human aspiration remains the same,
                    namely, that of the construction of an international legal order applicable
                    both to States (and international organizations) as well as to individuals,
                    pursuant to certain universal standards of justice 106, and concerning
                    humankind as a whole. As from the initial influence of the thinking of
                    Francisco de Vitoria (supra), a “continuing revival” of natural law 107,
                    which has never faded away, has been constantly identified. Rather than
                    being a return to classical natural law, it is a reassertion or restoration of
                    a standard of justice, whereby positive law is reconsidered 108, — bearing
                    in mind the conservationist view and the degeneration of legal positivism
                    attached to the status quo, in its typical subservience to power.
                       68. The “continuing revival” of natural law strengthens the safeguard
                    of the universality of the rights inherent to all human beings, — overcom-
                    ing self-contained positive norms, deprived of universality for varying
                    from one social milieu to another. Those universal rights stand against
                    the arbitrary manifestations of State power, in acknowledgement of the
                    importance of fundamental principles of international law 109, which have
                    so much been influencing the evolution, along more than the last seven
                    decades, of the international law of human rights 110.

                        106 A. A. Cançado Trindade, O Direito Internacional em um Mundo em Transformação,

                    Rio de Janeiro: Edit. Renovar, 2003, p. 547, and cf. pp. 539‑550.
                        107 As recognized by jusinternationalists themselves: cf., e.g. A. Truyol y Serra, “Théorie

                    du droit international public — Cours général”, 183 RCADI (1981), pp. 142‑143; and
                    cf. J. L. Kunz, “Natural Law Thinking in the Modern Science of International Law”, 55
                    American Journal of International Law (1961), pp. 951‑958, esp. p. 956. And the interna-
                    tional community has assumed the vindication of superior common interests; J. A. Carrillo
                    Salcedo, “Derechos Humanos y Derecho Internacional”, 22 Isegoría — Revista de Filosofía
                    Moral y Política, Madrid (2000), p. 75.
                       108 C. J. Friedrich, Perspectiva Histórica da Filosofia do Direito, Rio de Janeiro:

                    Zahar Ed., 1965, pp. 196‑197, 200-201 and 207. And, for a general study, cf. Y. R. Simon,
                    The Tradition of Natural Law — A Philosopher’s Reflections (ed. V. Kuic), N.Y.: Fordham
                    Univ. Press, 2000 [reed.], pp. 3‑189.
                       109 Cf. A. Truyol y Serra (ed.), The Principles of Political and International Law in

                    the Work of Francisco de Vitoria, Madrid: Ed. Cultura Hispánica, 1946, pp. 13‑25, 29-32
                    and 53-73; L. Getino (ed.), Francisco de Vitoria, Sentencias de Doctrina Internacional —
                    Antología, Madrid: Ediciones Fe, 1940, pp. 15‑33 and 129-130; A. Pagden and J. Lawrence
                    (eds.), “Introduction”, Francisco de Vitoria — Political Writings, Cambridge University
                    Press, 1991, pp. XIII – XXIII; R. Hernández, Francisco de Vitoria, Síntesis de Su Vida
                    y Pensamiento, Burgos: Ed. OPE, 1983, pp. 27‑32 and 47-55. And, on the relevance of
                    principles, cf. A. A. Cançado Trindade, “Foundations of International Law: The Role
                    and Importance of Its Basic Principles”, XXX Curso de Derecho Internacional Organizado
                    por el Comité Jurídico Interamericano (2003), Washington, DC: OAS General Secretariat,
                    2004, pp. 359‑415.
                       110 Cf. A. A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos,

                    Vol. III, Porto Alegre: S. A. Fabris Ed., 2003, pp. 450‑451; and cf. A. A. Cançado Trindade,
                    “The Procedural Capacity of the Individual as Subject of International Human Rights
                    Law: Recent Developments”, Les droits de l’homme à l’aube du XXIe siècle — K. Vasak
                    Amicorum Liber, Brussels: Bruylant, 1999, pp. 521‑544; A. A. Cançado Trindade, “As

                    67

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                       69. To rescue and sustain nowadays the legacy of the evolving jus gen‑
                    tium — as I have been caring to do already for years 111, — amounts to
                    keep on safeguarding the universalist conception of international law,
                    turned to the unsafe world wherein we live. It remains essential to keep in
                    mind the objective and necessary international law, emanating from the
                    recta ratio, giving expression to universal values, and advancing a wide
                    conception of international legal personality (including human beings,
                    and humankind as a whole) 112; this can render viable to address more
                    adequately the problems facing the jus gentium of our times, the interna-
                    tional law for humankind 113.
                       70. States cannot discriminate or tolerate situations to the detriment of
                    migrants (even the undocumented ones), and ought to secure access to
                    justice to any person, irrespective of his or her migratory status, as well as
                    to oppose successive and systematic restrictions 114. Contemporary inter-
                    national law counts on the mechanisms of protection of human beings in
                    situations of adversity (international law of human rights, international
                    humanitarian law, international law of refugees) as well as the operation
                    of the law of international organizations 115. Moreover, it counts on
                    the multiple international tribunals, engaged in the realization of jus-
                    tice 116. The advances of the international legal order correspond to the

