                    566

                                         SEPARATE OPINION OF JUDGE
                                             CANÇADO TRINDADE

                                                   table of contents

                                                                                Paragraphs

                         I. Introduction                                                           1-2
                     II. The Passing of Time : The Chiaroscuro of Law                              3-7
                     III. The Density of Time                                                     8-11
                     IV. The Temporal Dimension in International Law                             12-17
                         V. The Search for Timelessness                                          18-21
                     VI. From Timelessness to Timeliness                                         22-24
                    VII. The Passing of Time : The Chiaroscuro of Existence                      25-30
                    VIII. Time, Legal Interpretation, and the Nature of Legal
                          Obligation31-42
                     IX. From Time to Space : Territory and People Together                      43-63

                            1. Cambodia’s first submissions                                      47-51
                            2. Thailand’s first submissions                                      52-55
                            3. Cambodia’s second submissions                                     56-57
                            4. Thailand’s second submissions                                     58-59
                            5. General assessment                                                60-63
                     X. The Effects of Provisional Measures of Protection in the
                        Cas d’Espèce64-95
                            1. The protection of people in territory                             66-70
                            2. The prohibition of use or threat of force                         71-81
                            3. Space and time, and the protection of cultural and spiritual
                               world heritage                                                    82-95
                     XI. Provisional Measures of Protection : Beyond the Strict
                         Territorialist Approach                                                96-100
                    XII. Final Considerations, Sub Specie Aeternitatis101-117

                                                             *

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                                                 I. Introduction

                       1. I have concurred, with my vote, for the adoption today, 18 July 2011,
                    by the International Court of Justice (I.C.J.), of the present Order of pro-
                    visional measures of protection in the case of the Request for Interpreta‑
                    tion of the Judgment of 15 June 1962 in the Case concerning the Temple of
                    Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand). Given the
                    great importance that I attribute to the issues dealt with in the present
                    Order, or else underlying it, I feel obliged to leave on the records of this
                    transcendental case (as I perceive it) the foundations of my own personal
                    position on them. I do so moved by a sense of duty in the exercise of the
                    international judicial function, even more so as some of the lessons I
                    extract from the present decision of the Court are not explicitly developed
                    and stated in the present Order. This appears to be, in my view, a unique
                    case, lodged again with the Court after half a century ; it discloses, in my
                    view, a series of elements for reconsideration not only of the spatial, but
                    also the temporal dimensions, which can hardly pass unnoticed.
                       2. This being so, I shall develop my reflections that follow pursuant to
                    the following sequence : (a) the passing of time and the chiaroscuro of
                    law ; (b) the density of time ; (c) the temporal dimension in international
                    law ; (d) the search for timelessness ; (e) from timelessness to timeliness ;
                    (f) the passing of time and the chiaroscuro of existence ; (g) time, legal
                    interpretation, and the nature of legal obligation ; (h) from time to space :
                    territory and people together (in Cambodia’s and Thailand’s submis-
                    sions) ; (i) the effects of provisional measures of protection in the cas
                    d’espèce (encompassing the protection of people in territory ; the prohibi-
                    tion of use or threat of force ; and the protection of cultural and spiritual
                    world heritage) ; and (j) provisional measures of protection, beyond the
                    strict territorialist approach. The way will then be paved for the presenta-
                    tion of my final considerations, sub specie aeternitatis.

                             II. The Passing of Time : The Chiaroscuro of Law

                       3. The case of the Temple of Preah Vihear brings to the fore, now in
                    May 2011, as it did half a century ago, in 1961‑1962, the multifaceted
                    relationship between time and law, an issue which discloses the chiar‑
                    oscuro of international law as well as, ultimately, of existence itself
                    (cf. infra). One cannot assume a linear progress in the regulations of rela-
                    tions among States inter se, or among human beings inter se, or among
                    States and human beings. The present requests for provisional measures
                    and for interpretation in respect of the Judgment of this Court, of
                    15 June 1962, bear witness of the element of factual unpredictability of
                    endeavours of peaceful settlement, to guard us against any assumption as
                    to definitive progress achieved in those relations among States or among
                    human beings, or among the former and the latter.

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                        4. In a public sitting before this Court of half a century ago, precisely
                    that of the morning of 5 March 1962, in the same case of the Temple of
                    Preah Vihear, the learned jurist Paul Reuter (who happened to be one of
                    the counsel for Cambodia), pondered that the passing of time is not
                    linear, nor is it always the same either ; it contains variations. For example,
                     in his perception, “[a]t certain hours, in the splendour of the Mediterra-
                     nean, time seems to have stopped its flight and maybe things are down to
                     black and white” 1.
                        5. May I add, in this connection, that, to someone (like myself) from,
                     and in, the South Atlantic, for example, the chiaroscuro also exists, but
                     not so sharply distinguished as in the summer of the Mediterranean four
                     seasons. There, in the South Atlantic, in the two — the dry and the
                     rainy — seasons, the chiaroscuro evolves in greater grey shades. Yet, the
                     chiaroscuro falls thereupon as well. All regions of the world have their
                     own chiaroscuro, each one with its own characteristics, and the region of
                     the Temple of Preah Vihear is no exception to that. Ancient cultures, in
                     distinct parts of the world, grasped the mystery of the passing of time in
                     distinct ways, as in the never-ending succession of the chiaroscuro.

                       6. The chiaroscuro of international law itself was, coincidentally,
                    referred to in the public sitting of 1 March 1962, in the same case of the
                    Temple of Preah Vihear ; in the opening of the sitting, the then President
                    of the Court, Judge B. Winiarski, recalled that, forty years earlier, pre-
                    cisely on 15 February 1922, the former Permanent Court of International
                    Justice held its first sitting ; ever since, and throughout four decades, “the
                    element of permanency” of international justice had taken shape 2, further
                    fostered by the acceptance by States of numerous compromissory clauses,
                    and the fact that the successor ICJ became “the principal judicial organ
                    of the United Nations”, while remaining, within the framework of the
                    UN, an independent judicial organ. And he added that :

                               “The function of the Court is to state the law as it is ; it contributes
                             to its development, but in the manner of a judicial body, for instance
                             when it analyses out a rule contained by implication in another, or
                             when, having to apply a rule to a specific instance, which is always
                             individualized and with its own clear‑cut features, it gives precision
                             to the meaning of that rule, which is sometimes surrounded by (. . .)
                             the chiaroscuro of international law.” 3
                      7. There was only this brief reference to such chiaroscuro in Judge
                    Winiarski’s message in 1962 ; he did not elaborate on it, the reference was
                    sufficient. Thus, four decades of operation of international justice had not
                    removed the chiaroscuro of international law. Today, five other decades

                         1 I.C.J. Pleadings, Temple of Preah Vihear (Cambodia v. Thailand), Vol. II, p. 525.
                         2 Ibid., p. 121.
                         3 Ibid., p. 122.

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                    later, that chiaroscuro remains present, as disclosed by the case of the
                    Temple of Preah Vihear brought again before this Court. The chiaroscuro
                    of law appears enmeshed with the passing of time. This is one of the
                    aspects of the complex relationship between time and law, which, despite
                    much that has been written on it, keeps on challenging legal thinking in
                    our days.

                                                  III. The Density of Time

                      8. Turning attention to time and law, in his aforementioned plaidoirie
                    of 5 March 1962, in the case of the Temple of Preah Vihear, Paul Reuter
                    saw it fit to add :
                                “Time exercises a powerful influence over the establishment and
                             consolidation of legal situations . . . how does international law meas-
                             ure lapse of time ? It is quite clear that in international law there exists
                             no time-limit such as national bodies of law recognize . . . There are
                             those who think that this situation constitutes an imperfection of
                             international law. We do not at all think so. On the contrary, we think
                             that this uncertainty gives to international law a flexibility that enables
                             it to be adapted to the varying character of specific circumstances.” 4

                       9. Three such circumstances were identified by Reuter, namely :
                    the matters at issue, the “density” of time, and the dynamics of the rela-
                    tions between the States concerned 5. In his view, “[i]n the first place the
                    length of the time-limit depends on the matters involved. There are mat-
                    ters in regard to which security and legal acts correspond to an imperative
                    requirement of society” 6 (e.g., territorial or maritime spaces). It is, how-
                    ever, in relation to the second circumstance — the “density” of time —
                    that Reuter devoted special attention, expressing his reflections in a
                    language which disclosed a certain literary flair :
                                “In this adaptation of circumstances, this adaptation to concrete
                             circumstances of each species, a second element must be taken into
                             consideration which we would be tempted to call ‘the density’ of time.
                             The time of man is not the time of the stars. What constitutes the time
                             of men is the density of real events or of potential events which might
                             have taken place. And what makes up the density of human time
                             assessed on the legal level is the density, the multitude of legal acts
                             which did find or might have found room within that period.
                                In the life of nations, just like in the life of individuals, there are
                             light years, happy years, when nothing happens and nothing can hap-

                         4 I.C.J. Pleadings, Temple of Preah Vihear (Cambodia v. Thailand), Vol. II, p. 203.
                         5 Cf. ibid., pp. 203‑204.
                         6 Ibid., p. 203.

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                             pen. However, there are also heavy years, years full of substance. If
                             we apply these considerations to the circumstances of this case we see
                             that there might be light years : 1908-1925 ; but also heavy years : 1925,
                             1934-1935, 1937, 1939-1940, 1946, 1949 and we would consider there-
                             fore that this period is particularly dense.” 7

                      10. But as time does not cease to pass, and keeps on flowing, one could
                    now add, half a century later, as subsequent years of particular “density”,
                    in respect of the present case of the Temple of Preah Vihear, those of
                    1961‑1962, 2000, 2007‑2008 and 2011. This can be confirmed by an exam-
                    ination of the dossier of the cas d’espèce and of the records of the recent
                    public sittings before this Court, of 30‑31 May 2011 (concerning the Joint
                    Communiqué between Cambodia and Thailand of 14 June 2000 regarding
                    the demarcation of their land boundary, and, particularly — for the pur-
                    poses of the present provisional measures of the ICJ —, the events which
                    preceded and promptly followed the inscription of the Temple of Preah
                    Vihear in UNESCO’s World Heritage List on 7 July 2008 — cf. infra). The
                    temporal dimension, in the present case of the Temple of Preah Vihear, can
                    be examined, in my understanding, from distinct angles.
                      11. In 1998, in the adjudication of the case Blake v. Guatemala by the
                    Inter‑American Court of Human Rights (IACtHR — merits, judgment of
                    24 January 1998), I deemed it fit to retake Reuter’s point and to seek
                    to develop it further. I pondered therein, inter alia, that :
                                “The time of human beings certainly is not the time of the stars, in
                             more than one sense. The time of the stars — I would venture to add
                             — besides being an unfathomable mystery which has always accom-
                             panied human existence from the beginning until its end, is indifferent
                             to legal solutions devised by the human mind ; and the time of human
                             beings, applied to their legal solutions as an element which integrates
                             them, not seldom leads to situations which defy their own legal logic
                             (. . .). One specific aspect, however, appears to suggest a sole point of
                             contact, or common denominator, between them : the time of the stars
                             is inexorable ; the time of human beings, albeit only conventional, is,
                             like that of the stars, implacable.” (Para. 6.)

                                 IV. The Temporal Dimension in International Law

                       12. The temporal dimension marks presence in the domain of humani-
                    ties 8 in general, and of law in particular. The awareness of time, of the

                         7I.C.J. Pleadings, Temple of Preah Vihear (Cambodia v. Thailand), Vol. II, p. 203.
                         8It has for centuries attracted the attention of philosophers and thinkers (such as, inter
                    alia, Plato, Aristotle, Seneca, Saint Augustine, Plotino, Descartes, Pascal, Kant, Proust,
                    Spinoza, Newton, Husserl, Bergson, Ricœur, among others) ; it has, moreover, been present

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                    temporal dimension, is essential to the labour not only of those who seek
                    to secure the evolution of law, but also to those concerned with ascribing
                    to this latter foreseeability and juridical security. One is to be aware of the
                    influence of the passage of time in the continuation of the rules of inter
                    national law 9, as well as in the evolution of the rules of international law :
                    this is not a phenomenon external to law.
                       13. The temporal dimension is clearly inherent to the conception of the
                    “progressive development” of international law. By the same token, the
                    conscious search for new juridical solutions is to presuppose the solid
                    knowledge of solutions of the past and of the evolution of the applicable
                    law as an open and dynamic system, capable of responding to the chang-
                    ing needs of regulation 10. In effect, the temporal dimension underlies the
                    whole domain of law in general, and of public international law in par-
                    ticular 11.
                       14. Time is inherent to law, to its interpretation and application, and
                    to all the situations and human relations regulated by it. One of the
                    ineluctable pitfalls of legal positivism (still very popular in the legal pro-
                    fession in our days) lies in its vain attempt to conceive law in general, and
                    international law in particular, independently of time. Legal positivism
                    and political “realism”, with their static vision of the world, focused on
                    the legal order or the “reality” of a given moment, have, not surprisingly,
                    been invariably subservient to the established order, to the relations of
                    domination and power. Neither the positivists, nor the “realists”, have
                    shown themselves capable of anticipating and understanding — and have
                    difficulties to accept — the profound transformations of contemporary
                    international law in the unending search for the realization of the impera-
                    tives of justice.
                       15. Startled by the changes occurred in the world, they have had to
                    move or jump from one historical moment to another, entirely distinct,
                    seeking to readjust themselves to the new empirical “reality”, and then

                    in modern historiography, as disclosed by the writings on the matter of, e.g., Fernand
                    Braudel (Ecrits sur l’histoire, 1969), G. J. Whitrow (Time in History, 1988), Norbert Elias
                    (Über die Zeit, 1984), among others.
                        9 Cf. K. Doehring, “Die Wirkung des Zeitablaufs auf den Bestand völkerrechtlicher

                    Regeln”, Jahrbuch 1964 der Max-Planck-Gesellschaft, Heidelberg, 1964, pp. 70‑89.
                        10 A. A. Cançado Trindade, “Reflections on International Law-Making : Customary

                    International Law and the Reconstruction of Jus Gentium”, International Law and Deve‑
                    lopment/Le droit international et le développement (Proceedings of the 1986 Conference of
                    the Canadian Council on International Law/Travaux du Congrès de 1986 du Conseil cana-
                    dien de droit international), Ottawa, 1986, pp. 78‑81, and cf. pp. 63‑81.
                        11 As to this latter, illustrations can be found in the work on the so-called “intertem-

                    poral law”, in the Sessions of Rome (1973) and Wiesbaden (1975) of the Institut de droit
                    international. Cf., in particular, 55 Annuaire de l’Institut de droit international (AIDI)
                    (1973), pp. 27, 33, 35-37, 48, 50, 86, 106 and 114-115 ; and 56 AIDI (1975), pp. 536‑541. The
                    debates and work of the Institut disclosed an ambivalence, antinomy or tension between
                    the forces in favour of the evolution or transformation of the legal order and those in
                    favour of the stability or legal security — and this was to be reflected in the cautious reso-
                    lution adopted by the Institut in Wiesbaden in 1975.

