                      758

                                            SEPARATE OPINION
                                       OF JUDGE CANÇADO TRINDADE

                                                 table of contents

                                                                                Paragraphs

                           I. Prolegomena	                                                  1‑3
                        II. Manifestations of the Preventive Dimension in Contem
                            porary International Law	                                       4‑5
                       III. The Autonomous Legal Regime of Provisional Measures of
                            Protection	                                                       6
                            1. The evolution of provisional measures of protection	        7‑12
                            2. The conformation of their autonomous legal regime	         13‑16

                       IV. Provisional Measures : The Enlargement of the Scope of
                           Protection	                                                    17‑23
                        V. Breach of Provisional Measures of Protection as an
                           Autonomous Breach, Engaging State Responsibility by
                           Itself	                                                        24‑25
                       VI. The ICJ’s Determination of Breaches of Obligations under
                           Provisional Measures of Protection	                            26‑33
                      VII. A Plea for the Prompt Determination of Breaches of Provi-
                           sional Measures of Protection : Some Reflections	              34‑44
                      VIII. Supervision of Compliance with Provisional Measures of
                            Protection	                                                   45‑46
                       IX. Breach of Provisional Measures and Reparation for Dam-
                           ages	                                                          47‑52
                        X. Due Diligence, and the Interrelatedness between the Prin-
                           ciple of Prevention and the Precautionary Principle	           53‑57
                       XI. The Path towards the Progressive Development of Pro
                           visional Measures of Protection	                               58‑66
                      XII. Epilogue : A Recapitulation	                                   67‑73

                                                           *

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                                                     I. Prolegomena

                           1. I have accompanied the majority in voting in favour of the adoption
                      today, 16 December 2015, of the present Judgment of the International
                      Court of Justice (ICJ) in the two joined cases of Certain Activities
                      Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)
                       and of the Construction of a Road in Costa Rica along the San Juan River
                      (Nicaragua v. Costa Rica). Yet, there are certain points ensuing from the
                      Court’s decision which, though not dwelt upon at depth by the Court in
                      its reasoning, are in my view endowed with importance, related as they
                      are to the proper exercise of the international judicial function. I feel thus
                      obliged to dwell upon them, in the present separate opinion, nourishing
                      the hope that the considerations that follow may be useful for the han-
                       dling of this matter by the ICJ in future cases.
                           2. I start drawing attention to the manifestations, in the cas d’espèce, of
                       the preventive dimension in contemporary international law. I then turn
                       attention to the key point, which I have been sustaining in the adjudica-
                       tion of successive cases in this Court, namely, that of the conformation of
                       the autonomous legal regime of provisional measures of protection, in the
                       course of their evolution (after their transposition from comparative
                       domestic procedural law into international law). Next, I consider the
                       widening of the scope of protection by means of provisional measures, and
                        the breach of these latter as an autonomous breach, engaging State respon-
                        sibility by itself. I then proceed to examine the determination by the ICJ of
                        breaches of obligations under provisional measures of protection.
                           3. In sequence, I present a plea for the prompt determination by the
                        Court of breaches of provisional measures of protection. My next line of
                        consideration is on the supervision of compliance with provisional mea-
                        sures of protection. Following that, I examine the interrelationship
                        between the breach of provisional measures and the duty of reparation
                        (in its distinct forms) for damages. I then turn attention to due diligence,
                        and the interrelatedness between the principle of prevention and the pre-
                        cautionary principle. Next, I purport to detect the path towards the pro-
                        gressive development of provisional measures of protection. Last but not
                        least, I present, in an epilogue, my final considerations on the matter, in
                        the form of a recapitulation of the main points sustained herein, in the
                        course of the present separate opinion.

                                  II. Manifestations of the Preventive Dimension
                                       in Contemporary International Law

                         4. May I begin by observing that the two joined cases of Certain Activ‑
                      ities Carried Out by Nicaragua in the Border Area and of the Construction
                      of a Road in Costa Rica along the San Juan River bring to the fore the
                      relevance of the preventive dimension in contemporary international law,
                      as reflected in the present Judgment, of 16 December 2015, in the finding

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                       and legal consequences of breaches of provisional measures of protection
                       (in the Certain Activities case), as well as in the acknowledgment of the
                       obligation of conducting an environmental impact assessment (EIA) (in
                       the Construction of a Road case as well). This preventive dimension grows
                       in importance in the framework of regimes of protection (such as those,
                       e.g., of the human person, and of the environment). Moreover, it brings
                       us particularly close to general principles of law. Such preventive dimen-
                       sion stands out clearly in the succession of the Court’s Orders of provi-
                       sional measures of protection of 8 March 2011, 16 July 2013 and
                       22 November 2013 1.
                          5. The question of the non‑compliance with, or of breaches of, the
                       aforementioned Orders of provisional measures of protection, was care-
                       fully addressed by the two contending Parties in the course not only of
                       the Court’s proceedings pertaining to such Orders 2, but also in the
                       course of its proceedings (written and oral phases) as to the merits of the
                       Certain Activities case. Concern with the issue of non‑compliance with, or
                       breaches of the Court’s Order of 8 March 2011, for example, was in effect
                       expressed in Costa Rica’s Memorial 3 — a whole chapter — as well as in
                       its oral arguments 4; Nicaragua, likewise, devoted a chapter of its
                      Counter‑Memorial 5, as well as its oral arguments 6, to the issue. The
                       same concern was expressed, in respect of the Court’s subsequent Order
                       on provisional measures of 16 July 2013 — and of events following it —
                       in the oral arguments of Costa Rica 7 and of Nicaragua 8. Again, in respect
                       of the Court’s third Order on provisional measures, of 22 November
                       2013, reference can further be made to the oral arguments of both
                       Costa Rica 9 and Nicaragua 10.

                                  III. The Autonomous Legal Regime of Provisional
                                               Measures of Protection

                        6. The autonomous legal regime of provisional measures of protection
                      has been quite discernible to me : I have been drawing attention to it, in
                           1
                           Reference can further be made to the Court’s subsequent Order of 13 December 2013.
                           2
                           Cf., as to Costa Rica’s oral arguments, CR 2013/24, of 14 October 2013, pp. 12‑61 ;
                      and CR 2013/26, of 16 October 2013, pp. 8‑35 ; and, as to Nicaragua’s oral arguments,
                      CR 2013/25, of 15 October 2013, pp. 8‑57 ; and CR 2013/27, of 17 October 2013, pp. 8‑44.
                         3 Cf. Memorial, Chapter VI, paras. 6.1‑6.63.
                         4 Cf. CR 2015/2, of 14 April 2015, pp. 17 and 23‑25 ; CR 2015/4, of 15 April 2015,

                      pp. 23‑32 ; and CR 2015/14, of 28 April 2015, pp. 39‑42 and 65‑66.
                         5 Cf. Counter-Memorial, Chapter 7, paras. 7.4‑7.46.
                         6 Cf. CR 2015/5, of 16 April 2015, p. 18 ; CR 2015/7, of 17 April 2015, pp. 46‑50 ; and

                      CR 2015/15, of 29 April 2015, pp. 43‑44.
                         7 Cf. CR 2015/2, of 14 April 2015, pp. 24‑25 ; CR 2015/4, of 15 April 2015, pp. 31‑32.
                         8 Cf. CR 2015/7, of 17 April 2015, pp. 48‑50.
                         9 Cf. CR 2015/4, of 15 April 2015, pp. 31‑34 ; and CR 2015/14, of 28 April 2015, pp. 65‑66.
                         10 Cf. CR 2015/7, of 17 April 2015, pp. 41‑45.

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                      the way I conceive such autonomous legal regime, in successive dissenting
                      and individual opinions in this Court. The present Judgment of the ICJ in
                      the two joined cases of Certain Activities and of the Construction of a
                      Road is a proper occasion to dwell further upon it. The Court has duly
                      considered the submissions of the Parties, Costa Rica and Nicaragua
                      (Judgment, paras. 121‑129), and has found that the respondent State
                      incurred into a breach of the obligations under its Order on provisional
                      measures of protection of 8 March 2011 by the excavation of two caños
                      in 2013 and the establishment of a military presence in the disputed terri-
                      tory (ibid., paras. 127 and 129, and resolutory point No. 3 of the disposi‑
                      tif). The ICJ has pointed out that the respondent State itself had
                      acknowledged, in the course of the oral hearings, that “the excavation of
                      the second and third caños represented an infringement of its obligations
                      under the 2011 Order” (ibid., para. 125) 11.