                    Sete Décadas de Projeção da Declaração Universal dos Direitos Humanos (1948-2018) e
                    a Necessária Preservação de Seu Legado”, 73 Revista da Faculdade de Direito da UFMG
                    (2018), pp. 97‑140.
                       111 Cf., A. A. Cançado Trindade, O Direito Internacional em um Mundo em Transfor‑

                    mação . . ., op. cit. supra note 106, pp. 1040‑1109; A. A. Cançado Trindade, “Memorial por
                    um Novo Jus Gentium, o Direito Internacional da Humanidade”, 45 Revista da Faculdade
                    de Direito da Universidade Federal de Minas Gerais (2004), pp. 17‑36; A. A. Cançado Trin-
                    dade, A Humanização do Direito Internacional, 2nd rev. ed., Belo Horizonte/Brazil: Edit.
                    Del Rey, 2015, pp. 3‑789.
                       112 A. A. Cançado Trindade, El Acceso Directo del Individuo a los Tribunales Inter‑

                    nacionales de Derechos Humanos, Bilbao/Spain, Universidad de Deusto, 2001, pp. 9‑104;
                    A. A. Cançado Trindade, “A Personalidade e Capacidade Jurídicas do Indivíduo como
                    Sujeito do Direito Internacional”, Jornadas de Direito Internacional (Mexico City,
                    December 2001), Washington, DC, Subsecretaria de Assuntos Jurídicos da OEA, 2002,
                    pp. 311‑347; A. A. Cançado Trindade, “Vers la consolidation de la capacité juridique inter-
                    nationale des pétitionnaires dans le système interaméricain des droits de la personne”, 14
                    Revue québécoise de droit international (2001), note 2, pp. 207‑239.
                       113 Cf. A. A. Cançado Trindade, International Law for Humankind — Towards a New

                    Jus Gentium, 3rd rev. ed., op. cit. supra note 8, pp. 1‑655.
                       114 F. Crépeau, Droit d’asile — De l’hospitalité aux contrôles migratoires, Brussels:

                    Bruylant, 1995, pp. 17‑353 ; F. Rigaux, “L’immigration : droit international et droits fonda-
                    mentaux”, Les droits de l’homme au seuil du troisième millénaire — Mélanges en hommage à
                    P. Lambert, Brussels: Bruylant, 2000, pp. 693‑696, and cf. pp. 707‑708, 710‑713, 717-720 and
                    722 ; and, for a general study, cf. A. A. Cançado Trindade and J. Ruiz de Santiago, La Nueva
                    Dimensión de las Necesidades de Protección del Ser Humano en el Inicio del Siglo XXI, 3rd ed.,
                    San José of Costa Rica : UNHCR, 2004, pp. 27‑127.
                       115 On this latter, cf. A. A. Cançado Trindade, Direito das Organizações Internacionais,

                    6th ed., Belo Horizonte/Brazil: Edit. Del Rey, 2014, pp. 1‑846.
                       116 Cf. A. A. Cançado Trindade, “La perspective trans-      atlantique : La contribution
                    de l’œuvre des cours internationales des droits de l’homme au développement du droit

                    68

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                    awareness of human conscience to the need of realization of the common
                    good and justice.
                       71. Awareness of, and respect for, the fundamental principles of inter-
                    national law are essential for the prevalence of rights. The positivists mis-
                    takenly identified the principles with the norms emanating therefrom,
                    indulging into the confusion between what it is (Sein) and what it should
                    be (Sollen). They opted for a static vision of the world, entirely ignoring
                    its temporal dimension; moreover, they isolated law from other areas of
                    human knowledge. Regrettably, positivists and “realists” are numerous
                    today, what accounts for the worrisome decline in the cultivation of the
                    knowledge of law. They remain oblivious of the fact that the use of force
                    projects itself, leading to the decomposition of the social tissue, and to the
                    grave violations of human rights and international humanitarian law 117,
                    — opening wounds which will require generations to heal.

                       72. One cannot simply resort to violence utilizing its own methods 118.
                    Legal positivism and “realism” have regrettably been invariably subservi-
                    ent to power, unable to understand and accept the profound transforma-
                    tions of contemporary international law in seeking the realization of the
                    imperatives of justice. Whenever their minimization prevailed the results
                    have been disastrous. The emancipation of human persons v is-à-vis their
                    own State and the emancipation of peoples in the law of nations have
                    occurred before the lack of awareness of legal positivists and “realists”,
                    who wrongly pretended that the reality over which they worked was per-
                    manent and unavoidable; what actually occurred was that, with perplex-
                    ity before the changes, they had to move from one historical moment to
                    another one, entirely different.
                       73. In my perception, their basic mistake has been their minimization
                    of the principles 119, which lie on the foundations of any legal system
                    (national and international), and which inform and conform the new
                    legal order in the search for the realization of justice. May I here recall
                    that, as Jacques Maritain rightly warned already in 1940, the temporal
                    dimension of social facts and the imperatives of ethics and justice, together
                    with the general principles of law (the principles of natural law) are to be

                    public international”, La Convention européenne des droits de l’homme à 50 ans — Bulletin
                    d’information sur les droits de l’homme, note 50 (special number), Strasbourg : Council of
                    Europe, 2000, pp. 8‑9.
                        117 Cf. G. Abi-Saab, “Les Protocoles Additionnels, 25 ans après”, Les nouvelles

                    frontières du droit international humanitaire (ed. J.-F. Flauss), Brussels : Bruylant, 2003,
                    pp. 33‑36 ; Y. Sandoz, “L’applicabilité du droit international humanitaire aux actions
                    terroristes”, ibid., pp. 71‑72.
                        118 J. Pictet, The Principles of International Humanitarian Law, 1st ed., Geneva: ICRC,

                    1966, p. 36.
                        119 Positivists and “realists” have not resisted the temptation of disclosing their pride

                    for their method of simple observation of the facts, without being aware that their sense of
                    “pragmatism” without guiding principles disclosed its sinister side (as warned by Bertrand
                    Russell, Sceptical Essays, London: Routledge, 1993 [reprint], p. 49), not seldom leading to
                    abuses and acts of extreme violence.

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                    kept in mind 120, so as to construct a new international legal order in
                    opposition to violence and the use of force.
                       74. Voluntarist positivism was unable to explain the process of forma-
                    tion of the norms of general international law. And “realists” focused
                    themselves only on the conduct of States (even when unlawful) as a “per-
                    manent factor”, — as criticized by Hersch Lauterpacht, — which led
                    them soon to “disapprove” the idea of collective security, early in the era
                    of the United Nations; they could only see interests and advantages,
                    and did not seem to believe in human reason, in recta ratio, not even in
                    the capacity of human beings to extract lessons from historical experi-
                    ence 121.