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                    trying to apply again to this latter the static scheme which they are men-
                    tally used to, once again projecting their illusion, of permanence and
                    “inevitability”, into the future, and, at times — almost in desperation —
                    also into the past. Their basic error has been their minimization of the
                    principles, as well as of the temporal dimension of social facts. They can
                    only behold interests and advantages, and do not seem to believe in
                    human reason, in the recta ratio 12, nor in the human capacity to extract
                    lessons from the historical experience.

                       16. Time marks a noticeable presence in the whole domain of inter
                    national procedural law. As to substantive law, the temporal dimension
                    permeates virtually all domains of public international law, such as — to
                    evoke a few examples — the law of treaties (regulation pro futuro), peace-
                    ful settlement of international disputes (settlement pro futuro), State suc-
                    cession, the international law of human rights (the notion of potential
                    victims), international environmental law (the preventive dimension),
                    among others. In the field of regulation of spaces (e.g., law of the sea, law
                    of outer space), the temporal dimension stands out likewise. There is
                    nowadays greater awareness of the need to fulfill the interests of present
                    and future generations (with a handful of multilateral conventions in
                    force providing for that).

                       17. Evolving international law, attentive to secure an element of pre-
                    visibility in the conduction and regulation of the social relations subjected
                    thereto, is itself permeated by the major enigma which permeates the exis-
                    tence of all subjects of law : the passage of time. If one seeks for answers
                    to that enigma, I am afraid we can hardly find them in the domain of law,
                    or elsewhere. Instead, some consolation for the lack of answers to that
                    overwhelming enigma can perhaps be found in the domains of philoso-
                    phy or theology.

                                            V. The Search for Timelessness

                      18. The present case is, by the way, centred on the Temple of Preah
                    Vihear, which appears to resist the onslaught of time and to be endowed
                    with a touch of timelessness. The Temple of Preah Vihear, a monument of
                    Khmer art, dates back to the first half of the eleventh century, and is
                    located on a high promontory of the range of the Dangrek mountains (one
                    of religious significance, by the border between Cambodia and Thailand).
                    The Temple of Preah Vihear is composed of a series of sanctuaries linked

                       12 The recta ratio was well captured and conceptualized, throughout the centuries, by

                    Plato, Aristotle, Cicero, and Thomas Aquinas, and, subsequently, situating it in the foun-
                    dations of jus gentium itself, by Vitoria, Suárez and Grotius.

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                    by a system of pavements and staircases over an axis 800 metres long, ris-
                    ing up the mountain, and standing on the edge of a cliff 547 metres high.
                       19. This millénaire masterpiece of Khmer art and architecture was
                    erected and used for religious purposes. It was dedicated to Shiva (one of
                    the Hindu divine triad of Vishnu, Shiva and Brahma — cf. infra). It was
                    intended to stand for time immemorial, to bring together the faithful of
                    the region, to fulfill their spiritual needs. Temples and shrines, giving
                    expression to different religious faiths, have been erected in times past in
                    distinct localities in all continents, in search of timelessness, to render
                    eternal the human faith, carved in stone to that end.
                       20. Writing in 1912, Max Scheler deemed it fit to point out that the
                    construction of temples, monasteries, cathedrals, shrines of the more dis-
                    tant past, engaged generations of people who built them, within their
                    communities that were to survive them, thus giving them the feeling of
                    being inserted, in peace with themselves, into eternity, in the continuity of
                    human generations 13. Writing twelve years later, in 1924, Stefan Zweig
                    regretted that, in the modern world, human beings no longer erect such
                    temples or monuments, in an epoch of fast communications and precipi-
                    tated action, when they pursue objectives which appear usually quite
                    close. Ours is an epoch which has lost the idea of a durable image ; no
                    one, or no generation, would spend nowadays their whole life building a
                    shrine, a temple or a cathedral. Our modern world “counts the hours with
                    different measures, and life goes by with distinct velocities”. We have

                              “forgotten the art of expressing our essence in durable stones for the
                              years which do not finish. (. . .) We are quite aware to have lost the
                              aptitude for the infinite, (. . .) the aptitude to give shape so powerfully
                              in one work (obra) to the spirit of a whole people, to the genius of
                              an epoch.” 14
                    Hence the importance of preservation of such sanctuaries or temples 15, as
                    cultural and spiritual heritage of humankind (cf. infra).
                       21. Being itself the concrete expression of human inspiration, the Tem-
                    ple of Preah Vihear seems now faced with the threat of human resentment
                    (cf. infra). Recent developments (2007‑2011) in the region of that part by
                    the border between Cambodia and Thailand suggest that the times of
                    human beings remain troubled and unpredictable, to a far greater extent
                    than the times of stars. The shrines of the Temple of Preah Vihear appear
                    now surrounded by tension, hostilities and conflict, proper of the human
                    condition.
                         13
                         M. Scheler, L’homme du ressentiment, op. cit. infra note 69, p. 41.
                         14
                         S. Zweig, Tiempo y Mundo — Impresiones y Ensayos (1904-1940), Barcelona, Edit.
                    Juventud, 1998, pp. 147‑148 [my translation].
                        15 It has been pointed out that, in their art, there is “une jonction miraculeuse entre

                    le temporel et l’intemporel” ; G. Duby, Le temps des cathédrales — L’art et la société,
                    980-1420, Paris, Gallimard, 1979, p. 117.

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                                         VI. From Timelessness to Timeliness

                       22. What was meant to be a monument endowed with timelessness, is
                    now again the object of contention before this Court, raising before it,
                    inter alia, the issue of timeliness. The case of the Temple of Preah Vihear
                    is now, half a century after its adjudication by the Court on 15 June 1962,
                    brought again to the attention of the Court, by means of two requests
                    from Cambodia, one for interpretation of the 1962 Judgment, and the
                    other for provisional measures of protection.
                       23. In the first request, for interpretation, Cambodia draws attention to
                    its timeliness. In the public sitting of 30 May 2011 before the Court,
                    though conceding that the prolonged lapse of time, of half a century, since
                    the Court’s Judgment of 15 June 1962, render “certain aspects” of the
                    present case “unusual”, it pointed out that Article 60 of the Court’s Stat-
                    ute (that it invoked as basis of jurisdiction of the Court in the cas d’espèce)
                    contains no time‑limit for such a request for interpretation. In its view,
                    “the right to seek the assistance of the Court to resolve a dispute of that
                    kind is not subjected to any time‑limit by Article 60 of the Statute” 16.
                       In sustaining the timeliness of its request for interpretation, Cambodia
                    referred to paragraphs 29‑35 of the request itself, lodged with the Court
                    on 20 April 2011, wherein it referred to tensions, hostilities and incidents
                    occurred in the area of the Temple of Preah Vihear in 2008, 2009 and
                    2011 (paras. 33‑35) ; Cambodia also invoked, in its request, Article 2 (3)
                    and Chapter VI of the UN Charter (para. 32).

                      24. Thailand, in turn, in the public sitting of 30 May 2011 before the
                    Court, stressed the consequence it beheld, of the passing of so much time,
                    for the Cambodian requests recently lodged with the Court. While con-
                    ceding that there is no time-limit in Article 60 of the Statute, it argued
                    that
                         “an interpretation goes back to the text of the Judgment ; whereas a
                         request for provisional measures relates to the future conduct of nor-
                         mally both parties. There is a tension between the two, which becomes
                         ever more acute as time passes.” 17

                    It added that the character of the Court’s “interpretation jurisdiction is
                    such that provisional measures will only be available in special cases,
                    especially when a lengthy period has elapsed since the first judgment” 18.
                    The fact that both Thailand and Cambodia — or, more precisely, those
                    who have served as counsel for one and the other, in the recent public
                    sittings before this Court — have felt compelled to address, each one in

                      16 ICJ, Compte rendu (CR) CR 2011/13, of 30 May 2011, p. 31. And, to the same effect,

                    CR 2011/15, of 31 May 2011, pp. 23‑24.
                      17 CR 2011/16, of 31 May 2011, p. 18.
                      18 Ibid., p. 20. And, to the same effect, CR 2011/14, of 30 May 2011, pp. 32‑33 and 26.

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                    its own way, the issue of timeliness in the circumstances of the cas
                    d’espèce, seemingly startled by it, renders the present case of the Temple
                    of Preah Vihear, in my view, indeed fascinating. It shows the human face
                    of an inter‑State case before the World Court.

                               VII. The Passing of Time : The Chiaroscuro of Existence

                       25. In effect, the present case of the Temple of Preah Vihear appears to
                    contain some lessons, not so easy to grasp. As already pointed out, it
                    enshrines the chiaroscuro not only of law (cf. supra), but also of existence
                    itself. It suggests that we, mortals, still have to learn to live within bound-
                    aries in space and in time, so as to live in peace (mainly of mind). As to
                    space, those boundaries which bring countries and their peoples together,
                    rather than separate them. As to time, those which link day and night,
                    light and darkness, life and after‑life. As I have already indicated, all cul-
                    tures, including the ancient ones, in distinct latitudes, grasped the mystery
                    of the passing of time, each one in its own way.

                       26. As I pondered in my separate opinion in the case of Bámaca
                    Velásquez v. Guatemala, resolved by the IACtHR (judgment on repara-
                    tions, of 22 February 2002) :
                                 “Time keeps on being a great mystery surrounding human exist-
                              ence. Human knowledge of the extreme frontiers of life (birth and
                              death) continues to be limited, and such frontiers have become ‘more
                              mobile’ as a consequence of the cultural changes and the technologi-
                              cal development, what attributes an even greater responsibility to the
                              jurists, who ought to be attentive to the ethical codes and to the cul-
                              tural manifestations in evolution. (. . .) The very conscience of time
                              is ‘a very late product of human civilization’ (. . .). Despite all that
                              has been written on the subject, the very origin of the cultures still
                              continues without an answer 19; and time and space, which they seek
                              to explain, appear ultimately as mental creations of the social con-
                              science, which allow to conceive a unified and coherent cosmos 20. Of
                              the essence of cultural life are ‘the perception and the awareness of
                              time’, which, in turn, constitute component elements of ‘the solidarity
                              of human generations which succeeded each other and return, repeat-
                              ing each other as the stations’ 21. Time was even considered as in the
                              Confessions of Saint Augustine — as an essential aspect of the spiritual

                         19
                          E. Cassirer, Essai sur l’homme, Paris, Ed. de Minuit, 1975, p. 47, and cf. p. 243.
                         20
                          A. Y. Gurevitch, “El Tiempo como Problema de Historia Cultural”, Las Culturas
                    y el Tiempo, Salamanca/Paris, Ed. Sígueme/UNESCO, 1979, pp. 260‑261. In this way,
                    “converted into ruler of time”, the human being “is also dominated by it” (ibid., p. 261).
                       21 Ibid., pp. 280 and 264, and cf. p. 272.

                    42

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                    576 	 request for interpretation (sep. op. cançado trindade)

                         life of the individuals and groups, as an integral part of the social
                         conscience itself.” 22 (Paras. 4‑5.)

                       27. In fact, there is no social milieu wherein collective representations
                    pertaining to its origin and to its destiny are not found. There is a spiri-
                    tual legacy which is transmitted, with the passing of time, from genera-
                    tion to generation, conforming a “perfect spiritual continuity among
                    generations” ; hence the relevance of the conscience of living in time, and
                    of the burial rites 23. Just as the living experience of a human community
                    develops with the continuous flux of thought and action of the individu-
                    als who compose it, there is likewise a spiritual dimension which is trans-
                    mitted from an individual to another, from a generation to another,
                    which precedes each human being and survives him, in time. The passing
                    of time, a source of desperation to some, in fact brings the living ineluc-
                    tably closer to their dead, and binds them together, and the preservation
                    of the spiritual legacy of our predecessors constitutes a means whereby
                    they can themselves communicate with the living, and vice‑versa.
                       28. The living perceive time in distinct ways. Chronological time is not
                    the same as biological time. In a life‑time, time seems different for each
                    age. Children seem to live in the moment, adults their day‑to‑day life, and
                    the elderly their epoch or personal history. Biological time is not the same
                    as psychological time. Time gives human beings, at first, innocence, grad-
                    ually replaced, later, with the passing of years, by growing experience.
                    The time of human beings nourishes them, first, with hope, and, later,
                    with memory. The time of human beings is indeed implacable.
                       29. Time links the beginning and the end of human existence, rather than
                    separates them. Time impregnates human existence of memory, and enables
                    the search for the meaning of each moment of existence. Time appears to
                    invite the cultivation of the study of history, and shows the ephemerous in
                    the search for supremacy and glory. It is arguable whether life-time can be
                    invoked as an adequate measure to approach a legal situation extending in
                    time, and even less so to approach the nature of a legal obligation.
                       30. As to the relationship between the passing of time and human exis-
                    tence, in a couple of his many and célèbres Letters to Lucilius 24 (124 in

                       22 Few persons, like Saint Augustine, felt with such intensity the inscrutable mystery of

                    time. In the insurmountable pages on the matter, of Book XI of his Confessions (written
                    between the years 398 to 400), to the question “what is time ? ”, he answered : “if no one
                    asks me, I know it ; but if I want to explain it to whoever asks me, then I do not know it”
                    (para. 17). And he added, as to the “three times” (or “three moments in the spirit”, namely,
                    “expectation, attention and remembrance” — para. 37) : the three times — past, present
                    and future — “are in the mind and I do not see them elsewhere. The present of the past is
                    memory. The present of the present is the vision. The present of the future is the expecta-
                    tion” (para. 26).
                       23 E. Durkheim, Las Formas Elementales de la Vida Religiosa, Madrid, Alianza Ed.,

                    1993 (reed.), pp. 393, 419, 436, 443 and 686.
                       24 In particular, his Letters, Nos. XII, LXXVIII, CII and CXXII.

