36 TEMPLE OF PREAH VIHEAR (JUDGMENT OF 26 V 61)

it is my opinion that the conclusions of the Court in the Israel v.
Bulgaria case concerning the scope and effect of paragraph 5 of
Article 36 of the Statute are not applicable to the case now decided,
for the abundant reasons stated in the present Judgment.

Judge WELLINGTON Koo makes the following Declaration:

Since some of the grounds given in the Judgment relate to the
decision of the Court in the case of the Aerial Incident-of July 27th,
1955 (Israel v. Bulgaria), Preliminary Objections, I desire to say
that while I concur in the conclusion of the Court in the present
case and generally in the reasoning which leads to it, I do not
mean thereby to imply that I now concur or acquiesce in that
decision but that, on the contrary, I continue to hold the views
and the conclusion stated in the Joint Dissenting Opinion appended
to that decision.

Indeed, I consider that on the basis of that Opinion Thailand’s
1940 Declaration accepting the compulsory jurisdiction of the
Permanent Court must be deemed to have been transformed, as
had also admittedly been intended by Thailand, when she became
a Member of the United Nations and therefore a party to the
Statute on 16 December 1946, by operation of Article 36, para-
graph 5, of the Statute, into an acceptance in relation to the
present Court; and this fact constitutes an additional and simpler
reason to meet Thailand’s principal argument in support of her first
objection.

This is clear, although it is equally true that since the circum-
stances of the two cases are essentially different, neither the fact,
based on the said Opinion, that the said 1940 Declaration had been
so transformed prior to its own terminal date, 6 May 1950, nor
the fact, based upon the said 1959 decision of the Court, that it
had lapsed on 1g April 1946 when the Permanent Court was
dissolved, bears any determining legal effect on the only crucial
question at issue in the present case, namely, the validity of
Thailand’s Declaration of 20 May 1950.

Judge Sir Gerald FITZMAURICE and Judge Tanaka make the
following Joint Declaration:

Although we are in complete agreement with the substantive
conclusion of the Court in this case and with the reasoning on
which it is based, we have an additional and, for us, a more im-
mediate reason for rejecting the first preliminary objection of
Thailand.

This preliminary objection is based on the conclusion concerning
the effect of paragraph 5 of Article 36 of the Statute which the

23
37 TEMPLE OF PREAH VIHEAR (JUDGMENT OF 26 V 61)

Court reached in its decision of 26 May 1959, given in the case
of the Aerial Incident of July 27th, 1955 " Israel v. Bulgaria). The
objection necessarily assumes the correctness of that conclusion;
for it is only on that basis that it is possible to claim, as Thailand
has sought to do, that what she purported to renew, or rather
revive, by her Declaration of 20 May 1950, was an acceptance, not
of the compulsory jurisdiction of the present Court, but of that of
the former Permanent Court, and therefore, in view of the non-
existence of that Court in 1950, devoid of any object, and in-
capable, as such, of renewal or revival. But it is also clear that
except on the basis of that conclusion, the objection would, to use
a serviceable colloquialism, have been ‘a complete non-starter’’,
and could never have been formulated at all.

Since, therefore, the objection necessarily presupposes the cor-
rectness of the conclusion reached in the Israel v. Bulgaria case,
the view that this conclusion was in fact incorrect would, for anyone
holding that view, furnish a further reason for rejecting the objec-
tion, and a much more immediate one than any of those contained
in the present Judgment.

This is precisely our position since, to our regret, we are unable
to agree with the conclusion which the Court reached in the Israel
v. Bulgaria case as to the effect of Article 36, paragraph 5, of the
Statute. We need not give our reasons for this, for they are sub-
stantially the same as those set out in the Joint Dissenting Opinion
of Judges Sir Hersch Lauterpacht and Sir Percy Spender, and of
Judge Wellington Koo. Furthermore, it is not our purpose to call
in question or attempt to reopen the decision in that case.

However, as we do net agree with it, the correct position, for us,
in regard to the effect of Article 36, paragraph 5, as it related to
Thailand’s previous Declaration of May 1940, is that on the demise
of the Permanent Court in April 1946, this Declaration which,
according to its own terms, still had about four years to run,
became dormant (but not extinct) and then, on Thailand becoming
a Member of the United Nations in December 1g46, was reactivated
by the operation of Article 36, paragraph 5, as an acceptance of
the compulsory jurisdiction of the present Court.

For us, therefore, Thailand’s 1950 Declaration was, as it was
intended to be, a perfectly straightforward and normal renewal of
a Declaration (that of 1940) which had already been ‘‘transformed”
into—and had acquired the status of—an acceptance in relation
to the present Court, and which had wholly ceased to relate to the
former Permanent Court, not merely because of the demise of that
Court, but precisely because the Declaration had (by virtue of
Article 36, paragraph 5) been transformed into an acceptance of
the compulsory jurisdiction of the present Court. On that basis,

24
38 TEMPLE OF PREAH VIHEAR (JUDGMENT OF 26 v 61)

the status and validity of the Declaration of May 1950 could not
be open to question, and this we believe is the true position.

We have thought it necessary to make our attitude clear in this
respect ; for otherwise, concurrence in the present Judgment of the
Court might be thought to imply agreement with the decision of
26 May 1959. Furthermore, anyone who disagrees with that decision
must necessarily reject Thailand’s first preliminary objection a
fortiori on that ground alone. This however in no way affects our
view that the first preliminary objection of Thailand must in any
case be rejected, for the reasons given in the present Judgment.

As regards the second preliminary objection of Thailand—whilst
we are fully in agreement with the view expressed by Sir Hersch
Lauterpacht in the South West Africa—V oting Procedure case (I.C.].
Reports 1955, at pp. 90-93) to the effect that the Court ought not
to refrain from pronouncing on issues that a party has argued as
central to its case, merely on the ground that these are not essential
to the substantive decision of the Court—yet we feel that this view
is scarcely applicable to issues of jurisdiction (nor did Sir Hersch
imply otherwise). In the present case, Thailand’s second preliminary
objection was of course fully argued by the Parties. But once the
Court, by rejecting the first preliminary objection, has found that
it has jurisdiction to go into the merits of the dispute (this being
the sole relevant issue at this stage of the case), the matter is,
strictly, concluded, and a finding, whether for or against Thailand,
on her second preliminary objection, could add nothing material
to the conclusion, already arrived at, that the Court is competent.
We therefore agree that the Court is not called upon in the cir-
cumstances to pronounce on the second preliminary objection.

Judge Sir Percy SPENDER appends to the Judgment of the
Court a statement of his Separate Opinion.

Judge MORELLI appends to the Judgment of the Court a state-
ment of his Separate Opinion.

(Initialled) B. W.
(Initialled) G.-C.

25


                             SEPARATE OPINION OF JUDGE BHANDARI

                                          INTRODUCTION

       1. In the instant case, the Court has been presented with two separate but related disputes that
have arisen between Costa Rica and Nicaragua pertaining to the San Juan River, which serves as
the international boundary between these two nation States.

       2. The first dispute, known as the Certain Activities case, deals with, inter alia, the dredging
by Nicaragua of the Lower San Juan River, over which it has sovereign title up to the right bank, in
order to improve the navigability of the said river.

      3. The second dispute, known as the Construction of a Road case, is centred around the
construction by Costa Rica within its own territory of a road nearly 160 km in length, which
follows the course of the right bank of the San Juan River for approximately 108 km (Judgment,
paragraph 64).

       4. As the Judgment’s analysis explains (Judgment, paragraphs 63-64; 104-105 and
160-161), since both Nicaragua’s dredging of the Lower San Juan River and Costa Rica’s
construction of a road along the right bank of that river are public projects that have occurred near
an international boundary, the possibility of transboundary harm arises in both contexts.
Consequently, in both the Certain Activities and Construction of a Road cases the Applicant argued
that the Respondent did not, contrary to its obligations under public international law, perform an
Environmental Impact Assessment (“EIA”).

      5. While I concur with the majority’s conclusion that Costa Rica ought to have produced an
EIA in the Construction of a Road case (Judgment, paragraphs 104-105 and 160-162), I feel the
present Judgment offers a welcome opportunity to expand upon the present state of the law
surrounding EIAs, and to offer insights as to how the body of law governing such instruments may
be complemented so as to provide clearer guidance to nation States contemplating large-scale
public works projects that contain a prospect of transboundary impacts.

       6. As I shall discuss at greater length below, the obligation to produce an EIA presently
arises not only under general international law, but has also been codified by various international
treaties and other legal instruments. Regrettably, despite the current widespread acceptance of the
necessity to conduct an EIA where there is a risk of transboundary harm, public international law
presently offers almost no guidance as to the specific circumstances giving rise to the need for an
EIA, nor the requisite content of any such assessment.