                          VII. The Universal Juridical Conscience in the Rejection of
                                    Voluntarism and “Countermeasures”.

                       75. For those who dedicate themselves to the law of nations, it has
                    become evident that one can only properly approach its foundations and
                    validity as from universal juridical conscience, in conformity with the recta
                    ratio. In my understanding, the true jusinternationalist thinking conceives
                    international law as being endowed with its own intrinsic value, and being
                    thus certainly superior to a simply “voluntary” law. It derives its author-
                    ity from recta ratio itself (est dictatum rectae rationis), which has always
                    called for a truly universal law of nations.

                       76. As just seen (Part VI, supra), the evolution itself of the law of
                    nations has disclosed the prevalence of human conscience (recta ratio)
                    over the “will” 122 (supra). By contrast, legal positivism statically focused
                    rather on the “will” of States. Humankind as subject of international law
                    cannot at all be restrictively visualized from the optics of States only;
                    definitively, what imposes itself is to recognize the limits of States as from
                    the optics of humankind, this latter likewise being a subject of contempo-
                    rary international law.
                       77. It is clear that human conscience stands well above the “will”. The
                    emergence, formation, development and expansion of the law of nations
                    (droit des gens) are grounded on recta ratio, and are guided by general
                    principles of law and human values. Law and justice are interrelated, they
                    evolve together. It is regrettable that the great majority of practitioners in
                    international law overvalue the “will” of the contending parties, without

                        120 J. Maritain, De la justice politique — Notes sur la présente guerre, Paris : Libr. Plon,

                    1940, pp. 36‑37, 40-41, 44-45, 88, 90-91, 106-107 and 112-114.
                        121 H. Lauterpacht, “On Realism, Especially in International Relations”, International

                    Law Being the Collected Papers of Hersch Lauterpacht, Vol. 2, Part I, Cambridge Univer-
                    sity Press, 1975, pp. 53, 57-62, and 61-65.
                        122 For a recent study, cf. A. A. Cançado Trindade, “A Consciência sobre a Vontade:

                    Os Tribunais Internacionais e a Humanização do Direito Internacional”, 73 Revista da
                    Faculdade de Direito da UFMG (2018), pp. 827‑860.

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                    realizing the importance of fundamental principles and superior human
                    values.
                       78. Voluntarism and positivism have by themselves rendered a disser-
                    vice to international law. So-called “countermeasures” are an example of
                    deconstruction ensuing therefrom, which should not appeal in legal prac-
                    tice. It is regrettable that, in the present proceedings, as seen (supra), the
                    appellant States invoked “countermeasures” in both cases of ICAOB and
                    ICAOA — an initiative that could and should have been avoided and is
                    not to be repeated.

                          VIII. Law and Justice Interrelated: General Principles of
                                     Law in the Foundations of the New
                                                 Jus Gentium

                       79. In sequence, there are some remaining interrelated points to be
                    here addressed, so as to complement the present considerations, namely:
                    first, basic considerations of humanity in the corpus juris gentium; sec-
                    ondly, human suffering and the need of protection to victims; and thirdly,
                    the interrelationship between law and justice orienting jurisprudential
                    construction. After all, to the jurist is reserved a role of crucial impor-
                    tance in the current strengthening of the construction, in conformity with
                    the recta ratio, of the new jus gentium of our times, the universal law of
                    humankind 123.

                          1. Basic Considerations of Humanity in the Corpus Juris Gentium
                       80. In historical perspective, as seen, two (legal) reasonings can be per-
                    ceived: one, attentive to principles and values, to the ineluctable interrela-
                    tionship between law and justice; the other, attentive to authority and
                    imposition or control, to the ineluctable relationship between law and
                    power. The law of nations, with the leitmotiv I have identified for so many
                    years, conforms a corpus juris gentium nowadays orienting law and justice
                    together to the satisfaction of the needs and aspirations of human beings,
                    of peoples and of humankind as a whole. On the basis of the experience
                    accumulated in recent decades, there is no reason for limitation to posi-
                    tive (international) law. The international community cannot prescind
                    from universal values.

                       123 Cf. A. A. Cançado Trindade, International Law for Humankind — Towards a New

                    Jus Gentium, 3rd rev. ed., op. cit. supra note 8, pp. 1‑655.

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                       81. The traditional inter-State outlook of international law has surely
                    been overcome, with the expansion of international legal personality
                    encompassing nowadays, besides States, international organizations,
                    individuals and peoples, as well as humankind. The conditions are thus
                    met for keeping on advancing the construction of a new jus gentium,
                    keeping in mind the social needs and aspirations of the international com-
                    munity (civitas maxima gentium), of humankind as a whole, so as to pro-
                    vide responses to fulfil them. Moreover, it is essential to acknowledge the
                    importance of fundamental principles of international law, in light of the
                    universal conception of the law of nations.
                       82. Contemporary international law bears witness of a legitimate con-
                    cern of the international community as a whole with the conditions of
                    living of peoples everywhere. This new jus gentium of our days contains
                    basic considerations of humanity in the whole corpus juris of contempo-
                    rary international law, reflecting the humanization of this latter 124. This
                    evolution, in the lines of the continued universalization and humanization
                    of the law of nations, is faithful to the thinking of the “founding fathers”
                    of the discipline (supra), attentive nowadays to the needs and aspirations
                    of the international community, and of humankind as a whole.