                    43

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                    577 	 request for interpretation (sep. op. cançado trindade)

                    number), Seneca warns us, in his wise stoicism, that just as we have time,
                    time has us : in our brief life-time, a few of us try to gather knowledge,
                    while the majority tries to accumulate possessions, goods and wealth ; yet,
                    the passing of time dispossesses us of everything — Seneca lucidly con-
                    cludes — and we leave this world as helpless as we entered it. Life-time is
                    shorter than many continuing legal obligations.

                                             VIII. Time, Legal Interpretation,
                                           and the Nature of Legal Obligation

                       31. This is an appropriate moment to turn attention to time, legal
                    interpretation and the nature of legal obligation. In this connection, in
                    the course of the proceedings before the Court concerning the request for
                    provisional measures of protection in the present case of the Temple of
                    Preah Vihear, Thailand, at a given moment of its pleadings of 30 May
                    2011, argued that :
                                 “Even in the long history of the law of nations, 50 years is a con-
                              siderable time. The last two judges who participated in the Temple
                              case died in 1989 — Judge Morelli on his 89th birthday, Judge
                              Bustamante just after his 94th. Yet Cambodia would have the Court
                              speak in a continuous present, prescribing the withdrawal of forces
                              whose members were not born at the time, enjoining activities which,
                              if they have occurred at all, began long after the time.” 25

                      32. Even taking a life-time as a measure to approach a legal situation
                    which appears to subsist in time, are 50 years really a considerable time ?
                    In my perception, a lapse of 50 years may be seen from different angles.
                    For a very young person, in the dawn of life-time, looking forward in
                    time, 50 years may appear far too long a time. For an elderly person,
                    approaching the twilight of life-time, looking back in time, 50 years may
                    appear to have passed by very fast, to have been not so long at all. The
                    impression I can hardly escape from, is that mere chronological time does
                    not assist us much : it seems to conceal more than what it discloses.

                       33. In the long history of the law of nations, 50 years may appear a long,
                    or not so long a time, depending on how we see them, and on what period
                    of that history we have in mind. All will depend on the density of time
                    (cf. supra) of the period at issue — whether at that period much has hap-
                    pened, or nothing significant has taken place at all. In any case, the work
                         25   CR 2011/14, of 30 May 2011, p. 33.

                    44

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                    578 	 request for interpretation (sep. op. cançado trindade)

                    undertaken in the Court by the generation of Judges Morelli and Busta-
                    mante is linked to the work being undertaken in the Court by the present
                    generation of its Judges. Ours is a common mission, prolonged in time. The
                    present Order of provisional measures of protection, which the Court is
                    adopting today, 18 July 2011, half a century after its Judgment of
                    15 June 1962, in the case of the Temple of Preah Vihear, bears witness of this.
                       34. One cannot lose sight of the fact that time and space do not form
                    part of the empirical or real world, but are rather part of our “mental
                    constitution”, of our apparatus “to grasp the world” 26, to examine and
                    understand events that have occurred or occur and mark our lives. The
                    perception of time was gradually devised by human beings to help them,
                    at first, to overcome “the briefness and the unicity” of their lives ; with
                    that, living in their social environment, human beings imagined they
                    could in a way “deceive death” itself 27. Cultures seek to explain time and
                    space, each one in its own way. It is widely reckoned today that cultures,
                    in their diversity, also assist human beings to relate themselves with the
                    outside world, to strive to understand it.
                       35. In so far as human knowledge is concerned, there are no final
                    answers on law, nor on humanities, nor even on science. Law is not
                    self‑sufficient, as legal positivists, in their characteristic arrogance (symp-
                    tomatic of short‑sightedness), seem to assume. In my understanding, law
                    has much to learn from other branches of human knowledge, and
                    vice‑versa. The limitations of human knowledge recommend a certain
                    modesty as to what we do. As to law, there is a continuing quest for the
                    realization of justice.

                       36. I have already drawn attention to the fact that both Thailand and
                    Cambodia, in the course of the very recent proceedings before the Court in
                    the case of the Temple of Preah Vihear, have shown their preoccupation with
                    how to approach properly, each one in its own way, the issue of timeliness
                    in the circumstances of the cas d’espèce (cf. supra). Underlying their concerns
                    are, first, the distinct theses they uphold of legal interpretation itself, and
                    secondly, the distinct theses that Cambodia and Thailand uphold of the exis-
                    tence of a continuing, or else an instantaneous obligation, respectively.
                       37. As to the first point, concerning legal interpretation, it should not
                    pass unnoticed that both Cambodia 28 and Thailand 29 evoked, in distinct
                    ways, obiter dicta of the Judgment No. 11 (of 16 December 1927) of the
                    old Permanent Court of International Justice (PCIJ) in the case of the
                    Factory at Chorzów — Interpretation of Judgments Nos. 7 and 8, in order
                    to seek to substantiate their submissions on the matter. In fact, with

                         26
                          K. Popper, En Busca de un Mundo Mejor, Barcelona, Ed. Paidós, 1996, pp. 171‑173.
                         27
                          A. Y. Gurevitch, “El Tiempo como Problema de Historia Cultural”, op. cit. supra
                    note 20, p. 263.
                       28 CR 2011/13, of 30 May 2011, pp. 29, 34 and 36 ; CR 2011/15, of 31 May 2011, pp. 15,

                    22 and 24‑25.
                       29 CR 2011/14, of 30 May 2011, pp. 22‑24 and 38-40.

                    45

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                    579 	 request for interpretation (sep. op. cançado trindade)

                    regard to legal interpretation, in my view some precision is here called
                    for, which I deem it fit to dwell upon in the present separate opinion. In
                    an application for revision of a judgment (which is not the case here), the
                    facts to take into account are only those set forth in the original applica-
                    tion, which formed the object of the corresponding judgment. There
                    could not be new or additional facts, which would fall outside the scope
                    of revision, and would call for a new application, a new case, if the appli-
                    cant State would wish to submit to the Court.
                        38. This is not the situation in an application for interpretation of a
                    judgment. In so far as interpretation is concerned, in my understanding,
                    one cannot make abstraction of subsequent facts, which gave rise to the
                    different views advanced by the contending parties. Even more so when
                    both parties rely upon, or refer to, such new or subsequent facts, in their
                    submissions to the Court, as they have done in this case of the Temple of
                    Preah Vihear. The Court can take such new facts into account, in order
                    to perform faithfully its judicial function and its duty to decide on the
                    request for interpretation lodged with it.
                        39. We have not yet reached this stage. We are presently taking cogni-
                    zance of provisional measures of protection. In this respect, the consider-
                    ations I have just made apply even more forcefully, in face of a situation
                    which appears to be endowed with the prerequisites of urgency and
                    gravity, an imminence of irreparable harm (cf. infra). I shall turn to this
                     point later ; for the moment, suffice it to point out that, in a request for
                     provisional measures of protection like the present one, the Court cannot
                     simply decline to answer the points raised before it.
                        40. As to the second point, concerning the nature of legal obligation, in
                     its request for interpretation, of 20 April 2011, Cambodia saw it fit to
                     refer to a “permanent situation” and an obligation endowed with a “carac-
                     tère de permanence” (para. 37), and explained :
                                “The obligation incumbent upon Thailand to ‘withdraw any mili-
                              tary or police forces, or other guards or keepers, stationed by her at
                              the Temple, or in its vicinity on Cambodian territory’ (second para-
                              graph of the operative clause) is a particular consequence of the gen-
                              eral and continuing obligation to respect the integrity of the territory
                              of Cambodia (. . .).” (Application instituting proceedings, p. 37,
                              para. 45.)
                       41. The point was retaken by both Parties in their respective pleadings
                    before the Court, of 30‑31 May 2011, concerning the Application for pro-
                    visional measures of 28 April 2011. In its submissions of 30 May 2011,
                    Thailand retorted that the applicant State was attempting to transform
                    into a “continuing obligation” what was “an immediate and instantaneous
                    obligation” deriving from paragraph 2 of the dispositif of the Court’s
                    Judgment of 1962 in the present case of the Temple of Preah Vihear 30.

                         30   CR 2011/14, of 30 May 2011, p. 25.

                    46

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                    580 	 request for interpretation (sep. op. cançado trindade)

                       42. On the following day (public sitting of 31 May 2011), Cambodia
                    replied that the obligation at issue was not “immediate and instanta-
                    neous”, but rather “continuous and permanent”, because it was “the conse-
                    quence of the fact that a State should not violate the territorial sovereignty
                    of another State”. To regard that obligation as “instantaneous” — Cam-
                    bodia concluded, convincingly in my view — would allow the respondent
                    State “to withdraw its troops the day after the Judgment and move them
                    back in again a week later” 31. In the domain of inter‑State relations, when
                    the fundamental principle of the prohibition of use or threat of force
                    (cf. infra) is at stake, the corresponding obligation is, in my understanding,
                    a continuing or permanent one, for the States concerned.

                                                IX. From Time to Space :
                                             Territory and People Together

                       43. It is time now to move from my considerations on time and law to
                    those pertaining to space and law. I can hardly develop my considerations
                    on space without relating it to the human element of statehood : the
                    population. In their recent submissions before the Court in the case of
                     the Temple of Preah Vihear, the contending Parties themselves, Cambodia
                     and Thailand, much to their credit, were attentive to territory together
                     with people. In the public sitting of 30 May 2011, Cambodia expressed its
                     concern with the fatal victims of, and those injured in, the armed hostili-
                    ties of 15 July 2008, 4 to 7 February 2011 32, as well as with the “50 000 per-
                    sonnes de la population civile de la région”, encompassing the “zone” of
                    the Temple of Preah Vihear, as well as the zones of the Temples of Ta
                    Moan and Ta Krabei, as a result of the hostilities of 22 April 2011 33. For
                    its part, Thailand, in its pleadings on the same day, conceded that “[d]es
                    dizaines de milliers d’habitants de la région frontière ont été déplacés” 34.

                      44. In its final submissions to the Court, in the public sitting of
                    31 May 2011, Cambodia stated :
                                 “The rights which Cambodia is seeking to protect do indeed relate
                              to the area of the Temple and to the cultural and spiritual heritage
                              which the Temple represents, as well as the prejudice which Cambodia
                              might suffer through the infringements of its sovereignty and territo-
                              rial integrity and the threat to the lives of its population.” 35
                      45. Thailand, for its part, in its final submissions of the same day,
                    argued that “events at the Ta Kwai and Ta Muen Temples are of no

                         31 CR 2011/15, of 31 May 2011, p. 18.
                         32 CR 2011/13, of 30 May 2011, p. 20, and cf. pp. 44‑45.
                         33 Cf. ibid., p. 22, and cf. p. 46.
                         34 CR 2011/14, of 30 May 2011, p. 16, and cf. p. 51.
                         35 CR 2011/15, of 31 May 2011, p. 15 [translation].

                    47

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                    581 	 request for interpretation (sep. op. cançado trindade)

                    relevance to the present proceedings”, and that there was “no risk of
                     aggravation of the dispute due to Thailand’s behaviour”. It added that :

                                 “The picture is that of two neighbouring countries sharing a com-
                              mon border approximately 800 kilometres long where people engage
                              in peaceful activities every day throughout the year. This is the fact
                              between peoples of Thailand and Cambodia — the fact that has not
                              and will not change.” 36

                       46. In sum, neither of the contending Parties focused on territory only ;
                    both of them took duly into account the fate of the local population. This
                    having been so, at the end of the public sitting of the Court of 31 May 2011,
                    I deemed it fit to put the following questions to both Parties :

                                 “Dans la demande en indication de mesures conservatoires objet
                              de la présente procédure, il est notamment indiqué que les incidents
                              qui se sont produits depuis le 22 avril 2011 dans ‘la zone du temple
                              de Préah Vihéar’ ainsi qu’en d’autres lieux situés le long de la frontière
                              entre les deux Etats parties au différend ont provoqué des ‘morts,
                              blessés et évacuations de populations’.
                                 Les Parties peuvent-elles donner à la Cour de plus amples informa-
                              tions concernant le déplacement de ces populations ? Combien
                              d’habitants ont été déplacés ? Ceux-ci ont-ils pu retourner en toute
                              sécurité et volontairement dans leurs foyers ? Où dans la région
                              sont-ils installés ? Y sont‑ils installés depuis longtemps ? Quel est
                              leur mode de vie ? Quelle est la densité de population dans la
                              région ?
                                 Pour préserver l’équilibre linguistique de la Cour, je me permets de
                              poser la même question aux Parties en anglais.

                                 In the present request for the indication of provisional measures by
                              the Court, it is stated, inter alia, that, as a result of the incidents
                              occurred since 22 April 2011 in ‘the area of the Temple of Preah
                              Vihear’, as well as at other places along the boundary between the
                              two contending States, ‘fatalities, injuries and the displacement of
                              local inhabitants’ were caused.
                                 What further information can be provided by the Parties to the
                              Court about such displaced local inhabitants ? How many inhabitants
                              were displaced ? Have they safely and voluntarily returned to their
                              homes ? Whereabouts do they live in the region ? Have they been set-
                              tled there for a long time ? What is their modus vivendi ? What is the
                              population density of the region ?” 37

                         36   CR 2011/16, of 31 May 2011, pp. 26 and 28‑29.
                         37   Ibid., p. 32.

                    48

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                    582 	 request for interpretation (sep. op. cançado trindade)

                                            1. Cambodia’s First Submissions
                      47. On 6 June 2011, Cambodia responded to my questions, including
                    seven annexes 38 to its response 39. At the beginning of its response, Cambo-
                    dia explained that it understood my questions as referring to the displace-
                    ment of the local population from, on the one hand, the area of the
                    Temple of Preah Vihear, and, on the other hand, from other places along
                    the border between the two States. Cambodia submitted that, since that
                    there are no inhabitants living in the Temple itself, Cambodia understood
                    the expression the “area of the Temple”, from my questions, as the area
                    indicated on map 5 attached to Cambodia’s request for interpretation
                    (and projected by Cambodia during the public hearing before the Court).
                      48. Cambodia further submitted that “the consequences of the inci-
                    dents in this area have affected the villages or dwellings in the immediate
                    proximity” 40 of the said area. It is further reiterated that, although the inci-
                    dents are interconnected, Cambodia was only requesting the indication of
                    provisional measures in the area of the Temple itself. Cambodia also
                    explained that its response to my questions was limited to the most recent
                    events, even though some of the displacements of the local inhabitants
                    were sometimes “the result of incidents that took place before
                    22 April 2011” and that the “consequences of such displacements have been
                    prolonged beyond 22 April”. Cambodia submitted that the information
                    provided in its response covered the period of 22 April to 5 May 2011.
                      49. Cambodia further submitted that, during that period, more than
                    50,000 persons were placed in provisional camps and 10,000 inhabitants
                    were sheltered by their close entourage and friends in secured areas. Cam-
                    bodia asserted that, during these “armed aggressions”, the Cambodian
                    Red Cross provided food supply and assisted in the reconstruction of
                    their dwellings ; and that donations from various institutions and private
                    persons also provided assistance to the population.