                                  1. The Evolution of Provisional Measures of Protection
                         7. There are, as from this finding of the Court of a breach of provisio-
                      nal measures in the cas d’espèce, several points that come to my mind, all
                      relating to what I have been conceptualizing, along the years, as the auto-
                      nomous legal regime of provisional measures of protection 12. This regime
                      can be better appreciated if we consider provisional measures in their his-
                      torical evolution. May I recall that, in their origins, in domestic procedu-
                      ral law doctrine of over a century ago, provisional measures were
                      considered, and evolved, in order to safeguard the effectiveness of the
                      jurisdictional function itself.
                         8. They thus emerged, in the domestic legal systems, in the form of a
                      precautionary legal action (mesure conservatoire/acción cautelar/ação cau‑
                      telar), aiming at guaranteeing, not directly subjective rights per se, but
                      rather the jurisdictional process itself. They had not yet freed themselves
                         11 In the oral hearing of 16 April 2015, the Agent of the respondent State asserted that

                      “Nicaragua deeply regrets the actions following the 2011 Order on provisional measures
                      that led the Court to determine, in November 2013, that a new Order was required” ;
                      CR 2015/5, of 16 April 2015, p. 8, para. 42. On the following day counsel recalled this
                      (CR 2015/7, of 17 April 2015, p. 45, para. 14), and again it did so in the hearing of 29 April
                      2015, adding that there was thus “no need for future remedial measures” ; CR 2015/15, of
                      29 April 2015, p. 44, paras. 23-24.
                         12 Cf. A. A. Cançado Trindade, Evolution du droit international au droit des gens —

                      L’accès des particuliers à la justice internationale : le regard d’un juge, Paris, Pedone, 2008,
                      pp. 64‑70 ; A. A. Cançado Trindade, “La Expansión y la Consolidación de las Medidas
                      Provisionales de Protección en la Jurisdicción Internacional Contemporánea”, Retos de
                      la Jurisdicción Internacional (eds. S. Sanz Caballero and R. Abril Stoffels), Cizur Menor/
                      Navarra, Cedri/CEU/Thomson Reuters, 2012, pp. 99‑117 ; A. A. Cançado Trindade, El
                      Ejercicio de la Función Judicial Internacional — Memorias de la Corte Interamericana
                      de Derechos Humanos, 3rd ed., Belo Horizonte/Brazil, Edit. Del Rey, 2013, Chapters V
                      and XXI (provisional measures), pp. 47‑52 and 177-186 ; A. A. Cançado Trindade, “Les
                      mesures provisoires de protection dans la jurisprudence de la Cour interaméricaine des droits
                      de l’homme”, Mesures conservatoires et droits fondamentaux (eds. G. Cohen-Jonathan and
                      J.‑F. Flauss), Brussels, Bruylant/Nemesis, 2005, pp. 145‑163.

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                      from a certain juridical formalism, conveying the impression of taking the
                      legal process as an end in itself, rather than as a means for the realization
                      of justice. With the gradual transposition of provisional measures from
                      domestic into international law level, they came to be increasingly resorted
                      to, in face of the most diverse circumstances disclosing the probability or
                      imminence of an irreparable damage, to be prevented or avoided.

                         9. Their transposition into international legal procedure, and the
                      increasing recourse to them within the framework of domains of protec-
                      tion (e.g., of the human person or of the environment), had the effect, in
                      my perception, of enlarging the scope of international jurisdiction, and of
                      refining their conceptualization. International case law on provisional
                      measures of protection expanded considerably over the last three decades,
                      making it clear to the contending parties that they are to abstain from
                      any action which may aggravate the dispute pendente lite, or may have a
                      prejudicial effect on the compliance with the subsequent judgment as to
                      the merits.
                         10. Their rationale stood out clearer, turning to the protection of
                      rights, of the equality of arms (égalité des armes), and not only of the
                      legal process itself. Over the last three decades, provisional measures of
                      protection have freed themselves from the juridical formalism of the pro-
                      cedural doctrine of over a century ago, and have, in my perception, come
                      closer to reaching their plenitude. They have become endowed with a
                      character, more than precautionary, truly tutelary. When their basic req-
                      uisites — of gravity and urgency, and the needed prevention of irrepara-
                      ble harm — are met, they have been ordered, in the light of the needs of
                      protection, and have thus conformed a true jurisdictional guarantee of a
                      preventive character.
                         11. For many years I have been insisting on this particular point. To
                      recall but one example, already by the turn of the century, in another
                      international jurisdiction, in my concurring opinion appended to the
                      Order of 25 May 1999 of the Inter‑American Court of Human Rights
                      (IACtHR) in the case of James et al., concerning Trinidad and Tobago, I
                      deemed it fit to draw attention to the configuration, in provisional mea-
                      sures of protection of our times, of a true jurisdictional guarantee of a
                      preventive character (para. 10). I further drew attention to the inherent
                      power or faculté of an international tribunal to determine the scope of the
                      provisional measures that it decided to order (para. 7). All this comes to
                      reinforce the preventive dimension, proper of those measures.

                         12. In the case of the ICJ (like in that of the IACtHR), such provi-
                      sional measures do have a conventional basis (Article 41 of the ICJ’s Stat-
                      ute). But even if an international tribunal does not count on such a
                      conventional basis, it has, in my understanding, inherent powers to indi-
                      cate such measures, so as to secure the sound administration of justice (la
                      bonne administration de la justice). Contemporary international tribunals
                      have the compétence de la compétence (Kompetenz‑Kompetenz) in the

                      101

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                      domain of provisional measures as well, so as to safeguard the respective
                      rights of the contending parties in the course of the legal process. The
                      grant of those measures is a significant manifestation of the preventive
                      dimension in contemporary international law.

                              2. The Conformation of Their Autonomous Legal Regime
                         13. In effect, the evolution of provisional measures in recent years has,
                      in my perception, made very clear that they operate within an autono-
                      mous legal regime of their own, encompassing their juridical nature, the
                      rights and obligations at issue, their legal effects, and the duty of compli-
                      ance with them. It is now the duty of contemporary international tribu-
                      nals to elaborate on such autonomous legal regime, and to extract the
                      legal consequences ensuing therefrom. In order to do so, it is necessary, in
                      my understanding, to keep in mind — may I reiterate — their juridical
                      nature, the rights to be preserved and the corresponding obligations in
                      their wide scope, and their legal effects (cf. infra).
                         14. In my dissenting opinion in the Court’s Order (of 28 May 2009) in
                      the case of Questions Relating to the Obligation to Prosecute or Extradite
                      (Belgium v. Senegal), wherein the Court decided not to indicate or order
                      provisional measures, I pondered that provisional measures of protection
                      have lately much evolved, and appear nowadays as being “endowed with
                      a character, more than precautionary, truly tutelary” (I.C.J. Reports
                      2009, p. 170, para. 13). Their development — I added — has led the
                      Court gradually to overcome the strictly inter‑State outlook in the
                      acknowledgment of the rights to be preserved (ibid., p. 174, para. 21,
                      p. 175, para. 25 and p. 190, para. 72). Such rights to be protected by pro-
                      visional measures have encompassed, in the cas d’espèce, the right to the
                      realization of justice, — i.e., the right to see to it that justice is done, —
                      “ineluctably linked to the rule of law at both national and international
                      levels” (ibid., pp. 196‑197, paras. 92‑95 and p. 199, para. 101).