                             2. Human Suffering and the Need of Protection to Victims
                       83. The evolving law of nations cannot make abstraction of human
                    cruelty, as it has to extend protection to those victimized by injustice and
                    human suffering. In this connection, may I recall that, in the mid-
                    twentieth century, shortly after the Second World War, a learned histo-
                    rian, Arnold Joseph Toynbee, observed that the works of artists and
                    academicians “outlive the deeds of businessmen, soldiers, and statesmen”,
                    and further pondered that
                             “The ghosts of Agamemnon and Pericles haunt the living world of
                          today by grace of the magic words of Homer and Thucydides (. . .).
                          The experience that we were having in our world now had been expe-
                          rienced by Thucydides in his world already. (. . .) The prophets,
                          through their own experience, anticipated Aeschylus’ discovery that
                          learning comes through suffering — a discovery which we, in our time
                          and circumstances, have been making too. (. . .) Civilizations rise and
                          fall and, in falling, give rise to others.” 125

                        124 Cf. A. A. Cançado Trindade, A Humanização do Direito Internacional, 2nd rev. ed.,

                    op. cit. supra note 111, pp. 3‑789.
                        125 A. J. Toynbee, Civilization on Trial, Oxford University Press, 1948, pp. 5, 7-8 and

                    15.

                    72

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                       84. Warning that “the atom bomb and our many other new lethal
                    weapons are capable, in another war, of wiping out not merely the bel-
                    ligerents but the whole of the human race” 126, Toynbee added that

                                  “In each of (. . .) civilizations, mankind (. . .) is trying to rise above
                                mere humanity (. . .) towards some higher kind of spiritual life. (. . .)
                                The goal (. . .) has never been reached by any human society. It has,
                                perhaps, been reached by individual men and women. (. . .) But if
                                there have been a few transfigured men and women, there has never
                                been such a thing as a civilized society. Civilization, as we know it, is
                                a movement and not a condition, a voyage and not a harbour. No
                                known civilization has ever reached the goal of civilization yet.” 127

                       85. Toynbee then regretted that “contradictions and paradoxes in the
                    life of the world” at that time looked like “symptoms of serious social and
                    spiritual sickness” 128. And he concluded that “man’s only dangers (. . .)
                    have come from man himself”; after all, the truth facing us is that “in this
                    world we do learn by suffering”, and that “life in this world is not an end
                    in itself and by itself” 129. Such were his words in 1948, as a learned and
                    sensitive historian. By that time the law of nations was already engaged in
                    assuring the vindication of the rights of human beings also at interna-
                    tional level.

                       86. In effect, in the same year of 1948, — may I here recall, — the law
                    of nations itself expressed concern for humankind, as exemplified by the
                    adoption, successively, in that same year, e.g. of the OAS American Dec-
                    laration of the Rights and Duties of Man (adopted on 2 May 1948), of
                    the UN Convention against Genocide (adopted on 9 December 1948),
                    and of the UN Universal Declaration of Human Rights (adopted
                    on 10 December 1948). The international law of human rights was at last
                    seeing the light of the day, enhancing the position of human beings and
                    their inherent rights in the corpus juris gentium from those historical
                    moments onwards.

                                  3. The Interrelationship between Law and Justice Orienting
                                                  Jurisprudential Construction
                      87. Along the time, it has remained necessary to avoid the undue and
                    regrettable divorce between law and justice, which legal positivists had
                    incurred into (summum jus, summa injuria). Within a historical perspec-

                          126 A. J. Toynbee, op. cit. supra note 125, p. 25.
                          127 Ibid., p. 55.
                          128 Ibid., pp. 160‑161.
                          129 Ibid., pp. 162 and 260.

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                    tive, may I here recall that, in her times, Simone Weil, in some of her last
                    pages (Ecrits de Londres/Escritos de Londres, 1943) before her premature
                    death, pointed out that the ancient Greeks, who were not familiar with
                    the notion of law (finding no words for it), concentrated thus on jus‑
                    tice 130.

                        88. One decade earlier, Simone Weil had written Réflexions sur les
                    causes de la liberté et de l’oppression sociale (1934) [English translation
                    entitled Oppression and Liberty, 1958] wherein, after recalling the lessons
                    found in Homer’s Iliad (eighth century bc), then warned that “the
                    essential evil besetting humankind” (le mal essentiel de l’humanité) is “the
                     substitution of means for ends” (la substitution des moyens aux fins);
                     human history thus distorted, — she proceeded, — becomes subjection
                     [servitude, asservissement], and such an oppression presents “nothing
                     providential”, it reflects a struggle for power, wherein construction
                     and destruction are intermingled 131 (pp. 41‑43 and 46). Weil further pon-
                     dered that
                          “[e]very oppressive society is cemented by this religion of power,
                          which falsifies all social relations by enabling the powerful to com-
                          mand over and above what they are able to impose; it is only other-
                          wise in times of popular agitation, times when, on the contrary, all
                          — rebellious slaves and threatened masters alike — forget how heavy
                          and how solid the chains of oppression are.” 132

                       89. Also in our days, legal positivists do not appear to be aware even
                    of the dangers of the unbalance between law and justice in their own out-
                    look. They can behold only the first one, — law, — in their characteristic
                    subservience to the established power. The results have been regrettable,
                    if not tragic. All those devoted to international law in its universality feel
                    bound to care constantly that law and justice are not at all put apart, they
                    are interrelated and advance together. After all, it is in jusnaturalist think-
                    ing that the notion of justice has always occupied a central position, ori-
                    enting law as a whole. In my own perception and conception, justice is

                        130 S. Weil, Escritos de Londres y Ultimas Cartas [Ecrits de Londres et dernières lettres,

                    1942-1943], Madrid : Ed. Trotta, 2000, pp. 27‑28, 31, 58 and 180. Given the “suffering
                    unjustly inflicted” upon persons, it is necessary that each person avoids evil and keeps good
                    in her soul, remains away from injustice, and respectfully sustains and transmits justice;
                    ibid., p. 50.
                        131 S. Weil, Réflexions sur les causes de la liberté et de l’oppression sociale [1934], Paris :

                    Ed. Gallimard, 1955, pp. 41‑43 and 46 (analysis of oppression), English translation enti-
                    tled Oppression and Liberty, London: Routledge and Kegan Paul, 1958, p. 65; S. Weil,
                    Reflexões sobre as Causas da Liberdade e da Opressão Social [1934], Lisbon: Antígona Ed.,
                    2017, pp. 51‑54 and 57-58 (analysis of oppression).
                        132 S. Weil, Réflexions sur les causes de la liberté et de l’oppression sociale, op. cit. supra

                    note 131, pp. 45‑46 and page 69 of the English translation ; and cf. S. Weil, Reflexões sobre
                    as Causas da Liberdade e da Opressão Social, op. cit. supra note 131, p. 57.