      7. For these reasons, in the present opinion I intend to offer some suggestions as to how the
public international law standards governing EIAs could be improved. In undertaking this
endeavour, I draw inspiration from the words of Judge Weeramantry in his dissenting opinion to
this Court’s Nuclear Tests II Order:

            “This Court, situated as it is at the apex of international tribunals, necessarily
      enjoys a position of special trust and responsibility in relation to the principles of
      environmental law, especially those relating to what is described in environmental law
      as the Global Commons. When a matter is brought before it which raises serious
      environmental issues of global importance, and a prima facie case is made out of the

                                                       -2-

       possibility of environmental damage, the Court is entitled to take into account the
       Environmental Impact Assessment principle in determining its preliminary
       approach.”1

       8. In keeping with this sage pronouncement, I shall first examine how the legal instrument of
an EIA fits within the broader history and contemporary régime of international environmental law.
Against this backdrop I shall proceed to a discussion of current trends in public international law
pertaining to transboundary EIAs. Finally, I shall provide some recommendations that in my
respectful view could serve as useful minimum standards for determining the content of
transboundary EIAs under public international law.

                          BRIEF HISTORY OF THE LAW PERTAINING TO EIAS

       9. Over approximately the past half-century remarkable progressive steps have been taken
with regard to international environmental law since the UN Conference on the Human
Environment was held at Stockholm in 1972 (“Stockholm Conference”)2. One of the reasons for
this evolution is scientific development, in so far as increased technological capacity for scientific
inquiry has heightened the ability of mankind to ascertain the harm it is committing against its own
natural habitat. This is demonstrated most obviously through a greatly intensified focus on climate
change over the past twenty years3.

       10. Some of the driving forces behind the advent and growing acceptance of the need to
conduct EIAs are the concomitant rise in other international environmental law doctrines, such as
the principle of sustainable development, the principle of preventive action, global commons, the
precautionary principle, the polluter pays principle and the concept of transboundary harm.

                                   Principle of sustainable development

       11. The principle of sustainable development has been a driving force in international
environmental law for several decades. Indeed, the Stockholm Conference culminated in the
issuance of a comprehensive report recognizing, inter alia, that environmental management is
designed for the purpose of facilitating comprehensive planning that takes into account the side
effects of human activities on the environment4. Chapter I of that report consisted of a declaration
(“Stockholm Declaration”) containing 26 principles.

      12. Principle 1 of the Stockholm Declaration implicitly embodied the principle of sustainable
development when it stated in relevant part that:

       “[m]an has the fundamental right to freedom, equality and adequate conditions of life,
       in an environment of a quality that permits a life of dignity and well-being, and he
       bears a solemn responsibility to protect and improve the environment for present and
       future generations . . .”

       1
         Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of
20 December 1974 in the Nuclear Tests (New Zealand v. France) Case (New Zealand v. France), Order of
22 September 1995, I.C.J. Reports 1995, p. 345; (“Nuclear Tests II Order”).
       2
       The United Nations Conference on the Human Environment (1972) convened by United Nations General
Assembly res. 2398 (XXIII).
       3
        See, generally, Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 7.
       4
        Report of the United Nations Conference on the Human Environment, p. 28, UN/A/CONF.48/14/Rev.1.

                                                          -3-

The actual term “sustainable development” was coined in a Report prepared in 1987 by the World
Commission on the Environment and Development5, commonly known as the “Brundlandt
Report”6, and has figured prominently in numerous international treaties, legal instruments and
cases applying international environmental law ever since.

      13. The notion of sustainable development is said to embody the balancing of two ideas.
The first is the idea the of granting priority to essential needs such as food, clothing, shelter, and
the second is the idea of limitations imposed by the ability of the environment to meet such future
needs7. As the term implies, the industrial development and scientific progress taking place in the
world must be done in a manner that takes into account the impact of such activities on the
environment. In fact, in the Gabčíkovo-Nagymaros Project Judgment, this Court discussed this
balancing act in the following terms:

             “Throughout the ages, mankind has, for economic and other reasons, constantly
      interfered with nature. In the past, this was often done without consideration of the
      effects upon the environment. Owing to new scientific insights and to a growing
      awareness of the risks for mankind  for present and future generations — of pursuit
      of such interventions at an unconsidered and unabated pace, new norms and standards
      have been developed, set forth in a great number of instruments during the last two
      decades. Such new norms have to be taken into consideration, and such new standards
      given proper weight, not only when States contemplate new activities but also when
      continuing with activities begun in the past. This need to reconcile economic
      development with protection of the environment is aptly expressed in the concept of
      sustainable development.”8

The principle of sustainable development is thought of as an underlying concern in all negotiations
and discussions of the international community relating to the environment9.

                                         Principle of preventive action

       14. In addition to sustainable development, the principle of preventive action is another pillar
of modern international environmental law10. Whereas certain principles of international
environmental law such as sustainable development focus on balancing the often competing needs
of industrial development and environmental protection, the principle of preventive action, by
contrast, focuses solely on the minimization of environmental damage11. As the term would imply,
the preventive action called for must be done prior to the occurrence of any environmental damage.
This Court has recognized the importance of the principle of preventive action in the
Gabčíkovo-Nagymaros Project Judgment, where it stated that:

      5
       Philippe Sands, Principles of International Environmental Law, 2nd ed., 2003, p. 252.
      6
       Report of the World Commission on Environment and Development, Our Common Future (1987), p. 43.
      7
       Ibid.
      8
       Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 78, para. 140.
      9
       Xue Hanqin, Transboundary Damage in International Law, p. 326.
      10
        Art. 3, International Law Commission Draft Principles on the Prevention of transboundary harm from
hazardous activities, with commentaries (2001), Session 56, UN doc. A/56/10.
      11
          Philippe Sands, Principles of International Environmental Law, 2nd ed., 2003, p. 281.

                                                         -4-

       “[t]he Court is mindful that, in the field of environmental protection, vigilance and
       prevention are required on account of the often irreversible character of damage to the
       environment and of the limitations inherent in the very mechanism of reparation of
       this type of damage”12.

                                                 Global commons

       15. Central to the principles of sustainable development and preventive action is the core
idea of common custody over the earth’s resources and that stewardship over the environment
cannot end at the border of a nation State. These values of good neighbourliness and co-operation13
are based on the maxim of sic utere tuo et alienum non laedas14. Indeed, a logical corollary of the
foundational principle under international law that each nation is sovereign over its own territory, is
that if one nation deleteriously affects the territory of another, certain obligations and/or liabilities
might arise.

      16. One expression of this imperative can be found in Principle 24 of the Stockholm
Declaration, which urges the need for such co-operation:

             “International matters concerning the protection and improvement of the
       environment should be handled in a cooperative spirit by all countries, big and small,
       on an equal footing.

              Cooperation through multilateral or bilateral arrangements or other appropriate
       means is essential to effectively control, prevent, reduce and eliminate adverse
       environmental effects resulting from activities conducted in all spheres, in such a way
       that due account is taken of the sovereignty and interests of all States.”15

                                            Precautionary principle

       17. The precautionary principle aims to provide guidance in development and application of
international environmental law where there is scientific uncertainty16. Although the precautionary
principle is an important one, its status in international law is still evolving. Its core ethos,
however, is captured by Principle 15 of the Rio Declaration:

              “In order to protect the environment, the precautionary approach shall be widely
       applied by States according to their capabilities. Where there are threats of serious or
       irreversible damage, lack of full scientific certainty shall not be used as a reason for
       postponing cost-effective measures to prevent environmental degradation.”17

       12
         Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 78.
       13
         Philippe Sands, Principles of International Environmental Law, 2nd ed., 2003, p. 249; Art. 4, International Law
Commission Draft Principles on the Prevention of transboundary harm from hazardous activities, with commentaries
(2001), Session 56, UN doc. A/56/10.
       14
          “Use your own property in such a way that you do not injure other people’s”, Oxford Dictionary of Law,
7th ed., 2009, 2014 online version.
       15
         The United Nations Conference on the Human Environment (1972) convened by UNGA res. 2398 (XXIII).
       16
         Philippe Sands, Principles of International Environmental Law, 2nd ed., 2003, p. 267.
       17
        United Nations Conference on Environment and Development, Rio Declaration on Environment and
Development, A/Conf.151/26 (1992).