                         15. Four years later, in my dissenting opinion in the Court’s Order
                      (of 16 July 2013) in the joined cases of Certain Activities Carried Out by
                      Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction
                      of a Road in Costa Rica along the San Juan River (Nicaragua v.
                      Costa Rica), wherein the Court simply reaffirmed a previous Order
                      (of 8 March 2011) and decided not to indicate or order new provisional
                      measures or modify the previous Order, I drew attention to the overcom-
                      ing of the inter‑State outlook in the present domain of provisional mea-
                      sures (I.C.J. Reports 2013, p. 261, para. 49), given that they came to
                      extend protection also to the human person (ibid., pp. 257‑258,
                      paras. 39‑42). I further warned that non‑compliance with provisional
                      measures of protection amounts to a breach of an international obliga-
                      tion, engaging State responsibility per se (ibid., p. 267‑268, paras. 70‑72).
                      Provisional measures have an autonomous legal regime of their own, I
                      concluded, and they have grown in importance — with their preventive

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                      dimension underlined by their juridical nature — “in respect of regimes of
                      protection, such as those of the human person as well as of the environ-
                      ment” (I.C.J. Reports 2013, pp. 268‑269, paras. 73 and 75).

                         16. Shortly afterwards, in my subsequent separate opinion in the
                      Court’s following Order on provisional measures (of 22 November 2013)
                      in the same two joined cases opposing the two Central American coun-
                      tries, Nicaragua and Costa Rica, wherein the Court decided to indicate or
                      order new provisional measures, I observed that the duty of compliance
                      with provisional measures of protection outlines their autonomous legal
                      regime (ibid., pp. 379‑380, paras. 23‑24). Provisional measures — I pro-
                      ceeded — generate per se obligations, irrespective of, or independently
                      from, those ensuing from the Court’s Judgments on the merits or on rep-
                      arations (ibid., pp. 382‑383, para. 29). I insisted that provisional measures
                      of protection, in their evolution, have become, more than precautionary,
                      truly tutelary (ibid., p. 381, para. 26), and I then added, moving into their
                      effects, that non‑compliance with provisional measures of protection
                      engages autonomously the international responsibility of the State (ibid.,
                      p. 380, para. 24 and p. 387, paras. 39‑40). Such non‑compliance is “an
                      autonomous breach of a conventional obligation (concerning provisional
                      measures), without prejudice to what will later be decided by the Court as
                      to the merits” (ibid., p. 386, para. 37).

                                   IV. Provisional Measures : The Enlargement
                                           of the Scope of Protection

                         17. In the present Judgment in the two joined cases of Certain Activi‑
                      ties and of the Construction of a Road, the Court has found, in Sec-
                      tion III.C concerning the Certain Activities case, that the excavation of
                      the second and the third caños and the establishment of a military pres-
                      ence in the disputed territory breached the obligations of the provisional
                      measures of protection it had ordered (on 8 March 2011), and constituted
                      “a violation of the territorial sovereignty” of the applicant State (Judg-
                      ment, para. 129). Beyond that, provisional measures, in my perception,
                      do widen the scope of protection ; it is not only a matter of State sover-
                      eignty. Protection extends to the environment, and the right to life ; their
                      safeguard is also necessary to avoid aggravating the dispute or rendering
                      it more difficult to resolve (ibid., cf. para. 123).

                         18. The enlargement, by provisional measures, of the scope of protec-
                      tion, is deserving of attention and praise. It is reassuring that prevention
                      and precaution have found their place in the conceptual universe of the
                      law of nations, the droit des gens, — and a prominent place in interna-
                      tional environmental law. It could not have been otherwise. From the
                      days of the UN Conference on Environment and Development
                      (Rio de Janeiro, 1992) up to the present, this has occurred amidst the

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                      acknowledgment of risks and the limitations of human knowledge. Pre-
                      vention and precaution have enforced each other, and the new awareness
                      of their need has paved the way to the aforementioned expansion of pro-
                      visional measures of protection along the last three decades.

                         19. It is not casually that they came to be conceived as precautionary
                      measures (mesures provisoires/medidas cautelares), prevention and pre-
                      caution underlying them all. Precaution, in effect, takes prevention fur-
                      ther, in face of the uncertainty of risks, so as to avoid irreparable damages.
                      And here, again, in the domain of provisional measures of protection, the
                      relationship between international law and time becomes manifest. The
                      inter‑temporal dimension is here ineluctable, overcoming the constraints
                      of legal positivism. International law endeavours to be anticipatory in the
                      regulation of social facts, so as to avoid irreparable harm ; provisional
                      measures of protection expand the protection they pursue, as a true inter-
                      national jurisdictional guarantee of a preventive character 13.

                         20. In order to avoid irreparable harm, one cannot remain closed in
                      the fugacious present, but rather look back in time and learn the lessons
                      of the past, as much as, at the same time, look into the future, to see how
                      to avoid irreparable harm. We live — or survive — surrounded by uncer-
                      tainties, which call for precaution. As Seneca warned in his De Brevitate
                      Vitae (circa 49 ad), it is wise to keep in mind all times — past, present
                      and future — together : time past, by recollection ; time present, by mak-
                      ing the best use of it ; and time future, by anticipating whatever one can,
                      and thus making one’s life meaningful, safer and longer 14. In his late
                      years, in his Letters to Lucilius (circa 62‑64 ad), Seneca, in his Stoic search
                      for some means of reconciliation with the frailty of human nature, stated :
                      “We are tormented alike by what is past and what is to come. (. . .) [M]emory
                      brings back the agony of fear while foresight brings it on prematurely. No
                      one confines his unhappiness to the present.” 15
                         21. Back to our times, in this twenty-first century, in yet another case
                      before this Court, in the Request for Interpretation of the Judgment of
                      15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambo-
                      dia v. Thailand) (Cambodia v. Thailand), the ICJ, in its Order on provi-
                      sional measures of protection of 18 July 2011, took the unprecedented and
                      correct decision to order, inter alia, the creation of a provisional “demili-
                      tarized zone” around the Temple and in the proximities of the border
                      between the two countries, which contributed to put an end to the armed

                         13 Cf., in this sense, A. A. Cançado Trindade, International Law for Humankind —

                      Towards a New Jus Gentium, 2nd rev. ed., Leiden/The Hague, Nijhoff/Hague Academy of
                      International Law, 2013, pp. 40‑47.
                         14 L. A. Seneca, On the Shortness of Life (De Brevitate Vitae) [circa 49 ad], Part XV.
                         15 L. A. Seneca, “Letter V”, Letters to Lucilius [circa 62‑64 ad].

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                      hostilities around the Temple in the border region between Cambodia and
                      Thailand. In my separate opinion appended to that Order, I supported the
                      Court’s correct decision, which, in my understanding, extended protection
                      not only to the territory at issue, but also to the populations living thereon,
                      as well as to the monuments comprising the Temple which, by decision of
                      UNESCO (of 2008), integrate the cultural and spiritual world heritage
                      (I.C.J. Reports 2011 (II), pp. 588‑598, paras. 66‑95).
                         22. In the same separate opinion, I dwelt upon the temporal dimension
                      in international law, this latter being also anticipatory in the regulation of
                      social facts (ibid., p. 588, paras. 64‑65). In the context of the cas d’espèce,
                      provisional measures rightly extended protection also to cultural or spiri-
                      tual heritage, upholding a universal value (ibid., p. 598, para. 93). They
                      brought “territory, people and human values together”, well beyond State
                      territorial sovereignty (ibid., p. 600, para. 100), — as shown by the estab-
                      lishment, in the Order, of the aforementioned demilitarized zone (ibid.,
                      p. 607, para. 117). I further observed that rights of States and rights of
                      individuals evolve pari passu in contemporary jus gentium, and added:
                      “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 (. . .)” (Ibid., p. 606, para. 113.)