                      50. As to the area of the Temple of Preah Vihear precisely, Cambodia
                    responded that a total of 9,412 persons were displaced from three villages
                    in the proximity 41 of the area of the Temple. Cambodia added that the
                    inhabitants returned to their homes on 5 May 2011 and that the camps
                    were closed also on 5 May 2011. Yet, it further contended, the local
                    inhabitants who worked in the market at close proximity to the Temple
                    were not able to resume their activities because the market “was destroyed

                       38 The seven annexes consist of photos of the Province of Ouddor Meanchey (between

                    22 April and 3 May 2011) referred to in Cambodia’s response, as well as a map of the area
                    of the Temple of Preah Vihear.
                       39 Réponse du Royaume du Cambodge à la question posée aux Parties par M. le juge

                    Cançado Trindade, of 7 June 2011, pp. 1‑12.
                       40 In the original French text : “les conséquences des incidents dans cette zone ont

                    touché des village [sic] ou habitations à proximité immédiate de cette zone”.
                       41 Cambodia referred in this regard to the map attached to its response (Annex 7).

                    49

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                    583 	 request for interpretation (sep. op. cançado trindade)

                    by the combats” 42. Cambodia contended, moreover, that 80 per cent of
                    the local population practises agriculture for a living, and that the popu-
                    lation density of the region is about 50 persons/km2.
                       51. As to other areas in the region, Cambodia submitted that, in the
                    Province of Ouddor Meanchey, 52,538 persons, who come from various
                    villages along the border with Thailand near the Temples of Ta Moan
                    and Ta Krabei (that is, 150 kilometres west of the area of the Temple of
                    Preah Vihear), have been displaced. It further submitted that 52 houses in
                    this region have been “partially or totally destroyed” 43 and that 147 (out
                    of 194) schools have been closed, making it impossible for 39,873 students
                    to go to school. Cambodia added that local inhabitants have lived in dis-
                    tinct villages established a long time ago 44. In response to my question as
                    to whether they have returned safely and voluntarily to their homes,
                    Cambodia contended, moreover, that the local inhabitants have returned
                    to their homes on 5 May 2011 and that the camps have been closed also
                    on 5 May 2011. It added that 85 per cent of the displaced population
                    make their living from their agricultural production 45. Last but not least,
                    Cambodia submitted that the population density in this region is about
                    28‑29 persons/km2.

                                               2. Thailand’s First Submissions
                      52. On 7 June 2011, Thailand submitted its response to my questions,
                    and included therewith one map illustrating the location of the provinces
                    and districts referred to in its response 46. Thailand began by addressing
                    the incidents near the Temples of Ta Muen and Ta Kwai (situated about
                    150 kilometres from the Temple of Preah Vihear 47). In respect of the inci-
                    dents that took place, from 22 April to 3 May 2011, in the Surin Province
                    (where Ta Muen and Ta Kwai Temples are situated), it submitted, in res
                    ponse to my questions, first that Thai authorities evacuated 45,042 local
                    inhabitants to “safe shelters” as of 22 April 2011, “[a]s a precautionary

                        42 Cambodia further submitted that the local inhabitants live in the immediate proxi-

                    mity of the Temple of Preah Vihear and that they have settled in the village of Sra Em since
                    its establishment in 1997, in Svay Chrum village since 1995 and in the village of Samdech
                    Techo Hun Sen since 2009.
                        43 Cambodia refers in this regard to the pictures attached to its response.
                        44 Namely : 2,517 families, totalling 11,124 inhabitants, have been living in the Kok

                    Morn village ; 3,198 families, totalling 13,408 persons, have been living in the Ampil village ;
                    1,103 families, totalling 4,913 persons, have been living in the village of Kok Khpos ; 1,934
                    families, totalling 9,651 people, have been living in the O’Smach village ; 1,493 families,
                    amounting to 6,809 persons, have been living in the Bansay Rak village ; 990 families, total-
                    ling 4,913 persons, have been living in the Kaun Kriel village ; and 354 families, amounting
                    to 1,720 people, have been living in the Trapeang Prey village.
                        45 And that 52,421 hectares have been contaminated by “unexploded ordnances

                    (UXOs)”, including 8,000 hectares of cultivated land from a total of 37,093 hectares.
                        46 Reply of the Kingdom of Thailand to the question put to both Parties by Judge

                    Cançado Trindade, of 7 June 2011, pp. 1‑4.
                        47 Thailand uses the denomination “Temple of Phra Viharn”.

                    50

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                    measure to prevent loss of lives of the Thai population in the area
                    around Ta Kwai and Ta Muen Temples in Surin Province”. It added that
                    on 2 May 2011 “all [inhabitants] returned safely and voluntarily to their
                    homes” and have since then resumed their lives normally.

                        53. Moreover, Thailand submitted that the evacuated population came
                     from the Phanom Dong Rak, Prasat, Kabcheung and Sangkha districts
                     and that the majority of them were born in the region “and their families
                     have lived there for many generations”. Thailand contended that the
                     majority of them are farmers ; they cultivate rice, rubber trees, sweet pota-
                     toes, sugar cane and some of them also engage in silk worm breeding
                     industry. Regarding the population density of the region, Thailand
                     responds that, in the Phanom Dong Rak district, there are 116 persons/
                     km2, with a total population accounting for 37,197 persons ; in the district of
                     Prasat, the population of the subdistrict of Choke Na Sam is 139 persons/
                     km2 and of Kok Sa-ard subdistrict is 203 persons/km2, making the total
                    population of the Prasat district 11,423 persons ; in the Kabcheung
                    district, the population density is 105 persons/km2, amounting to a total
                     of 60,421 persons ; and the Sangkha district has a population density of
                     126 persons/km2, making the total population 127,592 persons.
                        54. Concerning the Buriram Province, which is adjacent to the Surin
                    Province, Thailand asserted that the incidents that took place since
                    22 April 2011 in the area around Ta Kwai and Ta Muen Temples
                    prompted the Thai authorities to evacuate the local population in the Ban
                    Kruat district of the Buriram Province, which is situated about 10 kilo-
                     metres from the Ta Kwai and Ta Muen Temples. Thailand submits that,
                     “[a]s a precautionary measure to prevent loss of lives of the Thai popula-
                     tion in the area near the site of the clashes”, 7,396 local inhabitants were
                     evacuated by Thai authorities to “safe shelters” from 22 April 2011. Thai-
                     land further submits that on 2 May 2011 “all [inhabitants] returned safely
                     and voluntarily to their homes” and have since then resumed their lives
                     normally.
                        55. It added that the local inhabitants live in the Ban Kruat district of
                     the Buriram Province and that the “majority of [them] were born there
                     and their families have lived in the region for many generations” ; the
                     majority of them “are farmers who cultivate rice, rubber trees, sweet
                     potatoes, and sugar cane”. It further contended that the population den-
                     sity of the Ban Kruat district is 136 persons/km2, the total population
                    amounting to 73,400 persons. Finally, as to the incident at Phu Makhua,
                    situated 2.5 kilometres from the Temple of Preah Vihear, Thailand sub-
                     mitted that no local inhabitants were displaced, as a result of the said
                     incident, which occurred on 26 April 2011.

                                         3. Cambodia’s Second Submissions
                      56. On 13 June 2011, Cambodia submitted its comments to the
                    responses provided by Thailand to my questions put to both Parties

                    51

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                     585 	 request for interpretation (sep. op. cançado trindade)

                     (cf. supra). Cambodia first noted that Thailand provided very little infor-
                     mation concerning the area of the Temple of Preah Vihear itself and indi-
                     cated that no population was displaced there from ; in its view, that
                     statement showed that, until recent incursions, the situation on the
                     ground complied with the Court’s 1962 Judgment concerning Cambo-
                     dia’s control and sovereignty over the area of the Temple. Cambodia
                     further submitted that Thailand’s response confirmed that there were

                     incidents in the area of the Temple and at other sites, at the time of the
                     filing of the request for provisional measures, which were needed to pre-
                     serve the rights at stake and to prevent irreparable harm.

                       57. Moreover, Cambodia contended that, although calm had been
                     restored and the populations had returned to their homes since 2 May
                     2011, yet the calm was fragile and nothing could guarantee that armed
                     hostilities would not break out again, as they did in July 2008, Octo-
                     ber 2008, April 2009, February 2011 and April 2011. As to Thailand’s
                     account of displaced populations in an area 150 kilometres west of the
                     Temple, Cambodia reiterated its argument that “only the incidents in the
                     area of the Temple of Preah Vihear should be taken into account”, and
                     that “the incidents in the area 150 kilometres away from the Temple of
                     Preah Vihear should not enter into consideration for the measures the
                     Court might pronounce” 48.

                                                4. Thailand’s Second Submissions
                        58. On 14 June 2011, Thailand presented its comments to the responses
                     provided by Cambodia to my questions put to both Parties (cf. supra) 49.
                     Thailand first submitted that some information provided in Cambodia’s
                     response was either of no relevance, or referred to incidents that occurred
                     before 22 April 2011, thus falling outside the scope of my questions
                     (cf. supra). Referring to the villages of Sra Em, Svay Chrum and Samdech
                     Techo Hun Sen, Thailand submitted that the only incident outside the Ta
                     Muen and Ta Kwai Temples area occurred after 22 April 2011 at Phu
                     Makhua, on 26 April 2011. Thailand submits that this incident was a
                     minor one resulting from a misunderstanding. Thailand contended that
                     there was no link between the evacuation of the three villages referred to
                     in Cambodia’s response and the incident of 26 April 2011. Thailand thus
                     submits that the evacuation of these villagers could not be the conse-
                     quence of incidents that took place from 22 April 2011, as I inquired in
                     the question I put to the Parties (cf. supra).

                        48 Observations du Royaume du Cambodge sur la réponse fournie par le Royaume de

                     Thaïlande à la question posée aux Parties par M. le juge Cançado Trindade, of 14 June
                     2011, pp. 1‑2 ; Cambodia further dismissed Thailand’s claim of sovereignty over the
                     Temples of Ta Moan and Ta Krabei and argued that this stemmed from Thailand’s unila-
                     teral interpretation regarding the border line in this area.
                          49   Thailand enclosed one attachment to its comments.

                     52

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                       59. Thailand further argued that Cambodia did not specify when the
                     evacuation began or the reasons for the evacuation, and that Cambodia
                     herself admitted that the origin of the displacement could have been the
                     incidents that took place before 22 April 2011. Thailand submits that this,
                          “together with the fact that no incident occurred anywhere within
                          150 kilometres of the Temple of Phra Viharn since 7 February 2011,
                          (. . .) leads to the only plausible conclusion that (. . .) the alleged
                          evacuation of the three villages was in fact undertaken as a result of
                          the incidents that occurred during February 2011” 50.

                     In Thailand’s view, this displacement fell outside the scope of the ques-
                     tions I posed to the Parties. Furthermore, Thailand argued that Cambo-
                     dia’s response concerning the establishment of the three villages confirmed
                     its argument — made during the hearings — that villagers were put in the
                     region only recently to serve political motives outside the scope of the
                     current proceedings. As to Cambodia’s statement that some inhabitants
                     could not resume their work in the market, because of the latter’s destruc-
                     tion, Thailand retorted that the market was destroyed as a result of the
                     incidents that occurred in April 2009, thus also outside the scope of the
                     questions I put to both Parties 51.

                                                     5. General Assessment
                       60. The two rounds of submissions and comments, provided by the
                     Parties in response to my questions (cf. supra), clarify some of the issues
                     underlying the present case of the Temple of Preah Vihear, lodged with
                     the Court. Yet, there remain still some points of difference between the
                     Parties. Their submissions, at first, differ in respect of the motivation or
                     reason for the evacuation of local inhabitants. While Cambodia asserts
                     that some of the evacuation was the consequence of incidents that took
                     place before 22 April 2011, Thailand claims that local inhabitants were
                     displaced as “a precautionary measure to prevent loss of lives of the Thai
                     population” in the area near the site of the clashes 52. Secondly, while
                     Cambodia maintains that “only the incidents in the area of the Temple of
                         50 Comments of the Kingdom of Thailand on the reply given by the Kingdom of

                     Cambodia to the question put to both Parties by Judge Cançado Trindade, of 14 June
                     2011, p. 1, and cf. pp. 1‑3.
                         51 As to the province of Ouddor Meanchey, Thailand argued that Cambodia’s refer

                     ence to 52,421 hectares of land contaminated by “unexploded ordnances” (UXOs) was
                     irrelevant to both the question and the present proceedings, since, according to its under
                     standing, any UXOs contaminated area found in Cambodia is “the result of past conflicts
                     in Cambodia that lasted until 1998” ; ibid., p. 2. Last but not least, Thailand questioned the
                     credibility of the photographs submitted by Cambodia, since no information was provided
                     as to the exact dates and locations where they were taken ; ibid.
                       52 Reply of the Kingdom of Thailand to the question put to both Parties by Judge

                     Cançado Trindade, of 7 June 2011, p. 2.

                     53

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                     Preah Vihear should be taken into account” 53 for the indication of provi-
                     sional measures, in its response Thailand does not focus on incidents in
                     the area of the Temple of Preah Vihear, but concentrates rather on dis-
                     placements that took place in an area situated about 150 kilometres from
                     the Temple of Preah Vihear 54.
                        61. Thirdly, as to the displaced persons themselves, Cambodia refers to
                     9,412 persons displaced in the area of the Temple of Preah Vihear and
                     52,538 displaced persons in the Province of Ouddor Meanchey ; Thailand,
                     for its part, submits that 45,042 local inhabitants were evacuated in the
                     Surin Province, 7,396 local inhabitants were displaced in the Buriram
                     Province and no inhabitants were displaced as a result of the incident on
                     26 April 2011 at Phu Makhua (situated 2.5 kilometres from the Temple of
                     Preah Vihear). The Parties responses coincide, however, on the statement
                     that the displaced population has returned safely and voluntarily to their
                     homes, even though Cambodia claims that their date of return is
                     5 May 2011 55, while Thailand claims that they returned on 2 May 2011 56.
                        62. In sum and conclusion of the matter at issue, while the responses
                     provide some clarification and the situation seems to have progressed in a
                     positive manner, with regard to the safe and voluntary return of local
                     inhabitants to their homes, the calm achieved remains fragile, and seems
                     to be provisional. The ceasefire is only verbal. There are no assurances
                     that the armed hostilities will not resume and that the population will not
                     be displaced yet again. The ceasefire seems to be temporary, and nothing
                     indicates that the conflict will not break out again. Accordingly, in my
                     view, the situation in the present case requires the indication of provi-
                     sional measures of protection to prevent or avoid the further aggravation
                     of the dispute or situation, given its current gravity, urgency, and the
                     risks of irreparable harm.