                                                            -5-

       18. There exists some confusion in the international community with regard to this principle
as it has been provided for in many conventions though in different language. Certain conventions
couch this principle in terms similar to progressive realization of enhanced scientific capabilities
and available knowledge18. This principle was urged before the Court by New Zealand (as well as
all five intervening nations) in Nuclear Tests II19. However, in that Order the Court did not make
any finding as to the applicability of the precautionary principle. Nearly two decades later, and
despite being urged by New Zealand as an intervening State, the Court did not take into account the
precautionary principle in its analysis during the Whaling in the Antarctic20 case. This was pointed
out in the separate opinions of Judge Cançado Trindade21 and Judge ad hoc Charlesworth22.

                                                Polluter pays principle

       19. The principle of polluter pays23 might be looked at as a retrospective method of
allocating loss after an incident resulting in transboundary harm has already occurred. This
principle could contribute to enhancing economic efficiency24 in the case of an incident that causes
transboundary harm, by judging the actions of polluters under a strict liability standard of care. As
the concept arose from the Organization for Economic Co-operation and Development (“OECD”)25
and does not have the status of a principle of general international law26, it presently acts as merely
a general guideline of public international law27.

        18
           International Convention for the Regulation of Whaling 161, United Nations, Treaty Series (UNTS) 1946 signed
at Washington, D.C.; Convention concerning the Protection of Workers against Ionising Radiations (entry into force:
17 Jun 1962), adoption: Geneva, 44th ILC session (22 June 1960).
       19
          Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of
20 December 1974 in the Nuclear Tests (New Zealand v. France) Case (New Zealand v. France), Judgment, I.C.J.
Reports 1995, p. 288.
          20
            Whaling in the Antarctic (Australia v. Japan:     New Zealand intervening), Judgment, I.C.J. Reports 2014,
p. 226.
          21
            Ibid., pp. 371-375, paras. 60-71; separate opinion of Judge Cançado Trindade.
          22
            Ibid., pp. 455-456, paras. 6-10; separate opinion of Judge ad hoc Charlesworth.
          23
          International Law Commission Draft Principles on the Allocation of loss in the case of transboundary harm
arising out of hazardous activities, with commentaries (2006), p. 145-147, Session 58, UN doc. A/61/10; UN Conference
on Environment and Development, Rio Declaration on Environment and Development, A/Conf.151/26, (1992),
Principles 13 and 16.
       24
          Alan E. Boyle, “Making the Polluter Pay? Alternatives to State Responsibility in the Allocation of
Transboundary environmental costs” in Francesco Francioni and Tulio Scovazzi (eds.) International Responsibility for
Environmental Harm, pp. 363, 369.
          25
        OECD Guiding Principles concerning International Economic Aspects of Environmental Policies
26 May 1972 — C(72) 128.
        26
           Declaration of the Human Environment, Report of the UN Conference on the Human Environment
(Stockholm, 1972), UN doc. A/Conf.48/14/Rev.1; Alan E. Boyle, “Making the Polluter Pay? Alternatives to State
Responsibility in the Allocation of Transboundary environmental costs” in Francesco Francioni and Tulio Scovazzi (eds.)
International Responsibility for Environmental Harm, pp. 363, 369; Brownlie’s Principles of International Law,
James Crawford (ed.), 7th ed., 2008 (OUP), p. 359; Philippe Sands, Principles of International Environmental Law,
2nd ed., 2003, p. 281.
          27
            Antonio Cassese, International Law, 2nd ed., pp. 492-493.

                                                       -6-

                                            Transboundary harm

      20. As the preceding discussion underscores, there are a variety of overlapping principles
when it comes to international environmental law, with distinct approaches and objectives, that
converge upon the common conclusion that nation States owe certain obligations toward the
environment, particularly in a transboundary context. When nation States transgress these
obligations vis-à-vis their neighbours, the resultant consequences may fall under the rubric of
transboundary harm.

       21. There exists no single definition of transboundary harm under international law. Though
the Draft Principles relating to prevention of transboundary harm by the International Law
Commission (“ILC”)28 do contain a definition of this concept, the idea of “risk of causing
significant transboundary harm” is quite vague. Harm as per the ILC must be physical and is
limited to persons, property or the environment29. However, the accompanying commentary does
provide some clarity in this regard and explains that the idea of risk and harm are not to be isolated,
but thought of in conjunction with each other:

             “For the purposes of these articles, ‘risk of causing significant transboundary
       harm’ refers to the combined effect of the probability of occurrence of an accident and
       the magnitude of its injurious impact. It is, therefore, the combined effect of ‘risk’ and
       ‘harm’ which sets the threshold.”30

The ILC also gives guidance on the meaning of the word significant by way of its commentary:

              “The term ‘significant’ is not without ambiguity and a determination has to be
       made in each specific case. It involves more factual considerations than legal
       determination. It is to be understood that ‘significant’ is something more than
       ‘detectable’ but need not be at the level of ‘serious’ or ‘substantial’. The harm must
       lead to a real detrimental effect on matters such as, for example, human health,
       industry, property, environment or agriculture in other States. Such detrimental
       effects must be susceptible of being measured by factual and objective standards.”31

       22. Transboundary harm has been succinctly described by this Court as “every State’s
obligation not to allow knowingly its territory to be used for acts contrary to the rights of other
States”32. However, a review of the various authorities in which the concept is discussed reveals
four common factors present in cases of transboundary environmental harm: firstly, the harm must
be a result of human activity; secondly, the harm must result as a consequence of that human
activity; thirdly, there must be transboundary effects on a neighbouring nation State; and fourthly,
the harm must be significant or substantial33.

       28
           International Law Commission Draft Articles on the Prevention of transboundary harm from hazardous
activities, with commentaries (2001), Session 56, UN doc. A/56/10.
       29
          Art. 2 (b), International Law Commission Draft Principles on the Prevention of transboundary harm from
hazardous activities, with commentaries (2001), Session 56, UN doc. A/56/10.
       30
         Commentary 2, accompanying Art. 2 International Law Commission Draft Principles on the Prevention of
transboundary harm from hazardous activities, with commentaries (2001), Session 56, UN doc. A/56/10.
       31
         Ibid., p. 152.
       32
         Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J Reports 1949, p. 22.
       33
        O. Schachter, International Law in Theory and Practice (1991), pp. 366-368 as referred in Xue Hanqin,
Transboundary Damage in International Law, p. 4.

                                                     -7-

       23. The requirement of a country contemplating a public works project that poses a risk of
transboundary harm to produce an EIA can thus be seen as a tangible manifestation of these
collective requirements that has gained increasing recognition amongst the community of nations.
The Goals and Principles of Environmental Impact Assessment promulgated by the United Nations
Environment Programme (“UNEP”) in 1987, and endorsed by the United Nations General
Assembly that same year (“UNEP Principles”) demonstrate that the rise in the importance of
conducting EIAs has been commensurate with the increase in the possibility of transboundary harm
emanating from activities carried out by neighbouring nation States34. Moreover, when the
United Nations Conference on Environment and Development, popularly known as the
“Earth Summit”, was held in Rio de Janeiro in 1992, it issued its Declaration of Environment
Development (“Rio Declaration”)35, the obligation to undertake an EIA already existed in many
international law instruments36.

      24. However, despite the burgeoning acceptance of this obligation under international law,
discerning the exact procedural and substantive requirements of an EIA has proven elusive.
Indeed, the present-day régime governing EIAs consists of a patchwork of different international
law instruments, including UNGA resolutions37, the UNEP Principles38, the Rio Declaration39 and a
host of multilateral conventions40.

      25. For example, the Rio Declaration does not dictate the contents of an EIA, but rather
simply states that: “Environmental impact assessment, as a national instrument, shall be
undertaken for proposed activities that are likely to have a significant adverse impact on the
environment and are subject to a decision of a competent national authority.”41

      26. Moreover, the UNEP Principles define an EIA in similarly vague language, describing it
merely as “a process of identifying, predicting, interpreting and communicating the potential
impacts that a proposed project or plan may have on the environment”42.