                         23. Beyond the classic territorialist outlook is the “human factor” ;
                      protection by means of provisional measures extended itself to local pop-
                      ulations as well as to the cultural and spiritual world heritage (ibid.,
                      pp. 598‑606, paras. 96‑113), in the light of the principle of humanity, ori-
                      enting the societas gentium towards the realization of the common good
                      (ibid., p. 606, paras. 114‑115 and p. 607, para. 117). After all, I added, one
                      cannot consider territory (whereon hostilities were taking place) in isola-
                      tion (as in the past), making abstraction of the population (or the local
                      populations), which form the most precious component of statehood.
                      One is to consider people on territory (cf. ibid., p. 589, para. 67, p. 594,
                      para. 81, p. 599, para. 97, p. 600, para. 100 and p. 606, para. 114), I con-
                      cluded, there being epistemologically no inadequacy to extend protection,
                      by means of provisional measures, also to human life and cultural and
                      spiritual world heritage.

                                V. Breach of Provisional Measures of Protection
                            as an Autonomous Breach, Engaging State Responsibility
                                                    by Itself

                        24. The breach of a provisional measure of protection is additional to
                      the breach which comes, or may come, later to be determined as to the
                      merits of the case at issue. The factual context may be the same, but State
                      responsibility is engaged not only with the occurrence and determination
                      of a breach of an international obligation as to the merits, but also earlier

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                      on, with the occurrence and determination of a breach of an obligation
                      under an Order of provisional measures of protection. The latter is an
                      autonomous breach. State responsibility is thus engaged time and time
                      again, in respect of the breaches of obligations as to provisional measures
                      (prevention) and as to the merits.
                         25. The breach of a provisional measure of protection is an autono-
                      mous breach, added to the one which comes, or may come, later to be
                      determined as to the merits. As such, it can be promptly determined, with
                      its legal consequences, without any need to wait for the conclusion of the
                      proceedings as to the merits. Although in the Order of 22 November 2013
                      the Court did not expressly determine the occurrence of a breach of the
                      earlier Order of 8 March 2011, it implicitly held so, in reiterating the
                      earlier Order and indicating new provisional measures. In my view,

                      the Court should have done so already in its Order of 16 July 2013, as
                      explained in my dissenting opinion appended thereto.

                          VI. The International Court of Justice’s Determination of
                      Breaches of Obligations under Provisional Measures of Protection

                         26. In its practice, the ICJ has come to determine, on a few occasions
                      so far, breaches of obligations under provisional measures of protection
                      it had ordered ; it has done so at the end of the proceedings as to the mer-
                      its of the corresponding cases. This has occurred, until the Judgment the
                      Court has just delivered today, 16 December 2015, in the joined cases of
                      Certain Activities and of the Construction of a Road, in its Judgments as
                      to the merits in the three cases of LaGrand (of 27 June 2001), of Armed
                      Activities on the Territory of the Congo (of 19 December 2005), and of the
                      Bosnian Genocide (of 26 February 2007).
                         27. Earlier on, in the case of the United States Diplomatic and Consular
                      Staff in Tehran (United States of America v. Iran), the ICJ stated that its
                      Order on provisional measures of 15 December 1979 had been either
                      “rejected” or “ignored” by the authorities of the respondent State (Judg‑
                      ment, I.C.J. Reports 1980, p. 35, para. 75 and p. 43, para. 93) ; the Court
                      expressed its concern with the aggravation of the “tension between the
                      two countries” (ibid., p. 43, para. 93), but, in the dispositif of the Judg-
                      ment, it did not expressly assert that the aforementioned Order on provi-
                      sional measures had been breached. No consequences from non‑compliance
                      with its provisional measures were drawn by the Court.
                         28. The ICJ only started doing so in the course of the last 15 years, i.e.,
                      in the twenty-first century — although, in my view, nothing hindered it
                      from doing so well before, in earlier cases. Thus, in its Judgment
                      of 27 June 2001 in the LaGrand case (Germany v. United States), the ICJ,
                      after holding that its Order on provisional measures of 3 March 1999 had
                      not been complied with (I.C.J. Reports 2001, p. 508, para. 115), stated, in
                      resolutory point No. 5 of the dispositif, that the respondent State had

                      106

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                      breached the obligation incumbent upon it under the aforementioned
                      Order on provisional measures. Yet, once again the Court did not draw
                      any consequences from the conduct in breach of its provisional measures.
                         29. Four years later, in its Judgment of 19 December 2005 in the case
                      concerning Armed Activities on the Territory of the Congo (Democratic
                      Republic of the Congo v. Uganda), the ICJ, dwelling again on the matter,
                      first recalled its finding that the respondent State was “responsible for
                      acts in violation of international human rights law and international
                      humanitarian law carried out by its military forces” in the territory of the
                      Democratic Republic of the Congo (I.C.J. Reports 2005, p. 258,
                      para. 264), committed in the period between the issue of its Order on
                      provisional measures (of 1 July 2000) and the withdrawal of Ugandan
                      troops in June 2003. Turning to its Order on provisional measures
                      adopted half a decade earlier, the ICJ found that the respondent State
                      had not complied with it (ibid.), and reiterated its finding in resolutory
                      point No. 7 of the dispositif.
                         30. Another case of determination by the ICJ of a breach of its Orders
                      on provisional measures of protection was that of the Application of the
                      Convention on the Prevention and Punishment of the Crime of Genocide
                      (Bosnia and Herzegovina v. Serbia and Montenegro) : the Court held so in
                      its Judgment of 26 February 2007, while the Orders on provisional mea-
                      sures had been adopted 14 years earlier, on 8 April 1993 and 13 Septem-
                      ber 1993. They were intended to cease the atrocities that were already
                      being perpetrated. The Court found, only in its Judgment of 2007
                      (I.C.J. Reports 2007 (I), p. 231, para. 456), that the respondent State had
                      failed to “take all measures within its power to prevent commission of the
                      crime of genocide”, as indicated in its Order of 8 April 1993 (I.C.J. Reports
                      1993, p. 24, para. 52.A (1)) and reaffirmed in its Order of 13 September
                      1993, nor did it comply with the measure of ensuring that “any (. . .)
                      organizations and persons which may be subject to its (. . .) influence
                      (. . .) do not commit any acts of genocide”, as also indicated in its Order
                      of 8 April 1993 (para. 52.A (2)) and reiterated in its Order of 13 Septem-
                      ber 1993 16.

                         31. Two years after the first Order (of 8 April 1993), the UN safe‑area
                      of Srebrenica collapsed, and the mass killings of July 1995 in Srebrenica
                      occurred, in flagrant breach of the provisional measures ordered by the
                      ICJ. In the meantime, the proceedings in the case before the ICJ pro-
                      longed in time : as to preliminary objections until 1996 ; as to counter‑
                      claims until 1997, and again until 2001 ; and as to the merits until 2007.

                         16 Bosnia and Herzegovina promptly brought the matter before the UN Security

                      Council. To have the Court’s Orders enforced ; the Security Council promptly adopted its
                      resolution 819 (of 16 April 1993), which, after expressly invoking the ICJ’s Order of 8 April
                      1993), ordered the immediate cessation of the armed attacks and several other measures to
                      protect persons in Srebrenica and its surrounding areas.

                      107

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                      Over these years, much criticism was expressed in expert writing that the
                      manifest breaches of the ICJ’s Orders of provisional measures of protec-
                      tion of 1993 (supra) passed for a long time without determination, and
                      without any legal consequences.

                         32. As to the ICJ’s Judgment on the merits of the aforementioned case
                      of Application of the Genocide Convention (2007), the Court was requested
                      by the applicant State to hold the respondent State to be under an obliga-
                      tion to provide “symbolic compensation” (I.C.J. Reports 2007 (I), p. 231,
                      para. 458) for the massacres at Srebrenica in July 1995. The Court, how-
                      ever, considered that, for the purposes of reparation, the respondent State’s
                      non‑compliance with its Orders of 8 April 1993 and 13 September 1993 “is
                      an aspect of, or merges with, its breaches of the substantive obligations of
                      prevention and punishment laid upon it by the Convention” (ibid., p. 236,
                      para. 469). Thus, instead of ordering symbolic compensation, the Court
                      deemed it fit to “include in the operative clause of the present Judgment, by
                      way of satisfaction, a declaration that the Respondent has failed to comply
                      with the Court’s Orders indicating provisional measures” (ibid.).
                         33. The ICJ then found, in resolutory point No. 7 of the dispositif, that
                      the respondent State had “violated its obligations to comply with the pro-
                      visional measures ordered by the Court on 8 April and 13 September 1993
                      in this case, inasmuch as it failed to take all measures within its power to
                      prevent genocide in Srebrenica in July 1995”. It took 14 years for the
                      Court to determine the breach of its provisional measures of protection in
                      the cas d’espèce. In my understanding, there was no need to wait such a
                      long time to determine the breach of such measures ; on the contrary, they
                      should have been promptly determined by the ICJ, with all its legal con-
                      sequences. This tragic case shows that we are still in the infancy of the
                      development of the legal regime of provisional measures of protection in
                      contemporary international law. A proper understanding of the auto
                      nomous legal regime of those measures may foster their development at
                      conceptual level.