                       63. May I just observe, in this connection, that it has become almost
                     commonplace today to evoke provisional measures of protection to pre-
                     vent or avoid the “aggravation” of the dispute or situation at issue. Yet,
                     this sounds almost tautological, given the fact that a dispute or situation
                     which calls for provisional measures of protection is already — per defini‑
                        53 Observations du Royaume du Cambodge sur la réponse fournie par le Royaume de

                     Thaïlande à la question posée aux Parties par M. le juge Cançado Trindade, of 14 June
                     2011, pp. 1‑2.
                        54 Cf. Comments of the Kingdom of Thailand on the reply given by the Kingdom of

                     Cambodia to the question put to both Parties by Judge Cançado Trindade, of 14 June
                     2011, p. 1.
                        55 It is noted, however, that in its comments to Thailand’s responses, in a letter dated

                     13 June 2011, Cambodia claims that “calm was restored (and populations returned) as
                     early as 2 May 2011” ; Observations du Royaume du Cambodge sur la réponse fournie par
                     le Royaume de Thaïlande à la question posée aux Parties par M. le juge Cançado Trin-
                     dade, of 14 June 2011, pp. 1‑2.
                       56 Reply of the Kingdom of Thailand to the question put to both Parties by Judge

                     Cançado Trindade, of 7 June 2011, p. 2.

                     54

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                     tionem — endowed with gravity and urgency, given the probability or
                     imminence of irreparable harm. It would thus be more accurate to evoke
                     provisional measures of protection to prevent or avoid the “further aggra‑
                     vation” of the dispute or situation at issue.

                            X. The Effects of Provisional Measures of Protection
                                            in the Cas d’Espèce

                        64. International law in a way endeavours to be anticipatory in the
                     regulation of social facts, so as to avoid disorder and chaos, as well as
                     irreparable harm. What is anticipatory is law itself, and not the unwar-
                     ranted recourse to force. We are here before the raison d’être of provi-
                     sional measures of protection, to prevent and avoid irreparable harm in
                     situations of gravity and urgency. They are endowed with a preventive
                     character, being anticipatory in nature, looking forward in time. They
                     disclose the preventive dimension of the safeguard of rights. Here, again,
                     the time factor marks its presence in a notorious way.

                        65. As I pointed out in my lengthy dissenting opinion (105 paragraphs)
                     in the case concerning Questions relating to the Obligation to Prosecute or
                     Extradite (Belgium v. Senegal), Provisional Measures, Order of 28 May
                     2009, I.C.J. Reports 2009, pp. 165‑200, provisional measures of protec-
                     tion, as evolved in recent years, have enabled contemporary international
                     tribunals to secure the protection of rights in a preventive way, and to
                     undertake a continuous monitoring (projected in time) of compliance with
                     them, on the part of the States concerned. Here, once again, further les-
                     sons can be extracted from this case of the Temple of Preah Vihear, also
                     in respect of : (a) the protection of people in territory ; (b) the prohibi-
                     tion of use or threat of force ; (c) the protection of cultural and spiritual
                     world heritage. Let me turn next to these particular points.

                                      1. The Protection of People in Territory
                        66. There is epistemologically no impossibility or inadequacy for pro-
                     visional measures, of the kind of the ones indicated in the present Order,
                     not to extend protection also to human life, and to cultural and spiritual
                     world heritage (cf. infra). Quite on the contrary, the reassuring effects of
                     the provisional measures indicated in the present Order are that they do
                     extend protection not only to the territorial zone at issue, but also, by
                     asserting the prohibition of the use or threat of force — pursuant to a
                     fundamental principle of international law (cf. infra) —, to the life and
                     personal integrity of human beings who live or happen to be in that zone
                     or near it, as well as to the Temple of Preah Vihear itself, situated in the
                     aforementioned zone, and all that the Temple represents.

                     55

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                        67. The present Order of provisional measures of protection has taken
                     due account of the concerns of both contending Parties with securing the
                     protection of people in territory. In addition to the answers which both
                     Parties have given to the question I put to them at the end of the public
                     sitting of the Court of 31 May 2011 (cf. supra), the Parties have made sure
                     to convey to the Court their concerns on the point at issue throughout the
                     proceedings of the case. And the Court, in the Order it has just adopted,
                     has taken due account of those concerns.
                        68. Thus, the Court acknowledged, in the present Order, Cambodia’s
                     complaints of “serious armed incidents” occurred in the area of the Tem-
                     ple of Preah Vihear since 22 April 2011, that caused “fatalities, injuries
                     and the evacuation of local inhabitants” (para. 8), as well as Cambodia’s
                     warning as to the worsening of the situation, with “loss of life and human
                     suffering as a result of those armed clashes” (para. 9). Further on, the
                     Court again acknowledged Cambodia’s complaints of “numerous armed
                     incidents” that took place in the area of the Temple of Preah Vihear since
                     15 July 2008, that caused “irreparable damage to the Temple itself”, part
                     of the cultural heritage of humankind, as well as “loss of human life,
                     bodily injuries and the displacement of local people” (para. 48) 57. And,
                     once again, it took note of Cambodia’s warning as to the worsening of
                     the situation, with “damage to the Temple of Preah Vihear, as well as
                     human suffering and loss of life” (para. 50).

                        69. The Court, likewise, acknowledged, in the present Order, Thai-
                     land’s complaints of “numerous armed incidents” occurred in the area of
                     the Temple of Preah Vihear which caused “loss of human life, bodily inju-
                     ries, the displacement of local people, and material damage” (para. 51).
                     Having considered the submissions of both Parties as to the facts, the
                     Court found that :
                          “since 15 July 2008, armed clashes have taken place and have contin-
                          ued to take place in that area, in particular between 4 and 7 Febru-
                          ary 2011, leading to fatalities, injuries and the displacement of local
                          inhabitants ; (. . .) damage has been caused to the Temple and to the
                          property associated with it” (para. 53) 58.
                       70. Yet, the Court’s valuation or assessment of the prima facie evi-
                     dence (proper to provisional measures of protection) which the Parties
                     brought to its attention was not, in my view, satisfactory : the Court did
                     not extract all the consequences that it could, and should, from the facts

                        57 Cambodia further noted that those incidents led, on its initiative, to a meeting of the

                     UN Security Council on 14 February 2011 (para. 48).
                        58 The Court further noted that, “on 14 February 2011, the [UN] Security Council

                     called for a permanent ceasefire to be established between the two Parties and expressed its
                     support for ASEAN in seeking a solution to the conflict” (para. 53).

                     56

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                     pertaining to the protection of people in territory. The Court’s main atten-
                     tion was focused on territory itself (one of the component elements of
                     statehood), and not so much of the people, which, in my perception, is the
                     most precious constituent element of statehood. I shall turn again to this
                     point later on (cf. items XI-XII, infra) in the present separate opinion.

                                               2. The Prohibition of Use or Threat of Force
                       71. On a distinct line of considerations, the Court, in its present Order,
                     indicated provisional measures to the effect that :
                                   “Both Parties shall immediately withdraw their military personnel
                               currently present in the provisional demilitarized zone, as defined
                               in paragraph 62 of the present Order, and refrain from any military
                               presence within that zone and from any armed activity directed at
                               that zone ;
                                   Thailand shall not obstruct Cambodia’s free access to the Temple
                               of Preah Vihear or Cambodia’s provision of fresh supplies to its
                               non‑military personnel in the Temple ;
                               �����������������������������������������������������������������������������������������������������������������
                                   Both Parties shall refrain from any action which might aggravate
                               or extend the dispute before the Court or make it more difficult to
                               resolve.” 59
                        72. Underlying the Court’s decision — informing and conforming it —
                     is the fundamental principle of the prohibition of the use or threat of
                     force. In fact, in the corresponding reasoning of the Court in the present
                     Order, it is clearly stated that :
                               “the Charter of the United Nations imposes an obligation on all
                               Member States of the United Nations to refrain in their international
                               relations from the threat or use of force against the territorial integrity
                               or political independence of any State, or in any other manner incon-
                               sistent with the purposes of the United Nations ; (. . .) United Nations
                               Member States are also obliged to settle their international disputes
                               by peaceful means in such a manner that international peace and
                               security, and justice, are not endangered ; and (. . .) both Parties are
                               obliged, by the Charter and general international law, to respect these
                               fundamental principles of international law” 60 (para. 66).

                          59   Resolutory points B (1), (2) and (4) of the dispositif.
                          60   Or, in the other official language of the Court,
                               “la Charte des Nations Unies fait obligation à tous les Etats Membres de l’Organisa-
                               tion des Nations Unies de s’abstenir dans leurs relations internationales de recourir
                               à la menace ou à l’emploi de la force, soit contre l’intégrité territoriale ou l’indépen-
                               dance politique de tout Etat, soit de toute autre manière incompatible avec les buts
                               des Nations Unies ; (. . .) les Etats membres de l’Organisation sont également tenus de
                               régler leurs différends internationaux par des moyens pacifiques, de telle manière que

                     57

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                        73. Due attention is rightly given by the Court to compliance with the
                     fundamental principles of international law, as enshrined into the UN
                     Charter (Art. 2) and reckoned in general international law, in particular
                     that of the prohibition of use or threat of force (Art. 2 (4)), in addition to
                     that of the peaceful settlement of disputes (Art. 2 (3)). This has in fact
                     been a concern of the Court in recent years. Three relevant precedents
                     can be here recalled in this connection, namely, the case of the Frontier
                     Dispute (Burkina Faso/Republic of Mali) (1986), the case of the Land and
                     Maritime Boundary (Cameroon v. Nigeria) (1996), and the case of Armed
                     Activities on the Territory of the Congo (Democratic Republic of the Congo
                     v. Uganda) (2000).
                        74. In those previous three cases, the Court, in indicating provisional
                     measures of protection, most significantly went beyond the inter-State
                     dimension, in expressing its concern also for the human persons (les per‑
                     sonnes humaines) in situations of risk, or vulnerability and adversity.
                     Thus, in its Order of 10 January 1986 in the Frontier Dispute (Burkina
                     Faso/Republic of Mali) case, the Chamber of the Court asserted the
                     power, “independently of the requests submitted by the Parties”, to indi-
                     cate provisional measures “with a view to preventing the aggravation or
                     extension of the dispute whenever it considers that circumstances so
                     require” (I.C.J. Reports 1986, p. 9, para. 18) 61. It can exercise such power,
                     it added, even more so in case of “a resort to force which is irreconcilable
                     with the principle of the peaceful settlement of international disputes”,
                     when it can adopt such provisional measures “as may conduce to the due
                     administration of justice” (ibid., p. 9, para. 19). It decided to indicate
                     those measures, comprising the withdrawal by the Parties of their armed
                     forces, as it was of the view that the facts at issue “expose the persons and
                     property in the disputed area, as well as the interests of both States within
                     that area, to serious risk of irreparable damage” (ibid., p. 10, para. 21).

                        75. One decade later, in its Order of 15 March 1996 in the case of the
                     Land and Maritime Boundary between Cameroon and Nigeria (Cameroon
                     v. Nigeria), the Court pondered that :
                          “the rights at issue in these proceedings are sovereign rights which the
                          Parties claim over territory, and (. . .) these rights also concern per-
                          sons ; (. . .) independently of the requests for the indication of provi-
                          sional measures submitted by the Parties to preserve specific rights,

                          la paix et la sécurité internationales ainsi que la justice ne soient pas mises en danger ;
                          et (. . .) les deux Parties sont tenues, en vertu de la Charte et du droit international
                          général, de respecter ces principes fondamentaux du droit international”.
                        61 In a notorious precedent, that of the Court’s Order of 10 May 1984, in the case of

                     Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
                     of America), the Court determined that the circumstances of the case required it to indi-
                     cate provisional measures, as provided by Article 41 of its Statute, without prejudging the
                     question of its jurisdiction as to the merits (I.C.J. Reports 1984, p. 186, paras. 39-40).

                     58

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                               the Court possesses by virtue of Article 41 of the Statute the power
                               to indicate provisional measures with a view to preventing the aggra-
                               vation or extension of the dispute whenever it considers that circum-
                               stances so require (. . .) ; (. . .) the events that have given rise to the
                               request, and more especially the killing of persons, have caused
                               irreparable damage to the rights that the Parties may have over the
                                Peninsula ; (. . .) persons in the disputed area and, as a consequence,
                                the rights of the Parties within that area are exposed to serious risk of
                                further irreparable damage” (I.C.J. Reports 1996 (I), pp. 22‑23,
                                paras. 39 and 41‑42).