       34
         UNEP Goals and principles of Environmental Impact Assessment, UNEP res. GC14/25, 14th Sess. (1987),
endorsed by UNGA res. 42/184 (1987) p. 1.
       35
          UN Conference on Environment and Development, Rio Declaration on Environment and Development,
A/Conf.151/26 (1992).
      36
         Convention on Biological Diversity, 1760 UNTS, p. 79, signed on 5 June 1992 at Rio de Janeiro;      UN
Convention on Laws of the Sea, 1833 UNTS, p. 320, signed on 10 December 1982 at Montego Bay.
       37
        Co-operation between States in the Field of the Environment, GA res. 2995 (XXVII), UNGAOR 27th Sess.,
Supplement No. 30 (1972), para. 2.
        38
           UNEP Principles on Conservation and Harmonious Utilization of Natural Resources Shared by Two or More
States, 17 International Legal Materials (ILM) 1094, UN doc. UNEP/IG.12/2 (1978), Principle 4; UNEP Goals and
Principles of Environmental Impact Assessment, UNEP res. GC14/25, 14th Sess. (1987), endorsed by UNGA
res. 42/184, UNGAOR 42nd Sess., UN doc. A/Res/42/184 (1987).
      39
         UN Conference on Environment         and   Development,   Rio Declaration,   14 June 1992,   31 ILM 874,
UN doc. A/conf.151/5/Rev. 1, Principle 17.
       40
       Convention on Biological Diversity, 1760 UNTS, p. 79, signed on 5 June 1992 at Rio de Janeiro;
UN Convention on the Law of the Sea, 1833 UNTS, p. 320, signed on 10 December 1982 at Montego Bay.
       41
         UN Conference on Environment and Development, Rio Declaration, 14 June 1992, 31 ILM 874, UN
doc. A/conf.151/5/Rev. 1, Principle 17.
       42
         UNEP Principles on EIA, p. 1.

                                                         -8-

       27. Another pertinent example is the Convention on Biological Diversity (“CBD”)43, also an
outcome of the Earth Summit at Rio de Janeiro44, to which both Parties in the present case are
signatories. It contains the requirement to conduct an EIA in situations giving rise to “significant
adverse effects on biological diversity”45 but does not provide any further elucidation as to the
practical implications of this responsibility.

      28. Finally, in the Pulp Mills Judgment of 2010, upon which the present Judgment has
placed considerable emphasis, this Court noted:

       “a practice, which in recent years has gained so much acceptance among States that it
       may now be considered a requirement under general international law to undertake an
       environmental impact assessment where there is a risk that the proposed industrial
       activity may have a significant adverse impact in a transboundary context, in
       particular, on a shared resource. Moreover, due diligence, and the duty of vigilance
       and prevention which it implies, would not be considered to have been exercised, if a
       party planning works liable to affect the régime of the river or the quality of its waters
       did not undertake an environmental impact assessment on the potential effects of such
       works.

               ................................................................

               The Court also considers that an environmental impact assessment must be
       conducted prior to the implementation of a project. Moreover, once operations have
       started and, where necessary, throughout the life of the project, continuous monitoring
       of its effects on the environment shall be undertaken.”46

However, in the same section of that Judgment, the Court opined that

       “it is the view of the Court that it is for each State to determine in its domestic
       legislation or in the authorization process for the project, the specific content of the
       environmental impact assessment required in each case, having regard to the nature
       and magnitude of the proposed development and its likely adverse impact on the
       environment as well as to the need to exercise due diligence in conducting such an
       assessment”47.

      29. Thus, we see that while the Pulp Mills Judgment elevated the practice of conducting an
EIA to an imperative under general international law when certain preconditions are met, at the
same time it allowed for a renvoi to domestic law in terms of the procedure and content required
when carrying out such an assessment. In view of the paucity of guidance from the Court and other
sources of international law, it could plausibly be argued there are presently no minimum binding
standards under public international that nation States must follow when conducting an EIA.

       43
         1760 UNTS, p. 79, signed on 5 June 1992 at Rio de Janeiro.
       44
        UN Conference on Environment and Development, Rio Declaration on Environment and Development,
A/Conf.151/26 (1992).
       45
         1760 UNTS, p. 79, signed on 5 June 1992 at Rio de Janeiro, Art. 14 (1).
       46
         Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010 (I), pp. 83-84,
paras. 204-205.
       47
         Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010 (I), p. 83, para. 205.

                                                       -9-

       30. One reason for the lack of clarity as to what exactly a nation State must do under
international law to discharge its burden of conducting an EIA under these various authorities could
be that the extent of the obligations arising under such instruments are difficult to define with
precision. Some have suggested that this lack of precision is attributable to the fact that such
assessments are a policy instrument48. Whatever the reason, the situation as it currently stands is
less than ideal.

                     BASIC REQUIREMENTS OF AN EIA UNDER CONTEMPORARY
                                       PUBLIC INTERNATIONAL LAW

        31. To discern the current state of the law on this point, one must endeavour to assimilate the
various international law instruments that impose upon nation States an obligation to conduct an
EIA and synthesize the obligations imposed thereunder. Notwithstanding the lack of guidance
under general international law and other binding or hortatory instruments, as the present Judgment
at paragraphs 147-155 demonstrates, there are three cumulative stages that must be fulfilled when it
comes to assessing the impact of a proposed project in a case of possible transboundary harm. The
first stage is to conduct a preliminary assessment measuring the possibility of transboundary harm.
In the present case, we see the Court has looked at the magnitude of the road project and local
geographic conditions in assessing that a preliminary assessment by Costa Rica was warranted as to
the possibility of harm to the San Juan River (Judgment, paragraph 155). If a preliminary
assessment determines that there is a risk of significant transboundary harm, then the State has no
choice but to conduct an EIA. The actual production of this document constitutes the second stage
of the overall process, and entails certain corollary procedural obligations such as the duty to notify
and consult the affected neighbouring nation State (Judgment, paragraph 168). The third and final
stage of this process is that of post-project assessment (Judgment, paragraph 161). This in keeping
with the Court’s reasoning in the Pulp Mills Judgment that “once operations have started and,
where necessary, throughout the life of the project, continuous monitoring of its effects on the
environment shall be undertaken”49.

       32. In my respectful view, what appears to be missing in this analysis by the Court is what
specific obligations arise during stage two of this process. In attempt to fill this lacuna, the present
opinion will offer suggestions as to appropriate minimum standards that should be fulfilled by any
nation State conducting an EIA. In this regard, the Convention on Environmental Impact
Assessment in a Transboundary Context (“Espoo Convention”)50 drafted by the United Nations
Economic Commission for Europe (“UNECE”) provides, in my view, an exemplary standard for
the process to be followed when conducting an EIA. In making this statement, I readily concede
that the Espoo Convention is primarily a regional instrument designed to regulate transboundary
harm in a European context. Because international law is grounded in the bedrock principle of
consent between sovereign nation States, and bearing in mind that the present case arises in the
geopolitical context of Latin America, I am acutely aware that one cannot simply interpose the
obligations arising under this regional treaty to non-signatories from other parts of the world.
Indeed, criticism has been levied against the Espoo Convention as it derives its obligations from the
domestic legislation of highly developed nations, which reduces the probability of ratification51.

       48
         Neil Craik, The International Law of Environmental Impact Assessment (CUP, 2008) pp. 3-6.
       49
         Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010 (I), pp. 83-84,
para. 205.
       50
         UNTS, Vol. 1989, p. 309.
       51
        John H. Knox, Assessing the Candidates for a Global Treaty on Transboundary Environmental Impact
Assessment, 12 NYU Envtl. L.J. 153 (2003).

                                                          - 10 -

       33. Taking such valid criticism into account, but also noting that the Espoo Convention
contains a provision that allows for non-European nation States to join it52, I believe that it is
helpful to consider the Espoo Treaty as a standard that nation States should strive toward, as it
contains novel and progressive guidelines that the community of nations would be well served to
treat as persuasive authority in creating a more comprehensive global régime regarding the required
content of transboundary EIAs under public international law. If the international community were
to come together for the purpose of putting in place a convention dealing with transboundary EIAs,
I propose that the Espoo Convention would constitute a very useful starting point.

                                 ESPOO CONVENTION: A BRIEF OVERVIEW

      34. I shall now consider what are in my opinion certain important characteristics of the
Espoo Convention that lay out what may be considered “best practices” in carrying out
transboundary EIAs.

       35. Article 2 (6) of the Convention places heavy emphasis on the need for public
participation of the likely affected population(s). The form that this obligation takes under the
Convention requires that the State proposing the project allow for the participation of not only its
own affected population but that of the potentially affected neighbouring State as well. The notion
that international law has begun to pay more attention to individuals is demonstrated by the
requirement of public participation53. This concept of public participation expands upon prior
pronouncements contained in Principle 10 of the Rio Declaration54. However, it should be noted
that the notion that there is a duty to consult affected populations was rejected by the Judgment of
this Court in the Pulp Mills case55.

       36. Article 3 of the Convention requires the nation proposing a project to notify a potentially
affected neighbouring nation State regarding any proposed activity that is likely to cause a
“significant adverse transboundary impact”. There is, naturally, great debate about the extent of
the obligation that this phrase entails. A country proposing a project might argue that any impact is
neither significant nor adverse, and thus escapes the ambit of Article 3. In fact this seems to be a
similar threshold provided for by the Judgment, i.e., “risk of significant adverse impact”
(Judgment, paragraph 167). This provision also lays down all the information one State must
provide to another. Article 3 (7) stipulates that if there is a question that an activity will have a
significant impact or not then the question is to be settled by an inquiry commission.