                    74

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                    found, in sum, at the beginning of all law, being, moreover, its ultimate
                    end 133.

                       90. The law of nations can only be properly considered together with
                    its foundations, and its basic principles which permeate its whole corpus
                    juris, in line of natural law thinking 134. This has been sustained, along the
                    decades, e.g. by the most lucid Latin American doctrine of international
                    law, from its earlier manifestations in the nineteenth century 135, until
                    nowadays at the end of the second decade of the twenty-first century 136.
                    As I have been sustaining along the years, basic principles give expression
                    to the values and ultimate ends of the international legal order,

                          “so as to guide it and to protect it against the incongruences of State
                          practice, and to fulfil the needs of the international community
                          itself 137. The principles referred to, in emanating from the human
                          conscience and not from the ‘will’ of States, give expression to the
                          idea of objective justice (in the best line of jusnaturalist thinking), to
                          the benefit of the international community as a whole.” 138

                       91. In effect, I have been making this point over the years in the case
                    law of the ICJ. For example, one decade ago, in my lengthy separate
                    opinion in the ICJ’s Advisory Opinion (of 22 July 2010) on the Accor‑
                    dance with International Law of the Unilateral Declaration of Independence
                    in Respect of Kosovo, I singled out, inter alia, the relevance of the general
                    principles of international law in the framework of the law of the
                    United Nations, and in relation to the human ends of the State (Advisory
                    Opinion, I.C.J. Reports 2010 (II), pp. 594‑607, paras. 177-211), leading
                    furthermore to the overcoming of the strictly inter-State paradigm in con-
                    temporary international law. I have recently done so again, in my sepa-

                       133 A. A. Cançado Trindade, “Reflexiones sobre la Presencia de la Persona Humana en

                    el Contencioso Interestatal ante la Corte Internacional de Justicia: Desarrollos Recientes”,
                    17 Anuario de los Cursos de Derechos Humanos de Donostia-San Sebastián, Universidad del
                    País Vasco (2017), pp. 223‑271.
                       134 A. A. Cançado Trindade, Princípios do Direito Internacional Contemporâneo,

                    2nd rev. ed., op. cit. infra note 138, p. 451.
                       135 Andrés Bello, Principios de Derecho Internacional, 3rd ed., Paris: Libr. de Garnier

                    Hermanos, 1873, pp. 11‑12 (the reason, in the light of experience, and keeping in mind the
                    common good).
                       136 A. A. Cançado Trindade, A Humanização do Direito Internacional, 2nd rev. ed.,

                    Belo Horizonte/Brazil: Edit. Del Rey, 2015, Chap. I, pp. 3‑27 (the recta ratio in the founda-
                    tions of jus gentium as international law for humankind).
                       137 A. A. Cançado Trindade, “Foundations of International Law: The Role and Impor-

                    tance of Its Basic Principles”, XXX Curso de Derecho Internacional Organizado por el
                    Comité Jurídico Interamericano (2003), Washington, DC: OAS General Secretariat, 2004,
                    p. 367.
                       138 A. A. Cançado Trindade, Princípios do Direito Internacional Contemporâneo,

                    2nd rev. ed., Brasília: FUNAG, 2017, p. 452.

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                    244 	             icao council (sep. op. cançado trindade)

                    rate opinion in the ICJ’s Advisory Opinion (of 25 February 2019) on the
                    Legal Consequences of the Separation of the Chagos Archipelago from
                    Mauritius in 1965 (Advisory Opinion, I.C.J. Reports 2019 (I), p. 248,
                    para. 292).
                       92. Likewise, on another occasion, in my extensive dissenting opinion
                    in the ICJ’s Judgment (of 1 April 2011) in the case concerning the Appli‑
                    cation of the Convention on the Elimination of All Forms of Racial Dis‑
                    crimination (Georgia v. Russian Federation), — in which the Court found
                    it had no jurisdiction to examine the application, — I strongly criticized
                    the ICJ’s “outdated voluntarist conception” (emphasizing State consent),
                    and drew attention to “the imperatives of the realization of justice at
                    international level” (Preliminary Objections, Judgment, I.C.J. Reports
                    2011 (I), p. 257, para. 44, and cf. p. 294, para. 127). After addressing the
                    need “to overcome the vicissitudes of the ‘will’ of States” (ibid., p. 314,
                    paras. 188-189), I stressed the importance of general principles of law and
                    fundamental values, standing well above State consent (ibid., p. 316,
                    para. 194) 139.
                       93. I further pointed out that the compromissory clause (Art. 22) of
                    the aforementioned Convention should have been interpreted by the ICJ
                    taking into account its nature and material content, in addition to the
                    object and purpose of the Convention, as a human rights treaty (ibid.,
                    pp. 265-291, paras. 64-118); as it did not do so, it did not contribute to
                    the realization of justice in the cas d’espèce. As I warned in my lecture at
                    the Hague Academy of International Law in 2017, “the basic posture of
                    an international tribunal can only be principiste, without making undue
                    concessions to State voluntarism” 140. And I added that the general prin-
                    ciples of international law inform and conform the norms and rules of the
                    law of nations, “reflecting the universal juridical conscience; in the evolv-
                    ing jus gentium, basic considerations of humanity are of the utmost
                    importance” 141.