                             VII. A Plea for the Prompt Determination of Breaches
                            of Provisional Measures of Protection : Some Reflections

                        34. In the cas d’espèce, the breaches of provisional measures have been
                      determined by the Court within a reasonably short lapse of time, —
                      unlike in the case of Armed Activities on the Territory of the Congo (half
                      a decade later) and in the Bosnian Genocide case (almost one and a half
                      decades later). In the cas d’espèce, the damages caused by the breaches of
                      provisional measures have not been irreparable — unlike in the LaGrand
                      case — and with their determination by the Court in the present Judg-
                      ment their effects can be made to cease. This brings to the fore, in my

                      108

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                      perception, an important point related to the autonomous legal regime of
                      provisional measures of protection.

                         35. In effect, in my understanding, the determination of a breach of a
                      provisional measure of protection is not — should not — be conditioned
                      by the completion of subsequent proceedings as to the merits of the case
                      at issue. The legal effects of a breach of a provisional measure of protec-
                      tion should in my view be promptly determined, with all its legal conse-
                      quences. In this way, its anticipatory rationale would be better served.
                      There is no room for raising here alleged difficulties as to evidence, as for
                      the ordering of provisional measures of protection, and the determination
                      of non‑compliance with them, it suffices to rely on prima facie evidence
                      (commencement de preuve). And it could not be otherwise.
                         36. Furthermore, the rights that one seeks to protect under provisional
                      measures are not necessarily the same as those vindicated on the merits,
                      as shown in the case of the Temple of Preah Vihear (cf. supra). Likewise,
                      the obligations (of prevention) are new or additional ones, in relation to
                      those ensuing from the judgment on the merits. There is yet another point
                      which I deem it fit to single out here, namely, contemporary international
                      tribunals have, in my understanding, an inherent power or faculté to
                      order provisional measures of protection, whenever needed, and to deter-
                      mine, ex officio, the occurrence of a breach of provisional measures, with
                      its legal consequences. Having pointed this out, my concern here is now
                      turned to a distinct, and very concrete point.

                        37. The fact that, in its practice, the ICJ has only indicated provisional
                      measures at the request of a State party, in my view does not mean that it
                      cannot order such measures sponte sua, ex officio. The ICJ Statute endows
                      the Court with “the power to indicate, if it considers that circumstances
                      so require, any provisional measures which ought to be taken to preserve
                      the respective rights of either party” (Art. 41 (1)). The Rules of Court
                      provide for request by a party for the indication of provisional measures
                      (Art. 73 (1)) ; yet they add that, irrespective of such request, the Court
                      may indicate provisional measures that, in its view, “are in whole or in
                      part other than those requested” (Art. 75 (2)).
                        38. For example, in the case concerning the Land and Maritime Bound‑
                      ary between Cameroon and Nigeria, the ICJ indicated, in its Order
                      of 15 March 1996 (I.C.J. Reports 1996 (I), p. 18, para. 20 and pp. 24‑25,
                      para. 49), provisional measures that were distinct from, and broader than,
                      those requested by the applicant State 17. It expressly stated, in that Order,
                      that it was entitled to do so, that it had the power to indicate measures

                         17 The Court then found, six years later, in its Judgment of 10 October 2002, that the

                      applicant State had not established that there had been a breach by the respondent State
                      (Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria :
                      Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, p. 453, para. 322) of the
                      provisional measures indicated in its Order of 15 March 1996.

                      109

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                      “in whole or in part other than those requested/totalement ou partielle‑
                      ment différentes de celles qui sont sollicitées” (I.C.J. Reports 1996 (I),
                      p. 24, para. 48). Furthermore, the Rules of Court provide that “The
                      Court may at any time decide to examine proprio motu whether the cir-
                      cumstances of the case require the indication of provisional measures
                      which ought to be taken or complied with by any or all of the parties”
                      (Art. 75 (1)). The Rules of Court moreover set forth that it “may request
                      information from the parties on any matter connected with the imple-
                      mentation of any provisional measures it has indicated” (Art. 78).
                         39. The Court, thus, is not conditioned by what a party, or the parties,
                      request(s), nor — in my view — even by the existence of the request itself.
                      Here, in the realm of provisional measures of protection, once again the
                      constraints of voluntarist legal positivism are, in my view, overcome 18.
                      The Court is not limited to what the contending parties want (in the terms
                      they express their wish), or so request. The Court is not an arbitral tribu-
                      nal, it stands above the will of the contending parties. This is an impor-
                      tant point that I have been making on successive occasions within the
                      ICJ, in its work of international adjudication.

                         40. In effect, there have lately been cases lodged with it, where the ICJ
                      has been called upon to reason beyond the inter‑State dimension, not
                      being limited by the contentions or interests of the litigating States : this is
                      the point I deemed it fit to stress in my separate opinion in the Court’s
                      Judgment (merits) of 30 November 2010 in the case of Ahmadou Sadio
                      Diallo (Republic of Guinea v. Democratic Republic of the Congo)
                      (I.C.J. Reports 2010 (II), p. 806, paras. 227‑228). Earlier on, in the
                      Court’s Order (provisional measures) of 28 May 2009 in the case of Ques‑
                      tions Relating to the Obligation to Prosecute or Extradite (Belgium v.
                      Senegal), I stated, in my dissenting opinion appended thereto, that the
                       Court is not to relinquish its jurisdiction in respect of provisional mea-
                      sures of protection in face of what appears to be the professed intentions
                      of the parties ; on the contrary, the Court is to assume the role of guaran-
                      tor of compliance with conventional obligations, beyond the professed
                      intention or will of the parties (I.C.J. Reports 2009, p. 195, para. 88).

                          41. In the same line of thinking, in the ICJ’s Judgment (preliminary
                      objections) of 1 April 2011 in the case concerning the Application of the
                      International Convention on the Elimination of All Forms of Racial
                      Discrimination (Georgia v. Russian Federation), I asserted, in my dissent-
                       ing opinion appended thereto, that the ICJ cannot “keep on embarking
                       on a literal or grammatical and static interpretation of the terms of
                       compromissory clauses” enshrined in human rights treaties (such as the

                         18 For my criticisms of the voluntarist conception of international law,

                      cf. A. A. Cançado Trindade, “The Voluntarist Conception of International Law : A
                      Re‑Assessment”, 59 Revue de droit international de sciences diplomatiques et politiques, Sottile
                      (1981), pp. 201‑240.

                      110

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                      CERD Convention), “drawing ‘preconditions’ therefrom for the exercise
                      of its jurisdiction, in an attitude remindful of traditional international
                      arbitral practice” (I.C.J. Reports 2011 (I), p. 320, para. 206). On the con-
                      trary, I added, “[w]hen human rights treaties are at stake, there is need, in
                      my perception, to overcome the force of inertia, and to assert and develop
                      the compulsory jurisdiction of the ICJ on the basis of the compromissory
                      clauses contained in those treaties” (ibid.).