                     Accordingly, in the provisional measures it indicated, the Court deter-
                     mined, inter alia, that the Parties were to refrain from any action by their
                     armed forces, which might prejudice the rights of each other in respect of
                     whatever judgment the Court might render in the case, or which might
                     “aggravate or extend” the dispute before it 62.
                        76. Almost half a decade later, in its Order of 1 July 2000, in the case
                     of Armed Activities on the Territory of the Congo (Democratic Republic of
                     the Congo v. Uganda), the Court, once again, was attentive also to the
                     fate of persons. It pondered that, in the cas d’espèce, it was “not dis-
                     puted” that :
                               “grave and repeated violations of human rights and international
                               humanitarian law, including massacres and other atrocities, have
                               been committed on the territory of the Democratic Republic of the
                               Congo ; (. . .) in the circumstances, the Court is of the opinion that
                               persons, assets and resources present on the territory of the Congo,
                               particularly in the area of the conflict, remain extremely vulnerable,
                               and that there is a serious risk that the rights at issue in this case (. . .)
                               may suffer irreparable prejudice” (I.C.J. Reports 2000, p. 128,
                               paras. 42‑43).
                        77. This being so, the Court was of the view that “independently of the
                     requests” by the Parties for provisional measures, it was endowed, under
                     Article 41 of the Statute, with the power to indicate such measures with a
                     view to “preventing the aggravation or extension of the dispute” when-
                     ever it considered that the circumstances so required. In the case opposing
                     the Democratic Republic of the Congo to Uganda, it was of the opinion
                     that there existed “a serious risk of events occurring which might aggra-
                     vate or extend the dispute or make it more difficult to resolve” (ibid.,
                     para. 44). Accordingly, in the measures it indicated the Court determined
                     that the Parties must “prevent and refrain from any action, and in
                     particular any armed action”, which might “aggravate or extend the

                     dispute”, and, furthermore : “Both Parties must, forthwith, take all mea-
                      sures necessary to ensure full respect within the zone of conflict for

                          62   Paragraph 1 of the dispositif.

                     59

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                     fundamental human rights and for the applicable provisions of humani-
                      tarian law.” 63
                         78. It should not pass unnoticed here that, very recently, for less than
                      in the present case of the Temple of Preah Vihear, opposing Cambodia to
                      Thailand (wherein successive armed hostilities have occurred), the Court
                      has indicated provisional measures of protection, in the case concerning
                      Certain Activities Carried Out by Nicaragua in the Border Area, opposing
                      Costa Rica to Nicaragua (Order of 8 March 2011, I.C.J. Reports 2011 (I),
                      p. 6). In this case, competing claims between the contending Parties, and
                      Nicaragua’s intention to carry out activities in the border area, were
                      regarded by the Court as sufficient to conform “a real and present risk of
                      incidents liable to cause irremediable harm in the form of bodily injury or
                      death” (ibid., p. 24, para. 75), and for it, accordingly, to order provisional
                      measures of protection.
                         79. The fundamental principle of international law of the prohibition
                      of the use or threat of force has found expression on numerous occasions,
                      before and after its insertion into the UN Charter (Article 2 (4)) at the
                      1945 San Francisco Conference. After its assertion at the 1907 II Hague
                      Peace Conference, it became of nearly universal application under the
                      1928 General Treaty for the Renunciation of War as an Instrument of
                      National Policy (the Briand-Kellogg Pact) 64; following the UN Charter,
                      the fundamental principle at issue was restated by the 1970 UN Declara-
                      tion on Principles of International Law concerning Friendly Relations
                      and Co-operation among States in Accordance with the Charter of
                      the United Nations, the 1974 UN Definition of Aggression, and the 1987
                      UN Declaration on Enhancing the Effectiveness of the Principle of the
                      Non‑Use of Force.

                        80. The over-all prohibition of the use or threat of force is a corner-
                     stone of contemporary international law. For its part, the 1997 UNESCO
                     Declaration on the Responsibilities of the Present Generations towards
                     the Future Generations stated (Article 9 (2)) that :
                            “The present generations should spare future generations the
                          scourge of war. To that end, they should avoid exposing future

                        63 Paragraphs 1 and 3 of the dispositif. May it be recalled, however, that, in its subse-

                     quent Order of 10 July 2002, in the case of the Armed Activities on the Territory of the
                     Congo, opposing the Democratic Republic of the Congo to Rwanda, the Court did not
                     indicate provisional measures, as it found itself without prima facie jurisdiction to do so
                     (I.C.J. Reports 2002, p. 249, para. 89), though it expressed its deep concern with “the
                     deplorable human tragedy, loss of life, and enormous suffering” in the east of the Demo-
                     cratic Republic of the Congo resulting from “the continued fighting there” (ibid., p. 240,
                     para. 54).
                        64 Followed, in the American continent, by the 1933 Pact Saavedra Lamas, the 1938

                     Declaration of Principles adopted by the Inter-American Conference of Lima, and the
                     1948 OAS Charter.

                     60

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                          g enerations to the harmful consequences of armed conflicts as well as
                           all other forms of aggression and use of weapons, contrary to human-
                           itarian principles.”
                     The corresponding obligation, not to resort to force, or to the threat of it,
                     is not a simple immediate or “instantaneous” obligation (whatever that
                     may mean) ; it is, by definition, a continuing or permanent obligation.

                        81. Decisions ensuing from, and grounded on, the fundamental prin-
                     ciple of the prohibition of the use or threat of force, such as the pro
                     visional measures of protection aforementioned, can nowadays be
                     approached, in my perception, from a humanist perspective, proper of the
                     contemporary jus gentium : this is the case of the provisional measures of
                     protection just adopted by the Court in the present case of the Temple of
                     Preah Vihear, which took into account people and territory together,
                     comme il faut, in the circumstances of the case, keeping in mind the fun-
                     damental principles of international law of the prohibition of the use or
                     the threat of force and of peaceful settlement of disputes. The Court
                     should, from now onwards, in such circumstances, embrace expressly and
                     more resolutely this approach (cf. items XI‑XII, infra).

                                 3. Space and Time, and the Protection of Cultural
                                           and Spiritual World Heritage
                       82. My considerations on space and law seem likewise permeated by
                     time. This is also what ensues from an examination of the submissions by
                     the contending Parties with regard to the inscription of the Temple of
                     Preah Vihear in UNESCO’s World Cultural Heritage List on 7 July 2008.
                     In its request for interpretation (of 28 April 2011) of the Court’s Judg-
                     ment of 15 June 1962 in the case of the Temple of Preah Vihear, Cambo-
                     dia stated :
                              “It was therefore only from 2007, when steps were taken to
                          have the Temple of Preah Vihear declared a World Heritage site [by
                          UNESCO], that the issue of a territorial claim by Thailand emerged
                           (. . .).” (Application instituting proceedings, p. 15, para. 15.)

                       83. And Cambodia referred, in this connection, to the recent hostilities
                     which ensued there from :
                         “the recent period has been marked by a serious deterioration in rela-
                         tions between them, the origin of which may be found in the opening
                         of discussions within UNESCO to have the Temple declared a World
                         Heritage site.
                            The Temple was included on the List of World Heritage sites by
                         UNESCO on 7 July 2008, despite strong opposition from Thailand.
                         As from 15 July 2008, large numbers of Thai soldiers crossed the bor-

                     61

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                     595 	 request for interpretation (sep. op. cançado trindade)

                               der and occupied an area of Cambodian territory near the Temple,
                               on the site of the Keo Sikha Kiri Svara Pagoda (. . .). This Pagoda
                               was built by Cambodia in 1998 and had not previously given rise to
                               any protest from Thailand (. . .).” (Application instituting proceed-
                               ings, p. 13, paras. 13‑14.)
                         84. Cambodia singled out, in particular, “the serious incidents of
                      15 July 2008” (ibid., p. 15, para. 16), and added that, “[i]n these various
                      incidents between 2008 and 2011, architectural features of the Temple
                      have been damaged, leading to inquiries and reports by the UNESCO
                      authorities (. . .)” (ibid., p. 29, para. 35). Furthermore, in its request for
                      provisional measures of 28 April 2011, Cambodia asked the Court to order
                      the withdrawal of troops and the prohibition of any military activities in
                      “the zone of the Temple of Preah Vihear”, given the urgency and the “grav-
                     ity of the situation” (ibid., pp. 9-11, paras. 7‑9). Last but not least, Cambo-
                     dia stated, in its pleadings of 30 May 2011 before the Court, that “following
                     the designation of the Temple of Preah Vihear as a UNESCO World
                     Heritage Site on 7 July 2008, Thailand decided to dispute that designa-
                      tion by force of arms within a unilaterally defined area close to the Tem-
                      ple” ; hence the “armed incidents” which followed, on 15 July 2008, that
                      is, “immediately after the inscription of the Temple in the World Heritage
                      of UNESCO on 7 July 2008” 65.
                         85. For its part, Thailand addressed this particular issue in its plead-
                      ings before the Court, of 30‑31 May 2011. Thailand began by admitting
                      clearly and frankly, in its pleadings of 30 May 2011, that it accepts the
                      Court’s Judgment of 15 June 1962 in the case of the Temple of Preah
                      Vihear :
                               “despite the fact that the Temple is a very important cultural and
                               historical symbol for its people. This explains why the Court’s deci-
                               sion provoked consternation and ill feeling in Thailand at all levels
                               of society, to the extent that for some it became a national trauma,
                               which is still manifesting itself today in various ways.” 66
                        86. In its following pleadings of 31 May 2011, turning to the inscrip-
                     tion of the “Temple of Preah Vihear” on UNESCO’s World Cultural
                     Heritage List, Thailand deemed it fit to add :
                                 “The Temple requires a buffer zone as a World Heritage site, and
                               that can only be found in Thai territory. We understand that, and
                               have always been ready and willing to undertake a joint nomination
                               with Cambodia. It is Cambodia’s constant refusal of such joint under-
                               taking that is the root cause of the problems that have arisen over the
                               inscription.” 67

                          65 CR 2011/13, of 30 May 2011, pp. 32, 39-40, para. 6. [Translation.]
                          66 CR 2011/14, of 30 May 2011, p. 3, para. 3. [Translation.]
                          67 CR 2011/16, of 31 May 2011, p. 26, para. 4.

                     62

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                        87. To Thailand, thus, the inscription of the Temple of Preah Vihear on the
                     World Cultural Heritage List of UNESCO, at the 32nd Session of the World
                     Heritage Committee (Quebec City, 2008), became a matter of concern regard-
                     ing its border with Cambodia in the area in the vicinity of the Temple. The
                     Temple itself was in the middle of the controversy, which seems to have been
                     reignited by the Temple’s inscription in the aforementioned List of UNESCO,
                     as a result of Cambodia’s Application. Thailand expressly admitted its resent-
                     ment, going back to the Court’s Judgment of 15 June 1962 (cf. supra).
                        88. Here we are faced with the time element again. Resentment flows
                     with the passing of time ; it may last for a short time, months or years, or
                     it may prolong for a much longer time, decades, passing on from one
                     generation to another, or even centuries. History is full of examples illus-
                     trating such prolongation in time 68. Here, again, simple chronological
                     time does not help much in assessing each situation, as the “horizontal”
                     approach of chronological time does not reveal the depth of the problem
                     of resentment in each historical situation 69. What is important here is to
                     be attentive to the complexities of the relationship between time and law,
                     in the settlement of international disputes.
                        89. It has recently been pointed out, rightly and with due sensitivity,
                     that :
                              “A travers la protection des biens culturels, ce ne sont donc pas
                           seulement des monuments et des objets que l’on cherche à protéger,
                           c’est la mémoire des peuples, c’est leur conscience collective, c’est leur
                           identité, mais c’est aussi la mémoire, la conscience et l’identité de cha-
                           cun des individus qui les composent. Car en vérité, nous n’existons pas
                           en dehors de notre famille et du corps social auquel nous appartenons.
                              Fermez les yeux et imaginez Paris sans Notre-Dame, Athènes sans
                           le Parthénon, Gizeh sans les Pyramides, Jérusalem sans le Dôme du
                           Rocher, la Mosquée Al-Aqsa ni le Mur des Lamentations, l’Inde sans
                           le Taj Mahal, Pékin sans la Cité interdite, New York sans la statue
                           de la Liberté. Ne serait-ce pas un peu de l’identité de chacun de nous
                           qui nous serait arrachée ?” 70

                        68 Cf., e.g., Marc Ferro, El Resentimiento en la Historia (Le ressentiment dans l’histoire,

                     2007), Madrid, Ed. Cátedra, 2009, pp. 9‑187.
                        69 Cf. ibid., p. 185. Some decades ago, in his endeavours to elaborate a phenomenology

                     and sociology of resentment, Max Scheler identified factors which had to do with the struc-
                     ture of the society concerned, or else with the individuals within it, and the prevailing arti-
                     culation of values in it, at a given historical moment ; M. Scheler, L’homme du ressentiment
                     (1912), Paris, Gallimard, 1933, p. 36, and cf. pp. 48, 55-57, 88-89 and 189-190.
                        70 Or, in the other official language of the Court,

                           “by protecting cultural property, one is attempting to protect not only monuments
                           and objects, but a people’s memory, its collective consciousness and its identity,
                           and indeed the memory, consciousness and identity of all the individuals who make
                           up that people. Ultimately, we do not exist outside of our families and the social
                           frameworks to which we belong.
                              Close your eyes and imagine Paris without Notre Dame, Athens without the
                           Parthenon, Giza without the Pyramids, Jerusalem without the Dome of the Rock,

                     63

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                      Other examples could be referred to the same effect, such as, inter alia,
                      e.g., Moscow without the Red Square and St. Basil’s Cathedral, Rio de
                      Janeiro without the Statue of Christ the Redeemer, Samarkand without
                      the Registan and the Gur Emir, Guatemala without Antigua and Tikal,
                      Rome without the Coliseum, Peru without Machu-Picchu, and so forth.
                      The examples abound, in every continent, all over the world.
                         90. The universal value of the Temple of Preah Vihear was brought before
                      the attention of the World Heritage Committee (2007‑2008), established by
                      the 1972 UNESCO Convention concerning the Protection of the World Cul-
                      tural and Natural Heritage 71. The Temple of Preah Vihear was inscribed as
                      a UNESCO World Heritage Site on 7 July 2008, at the 32nd Session of the
                      World Heritage Committee, held in Quebec City, Canada (2-10 July 2008).
                      The nomination of the Temple 72 had been before the World Heritage Com-
                      mittee also at its previous 31st Session, held in Christchurch, New Zealand
                      (23 June to 2 July 2007), when it was evaluated 73.
                         91. The Temple of Preah Vihear was regarded as an outstanding
                     masterpiece of Khmer art and architecture, disclosing the highpoint of a
                      significant stage in human history (in the first half of the eleventh century),
                      and the capacity of the Khmer civilization to make use of that site — one
                      of difficult access — over a long period. Particularly impressive was con-

                               the Al-Aqsa Mosque and the Wailing Wall, India without the Taj Mahal, Peking
                               without the Forbidden City, New York without the Statue of Liberty. Would we not
                               all have lost part of our identities ?”
                     F. Bugnion, “La genèse de la protection juridique des biens culturels en cas de conflit
                     armé”, 86 Revue internationale de la Croix-Rouge (2004), note 854, p. 322.
                        71 Article 8 (1). The 1972 Convention expresses its concern with the deterioration of the

                     cultural and natural heritage, “to be preserved as part of the world heritage of mankind
                     as a whole” (preamble, paras. 1-2 and 6). To that effect, it calls for the establishment
                     of “an effective system of collective protection of the cultural and natural heritage of
                     outstanding universal value, organized on a permanent basis” (preamble, para. 8). The
                     1972 Convention asserts the duty of co‑operation of the international community as a
                     whole (Article 6 (1)). Moreover, each State party undertakes not to take any “deliberate
                     measures” which “might damage directly or indirectly” the cultural and natural heritage
                     “on the territory of other States parties” (Art. 6 (3)). The UNESCO Convention further
                     provides for the establishment of the World Heritage List (Art. 11 (2)), and, in addition,
                     of a list of World Heritage in Danger (as a result of various causes, including, inter alia,
                     “the outbreak or the threat of an armed conflict” — Art. 11 (4)). The World Heritage
                     Committee is also to consider requests for international assistance to property forming
                     part of cultural or natural heritage (Art. 13 (1)). The 1972 Convention further provides for
                     the creation of a World Heritage Fund (Art. 15).