                       94. More recently, the issue again marked its presence in respect of the
                    interrelationship between law and justice orienting jurisprudential con-
                    struction. In my extensive separate opinion appended to the ICJ’s afore-
                    mentioned Advisory Opinion on the Legal Consequences of the Separation
                    of the Chagos Archipelago from Mauritius in 1965 (of 25 February 2019),

                       139 Such as the fundamental principle of equality and non-    discrimination, belonging
                    to the realm of jus cogens (para. 195). In the same dissenting opinion, I further recalled
                    that some of the true prima principia confer to the international legal order its ineluctable
                    axiological dimension, reveal the values which inspire the corpus juris of the international
                    legal order, and, ultimately, provide its foundations themselves. Prima principia conform
                    the substratum of the international legal order, conveying the idea of an objective justice
                    (proper of natural law) (paras. 209 and 211-214).
                       140 A. A. Cançado Trindade, “Les tribunaux internationaux et leur mission commune

                    de réalisation de la justice : développements, état actuel et perspectives”, 391 Recueil des
                    cours de l’Académie de droit international de La Haye (2017), p. 61.
                       141 Ibid., p. 59.

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                    I have inter alia strongly criticized any attempt to limit the meaning and
                    scope of application of general principles of law; I have pondered that
                             “The addition, in Article 38 (1) (c) of the PCIJ/ICJ Statute, to
                          general principles of law, of the qualification ‘recognized by civilized
                          nations’, was, in my perception, distracted, done without reflection
                          and without a minimal critical spirit, — keeping in mind that in 1920,
                          in 1945, and nowadays, it was and remains impossible to determine
                          which are the ‘civilized nations’. No country is to consider itself as
                          essentially ‘civilized’; we can only identify the ones which behave in
                          a ‘civilized’ way for some time, and while they so behave.

                             In my view, the aforementioned qualification was added to the ‘gen-
                          eral principles of law’ in Article 38 of the Statute of the PCIJ in 1920
                          by mental lethargy, and was maintained in the Statute of the ICJ in
                          1945, wherein it remains until now (beginning of 2019), by mental
                          inertia, and without a critical spirit. We ought to have some more
                          courage and humility, much needed, in relation to our human condi-
                          tion, given the notorious human propensity to unlimited cruelty. From
                          the ancient Greek tragedies to contemporary ones, human existence
                          has always been surrounded by tragedy. Definitively, there do not exist
                          nations or countries ‘civilized’ per se, but only those which behave in
                          a civilized way for some time, and while they so behave.” 142 (Advisory
                          Opinion, I.C.J. Reports 2019 (I), pp. 248‑249, paras. 293-294.)
                      95. Very recently, in the case of Application of the International Con‑
                    vention for the Suppression of the Financing of Terrorism and of the Inter‑
                    national Convention on the Elimination of All Forms of Racial
                    Discrimination (Ukraine v. Russian Federation), I pointed out, in my
                    separate opinion, that
                             “The prevalence of human beings over States marked presence in
                          the writings of the ‘founding fathers’ of the law of nations, already
                          attentive to the need of redress for the harm done to the human per-
                          son. This concern mark presence in the writings of the ‘founding
                          fathers’ of the sixteenth century, namely: Francisco de Vitoria (Sec-
                          ond Relectio — De Indis, 1538-1539) 143; Juan de la Peña (De Bello

                       142 “Civilized” countries can be conceptualized as being those which fully respect and

                    secure, in their respective jurisdictions, the free and full exercise of the rights of individuals
                    and peoples, to the extent and while they so respect and secure them, — this being, ulti-
                    mately, the best measure of the degree of “civilization attained”; A. A. Cançado Trin-
                    dade, Tratado de Direito Internacional dos Direitos Humanos, Vol. II, op. cit. supra note 77,
                    p. 344.
                       143 Already in his pioneering writings, F. de Vitoria conceived the law of nations (droit

                    des gens) as regulating an international community (totus orbis) comprising human beings
                    organized socially in emerging States and conforming humanity; the reparation of viola-
                    tions of their rights reflected an international necessity addressed by the law of nations
                    (droit des gens), with the same principles de justice applying likewise to States and indi-
                    viduals and peoples conforming them. Cf. A. A. Cançado Trindade, “Totus Orbis: A Visão

                    77

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                    246 	             icao council (sep. op. cançado trindade)

                          contra Insulanos, 1545); Bartolomé de Las Casas (De Regia Potestate,
                          1571); Juan Roa Dávila (De Regnorum Justitia, 1591); and Alberico
                          Gentili (De Jure Belli, 1598).
                             Attention to the need of redress is likewise present in the writings of
                          the ‘founding fathers’ of the following seventeenth century, namely:
                          Juan Zapata y Sandoval (De Justitia Distributiva et Acceptione Per‑
                          sonarum ei Opposita Disceptatio, 1609); Francisco Suárez (De Legibus
                          ac Deo Legislatore, 1612); Hugo Grotius (De Jure Belli ac Pacis, 1625,
                          Book II, Chap. 17); and Samuel Pufendorf (Elementorum Jurispruden‑
                          tiae Universalis — Libri Duo, 1672; and On the Duty of Man and Citizen
                          According to Natural Law, 1673); and is also present in the writings of
                          other thinkers of the eighteenth century. This is to be kept in mind.”
                          (Preliminary Objections, Judgment, I.C.J. Reports 2019 (II), p. 640,
                          paras. 40-41.)
                       96. Nowadays we are fortunate to live in the era of international tribu-
                    nals, created for the exercise of the common mission of realization of
                    justice. Overcoming an outdated State voluntarist conception, they have
                    been contributing to the expansion of international jurisdiction, responsi-
                    bility, personality and capacity, to the benefit of humankind, — as I have
                    been pointing out over the years in successive writings 144. The advances
                    achieved so far are due to the awareness that human conscience stands
                    above the “will”.
                       97. May I here furthermore recall that, in my understanding, an inter-
                    national tribunal is entitled, besides settling disputes, to state what the
                    law is (juris dictio), keeping in mind that contemporary international law
                    applies directly to States, international organizations, peoples and indi-
                    viduals, as well as humankind 145. It is necessary to keep in mind that