       52
        Report of the Second Meeting [of the Parties to the Convention on Environmental Impact Assessment in a
Transboundary Context] UN doc. ECE/MP.EIA/4, p. 144, Ann. XIV (2001).
        53
           Simon Marsden, “Public Participation in Transboundary Environmental Impact Assessment: Closing the Gap
between international and Public Law”, in Brad Jessup and Kim Rubenstein, Environmental Discourses in Public and
International Law, 238.
       54
         Principle 10:
                “Environmental issues are best handled with participation of all concerned citizens, at the relevant
       level. At the national level, each individual shall have appropriate access to information concerning the
       environment that is held by public authorities, including information on hazardous materials and activities
       in their communities, and the opportunity to participate in decision-making processes. States shall
       facilitate and encourage public awareness and participation by making information widely available.
       Effective access to judicial and administrative proceedings, including redress and remedy, shall be
       provided.”
       55
          Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010 (I), paras. 215-219;
(“The Court is of the view that no legal obligation to consult the affected populations arises for the Parties from the
instruments invoked by Argentina.” (Para. 216.))

                                               - 11 -

       37. Article 5 of the Convention requires consultations with the affected State, to give
recommendations to the State of origin methods for the reduction or the elimination of the harmful
impact. This allows for a more amicable settling of disputes and problems arising out of a
particular project.

       38. Article 6 of the Convention outlines that a final decision regarding a proposed project is
to be made with due regard to the conclusion of the EIA. This provision requires transmitting the
final decision to the affected party, along with reasons and considerations on which a decision is
based.

       39. Article 15 of the Convention discusses the settlement of disputes if they arise between
parties. The dispute might either be settled by way of arbitration or by this Court. Regrettably,
there is no specific provision dealing with reparations or compensation of any kind.

       40. Importantly, Appendix I has a non-exhaustive list of activities that require conducting an
EIA, in the manner prescribed under Appendix II of the Convention. Thus, for the purpose of
ascertaining minimum requirements it is helpful to refer to Appendix II of the Convention as it lays
down what the content of an EIA must be. Additionally, Appendix III provides guidance in
deciding whether an activity would fall within the list provided in Appendix I.

                       SUGGESTED MINIMUM STANDARDS FOR EIA UNDER
                                      INTERNATIONAL LAW

      41. This part outlines certain minimum standards to be followed in cases where there is no
domestic legislation that guides an EIA. These minimum standards reflect in large part my affinity
toward the ambitious approach taken in the Espoo Convention. However, rather than using the
sometimes onerous obligations arising from that treaty as the requisite minimum standard for every
country, in every context, I have instead laid out what, in my considered opinion, ought to be
adopted as the lowest common denominator while conducting an EIA. These minimum standards
may be broken down into procedural and substantive obligations. In my opinion procedural
obligations of an EIA would relate to when and under what circumstances such an assessment must
be carried out, whereas substantive obligations refer to what must be done by a nation State when
conducting an EIA.

                                      Procedural obligations

       42. Procedural obligations arising out of the obligation to perform an EIA arise out of
questions of when an EIA is to be conducted. Presently, an EIA is required to be conducted when
there is “risk of significant adverse impact” (Judgment, paragraph 167). A nation State
contemplating a project might claim that the risk of the harm is not significant and therefore there
exists no obligation to conduct an EIA. However, to avoid the possibility that countries may abuse
their discretion in labelling certain activities as environmentally benign, I suggest that the best
approach to take lies in the Espoo Convention, which lays down certain types of industries for
which there is an automatic requirement to conduct an EIA if the said activities are being proposed
near an international border. To that end, I recall my observation above that Appendix 1 to the

                                                         - 12 -

Espoo Convention lists a number of activities that require an EIA per se56. However, the fact that a
project does not appear on this list does not mean it cannot be subject to an EIA. For instance,
there might be other types of activities not contemplated within Appendix 1 of the
Espoo Convention, but which might still produce dangerous pollutants or effluents as a by-product.
Those activities must also be recognized as harmful, thus giving rise to EIA obligations. To this
end, Appendix III of the Espoo Convention contains general criteria to assist in the determination
of the environmental significance of various activities.

      43. Once it is established that a certain activity requires that an EIA be carried out, nation
States may invoke certain exemptions that would relieve them of their obligation to conduct an
EIA. Such pleas may include natural disasters, nuclear disasters, terrorism, internal disturbance or
emergency, among others. If such a claim is made by a nation it has to be well substantiated and
the burden of proof, which would lie with the country proposing the project, must be high.

       44. It should be remembered that even private companies might propose projects near an
international border. It is then the responsibility of the country in whose territory the project is
being proposed to provide an EIA to a potentially affected country. Essentially, if a private project
that falls within one of the above mentioned industries listed at Appendix 1 to the
Espoo Convention, or is part of an industry that creates pollutants or dangerous effluents, then the
responsibility to ensure that an EIA has been completed and duly transmitted to the neighbouring
nation State that might be affected, and the host country’s international responsibility should be
invoked, irrespective of the fact that the project falls within the domain of private enterprise.

                                             Substantive obligations

        45. As noted above, the required content of an EIA has not specifically been laid down under
public international law. However, by referring to the above-referenced documents it is possible to
distil certain minimum criteria which must be adhered to while performing an EIA.

       46. For example, UNEP Principle 4 stipulates certain minimum contents of an EIA:

      “(a) A description of the proposed activity;

       56
          1. Crude oil refineries; 2. Thermal and nuclear power stations; 3. Any type of work that requires or uses
nuclear elements (for any purpose, as fuel, for storage, or as fissionable material); 4. Smelting of cast iron and steel;
5. Any type of work that requires or uses asbestos for any purpose; 6. Integrated chemical installations; 7. Construction
of motorways, express roads, railways, airports with runways of more than 2,100 m; 8. Large-diameter pipelines for the
transport of oil, gas or chemicals; 9. Trading ports and also inland waterways and ports for inland-waterway traffic
which permit the passage of vessels of over 1,350 metric tons; 10. Waste-disposal installations for the incineration,
chemical treatment or landfill of toxic and dangerous wastes, or if it is non-hazardous waste then chemical treatment of
the same waste with a capacity increasing 100 metric tonnes per day; 11. Dams and reservoirs; 12. Groundwater
abstraction activities or artificial groundwater recharge schemes where the annual volume of water to be abstracted or
recharged amounts to 10 million cubic metres or more; 13. Pulp, paper and board manufacturing of 200 air-dried
metric tons or more per day; 14. Major quarries, mining, on-site extraction and processing of metal ores or coal;
15. Offshore hydrocarbon production, extraction of petroleum and natural gas for commercial purposes where the amount
extracted exceeds 500 metric tons/day in the case of petroleum and 500,000 cubic metres/day in the case of gas;
16. Major storage facilities for petroleum, petrochemical and chemical products. 17. Deforestation of large areas;
18. Works for the transfer of water resources between river basins; 19. Waste-water treatment plants with a capacity
exceeding 150,000 population equivalent; 20. Installations for the intensive rearing of poultry or pigs with more than:
85,000 places for broilers, 60,000 places for hens, 3,000 places for production pigs (over 30 kg), or 900 places for sows;
21. Construction of overhead electrical power lines with a voltage of 220 kV or more and a length of more than 15 km;
22. Major installations for the harnessing of wind power for energy production (wind farms).

                                                - 13 -

      (b) A description of the potentially affected environment, including specific
          information necessary for identifying and assessing the environmental effects of
          the proposed activity;

      (c) A description of practical alternatives, as appropriate;

      (d) An assessment of the likely or potential environmental impacts of the proposed
          activity and alternatives, including the direct, indirect, cumulative, short-term and
          long-term effects;

      (e) An identification and description of measures available to mitigate adverse
          environmental impacts of the proposed activity and alternatives, and an assessment
          of those measures;

      (f) An indication of gaps in knowledge and uncertainties which, may be encountered
          in compiling the required information;

      (g) An indication of whether the environment of any other State or areas beyond
          national jurisdiction is likely to be affected by the proposed activity or
          alternatives;

      (h) A brief, non-technical summary of the information provided under the above
          headings.”

       Notably, these criteria are not as burdensome as the requirements of the Espoo Convention.
The Espoo Convention requires certain additional information to be included in an EIA, such as the
purpose of the project57. It also requires that alternatives to the project be proposed, including the
alternative that no action will be taken58. Another way in which the Espoo Convention increases
the substantive obligations of a country contemplating a project is by requiring “an explicit
indication of predictive methods and underlying assumptions as well as all the environmental data
used”59. Finally, the Espoo Convention imposes the further hurdle that an EIA must contain an
outline of how post-project assessment is to be conducted60.