                          72   Made by Cambodia, though Thailand had sought a joint nomination.
                         73 Cf. UNESCO/World Heritage, documents WHC-07/31.COM/8B-8B.1 (2007) ;

                     and WHC-07/31.COM/24 (2007). For the UNESCO guidelines for the inscription on
                     the World Heritage List and the corresponding monitoring of the properties at issue,
                     cf. UNESCO, Operational Guidelines for the Implementation of the World Heritage Conven‑
                     tion, document WHC.08/01, of January 2008, pp. 30‑53, paras. 120‑198.

                     64

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                     sidered the position of the Temple on a high cliff edge site, 547 metres
                     above the Cambodian Plain, close to the border with Thailand.
                        92. At the time I write this separate opinion, shortly before the adop-
                     tion of the present Order of provisional measures of protection of the
                     Court, there are 34 properties around the world that the World Heritage
                     Committee has decided to include on the List of World Heritage in Dan-
                     ger, in accordance with Article 11 (4) of the 1972 UNESCO Convention.
                     The fact that the Temple of Preah Vihear does not appear in this particu-
                     lar List in no way can be construed as meaning that it does not have “an
                     outstanding universal value for purposes other than those resulting from
                     inclusion” therein, as warned by Article 12 of the 1972 Convention.
                        93. This provision appears interrelated with that of Article 4 of the
                     1972 Convention, on the obligation of each State party to secure the pro-
                     tection, conservation and transmission to future generations of the cul-
                     tural heritage situation in its territory. The prohibition of destruction of
                     cultural heritage of an outstanding universal value and great relevance for
                     humankind is arguably an obligation erga omnes 74.

                        94. The Temple, while being inscribed as a UNESCO World Heritage
                     Site, was seen as inextricably linked to its landscape — the cultural, the
                     spiritual and the natural dimensions appearing together. The three sur-
                     rounding peaks have been taken to reflect the Hindu divine triad of
                     Vishnu, Shiva and Brahma. The Temple of Preah Vihear was considered
                     to have an outstanding universal value, testifying to the Khmer genius for
                     domesticating the local territory, and adapting the construction on it to
                     the landscape.
                        95. UNESCO itself has been attentive to the recent hostilities in the
                     zone in the vicinity of the Temple of Preah Vihear. Its Special Envoy for
                     Preah Vihear (Mr. K. Matsuura) recently met Thai and Cambodian
                     authorities, to consider ways to safeguard the World Heritage Site of the
                     Temple of Preah Vihear, during his visits to Bangkok and Phnom Penh
                     between 27 February and 1 March 2011. The Special Envoy stressed the
                     need to set up a lasting dialogue between the two States so as to create the
                     conditions necessary for the safeguarding of the Temple of Preah Vihear,
                     and for establishing long-term sustainable conservation of the Site 75.

                                     XI. Provisional Measures of Protection :
                                    Beyond the Strict Territorialist Approach

                       96. As already pointed out, given the circumstances of the present case
                     of the Temple of Preah Vihear, the gravity of the situation, the probability
                        74 Cf., to this effect, F. Francioni and F. Lenzerini, “The Destruction of the Buddhas

                     of Bamiyan and International Law”, 14 European Journal of International Law (2003),
                     pp. 634 and 638, and cf. p. 631.
                        75 UNESCO, “UNESCO Special Envoy for Preah Vihear Meets Thai and Cambodian

                     Leaders”, Paris, UNESCO Press, 2 March 2011, p. 1.

                     65

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                     or imminence of irreparable harm, and the resulting urgency, the Court
                     has rightly indicated provisional measures of protection. To that end, it
                     has established a provisional demilitarized zone, in the vicinity of the
                     Temple of Preah Vihear. Yet, though the Court has taken the correct
                     decision in the present Order, it has done so pursuant to a reductionist
                     reasoning. In laying the grounds for its decision to order the provisional
                     measures, the Court was attentive essentially to territory, although the
                     case lodged with it goes well beyond it.
                        97. Despite the wealth of information placed before it by the Parties
                     concerning the fate and the need of protection of people in territory, the
                     Court repeatedly insisted on respect for “sovereignty” and “territorial
                     integrity” (Order, paras. 35, 39 and 42), and on protection of “rights to
                     sovereignty” (ibid., para. 44). Instead of bringing people and territory
                     together, expressly, for the purpose of protection, as in my view it should,
                     the Court has preferred to rely on its traditional outlook, utilizing the
                     conceptual framework and the language it is used to, and refusing to
                     behold, and give concrete expression to, any other factors beyond territo-
                     rial integrity and sovereignty. This is certainly to be regretted, as the
                     Court should be prepared, in our days, to give proper weight to the human
                     factor.
                        98. On an earlier occasion, in the case of the Land and Maritime
                     Boundary between Cameroon and Nigeria (Cameroon v. Nigeria) (Order
                     of 15 March 1996, I.C.J. Reports 1996 (I)), as I have already pointed
                     out 76, the Court, faced with the victimization of human beings resulting
                     from armed conflicts of greater intensity, expressly conceded that the
                     rights at issue concerned also persons (I.C.J. Reports 1996 (I), p. 22,
                     para. 39). I would say that, in those grave circumstances, they concerned,
                     for the purpose of provisional measures of protection, mainly persons,
                     human beings, who were killed.
                        99. In the present Order of provisional measures in the case of the
                     Temple of Preah Vihear, the traditional and unsatisfactory territorialist
                     outlook pursued by the Court leads it to state, e.g., that

                               “the rights which Cambodia claims to hold under the terms of the
                               1962 Judgment in the area of the Temple might suffer irreparable
                               prejudice resulting from the military activities in the area and, in par-
                               ticular, from the loss of life, bodily injuries and damage caused to the
                               Temple and the property associated with it” (Order, para. 55).

                     Not everything can be subsumed under territorial sovereignty. The funda-
                     mental human right to life is not at all subsumed under State sovereignty.
                     The human right not to be forcefully displaced or evacuated from one’s
                     home is not to be equated with territorial sovereignty. The Court needs to
                     adjust its conceptual framework and its language to the new needs of
                          76   Cf. paragraph 73, supra.

                     66

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                     protection, when it decides to indicate or order the provisional measures
                     requested from it.
                        100. If we add, to the aforementioned, the protection of cultural and
                     spiritual world heritage (cf. supra), for the purposes of provisional mea-
                     sures, the resulting picture will appear even more complex, and the strict
                     territorialist approach even more unsatisfactory. The human factor is the
                     most prominent one here. It shows how multifaceted, in these circum-
                     stances, the protection provided by provisional measures can be. It goes
                     well beyond State territorial sovereignty, bringing territory, people and
                     human values together.

                               XII. Final Considerations, Sub Specie Aeternitatis

                        101. When we come to consider cultural and spiritual world heritage,
                     there is still one remaining aspect, which I deem it fit to dwell upon, how-
                     ever briefly, in this separate opinion : I refer in particular to the protection
                     of the spiritual needs of human beings. Such protection is brought to the
                     fore by the safeguard of cultural and spiritual world heritage, as raised,
                     inter alia, in the present case of the Temple of Preah Vihear. Here we
                     come back to timelessness (cf. supra), and we are led, ultimately, to con-
                     siderations from the perspective of eternity (sub specie aeternitatis).

                        102. In this respect, it may be recalled that the needs of protection of
                     people comprise all their needs, starting with the protection of the funda-
                     mental right to life in its wide dimension (i.e., the right to live with dig-
                     nity, e.g., not to keep on being forcefully and suddenly evacuated from
                     one’s home), and also including their spiritual needs. In this connection,
                     may I further recall that the judgment of 15 June 2005 (merits and repa
                     rations) of the IACtHR in the case of the Moiwana Community v. Suri‑
                     name, in addressing the massacre of the N’djukas of the Moiwana village
                     and the drama of the forced displacement of the survivors, duly valued
                     the relationship of the N’djukas in Moiwana with their traditional land as
                     being of “vital spiritual, cultural and material importance”, also for the
                     preservation of the “integrity and identity” of their culture 77.

                        103. In my extensive separate opinion appended to that judgment, I
                     recalled what the surviving members of the Moiwana Community pointed
                     out before the IACtHR 78, namely, that the massacre at issue perpetrated
                     in Suriname in 1986, planned by the State, had “destroyed the cultural
                     tradition (. . .) of the Maroon communities in Moiwana” (para. 80). Ever

                        77 The Court warned that “[l]arger territorial land rights are vested in the entire people,

                     according to N’djuka custom ; community members consider such rights to exist in perpe-
                     tuity and to be unalienable” (para. 86 (6)).
                        78 In the public hearing of 9 September 2004.

                     67

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                     since this has tormented them, as they were unable to give a proper burial
                     to the mortal remains of their beloved ones (paras. 13‑22). Their suffering
                     projected itself in time, for almost two decades (paras. 24‑33). In their
                     culture, mortality had an inescapable relevance to the living, the survivors
                     (paras. 41‑46), who had duties towards their dead (paras. 47‑59). Duties
                     of the kind — I added in the same separate opinion (paras. 60‑61) — were
                     present in the origins of the law of nations itself, as pointed out, in the
                     seventeenth century, by Hugo Grotius in Chapter XIX of Book II of his
                     classic work De Jure Belli ac Pacis (1625) 79.

                        104. In the case of the Moiwana Community, I sustained in my afore-
                     mentioned separate opinion the configuration, beyond moral damage, of
                     a true spiritual damage (paras. 71‑81), and, beyond the right to a project
                     of life, I dared to identify what I termed the right to a project of after-life :
                              “The present case of the Moiwana Community, in my view, takes
                          us even further than the emerging right to the project of life. (. . .) I
                          can visualize, in the griefs of the N’djukas of the Moiwana village, a
                          claim to the right to the project of after-life, taking into account the
                          living in the relations with their dead, altogether. International law in
                          general, and the international law of human rights in particular,
                          cannot remain indifferent to the spiritual manifestations of human
                           beings (. . .). There is no cogent reason to remain in the world exclu-
                           sively of the living. In the cas d’espèce, it appears to me that the
                           N’djukas are certainly well entitled to cherish their project of after-
                           life, the encounter of each of them with their ancestors, the harmoni-
                           ous relationship between the living and their dead. Their outlook of
                           life and after‑life embodies fundamental values (. . .).” (Paras. 67‑70.)

                       105. I turned next to what I termed the spiritual damage, which I
                     sought to elaborate conceptually as :
                          “an aggravated form of moral damage, which has a direct bearing on
                          what is most intimate to the human person, namely, her inner self,
                          her beliefs in human destiny, her relations with their dead. This
                          spiritual damage would of course not give rise to pecuniary repara-
                          tions, but rather to other forms of reparation. The idea is launched
                          herein, for the first time ever, to the best of my knowledge. (. . .) This
                          new category of damage — as I perceive it — embodies the principle
                          of humanity in a temporal dimension, encompassing the living in their
                          relations with their dead, as well as the unborn, conforming the future
                          generations. (. . .) The principle of humanitas has, in fact, a long his-
                          torical projection, and owes much to ancient cultures (in particular

                        79 Dedicated to the “right to burial”, inherent to all human beings, in conformity with a

                     precept of “virtue and humanity” ; H. Grotius, Del Derecho de la Guerra y de la Paz [1625],
                     Vol. III (Books II and III), Madrid, Edit. Reus, 1925, pp. 39, 43 and 45, and cf. p. 55.

                     68

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                               to that of the Greeks), having become associated in time with the very
                               moral and spiritual formation of human beings.” 80 (Paras. 71‑73.)

                         106. I further recalled, in my separate opinion, that the testimonial
                     e vidence produced before the IACtHR in the cas d’espèce indicated that,
                      in the N’djukas cosmovision, in circumstances like those of the present
                      case, “the living and their dead suffer together, and this has an intergen-
                      erational projection”. Unlike moral damages, in my view, the spirit
                      ual damage was not susceptible of “quantifications”, and could only
                      be repaired, and redress be secured, by means of obligations of doing
                      (obligaciones de hacer), in the form of satisfaction (e.g., honouring the
                      dead in the persons of the living) (para. 77) 81. In fact, the expert evidence
                     produced before the Court indeed referred expressly to “spiritually-caused
                     illnesses” 82. I then concluded, in my separate opinion, on this particular
                      point, that :

                                  “All religions devote attention to human suffering, and attempt to
                               provide the needed transcendental support to the faithful ; all religions
                               focus on the relations between life and death, and provide distinct
                               interpretations and explanations of human destiny and after‑life 83.
                               Undue interferences in human beliefs — whatever religion they may
                               be attached to — cause harm to the faithful (. . .). [S]uch harm (. . .)

                       80 G. Radbruch, Introducción a la Filosofía del Derecho, 3rd ed., Mexico/Buenos Aires,

                     Fondo de Cultura Económica, 1965, pp. 153‑154.
                       81 It should be kept in mind — I proceeded — that, in the present case of the Moiwana

                     Community, as a result of the massacre of 1986,
                               “the whole community life in the Moiwana village was disrupted ; family life was like-
                               wise disrupted, displacements took place which last until now (almost two decades
                               later). The fate of the mortal remains of the direct victims, the non-performance
                               of funerary rites and ceremonies, and the lack of a proper burial of the deceased,
                               deeply disrupted the otherwise harmonious relations of the living N’djukas with
                               their dead. The grave damage caused to them, in my view, was not only psycho-
                               logical, it was more than that : it was a true spiritual damage, which seriously affected,
                               in their cosmovision, not only the living, but the living with their dead altogether.”
                               (Para. 78.)

                       Moreover,
                               “the resulting impunity, in the form of a generalized and sustained violence (increased
                               by the sense of indifference of the public power to the fate of the victims) (. . .), has
                               generated, in the members of the Moiwana Community, a sense of total defencelessness.
                               This has been accompanied by their loss of faith in human justice, the loss of faith in
                               law, the loss of faith in reason and conscience governing the world.” (Para. 79.)