                             “The work of contemporary international tribunals can thus be
                          evaluated from the perspective of the justiciables themselves 146. In
                          pursuing their common objective, reassuring progress has been made
                          . . . again from the perspective of the justiciables. This present-
                          day development is highly significant, driven by the awakening of

                    Universalista e Pluralista do Jus Gentium: Sentido e Atualidade da Obra de Francisco de
                    Vitoria”, 24 Revista da Academia Brasileira de Letras Jurídicas, Rio de Janeiro (2008),
                    note 32, pp. 197‑212.
                       144 For a recent general study, cf. A. A. Cançado Trindade, Os Tribunais Internacio‑

                    nais e a Realização da Justiça, 3rd rev. ed., Belo Horizonte/Brazil: Edit. Del Rey, 2019,
                    pp. 3‑514, and extensive bibliography contained therein; and cf. also, inter alia, e.g.
                    A. A. Cançado Trindade, “A Consciência sobre a Vontade: Os Tribunais Internacionais e
                    a Humanização do Direito Internacional”, 73 Revista da Faculdade de Direito da UFMG
                    (2018), pp. 827‑860.
                       145 Cf. A. A. Cançado Trindade, “Les tribunaux internationaux et leur mission

                    commune de réalisation de la justice : développements, état actuel et perspectives”, op. cit.
                    supra note 140, pp. 62 and 68, and cf. pp. 95‑96.
                       146 Ibid.

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                                human conscience to its importance; and as I have emphasized over
                                the years, human conscience is the ultimate material source of all
                                law . . .
                                   The coexistence of multiple international tribunals in contempo-
                                rary international law has considerably expanded the number of jus‑
                                ticiables, in all parts of the world, even under the most adverse
                                conditions . . . The co-ordinated and harmonious operation of con-
                                temporary international tribunals is a sign of the times and of hope
                                for a world with more justice.” 147
                       98. After all, the foundations of international law emanate clearly
                    from human conscience, the universal juridical conscience, and not from
                    the so-called “will” of individual States. Judicial settlement nowadays
                    extends itself significantly to all domains of contemporary international
                    law, and the present co-existence of international tribunals has consider-
                    ably enlarged the number of justiciables in all parts of the world even
                    under the most adverse conditions, in an essential and indispensable step
                    to the realization of justice at international level 148.

                       99. In effect, in its case law, the ICJ has not yet devoted sufficient
                    attention to the general principles of law; in my perception, it has unduly
                    given much importance to State “consent”, an attitude that I have con-
                    stantly criticized. In my understanding, general principles of law are in
                    the foundations themselves of international law, being essential for the
                    realization of justice. Moreover, in our times, even the difficulties in the
                    labour of the ICJ in given cases ought to be considered in the larger
                    framework, — besides the expansion of the international jurisdiction, —
                    of the concomitant expansion of the international legal personality as well
                    as of the international responsibility, — and the mechanisms of imple-
                    mentation of this latter.
                       100. Such expansion (of international jurisdiction, legal personality
                    and capacity, and responsibility), characteristic of our times, comes on its
                    part to foster the encouraging historical process in course of the human‑
                    ization of international law 149. There have been cases with true advances
                    with the necessary overcoming of persisting difficulties 150, discarding the
                    dogmas of the past. The rights of the human person have been effectively

                          147
                           Cf. op. cit. supra note 140, pp. 70‑71.
                          148
                           Cf. ibid., pp. 94 and 101.
                       149 Cf. A. A. Cançado Trindade, A Humanização do Direito Internacional, 2nd rev.

                    ed., op. cit. supra note 111, pp. 3‑789; A. A. Cançado Trindade, “La Humanización del
                    Derecho Internacional en la Jurisprudencia y la Doctrina: Un Testimonio Personal”,
                    Derecho Internacional Público — Obra Jurídica Enciclopédica (ed. L. Ortiz Ahlf), Mexico:
                    Ed. Porrúa/Escuela Libre de Derecho, 2012, pp. 85‑102.
                       150 In some decisions over the last decade, the ICJ has known to go beyond the inter-

                    State dimension, in rendering justice, for example: in Ahmadou Sadio Diallo ((Republic of
                    Guinea v. Democratic Republic of the Congo), Merits, Judgment, I.C.J. Reports 2010 (II));
                    and on reparations, of 19 June 2012 (I.C.J. Reports 2012 (I), p. 324); both with my

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                    marking presence also in the framework of the ICJ’s traditional inter-
                    State contentieux.

                                         IX. Epilogue: Final Considerations

                       101. With these considerations in mind, may I now proceed, last but
                    not least, to a brief recapitulation of the main points that I have deemed
                    fit to make, in the present separate opinion, in respect of the lack of foun-
                    dation of so-called “countermeasures”, as raised by the appellant States
                    in the cas d’espèce. Primus: It may be recalled that, during the 1990s, in
                    the several years of its work on the elaboration followed by the adoption
                    of its Articles on State Responsibility (in 2001), the members of the Inter-
                    national Law Commission consumed much time facing some resistance to
                    certain innovations inserted into the draft, in particular that of “counter-
                    measures”, found by some participants as not being in accordance with
                    the foundations of the law of nations.