                                             Conclusion

      47. As I have detailed throughout the present opinion, the current state of international
environmental law is lamentably silent on the exact procedural steps and substantive content that
are required when a situation of potential transboundary harm gives rise to the obligation of a
nation State to produce an EIA. In my view, it is incumbent upon the international community to
come together and develop a sound, pragmatic and comprehensive régime of EIA that rectifies this
problem. The suggestions I have made during the course of this opinion are in keeping with the
principles of sustainable development, preventive action and global commons and reflect the
bedrock international law values of consensus, co-operation and amicable relations between
nations.

      57
        The Espoo Convention, App. II (a).
      58
        Ibid., App. II (b).
      59
        Ibid., App. II (f).
      60
        Ibid., App. II (h).

                                              - 14 -

      48. In my considered opinion, the above minimum standards should be reflected in a
comprehensive international convention with global reach, given the fact that the concept of EIA is
a general principle of international law applicable to all nation States.

                                                          (Signed)   Dalveer BHANDARI.

                                          ___________


                                                                                485

                            DISSENTING OPINION OF JUDGE AD HOC COT

                 [Translation]

                    Vote against the operative part — Prejudgment of the question on the merits —
                 Identity between the Request for the indication of provisional measures and the
                 claims on the merits — Existence of irreparable prejudice — Imminent risk —
                 Unnecessary Order — Presumption of good faith at the provisional measures
                 stage — Length of time between this Order and the next phase of the proceedings.

                                                 Introduction

                    1. To my great regret, I voted against the operative part of today’s
                 Order indicating provisional measures. I would therefore like to explain
                 in particular why, in my view, the Request in question does not satisfy the
                 requirement of imminent risk of irreparable prejudice and why this Order
                 is not necessary for the settlement of the dispute.

                              I. The Present Proceedings Must not Prejudge
                                        the Question on the Merits

                   2. In provisional measures proceedings, the applicant must not pre-
                 judge the question on the merits (A). Nor should the request for the indi-
                 cation of provisional measures itself prejudge the question relating to the
                 merits (B).

                        A. The Applicant Must not Prejudge the Question on the Merits
                                           in These Proceedings
                   3. It is customary in an order indicating provisional measures for the
                 Court to note in the following terms that its conclusion in that order in
                 no way prejudges the merits of the case:
                          “The decision given in the present proceedings in no way prejudges
                        the question of the jurisdiction of the Court to deal with the merits
                        of the case or any questions relating to the admissibility of the Appli-
                        cation or to the merits themselves.” (See, for example, Jadhav
                        (India v. Pakistan), Provisional Measures, Order of 18 May 2017, I.C.J.
                        Reports 2017, p. 245, para. 60; Immunities and Criminal Proceedings
                        (Equatorial Guinea v. France), Provisional Measures, Order of
                        7 December 2016, I.C.J. Reports 2016 (II), p. 1171, para. 98.)
                      4. Accordingly, pursuant to Practice Direction XI, which the President

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                                  application of the cerd (diss. op. cot)                 486

                 reads out at the opening of the public hearings, the parties must not enter
                 into the merits of the case:
                         “In the oral pleadings on requests for the indication of provisional
                      measures parties should limit themselves to what is relevant to the
                      criteria for the indication of provisional measures as stipulated in the
                      Statute, Rules and jurisprudence of the Court. They should not enter
                      into the merits of the case beyond what is strictly necessary for that
                      purpose.”

                    5. The temptation for parties to enter into the merits of a case comes
                 from the Court’s jurisprudence, according to which the plausibility of the
                 rights claimed by the applicant — which is inevitably linked to questions
                 on the merits — must be demonstrated at the provisional measures stage.
                 The respondent may also “have an interest in showing that the requesting
                 State has failed to demonstrate a possibility of the existence of the right
                 sought to be protected” (separate opinion of Judge Shahabuddeen, Pas-
                 sage through the Great Belt (Finland v. Denmark), Provisional Measures,
                 Order of 29 July 1991, I.C.J. Reports 1991, p. 29). One proposed solution
                 is to consider the standard of proof for plausibility as having a fairly low
                 threshold, which, it is argued, would deter the parties from examining the
                 merits of a claim (separate opinion of Judge Owada, Application of the
                 International Convention for the Suppression of the Financing of Terrorism
                 and of the International Convention on the Elimination of All Forms of
                 Racial Discrimination (Ukraine v. Russian Federation), Provisional Mea-
                 sures, Order of 19 April 2017, I.C.J. Reports 2017, pp. 144‑145, para. 10,
                 and p. 147, paras. 19-20).
                    6. However, the Court’s jurisprudence acknowledges that, in provi-
                 sional measures proceedings involving rights under the International
                 Convention on the Elimination of All Forms of Racial Discrimination
                 (CERD), the question whether the alleged acts may constitute acts of
                 racial discrimination can and must be examined:
                        “The Court notes that Articles 2 and 5 of CERD are intended to
                      protect individuals from racial discrimination. Consequently, in the
                      context of a request for the indication of provisional measures, a State
                      party to CERD may avail itself of the rights under Articles 2 and 5
                      only if it is plausible that the acts complained of constitute acts of
                      racial discrimination under the Convention.” (Application of the Inter-
                      national Convention for the Suppression of the Financing of Terrorism
                      and of the International Convention on the Elimination of All Forms of
                      Racial Discrimination (Ukraine v. Russian Federation), Provisional
                      Measures, Order of 19 April 2017, I.C.J. Reports 2017, p. 135,
                      para. 82.)

                   7. Therefore, the Parties to this dispute may address the question of
                 the interpretation and application of the Convention in so far as it is nec-

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                                 application of the cerd (diss. op. cot)                  487

                 essary to assess whether the alleged acts of the UAE are capable of con-
                 stituting acts of racial discrimination.
                    8. That said, some of the arguments raised by Qatar during the oral
                 proceedings appear to go beyond what is required for an examination of
                 the plausibility of the rights claimed. In particular, it might be asked to
                 what extent the detailed references to the general recommendations of the
                 CERD Committee are needed here (see, for example, CR 2018/12,
                 pp. 37‑38, paras. 21‑23, and p. 40, paras. 27‑29 (Amirfar), and p. 47,
                 paras. 3 and 5 (Klein)).
                    9. The Court does not have the power to prevent parties from engag-
                 ing in such conduct during the hearings. There are no precedents of par-
                 ties being penalized for adopting such a practice. One way to avoid
                 prejudging the merits of a case is thus simply to ignore such arguments in
                 the reasoning of the order indicating provisional measures. In the
                 Ukraine v. Russian Federation case, for example, despite the detailed
                 arguments put forward by the parties on the interpretation of two inter-
                 national conventions at issue, the Court generally confined itself to the
                 wording of the relevant provisions of the conventions and reached its
                 conclusion through simple and succinct reasoning (Application of the
                 International Convention for the Suppression of the Financing of Terrorism
                 and of the International Convention on the Elimination of All Forms of
                 Racial Discrimination (Ukraine v. Russian Federation), Provisional Mea-
                 sures, Order of 19 April 2017, I.C.J. Reports 2017, pp. 131‑132,
                 paras. 74-76, and p. 135, paras. 81-83). In any event, the Parties to the
                 present case were certainly not encouraged to address the interpretation
                 of the Convention in detail.

                      B. Identity between the Request for the Indication of Provisional
                                   Measures and the Claims on the Merits
                   10. It is not only the parties’ oral arguments which must not prejudge
                 the merits of a case, the same applies to the request for the indication of
                 provisional measures itself.
                   11. In the case concerning Construction of a Road in Costa Rica along
                 the San Juan River (Nicaragua v. Costa Rica), the Court considered
                 whether the provisional measures requested “prejudge[d] the merits of the
                 case” and found that:
                      “this request is exactly the same as one of Nicaragua’s claims on the
                      merits contained at the end of its Application and Memorial in the
                      present case. A decision by the Court to order Costa Rica to provide
                      Nicaragua with such an Environmental Impact Assessment Study as
                      well as technical reports at this stage of the proceedings would there-
                      fore amount to prejudging the Court’s decision on the merits of the
                      case.” (Construction of a Road in Costa Rica along the San Juan River
                      (Nicaragua v. Costa Rica) and Certain Activities Carried Out by

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                                    application of the cerd (diss. op. cot)                 488

                         icaragua in the Border Area (Costa Rica v. Nicaragua), Provisional
                        N
                        Measures, Order of 13 December 2013, I.C.J. Reports 2013, p. 404,
                        para. 21.)
                 In other words, the Court found that, in principle, if a request for the
                 indication of provisional measures “is exactly the same as one of [the]
                 claims on the merits”, it prejudges the merits of the case and must there-
                 fore be rejected.
                    12. In this case, there appear to be a number of overlaps between the
                 claims made in the Application and the provisional measures sought by
                 Qatar (compare, for example, paragraph 65 of the Application with para-
                 graph 19 of the Request). At the same time, the terms used in the request
                 (“suspend”, “cease and desist”, “take necessary measures”, etc.) appear to
                 have been carefully chosen to suggest that the provisional measures
                 sought are temporary and without permanent effect, and a different set of
                 terms is used in the Application (“cease and revoke”, “restore”, “comply
                 with”, etc.). The question thus could have been asked whether these dif-
                 ferences in terminology were sufficient to conclude that the provisional
                 measures requested, were they to be indicated, would not prejudge the
                 merits of the case.