                          82
                           Paragraphs 80 (e) and 86 (9) of the IACtHR judgment.
                          83
                           Cf., e.g., [Various Authors], Life after Death in World Religions, Maryknoll, N.Y.,
                     Orbis, 1997, pp. 1‑124.

                     69

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                          is to be duly taken into account, like other injuries, for the purpose
                          of redress. Spiritual damage, like the one undergone by the members
                          of the Moiwana Community, is a serious harm, requiring correspond-
                          ing reparation, of the (non‑pecuniary) kind I have just indicated. (. . .)

                             The N’djukas had their right to the project of life, as well as their
                          right to the project of after‑life, violated, and continuously so, ever
                          since the State‑planned massacre perpetrated in the Moiwana village
                          on 29 November 1986. They suffered material and immaterial dam-
                          ages, as well as spiritual damage. (. . .) In sum, the wide range of
                          reparations ordered by the Court in the present judgment in the Moi‑
                          wana community case (. . .) has concentrated on, and enhanced the
                          centrality of, the position of the victims — as well as on devising a
                          wide range of possible and adequate means of redress. In the cas
                          d’espèce, the collective memory of the Maroon N’djukas is hereby
                          duly preserved, against oblivion, honouring their dead, thus safe-
                          guarding their right to life lato sensu, encompassing the right to cul-
                          tural identity, which finds expression in their acknowledged links of
                          solidarity with their dead.” (Paras. 81 and 91-92.)
                        107. In my following separate opinion in the same case of the Moiwana
                     Community (interpretation of judgment, of 8 February 2006), I insisted
                     on the need of reconstruction and preservation of cultural identity
                     (paras. 17‑24) of the members of the community, on which the project of
                     life and of post-life of each member of the community much depended. In
                     fact, the understanding has been manifested within UNESCO to the effect
                     that the assertion and preservation of cultural identity (including that of
                     minorities) contributes to the “liberation of the peoples” ; cultural identity
                     has thus been regarded as “a treasure which vitalizes mankind’s possibili-
                     ties for self‑fulfillment by encouraging every people and every group to
                     seek nurture in the past, to welcome contributions from outside compat-
                     ible with their own characteristics, and so to continue the process of their
                     own creation” 84. In this new separate opinion, I expressed my own under-
                     standing of the pressing need to redress the spiritual damage caused to the
                     N’djukas of the Moiwana Community, and to create the conditions for
                     the prompt reconstruction of their cultural tradition (para. 19) 85.
                        108. In the present case of the Temple of Preah Vihear before the ICJ, it
                     is indeed a pity that a temple that was built with inspiration in the first half
                     of the eleventh century, to assist in fulfilling the religious needs of human

                         84 J. Symonides, “UNESCO’s Contribution to the Progressive Development of Human

                     Rights”, 5 Max Planck Yearbook of United Nations Law (2001), p. 317.
                         85 To that end — I added —, the delimitation, demarcation, issuing of title and return

                     of their traditional land were essential. This was “a question of survival of the cultural
                     identity of the N’djukas, so that they may conserve their memory, at personal as well as
                     collective levels. Only thus one will be duly giving protection to their fundamental right to
                     life lato sensu, comprising their cultural identity.” (Para. 20.)

                     70

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                     beings, and which is nowadays — since the end of the first decade of the
                     twenty-first century — regarded as integrating the world heritage of
                     humankind, becomes now part of the bone of contention between the two
                     bordering States concerned. This seems to display the worrisome frailty of
                     the human condition, anywhere in the world, in that individuals appear
                     prepared to fight each other and to kill each other in order to possess or
                     control what was erected in times past to help human beings to under-
                     stand their lives and their world, and to relate themselves to the cosmos.
                        109. Such relationship, by the way, is what is conveyed by the very
                     term religion (deriving from the Latin re‑ligare), assisting each human
                     being in attaining his connection with the cosmos he barely understands,
                     so as to find peace for himself. This leads to yet another aspect of the
                     cas d’espèce, as I perceive it, to be referred to herein, in relation to the
                     context of the Order which the Court adopts today, 18 July 2011. Reli-
                     gions are a complex matter, deserving of close and respectful attention ; it
                     has been suggested some decades ago that, from a social perspective, they
                     are more complex than scientific knowledge 86.
                        110. The relationship, in its distinct aspects, between different religions
                     of the world and the law of nations (le droit des gens) itself, has been the
                     object of constant attention throughout the last nine decades 87. There
                     have been studies focused on the influence of theology in the evolution of
                     international legal doctrine 88. The interest on the relationship between
                     religions and the law of nations has remained alive lately. Some recent
                     essays look back in time, focusing on the relationship between inter

                        86 Cf. Bertrand Russell, Science et religion (Religion and Science, 1935), Paris, Galli-

                     mard, 1957, p. 8.
                        87 As attested, e.g., by the thematic courses devoted to the subject by the Hague

                     Academy of International Law, with its universalist and pluralist outlook ; cf., e.g.,
                     A. Hobza, “Questions de droit international concernant les religions”, 5 Recueil des cours
                     de l’Académie de droit international de La Haye (RCADI) (1924) pp. 371‑420 ; G. Goyau,
                     “L’Eglise catholique et le droit des gens”, 6 RCADI (1925), pp. 127‑236 ; M. Boegner,
                     “L’influence de la réforme sur le développement du droit international”, 6 RCADI (1925),
                     pp. 245‑321 ; J. Muller-Azúa, “L’œuvre de toutes les confessions chrétiennes (Eglises)
                     pour la paix internationale”, 31 RCADI (1930), pp. 299‑388 ; K. N. Jayatilleke, “The Prin-
                     ciples of International Law in Buddhist Doctrine”, 120 RCADI (1967), pp. 445‑563 ;
                     H. de Riedmatten, “Le catholicisme et le développement du droit international”, 151 RCADI
                     (1976), pp. 121‑158 ; P. Weil, “Le judaïsme et le développement du droit international”, 151
                     RCADI (1976), pp. 259‑335 ; P. H. Kooijmans, “Protestantism and the Development of
                     International Law”, 152 RCADI (1976), pp. 87‑116 ; M. Charfi, “L’influence de la religion
                     dans le droit international privé des pays musulmans”, 203 RCADI (1987), pp. 329‑454.
                        88 Cf., e.g., Association internationale Vitoria-Suárez, Vitoria et Suárez — Contribution

                     des théologiens au droit international moderne, Paris, Pedone, 1939, pp. 7‑170 ; 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. 27‑29 ;
                     L. Getino (ed.), Francisco de Vitoria, Sentencias de Doctrina Internacional. Antología,
                     Madrid, Ediciones FE, 1940, pp. 15‑130 ; C. A. Stumpf, The Grotian Theology of Interna‑
                     tional Law — Hugo Grotius and the Moral Foundations of International Relations, Berlin,
                     W. de Gruyter, 2006, pp. 1‑243.

                     71

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                     national law and religions in times past 89. Others look forward in time,
                     centering attention on the role of religions in the progressive development
                     of international law 90. Still others concentrate on topical aspects of that
                     relationship 91.

                       111. Here we are taken back to timelessness again. In his inspiring
                     essay of 1948 titled Civilization on Trial, Arnold J. Toynbee pondered
                     that the works of artists and men of letters have outlived the deeds of
                     soldiers, businessmen and statesmen ; statues, poems and philosophical
                     works have counted for more than the texts of laws and treaties, and the
                     teachings of religious prophets and saints (of distinct religions of the
                     world) have outlasted them all, as lasting benefactors of humankind 92.

                        112. Toynbee beheld a “unified world”, working its way towards “an
                     equilibrium between its diverse component cultures”, resulting from the
                     “encounters” between them as well as the religions of the world 93. He was
                     attentive to what he wisely termed the encounters 94 of civilizations (and
                     religions), and he recalled, as examples in this connection :
                                  “Judaism and Zoroastrianism, which sprang from an encounter
                               between the Syrian and Babylonian civilizations ; Christianity and
                               Islam, which sprang from an encounter between the Syrian and Greek

                         89 Cf., e.g., D. J. Bederman, “Religion and the Sources of International Law in Anti-

                     quity”, Religion and International Law (eds. M. W. Janis and C. Evans), Leiden, Nijhoff,
                     2004, pp. 1‑26 ; V. P. Nanda, “International Law in Ancient Hindu India”, ibid., pp. 51‑61 ;
                     H. McCoubrey, “Natural Law, Religion and the Development of International Law”,
                     ibid., pp. 177‑189.
                         90 Cf., e.g., M. Veuthey, “Religions et droit international humanitaire : histoire et

                     actualité d’un dialogue nécessaire”, Religions et droit international humanitaire (Colloque
                     de Nice, June 2007 ; ed. A.‑S. Millet-Devalle), Paris, Pedone, 2008, pp. 9‑45 ; P. Tavernier,
                     “La protection de l’exercice des religions par le droit international humanitaire”, ibid.,
                     pp. 105‑118 ; M. C. W. Pinto, “Reflections on the Role of Religion in International Law”,
                     Liber Amicorum In Memoriam of Judge J. M. Ruda (eds. C. A. Armas Barea, J. A. Barberis
                     et alii), The Hague, Kluwer, 2000, pp. 25‑42.
                         91 Cf., e.g., T. J. Gunn, “The Complexity of Religion and the Definition of ‘Religion’

                     in International Law”, Religion and Human Rights — Critical Concepts in Religious Studies
                     (ed. N. Ghanea), Vol. IV, London/N.Y., Routledge, 2010, pp. 159‑187 ; T. van Boven,
                     “Advances and Obstacles in Building Understanding and Respect between People of
                     Diverse Religions and Beliefs”, bid., pp. 469‑481 ; K. Hashemi, Religious Legal Traditions,
                     International Human Rights Law and Muslim States, Leiden, Nijhoff, 2008, pp. 135‑265 (on
                     protection of religious minorities, and rights of the child) ; [Various Authors], The Religious
                     in Responses to Mass Atrocity (eds. T. Brudholm and T. Cushman), Cambridge University
                     Press, 2009, pp. 1‑263.
                          92 A. J. Toynbee, Civilization on Trial, Oxford University Press, 1948, pp. 4‑5, 90 and 156.
                          93
                           Ibid., pp. 158‑159.
                          94
                           Rather than “clash”, as some post-moderns say in our hectic days, without giving
                     much thought to the matter, and with their characteristic and regrettable shallowness and
                     prejudice.

                     72

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                               civilizations ; the Mahayana form of Buddhism and Hinduism, which
                               sprang from an encounter between the Indian and Greek civiliza-
                               tions.” 95
                     Those were just a couple of examples of religions, in a long‑term perspec-
                     tive, which appeared within the last 4000 years. Toynbee repeatedly
                     referred to the “historically illuminating” encounters between civiliza-
                     tions, to “the time-span” of such “encounters between civilizations”, with
                     their “long-term religious consequences”, seeking to bring improvement
                     to “the conditions of human social life on Earth” 96.
                        113. Cultural and spiritual heritage appears more closely related to a
                     human context, rather than to the traditional State‑centric context ; it
                     appears to transcend the purely inter‑State dimension, that the Court is
                     used to. I have made this point also on other occasions, in the adjudica-
                     tion of distinct cases lodged with the Court. For example, two weeks ago,
                     in the Court’s Order of 4 July 2011 in the case of the Jurisdictional Immu‑
                     nities of the State (Germany v. Italy) (intervention of Greece), I sustained,
                     in my separate opinion, that rights of States and rights of individuals
                     evolve pari passu in contemporary jus gentium (I.C.J. Reports 2011 (II),
                     pp. 506-530, paras. 1‑61), to a greater extent than one may prima facie
                     realize or assume.
                        114. In any case, beyond the States are the human beings who organize
                     themselves socially and compose them. The State is not, and has never
                     been, conceived as an end in itself, but rather as a means to regulate and
                     improve the living conditions of the societas gentium, keeping in mind the
                     basic principle of humanity, amongst other fundamental principles of the
                     law of nations, so as to achieve the common good. Beyond the States, the
                     ultimate titulaires of the right to the safeguard and preservation of their
                     cultural and spiritual heritage are the collectivities of human beings con-
                     cerned, or else humankind as a whole.
                        115. As it can be inferred from the present case of the Temple of Preah
                     Vihear, we are here in the domain of superior human values, the protection
                     of which is not unknown to the law of nations 97, although not sufficiently
                     worked upon in international case law and doctrine to date. It is beyond
                     doubt that the States, as promoters of the common good, are under the
                     duty of co-operation between themselves to that end of the safeguard and
                     preservation of the cultural and spiritual heritage. I dare to nourish the
                     hope that both Thailand and Cambodia, with their respectable, ancient
                     cultures, will know how to comply jointly with the provisional measures of
                     protection indicated by the Court in the Order it has just adopted today.
                        116. Half a century ago, the Court’s Judgment of 15 June 1962 in the
                     case of the Temple of Preah Vihear expressly stated, in its dispositif

                          95
                         A. J. Toynbee, op. cit. supra note 92, p. 159.
                          96
                         Ibid., pp. 159, 215, 218-220 and 251.
                          97
                         Cf., over half a century ago, e.g., S. Glaser, “La protection internationale des valeurs
                     humaines”, 60 Revue générale de droit international public (1957), pp. 211‑241.

                     73

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                     (para. 2), that “Thailand is under an obligation to withdraw any military
                     or police forces, or other guards or keepers, stationed by her at the Tem-
                     ple, or in its vicinity on Cambodian territory”. The Temple is and remains
                     the reference to “its vicinity” (from Latin vicinitas). The zone set up by the
                     Court for the purpose of the provisional measures of protection indicated
                     in the present Order, of 18 July 2011, encompasses the territory neigh-
                     bouring (vicinus to) the Temple.

                        117. For the issue of the supervision of compliance by the States con-
                     cerned with the present provisional measures of protection, the Court’s
                     Order, with the demilitarized zone set forth herein, encompasses, in my
                     understanding, to the effect of protection, the people living in the said
                     zone and its surroundings, the Temple of Preah Vihear itself, and all that
                     it represents, all that comes with it from time immemorial, nowadays
                     regarded by UNESCO as part of the cultural and spiritual world heri-
                     tage. Cultures, like human beings, are vulnerable, and need protection.
                     The universality of international law is erected upon respect for cultural
                     diversity. It is reassuring that, for the first time in the history of this
                     Court, provisional measures of protection indicated or ordered by it are,
                     as I perceive them, so meaningfully endowed with a scope of this kind.
                     This is well in keeping with the jus gentium of our times.

                                            (Signed) Antônio Augusto Cançado Trindade.

                     74

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