                         42. The Court — may I reiterate — is not an arbitral tribunal, it stands
                      above the will of the contending parties. It is not conditioned by requests
                      or professed intentions of the contending parties. It has an inherent power
                      or faculté to proceed promptly to the determination of a breach of provi-
                      sional measures, in the interests of the sound administration of justice.
                      And recta ratio guides the sound administration of justice (la bonne
                      administration de la justice). Recta ratio stands above the will. It guides
                      international adjudication and secures its contribution to the rule of law
                      (prééminence du droit) at international level.
                         43. The Court is entirely free to order the provisional measures that it
                      considers necessary, so as to prevent the aggravation of the dispute or the
                      occurrence of irreparable harm, even if the measures it decides to order are
                      quite different from those requested by the contending parties. The ICJ has
                      in fact done so, not surprisingly, also in relation to situations of armed
                      conflicts ; the Court has been faced, in such situations (surrounded by com-
                      plexity), with the imperative of protection of human life. Thus, in its Order
                      on provisional measures of protection of 1 July 2000, in the case concerning
                      Armed Activities on the Territory of the Congo (Democratic Republic of the
                      Congo v. Uganda), the ICJ, invoking Article 75 (2) of the Rules of Court,
                      once again asserted its power to order measures that are “in whole or in
                      part other than those requested/totalement ou partiellement différentes de
                      celles qui sont sollicitées” (I.C.J. Reports 2000, p. 128, para. 43).
                         44. The Court, in my view, after examining the circumstances of the
                      cas d’espèce, may proceed to order, sponte sua, provisional measures of
                      protection. And it may, in my conception, proceed motu proprio — thus
                      avoiding the aggravation of a situation — to determine ex officio, the
                      occurrence of a breach of an Order of provisional measures of protection.
                      Keeping in mind the preventive dimension in contemporary international
                      law (cf. supra), and the need to prevent further irreparable harm, the
                      Court does not have to wait until the completion of the proceedings as to
                      the merits, especially if such proceedings are unreasonably prolonged, as,
                      e.g., in the case of the Bosnian Genocide (cf. supra).

                            VIII. Supervision of Compliance with Provisional Measures
                                                   of Protection

                        45. The fact that the ICJ has, so far, very seldom proceeded to the
                      determination of a breach of provisional measures in the subsequent pro-
                      ceedings as to the merits of the respective cases, in my view does not mean

                      111

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                      that it cannot do so promptly, by means of another Order on provisional
                      measures. Furthermore, the Court has monitoring powers as to compli‑
                      ance with provisional measures. If any unforeseeable circumstance may
                      arise, the ICJ is, in my understanding, endowed with inherent powers or
                      facultés to take the decision that ensures compliance with the provisional
                      measures it has ordered, and thus the safeguard of the rights at stake.
                         46. All the aforesaid enhances the preventive dimension of provisional
                      measures of protection. These latter have experienced a remarkable devel-
                      opment in recent years, in contemporary international law on the matter.
                      Such measures now call for further development at conceptual level. They
                      have an autonomous legal regime of their own, which encompasses super-
                      vision of compliance with them. The Court is endowed with monitoring
                      powers to this effect. This is yet another element which comes to enforce
                      the rule of law (prééminence du droit) at international level.

                                           IX. Breach of Provisional Measures
                                               and Reparation for Damages

                         47. May I now turn to yet another relevant point pertaining to the
                      autonomous legal regime of provisional measures of protection, namely,
                      the legal consequences of the finding of a breach of such provisional mea-
                      sures. In addressing those consequences, the Court is likely to face the
                      need to consider remedies, reparations in their distinct forms, and costs.
                      This point has not passed unperceived in the present Judgment of the ICJ
                      in the two joined cases of Certain Activities and of Construction of a Road.
                      The Court has addressed reparations in the two joined cases 19.
                         48. Reparations are here contemplated in all their forms — namely, e.g.,
                      compensation, satisfaction, guarantee of non‑repetition, among others.
                      In the cas d’espèce, the Certain Activities case, the ICJ has determined the
                      Respondent’s duty of compensation for the material damage (Judgment,
                      para. 142) ; it has further determined that, in the circumstances of the
                      case, given its finding of a breach of provisional measures (by the excava-
                      tion of the caños and the establishment of a military presence in the dis-
                      puted territory), the declaration by the Court to this effect provides
                      adequate satisfaction to the Applicant for the non‑material damage (ibid.,
                      para. 139), without the need to award costs (ibid., para. 144).
                         49. The ICJ has found that it has thereby afforded “adequate satisfac-
                      tion” (ibid., para. 139) to the Applicant, by its declaration, in the Certain
                      Activities case 20, of a breach of obligations ensuing from the Order of
                      provisional measures of 8 March 2011. Furthermore, the ICJ indicated
                      new provisional measures in its Order of 22 November 2013, so as to
                      cease the effects of the harmful activities and to remedy that breach. In
                      the joined case of Construction of a Road, the ICJ declined to award com‑

                        19   Paragraphs 137‑144 and 224‑228, respectively.
                        20   Paragraphs 127 and 129, and resolutory point No. 3.

                      112

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                      pensation (Judgment, para. 226), but determined — even if not here refer-
                      ring specifically to a breach of provisional measures — that its declaration
                      of wrongful conduct for the Respondent’s breach of the obligation to
                      conduct an EIA provides adequate satisfaction to the Applicant (ibid.,
                      para. 224).

                         50. The grant of this form of reparation (satisfaction) in the two joined
                      cases is necessary and reassuring. The fact that the ICJ did not establish
                      a breach of provisional measures nor did it indicate new provisional mea-
                      sures already in its Order of 16 July 2013 (as it should, for the reasons
                      explained in my dissenting opinion appended thereto), and only did so in
                      its subsequent Order of 22 November 2013, gives weight to its decision
                      not to award costs 21. After all, the prolongation of the proceedings (as to
                      provisional measures) 22 was due to the hesitation of the Court itself.
                      Accordingly, the relevant issue here is, thus, reparation (rather than costs
                      of hearings) for breach of provisional measures of protection.

                         51. In effect, breach and duty of reparation come together. As I pointed
                      out in my separate opinion in Ahmadou Sadio Diallo (Republic of Guinea
                      v. Democratic Republic of the Congo), Compensation, Judgment, the duty
                      of reparation has deep historical roots, going back to the origins of the
                      law of nations, and marking presence in the legacy of the “founding
                      fathers” of our discipline (I.C.J. Reports 2012 (I), pp. 352‑355,
                      paras. 14‑21). The duty of reparation is widely acknowledged as one of
                      general or customary international law (ibid., p. 356, para. 25). I stressed
                      that

                                  “The duty of full reparation is the prompt and indispensable com-
                              plement of an internationally wrongful act, so as to cease all the con-
                              sequences ensuing therefrom, and to secure respect for the international
                              legal order.
                              �����������������������������������������������������������������������������������������������������������������
                                  The breach of international law and the ensuing compliance with
                              the duty of reparation for injuries are two sides of the same coin ; they
                              form an indissoluble whole.
                              �����������������������������������������������������������������������������������������������������������������
                                  [T]he reparatio (from the Latin reparare, ‘to dispose again’) ceases
                              all the effects of the breaches of international law (. . .) at issue, and

                         21 Paragraph 144 (Certain Activities case) of the present Judgment.
                         22 After the hearings of 11‑13 January 2011 (following Costa Rica’s initial request for
                      the indication of provisional measures in the Certain Activities case), those of 14‑17 October
                      2013 (following Costa Rica’s further request for the indication of provisional measures
                      in the Certain Activities case), and those of 5‑8 November 2013 (following Nicaragua’s
                      request for the indication of provisional measures in the Construction of a Road case).

                      113

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                            provides satisfaction (as a form of reparation) to the victims ; by
                            means of the reparations, the law re‑establishes the legal order broken
                            by those violations (. . .).
                               One has to be aware that it has become commonplace in legal cir-
                            cles — as is the conventional wisdom of the legal profession — to
                            repeat that the duty of reparation, conforming a ‘secondary obliga-
                            tion’, comes after the breach of international law. This is not my
                            conception ; when everyone seems to be thinking alike, no one is actu-
                            ally thinking at all. In my own conception, breach and reparation go
                            together, conforming an indissoluble whole : the latter is the indispen-
                            sable consequence or complement of the former. The duty of repara-
                            tion is a fundamental obligation (. . .). The indissoluble whole that
                            violation and reparation conform admits no disruption (. . .), so as to
                            evade the indispensable consequence of the international breaches
                            incurred into : the reparations due to the victims. (I.C.J. Reports
                            2012 (I), p. 359, para. 32, p. 360, para. 35 and p. 362, paras. 39‑40.)