                                 II. The Existence of Irreparable Prejudice

                   13. In light of its jurisprudence, the Court should have found that
                 there was no imminent risk of irreparable prejudice in this case.

                      14. According to the Court’s jurisprudence,
                        “the power of the Court to indicate provisional measures will be exer-
                        cised only if there is urgency, in the sense that there is a real and
                        imminent risk that irreparable prejudice will be caused to the rights
                        in dispute before the Court gives its final decision” (see, for example,
                        Jadhav (India v. Pakistan), Provisional Measures, Order of 18 May
                        2017, I.C.J. Reports 2017, p. 243, para. 50).
                    15. Regarding the rights referred to in the Convention, the Court has
                 noted, in particular, that the political, civil, economic, social and cultural
                 rights mentioned in Article 5, paragraphs (b), (c), (d) and (e), of the
                 Convention are of such a nature that prejudice to them is capable of caus-
                 ing irreparable harm (Application of the International Convention for the
                 Suppression of the Financing of Terrorism and of the International Conven-
                 tion on the Elimination of All Forms of Racial Discrimination (Ukraine v.
                 Russian Federation), Provisional Measures, Order of 19 April 2017,
                 I.C.J. Reports 2017, p. 138, para. 96; Application of the International Con-
                 vention on the Elimination of All Forms of Racial Discrimination (Geor-
                 gia v. Russian Federation), Provisional Measures, Order of 15 October
                 2008, I.C.J. Reports 2008, p. 396, para. 142).

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                    16. On another occasion, the Court found that there was a real risk of
                 irreparable prejudice to the right in question if it were “not . . . possible
                 to restore the situation to the status quo ante” (Immunities and Criminal
                 Proceedings (Equatorial Guinea v. France), Provisional Measures, Order
                 of 7 December 2016, I.C.J. Reports 2016 (II), p. 1169, para. 90).
                    17. I am inclined to think that, even if the underlying facts were duly
                 established, the following rights in respect of which Qatar has sought pro-
                 visional measures are not of such a nature that prejudice to them is capa-
                 ble of causing irreparable harm.
                    18. As regards the right not to be subject to racial discrimination
                 (Arts. 2 and 4) and the right to freedom of opinion and expression
                 (Art. 5 (d) (viii)), the status quo ante, in which Qatari nationals residing
                 in the UAE were not the subject of hatred, and “sympathy” towards
                 Qataris was not a crime, can, at least in theory, be restored. It is also
                 noted that the Respondent contests this claim, contending that “[t]he
                 statement of the Attorney General is . . . not a law” (CR 2018/13, p. 65,
                 para. 35 (Shaw)).
                    19. Concerning the right to work (Art. 5 (e) (i)) and the right to own
                 property (Art. 5 (d) (v)), the status quo ante, in which Qatari nationals
                 residing in the UAE could work and enjoy their property, can, theoreti-
                 cally, be restored, if the measure prohibiting Qataris entry to the UAE is
                 lifted.
                    20. With respect to the right to equal treatment before tribunals
                 (Art. 5 (a)) and the right to effective protection and remedies (Art. 6),
                 while their absence may cause prejudice to other rights capable of causing
                 irreparable harm, the right of Qatari nationals in the UAE to effective
                 protection and remedies through UAE courts can, as such, theoretically
                 be restored.

                    21. However, the Court has found today that prejudice to those rights
                 before tribunals, as well as to the right to family and the right to educa-
                 tion and training, may be irreparable (paragraph 69 of the Order). I do
                 not agree with this finding; moreover, the Court’s reasoning fails to con-
                 sider whether such prejudice, even if it were irreparable, is “imminent”.

                                             III. Imminent Risk

                    22. It goes without saying that the irreparable nature of the prejudice
                 caused to these rights is not on a par with the harm caused by the execu-
                 tion of the death penalty or the performance of a nuclear test. Further-
                 more, examining the other aspect of the third condition for the indication
                 of provisional measures may lead the Court to conclude that the alleged
                 risk is not imminent.
                    23. With regard to the lives of UAE-Qatari mixed families, although
                 the long-term separation of a family may have an irreparable effect on its

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                                   application of the cerd (diss. op. cot)                 490

                 unity and integrity, that effect is unlikely to become permanent in the few
                 years before the Court renders its final decision. In other words, it can be
                 concluded that the risk of prejudice to this right, even if it were irrepara-
                 ble, is not imminent.

                    24. As regards the right to education and training, it is to be noted that
                 the Respondent has presented evidence that the Emirati authorities have
                 asked all post-secondary institutions in the UAE to monitor the situation
                 of Qatari students (CR 2018/13, p. 69, para. 51 (Shaw)). Since the UAE
                 authorities have taken measures to remedy the situation, it may be con-
                 cluded or at least presumed that, even if it existed, the risk of irreparable
                 prejudice to students is not imminent.

                    25. Lastly, regarding the right to public health and medical care
                 (Art. 5 (e) (iv)), the evidence adduced by Qatar (OHCHR Technical Mis-
                 sion Report, Annex 16 to the Application, paras. 43-44) shows that
                 patients who were forced to leave the UAE subsequently received medical
                 treatment in other countries, such as Germany, Turkey and Kuwait.
                 Although some inconvenience may have been caused to those patients,
                 this account suggests that, even if it existed, the risk of irreparable preju-
                 dice to them is not imminent.

                                       IV. The Order Is Unnecessary

                      A. The Presumption of Good Faith at the Provisional Measures Stage
                    26. I am concerned that this Order indicating provisional measures is
                 not only unnecessary but counter-productive to the settlement of the dis-
                 pute, since the Court’s conclusion on the risk of irreparable prejudice
                 runs counter to the principle of good faith in public international law.
                 This principle finds expression in Article 26 of the 1969 Vienna Conven-
                 tion on the Law of Treaties, which provides: “Every treaty in force is
                 binding upon the parties to it and must be performed by them in good
                 faith.” It is also set forth in Article 2, paragraph 2, of the Charter of the
                 United Nations, which is reflected in the declaration on friendly relations
                 between States (resolution 2625 (XXV) adopted by the General Assembly
                 on 24 October 1970).
                    27. This fundamental principle not only requires the parties to an
                 international convention to fulfil their international obligations in good
                 faith, it also requires international courts to handle with care cases in
                 which the honour of a State is at issue. In other words, the presumption
                 of good faith prevents a State’s honour from being impugned lightly. This
                 presumption, which promotes stability in international dealings and good
                 relations, is invariably important in helping to maintain and reinforce
                 States’ confidence in the judicial settlement of disputes, where referral to

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                                 application of the cerd (diss. op. cot)                 491

                 the courts rests on the consent of the parties to the dispute (Robert Kolb,
                 La bonne foi en droit international public, PUF, 2000, p. 126). It follows,
                 a fortiori, that this principle should apply, mutatis mutandis, even at the
                 provisional measures stage, when the Court must decide whether to make
                 an order promptly, prior to its final determination on jurisdiction. Even if
                 the present proceedings do not prejudge the question of the Court’s juris-
                 diction to deal with the merits of the case, or the questions on the merits
                 themselves, the separate consideration mentioned above requires the prin-
                 ciple of good faith to be applied when examining the request for the indi-
                 cation of provisional measures.