                       102. Secundus: The same occurred in the corresponding debates of del-
                    egates in the VI Committee of the UN General Assembly, likewise critical
                    of “countermeasures”. Tertius: The awareness of the importance and the
                    prevalence of the imperative of judicial settlement of international dis-
                    putes, and the support for the imperative of such prevalence over the
                    State’s “will”, has found support in international legal thinking as from
                    the beginning of the era of international tribunals.
                       103. Quartus: It is important to keep in mind the reflections on inter-
                    national legal thinking and the prevalence of recta ratio (human con-
                    science) over the “will”. Quintus: In the history of international legal
                    thinking, it is also important to keep in mind that the identification of
                    recta ratio appeared in the writings of the “founding fathers” of interna-
                    tional law during the sixteenth and seventeenth centuries, in the realm of
                    natural law. Sextus: Each subject of law is to behave with justice, in con-
                    formity with the principles of recta ratio, which emanate from human
                    conscience, asserting the ineluctable relationship between law and ethics.
                       104. Septimus: Natural law reflects the principles of recta ratio, where
                    justice has its foundations. Octavus: The legal order of the international
                    community (totus orbis) has primacy over the “will” of each individual
                    State, being coextensive with humankind itself. Nonus: The new jus gen‑
                    tium, securing the unity of societas gentium, provided the foundations —
                    emanating from a lex praeceptiva of natural law — for the totus orbis,
                    capable of being found by the recta ratio inherent to humankind.
                       105. Decimus: On the other hand, as from the end of the nineteenth cen-

                    c orresponding separate opinions); and case of Frontier Dispute (Burkina Faso v. Niger)
                     (Judgment, I.C.J. Reports 2013, p. 44, Judgment with my corresponding separate opinion);
                     among others.

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                    tury and in the first decades of the twentieth century, voluntarist positiv-
                    ism, grounded on the consent or “will” of States, envisaged a strictly
                    inter-State law, ineluctably subservient to power, leading to devastating
                    consequences against human beings. Undecimus: The present cases
                    (ICAOB and ICAOA) before the ICJ once again show that international
                    adjudication can only be properly undertaken from a humanist perspec-
                    tive, necessarily avoiding the pitfalls of an outdated and impertinent State
                    voluntarist outlook.

                       106. Duodecimus: Recta ratio and the jusnaturalist thinking in interna-
                    tional law have never faded away until our times, as a perennial reaction
                    of human conscience against the subservience and cowardice of legal pos-
                    itivism and the breaches of the rights of human beings. Tertius decimus:
                    The foundations and validity of the law of nations can only be properly
                    approached as from the universal juridical conscience, in conformity with
                    the recta ratio.
                       107. Quartus decimus: Human conscience stands well above the “will”
                    of States, and the law of nations is grounded by recta ratio and guided by
                    general principles of law and human values. Quintus decimus: Volun-
                    tarism and positivism have rendered a disservice to international law, and
                    “countermeasures” are an unacceptable deconstruction to be avoided.
                    Sextus decimus: The universal rights of human beings stand against the
                    arbitrary manifestations of State power, in acknowledgement of the
                    importance of fundamental principles of international law.

                       108. Septimus decimus: Awareness of, and respect for, the fundamental
                    principles of international law are essential for the prevalence of rights;
                    legal positivists mistakenly identified the principles with the norms ema-
                    nating therefrom. Duodevicesimus: Voluntarist positivism was unable to
                    explain the process of formation of the norms of general international
                    law; in effect, the emancipation of human persons vis-à-vis their own
                    State as well as of peoples in the law of nations have occurred even before
                    the lack of awareness of legal positivists.
                       109. Undevicesimus: The evolution of the law of nations conforms a
                    corpus juris gentium that has advanced the prevalence of human con-
                    science (recta ratio) over the “will” of States. Vicesimus: The present
                    cases (ICAOB and ICAOA) before the ICJ leave it clear that so-called
                    “countermeasures” provide no legal ground whatsoever for any legal
                    action. Vicesimus primus: It is essential to remain attentive to universal
                    principles and values, to the ineluctable interrelationship between law and
                    justice; the international community cannot prescind from universal prin-
                    ciples and values of the law of nations, in light of the universal conception
                    of the droit des gens.
                       110. Vicesimus secundus: General principles of law are a manifestation
                    of the universal juridical conscience. Vicesimus tertius: The common mis-
                    sion in the work of contemporary international tribunals can be properly
                    appreciated from the perspectives of the justiciables themselves. Vicesimus

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                    quartus: The law of nations orients nowadays law and justice together, to
                    the satisfaction of the needs and aspirations of human beings, of peoples
                    and of humankind as a whole.
                       111. Vicesimus quintus: The rights of the human person have been
                    effectively marking presence also in the framework of the ICJ’s tradi-
                    tional inter-State contentieux. Vicesimus sextus: Law and justice are inter-
                    related and advance together; after all, it is in jusnaturalist thinking that
                    the notion of justice has always occupied a central position, orienting law
                    as a whole. Vicesimus septimus: The foundations of international law
                    emanate clearly from human conscience, the universal juridical con-
                    science, and not from the so-called “will” of individual States.
                       112. Vicesimus octavus: On the other hand, legal positivists remain
                    unaware even of the dangers of the unbalance between law and justice in
                    their own outlook, and do not consider the legal effects of their indiffer-
                    ence. Vicesimus nonus: The ICJ cannot remain hostage of State consent; it
                    has to make sure that it is the imperative of realization of justice which
                    prevails. Trigesimus: The traditional inter-State outlook of international
                    law has surely been overcome, with the expansion of international legal
                    personality encompassing nowadays, besides States, international organi-
                    zations, individuals and peoples, as well as humankind.

                       113. Trigesimus primus: Such expansion, characteristic of our times, —
                    encompassing altogether international jurisdiction, legal personality and
                    capacity, and responsibility, — comes on its part to foster the encourag-
                    ing historical process in course of the humanization of international law.
                    Trigesimus secundus: It is important to keep on believing in human rea-
                    son, in recta ratio, and in the capacity of human beings to extract lessons
                    from historical experience, in the permanent endeavours towards the real-
                    ization of justice.
                       114. Trigesimus tertius: After all, it is further to be kept in mind that
                    fundamental principles of law lie on the very foundations of the interna-
                    tional legal system itself, being essential for the realization of justice. Tri‑
                    gesimus quartus: The present cases of ICAOB and ICAOA reveal the
                    importance of the awareness of the historical formation of the law of
                    nations, as well as of the needed faithfulness of the ICJ to the realization
                    of justice, which clearly prevails over the “will” of States.

                    (Signed) Antônio Augusto Cançado Trindade.

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