                         52. The interrelationship between breach and duty of reparation marks
                      presence also in the realm of the autonomous legal regime of provisional
                      measures of protection. A breach of a provisional measure promptly gen-
                      erates the duty to provide reparation for it. It is important, for provi-
                      sional measures to achieve their plenitude (within their legal regime), to
                      remain attentive to reparations — in their distinct forms — for their
                      breach. Reparations (to a greater extent than costs) for the autonomous
                      breach of provisional measures of protection are a key element for the
                      consolidation of the autonomous legal regime of provisional measures of
                      protection.

                      X. Due Diligence, and the Interrelatedness between the Principle
                              of Prevention and the Precautionary Principle

                          53. Now that I approach the conclusion of the present separate opin-
                      ion, may I come back to its point of departure, namely, the relevance of
                      the preventive dimension in contemporary international law. Such
                      preventive dimension marks presence in the Judgment the ICJ has just
                       adopted, in the two joined cases of Certain Activities Carried Out by
                       Nicaragua in the Border Area and of Construction of a Road in Costa Rica
                        along the San Juan River. It is significant that, in the course of the pro-
                        ceedings in the present joined cases, the duty of due diligence has
                        been invoked, just as it was in an earlier Latin American case, that of
                        the Pulp Mills on the River Uruguay (2010), opposing Argentina
                      to Uruguay.
                          54. In respect of the cas d’espèce (and specifically of the Construction of
                      a Road case), it has been asserted that the populations of both countries,

                      114

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                      Nicaragua and Costa Rica, “deserve to benefit from the highest possible
                      standards of environmental protection”, and that the States of Central
                      America have adopted and applied environmental and related laws
                      to secure “high standards of protection” 23. Due diligence has thus been
                      duly acknowledged, once again, in a Latin American case before the ICJ.
                      There are other related aspects in the preventive dimension. The duty
                      to conduct an EIA, for example, as determined by the Court in the pres-
                      ent Judgment, in the case of the Construction of a Road (paras. 153‑162),
                      brings to the fore, in my perception, the interrelatedness between the prin‑
                      ciple of prevention and the precautionary principle.

                         55. I had the occasion to dwell upon this particular point in the other
                      aforementioned Latin American case, of half a decade ago, concerning
                      Pulp Mills on the River Uruguay (Argentina v. Uruguay). In my separate
                      opinion appended to the ICJ’s Judgment of 20 April 2010 in the Pulp
                      Mills case, I pondered that, while the principle of prevention assumes that
                      risks can be objectively assessed so as to avoid damage, the precautionary
                      principle assesses risks in face of uncertainties, taking into account the
                      vulnerability of human beings and the environment, and the possibility of
                      irreversible harm (I.C.J. Reports 2010 (I), pp. 162‑163, paras. 72‑73).

                         56. Unlike the positivist belief in the certainties of scientific knowl-
                      edge — I proceeded — the precautionary principle is geared to the duty
                      of due diligence, in face of scientific uncertainties 24; precaution is thus,
                      nowadays, more than ever, needed (ibid., p. 166, para. 83 and pp. 168‑169,
                      para. 89). It is not surprising that some environmental law conventions
                      give expression to both the principle of prevention and the precautionary
                      principle, acknowledging the link between them, providing the founda-
                      tion of the duty to conduct an EIA (ibid., pp. 170‑171, paras. 94‑96), as
                      upheld by the ICJ in the joined case of the Construction of a Road.

                         57. In the present Judgment, the Court, recalling its earlier decision in
                      the Pulp Mills case, referred in a reiterated way to the requirement of due
                      diligence in order to prevent significant transboundary environmental
                      harm (Judgment, para. 104). It focused on the undertaking of an EIA in
                      the wider realm of general international law (ibid., paras. 104‑105). And
                      it then stated that

                               “If the environmental impact assessment confirms that there is a
                            risk of significant transboundary harm, the State planning to under-
                            take the activity is required, in conformity with its due diligence obli-

                         23 CR 2015/15, of 29 April 2015, pp. 44‑45, paras. 26‑27 (statement of counsel of

                      Nicaragua).
                         24 For a recent reassessment of the precautionary principle, cf. A. A. Cançado Trindade,

                      “Principle 15 — Precaution”, The Rio Declaration on Environment and Development — A
                      Commentary (ed. J. E. Viñuales), Oxford University Press, 2015, pp. 403‑428.

                      115

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                      777 	certain activities and construction of a road (sep. op. cançado trindade)

                            gation, to notify and consult in good faith with the potentially affected
                            State, where that is necessary to determine the appropriate measures
                            to prevent or mitigate that risk.” (Judgment, para. 104.)

                                  XI. The Path towards the Progressive Development
                                        of Provisional Measures of Protection

                         58. Having pointed that out, the main lesson learned from the adjudi-
                      cation of the cas d’espèce, that I deem it fit to leave on the records, in the
                      present separate opinion, under the umbrella of the preventive dimension
                      in contemporary international law, as developed in the preceding para-
                      graphs, pertains to what I conceptualize as the conformation of an auto
                      nomous legal regime of provisional measures of protection, with all its
                      elements and implications, as related to the Court’s finding in the two
                      joined cases.
                         59. Thus, in my dissenting opinion in the ICJ’s Order of 16 July 2013
                      in Certain Activities and Construction of a Road, wherein the Court
                      decided not to indicate new provisional measures, nor to modify the pro-
                      visional measures indicated in its previous Order of 8 March 2011, I
                      asserted, and deem it fit here to reiterate :

                               “My thesis, in sum, is that provisional measures, endowed with a
                            conventional basis — such as those of the ICJ (under Article 41 of
                            the Statute) — are also endowed with autonomy, have a legal regime
                            of their own, and non‑compliance with them generates the responsi-
                            bility of the State, entails legal consequences, without prejudice of the
                            examination and resolution of the concrete cases as to the merits. This
                            discloses their important preventive dimension, in their wide scope.
                            The proper treatment of this subject‑matter is the task before this
                            Court, now and in the years to come.

                            �����������������������������������������������������������������������������������������������������������������
                                Provisional measures of protection generate obligations (of preven-
                            tion) for the States concerned, which are distinct from the obligations
                            which emanate from the Judgments of the Court as to the merits (and
                            reparations) of the respective cases. This ensues from their auto
                            nomous legal regime, as I conceive it. There is, in my perception,
                            pressing need nowadays to refine and to develop conceptually
                            this autonomous legal regime, focused, in particular, on the contem-
                            porary expansion of provisional measures, the means to secure due
                            and prompt compliance with them, and the legal consequences of
                            non‑compliance — to the benefit of those protected thereunder.