                    28. International jurisprudence on the subject shows that this principle
                 gives rise to the theory that good faith must be presumed (Interpretation
                 of Peace Treaties with Bulgaria, Hungary and Romania, Second Phase,
                 Advisory Opinion, I.C.J. Reports 1950, p. 229) and bad faith must not be
                 presumed (United Nations, Tacna-Arica Question (Chile, Peru), Award
                 of 4 March 1925, Report of International Arbitral Awards, (RIAA),
                 Vol. II, p. 930; Affaire du Lac Lanoux (Spain, France), Award of
                 16 November 1957, RIAA, Vol. XII, p. 305). In any event, one of the con-
                 sequences of this notion is that it is incumbent on the party which claims
                 that the other has violated the principle of good faith to prove that claim
                 (Certain German Interests in Polish Upper Silesia, Merits, Judgment No. 7,
                 1926, P.C.I.J., Series A, No. 7, p. 30). This rule regarding the burden of
                 proof also applies at the provisional measures stage, where it is the appli-
                 cant who must prove that there is a real and imminent risk of irreparable
                 prejudice to the rights it claims (Construction of a Road in Costa Rica
                 along the San Juan River (Nicaragua v. Costa Rica) and Certain Activities
                 Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua),
                 Provisional Measures, Order of 13 December 2013, I.C.J. Reports 2013,
                 p. 407, para. 34). The temporary nature of an order indicating provisional
                 measures should not remove this burden from the applicant.

                    29. In my opinion, the evidence presented to the Court in these pro-
                 ceedings does not demonstrate that the risk of prejudice is “imminent”,
                 even if it were irreparable. This is implicitly illustrated in paragraphs 67
                 to 71 of today’s Order, in which the Court, having concluded that the risk
                 in question is one of irreparable prejudice, fails to ascertain whether that
                 risk is “imminent”. If the principle of good faith had been duly applied at
                 this provisional measures stage, the Court would have been unable to
                 confine itself to such a conclusion. That is particularly true where the
                 UAE has shown genuine commitment towards its human rights obliga-
                 tions, as demonstrated by the arguments of its Agent (CR 2018/13,
                 pp. 10‑11, para. 3 (Alnowais); CR 2018/15, p. 42, para. 2, and p. 44,
                 para. 10 (Alnowais)) and the reply to the joint letter of the six Special
                 Rapporteurs, in which the UAE states that “[t]he United Arab Emirates

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                                  application of the cerd (diss. op. cot)                 492

                 continues to uphold those [human rights] treaties and is fully aware of its
                 obligations and commitments in this regard” (HRC/NONE/2017/112
                 (18 September 2017), p. 3; Annex 14 of Qatar’s Application). The Respon-
                 dent should have been presumed to be acting in good faith.

                                          B. The Passage of Time
                   30. In my view, when examining the urgency of this case, the Court
                 should have considered how much time would elapse between this Order
                 and the next phase of the proceedings, be it preliminary objections or
                 merits.
                   31. In the context of provisional measures proceedings, the notion of
                 urgency is defined as a situation in which “irreparable prejudice [is] caused
                 to the rights in dispute before the Court gives its final decision” (para-
                 graph 61 of the Order; emphasis added). In this regard, time is generally
                 considered as a baseline against which change can be measured in a given
                 social context or period (David M. Engel, “Law, Time and Community”,
                 Law & Society Review, Vol. 21, No. 4 (1987), pp. 606‑607). Thus, the
                 question whether a particular situation is urgent or not cannot be deter-
                 mined in the abstract; it must be considered in the light of a reasonably
                 defined time frame. In the case of provisional measures, strictly speaking,
                 the Court could not reach a decision without a fixed time frame or a sense
                 of when the next phase of the proceedings will occur.

                   32. It would, of course, be too much to expect the Court to provide a
                 precise timetable for a case at this initial stage. However, the apparent
                 nature of a case may give a prima facie indication of its complexity, which
                 would make it possible to predict how long proceedings might be expected
                 to last. For example, if the nature of a case suggested a certain degree of
                 complexity, the proceedings would be expected to last longer, and thus
                 urgency would have to be assessed in relation to this longer time frame,
                 during which social change might be more likely. On the other hand, if
                 the case file did not suggest such complexity, a final decision might be
                 expected relatively quickly, and thus urgency would have to be assessed
                 with respect to this short time frame.

                    33. I am of the opinion that this case falls into the second category
                 rather than the first, given the well-defined scope of the dispute as pre-
                 sented by the Applicant. It should also be noted that, even though Qatar’s
                 Application and Request for provisional measures came out of the blue,
                 the Respondent has presented its own view of the dispute, rather than
                 simply rejecting the Applicant’s allegations. In any event, the circum-
                 stances of the case suggest that it will not require a lengthy time frame,
                 and that, therefore, urgency should have been assessed in relation to a

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                                  application of the cerd (diss. op. cot)                 493

                 short one. Given the nature of the rights in respect of which the Court has
                 indicated provisional measures, they are less likely to be at risk of
                 irreparable prejudice in the short interval before the case reaches the next
                  phase.

                 (Signed) Jean-Pierre Cot.

                                                                                91

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INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

RIGHT OF PASSAGE OVER
INDIAN TERRITORY
(PORTUGAL v. INDIA)

ORDER OF NOVEMBER 27th, 1956

1956

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

DROIT DE PASSAGE
SUR TERRITOIRE INDIEN
(PORTUGAL c. INDE)

ORDONNANCE DU 27 NOVEMBRE 1956
This Order should be cited as follows :

“Right of passage over Indian territory,
Order of November a7th, 1956: I.C. J. Reports 1956, p. 170.”

La présente ordonnance doit être citée comme suit :

« Droit de passage sur territoire indien,
Ordonnance du 27 novembre 1956 : C. I. J. Recueil 1956, p. 170.»

‘Sales number 1 57
N° de vente:

170

COUR INTERNATIONALE DE JUSTICE

ANNÉE 1956

27 novembre 1956

DROIT DE PASSAGE
SUR TERRITOIRE INDIEN
(PORTUGAL c. INDE)

ORDONNANCE

Le Président de la Cour internationale de Justice,
vu l’article 48 du Statut de la Cour,

vu l’article 37 du Règlement de la Cour,

Rend l'ordonnance suivante :

Vu l’ordonnance du 13 mars 1956 par laquelle la Cour a fixé au
15 juin 1956 l'expiration du délai pour le dépôt du mémoire du
Gouvernement de la Répubiique du Portugal, et au 15 décembre
1956 l'expiration du délai pour le dépôt du contre-mémoire du
Gouvernement de la République de l’Inde et a réservé la suite de
la procédure ;

Considérant que le mémoire du Gouvernement du Portugal a été
déposé dans le délai ainsi fixé ;

Considérant que par lettre du 10 novembre 1956, dont copie
certifiée conforme a été transmise par le Greffier à l’agent du
Gouvernement portugais le 12 novembre 1956, l'agent du Gouver-
nement de l’Inde, après avoir réitéré l'intention de son Gouver-
nement de déposer une exception préliminaire à l’exercice de la
compétence de la Cour en cette affaire, s’est référé, parmi d’autres

4

1956
27 novembre
Rôle général
n° 32
DROIT DE PASSAGE SUR TERRITOIRE INDIEN (ORD. DU 27 XI 56) I7I

considérations, aux difficultés exceptionnelles rencontrées par son
Gouvernement dans la préparation de cette pièce de procédure et a
demandé que le délai fixé par ladite ordonnance du 13 mars 1956
soit prorogé d’une période additionnelle d’au moins six mois; |

Considérant que, par lettre datée du 26 novembre 1956, l'agent
du Gouvernement portugais, tout en maintenant que la demande
du Gouvernement de VInde n’était pas suffisamment justifiée et
que son Gouvernement ne pouvait donner son accord à ce que le
délai fixé soit prorogé pour une période substantielle, a déciaré que,
si néanmoins la prorogation pour des raisons indépendantes de la
volonté du Gouvernement de l’Inde s’imposait, le Gouvernement
du Portugal était prêt à faire confiance « à la discrétion de la Cour
pour que la prorogation soit aussi courte que le demande l'intérêt
de la justice » ;

Le Président de la Cour internationale de Justice,

Aprés en avoir conféré avec les agents des parties et tenant
compte de leurs positions respectives,

Décide
De proroger au 15 avril 1957 la date d'expiration du délai fixé

pour le dépôt du contre-mémoire ou de l'exception préliminaire du
Gouvernement de la République de l'Inde ;

Et réserve la suite de la procédure.

Fait en anglais et en français, le texte anglais faisant foi, au
Palais de la Paix, à La Haye, le vingt-sept novembre mil neuf cent
cinquante-six, en trois exemplaires, dont l’un restera déposé aux
archives de la Cour et dont les autres seront transmis respectivement

au Gouvernement de la République du Portugal et au Gouver-
nement de la République de l’Inde.

Le Président,
(Signé) GREEN H. HACKWORTEH.

Le Greffier,
(Signé) J. Lopez Onivan.