                            �����������������������������������������������������������������������������������������������������������������

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                                [T]he matter before the Court calls for a more pro‑active posture
                            on its part, so as not only to settle the controversies filed with it, but
                            also to tell what the law is (juris dictio), and thus to contribute
                            effectively to the avoidance or prevention of irreparable harm in sit-
                             uations of urgency, to the ultimate benefit of all subjects of interna-
                             tional law — States as well as groups of individuals, and simples
                             particuliers. After all, the human person (living in harmony in her
                             natural habitat) occupies a central place in the new jus gentium of our
                             times.” (I.C.J. Reports 2013, p. 268, para. 72 and pp. 269‑270,
                             paras. 75‑76.)
                         60. Provisional measures of protection have grown in importance, and
                      have expanded and have much developed in recent years, particularly in
                      the framework of regimes of protection (such as those, e.g., of the human
                      person and of the environment). Provisional measures of protection have
                      become, more than precautionary, truly tutelary, enlarging the scope of
                      protection. The autonomous legal regime of provisional measures of pro-
                      tection, in conclusion, is conformed, in my conception, by the juridical
                      nature of such measures, the rights at issue and the obligations derived
                      therefrom, their legal effects, and the duty of compliance with them, — all
                      running parallel to the proceedings as to the merits of the cas d’espèce. It
                      also encompasses the legal consequences ensuing therefrom.
                         61. The rights protected by provisional measures of protection are not
                      the same as those pertaining to the merits of the case at issue. The obliga-
                      tions ensuing from provisional measures of protection are distinct from,
                      and additional to, the ones that may derive later from the Court’s subse-
                      quent decision as to the merits. In case of a breach of a provisional mea-
                      sure of protection, the notion of victim of a harm emerges also in the
                      framework of such provisional measures ; irreparable damages can, by
                      that breach, occur in the present context of prevention.
                         62. In order to avoid or prevent those damages, provisional measures
                      of protection set forth obligations of their own 25, distinct from the obli-
                      gations emanating later from the respective Judgments as to the merits of
                      the corresponding cases 26. As I pondered, one decade ago, in another
                      international jurisdiction, an international tribunal has the inherent
                      power or faculté to supervise motu proprio the compliance or otherwise,
                      on the part of the State concerned, with the provisional measures of pro-
                      tection it ordered ; this is “even more necessary and pressing in a situation
                      of extreme gravity and urgency”, so as to prevent or avoid irreparable
                      damage 27.

                         25 Cf., in this sense, IACtHR, case of The Barrios Family v. Venezuela, Order of 29 June

                      2005, concurring opinion of Judge Cançado Trindade, paras. 5‑6.
                         26 Cf., in this sense, IACtHR, case of the Communities of Jiguamiandó and

                      Curbaradó, concerning Colombia, Order of 7 February 2006, concurring opinion of
                      Judge Cançado Trindade, paras. 5‑6.
                         27 Cf., in this sense, IACtHR, case of The Barrios Family v. Venezuela, Order

                      of 22 September 2005, concurring opinion of Judge Cançado Trindade, para. 6.

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                         63. In such circumstances, an international tribunal cannot abstain
                      from exercising its inherent power or faculté of supervision of compliance
                      with its own Orders, in the interests of the sound administration of justice
                      (la bonne administration de la justice). Non‑compliance with provisional
                      measures of protection amounts to a breach of international obligations
                      deriving from such measures. This being so, the determination of their
                      breach, in my understanding, does not need to wait for the conclusion of
                      the proceedings as to the merits of the case at issue, particularly if such
                      proceedings are unduly prolonged.
                         64. Furthermore, the determination of their breach is not conditioned
                      by the existence of a request to this effect by the State concerned ; the
                      Court, in my view, is fully entitled to proceed promptly to the determina-
                      tion of their breach sponte sua, ex officio, in the interests of the sound
                      administration of justice (la bonne administration de la justice). The deter-
                      mination of a breach of provisional measures entails legal consequences ;
                      this paves the way for the granting of remedies, of distinct forms of repa-
                      ration, and eventually costs.
                         65. In the present Judgment of the ICJ in the two joined cases of Cer‑
                      tain Activities and of Construction of a Road, the ICJ was attentive to
                      this point, having found that, by its own determination of a breach of
                      obligations ensuing from the Order of provisional measures of 8 March
                      2011 — in the Certain Activities case 28 — it has afforded “adequate satis-
                      faction” to the applicant State (para. 139). For all the aforesaid, it is high
                      time to refine, at conceptual level, the autonomous legal regime of provi-
                      sional measures of protection.

                        66. Such refinement can clarify further this domain of international
                      law marked by prevention and the duty of due diligence, and can thus
                      foster the progressive development of those measures in the contempo-
                      rary law of nations, faithful to their preventive dimension, to the benefit
                      of all the justiciables. The progressive development of provisional mea-
                      sures of protection is a domain in respect of which international case law
                      seems to be preceding legal doctrine, and it is a source of satisfaction to
                      me to endeavour to contribute to that.

                                             XII. Epilogue : A Recapitulation

                         67. Provisional measures of protection provide, as we can see, a fertile
                      ground for reflection at the juridico‑epistemological level. Time and law
                      are here ineluctably joined together, as in other domains of international
                      law. Provisional measures underline the preventive dimension, growing in
                      clarity, in contemporary international law. Provisional measures have
                      undergone a significant evolution, but there remains a long way to go for
                      them to reach their plenitude. In order to endeavour to pave this way,
                        28   Paragraphs 127 and 129, and resolutory point No. 3.

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                      may I, last but not least, proceed to a brief recapitulation of the main
                      points I deemed it fit to make, particularly in respect of provisional mea-
                      sures of protection, in the course of the present separate opinion.

                        68. Primus : The preventive dimension in contemporary international
                      law is clearly manifested in the formation of what I conceive as the auto
                      nomous legal regime of provisional measures of protection. Secundus :
                      Such preventive dimension grows in importance in the framework of
                      regimes of protection (e.g., of the human person and of the environment),
                      bringing us closer to general principles of law. Tertius : Provisional mea-
                      sures, historically emerged in comparative domestic law as a precaution-
                      ary legal action, had their scope enlarged in international jurisdiction,
                      becoming endowed with a tutelary — rather than only precautionary —
                      character, as a true jurisdictional guarantee of a preventive nature. Quar‑
                      tus : Prevention and precaution underlie provisional measures, anticipatory
                      in nature, so as to avoid the aggravation of the dispute and irreparable
                      damage.

                         69. Quintus : In the framework of their autonomous legal regime, pro-
                      visional measures guarantee rights which are not necessarily the same as
                      those invoked in the proceedings as to the merits. Sextus : In the frame-
                      work of their autonomous legal regime, provisional measures generate
                      per se obligations, independently from those ensuing from the Court’s
                      subsequent judgment on the merits or on reparations. Septimus : The
                      Court is fully entitled to order provisional measures of protection, and to
                      order motu proprio, any measure which it deems necessary.
                         70. Octavus : The Court is fully entitled to order motu proprio provi-
                      sional measures which are totally or partially different from those
                      requested by the contending parties. Nonus : The Court is fully entitled to
                      order further provisional measures motu proprio ; it does not need to wait
                      for a request by a party to do so. Decimus : The Court has inherent pow-
                      ers or facultés to supervise ex officio compliance with provisional mea-
                      sures of protection and thus to enhance their preventive dimension.
                         71. Undecimus : Non‑compliance amounts to an autonomous breach of
                      provisional measures, irrespective of what will later be decided (any other
                      breach) by the Court as to the merits. Duodecimus : A breach of a provi-
                      sional measure of protection engages by itself State responsibility, being
                      additional to any other breach which may come later to be determined by
                      the Court as to the merits. Tertius decimus : The notion of victim marks
                      presence also in the realm of provisional measures of protection.
                         72. Quartus decimus : The determination by the Court of a breach of a
                      provisional measure should not be conditioned by the completion of sub-
                      sequent proceedings as to the merits ; the legal effects of such breach
                      should be promptly determined by the Court, in the interests of the sound
                      administration of justice (la bonne administration de la justice). Quintus
                      decimus : Contemporary international tribunals have an inherent power

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                      or faculté to determine promptly such breach, with all its legal conse-
                      quences (remedies, satisfaction as a form of reparation, and eventually
                      costs). Sextus decimus : The duty to provide reparation (in its distinct
                      forms) is promptly generated by the breach of provisional measures of
                      protection.
                         73. Septimus decimus : The interrelationship between breach and duty
                      of reparation marks presence also in the realm of the autonomous legal
                      regime of provisional measures of protection. Duodevicesimus : The
                      autonomous legal regime of their own, with all its elements (cf. supra),
                      contributes to the prevalence of the rule of law (prééminence du droit) at
                      international level. Undevicesimus : Provisional measures of protection
                      have much evolved in recent decades, but there remains a long way to go
                      so as to reach their plenitude. Vicesimus : Contemporary international tri-
                      bunals are to refine the autonomous legal regime of provisional measures
                      of protection, and to foster their progressive development, to the benefit
                      of all the justiciables.

                                              (Signed) Antônio Augusto Cançado Trindade.

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