155

                        SEPARATE OPINION
                   OF JUDGE CANÇADO TRINDADE

                              table of contents

                                                                        Paragraphs

     I. PROLEGOMENA                                                           1-2
  II. Conceptual Development of Provisional Measures of
      Protection                                                             3-11
 III. Provisional Measures : Test of Vulnerability of Segments
      of the Population                                                     12-26
        1. Human vulnerability in international case law                    12-20

        2. Human vulnerability in the cas d’espèce                          21-26
          (a) Ukraine’s Request for provisional measures of protec-
              tion                                                          21-22
          (b) Arguments of the Contending Parties on human vul-
              nerability                                                    23-26
 IV. Provisional Measures : Utmost Vulnerability of Victims,
     Further Irreparable Harm, and Urgency of the Situation                 27-35

     V. The Decisive Test : Human Vulnerability over “Plausibility”
        of Rights                                                           36-44
 VI. The Necessity and Importance of Provisional Measures of
     Protection in the CAS D’ESPÈCE                                         45-51
VII. The Concern of the International Community with the
     Living Conditions of the Population Everywhere                         52-55
VIII. Provisional Measures : Protection of the Human Person,
      beyond the Strict Inter-State Dimension                               56-61
 IX. Chronic Violence          and    the   Tragedy        of   Human
     Vulnerability                                                          62-67
  X. Provisional Measures : Protection of People in Territory               68-73

 XI. The Autonomous Legal Regime of Provisional Measures of
     Protection : Duty of Compliance with Them                              74-83

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      1. Non-compliance and State responsibility                       77-78
      2. Prompt determination of breaches of provisional measures :
         An anti-voluntarist posture                                   79-80

      3. Breaches of provisional measures and the duty of repara-
         tion                                                          81-83
XII. Epilogue                                                          84-91

                             I. PROLEGOMENA

   1. I have concurred, with my vote, for the adoption today, 19 April
2017, by the International Court of Justice (ICJ), of the present Order
indicating provisional measures of protection in the case of the Applica-
tion of the International Convention for the Suppression of the Financing of
Terrorism and of the International Convention on the Elimination of All
Forms of Racial Discrimination (Ukraine v. Russian Federation). As I
attribute great importance to some related issues that come to my mind in
the cas d’espèce, in my perception underlying the present decision of the
ICJ but left out of the Court’s reasoning, I feel obliged to leave on the
records, in the present separate opinion, the identiﬁcation of such issues
and the foundations of my own personal position thereon. I do so moved
by a sense of duty in the exercise of the international judicial function,
even more so as some of the lessons I extract from the matter forming the
object of the present decision of the Court are not explicitly dealt with in
the Court’s reasoning in the present Order.
   2. This being so, I shall develop my reﬂections in the following
sequence: (a) conceptual development of provisional measures of protec-
tion; (b) the test of vulnerability of segments of the population (human
vulnerability in international case law, and in the cas d’espèce); (c) utmost
vulnerability of victims, further irreparable harm, and urgency of the situ-
ation; (d) the decisive test : human vulnerability over “plausibility” of
rights; (e) the necessity and importance of provisional measures of pro-
tection in the cas d’espèce; (f) the concern of the international commu-
nity with the living conditions of the population everywhere; (g)
provisional measures, and the protection of the human person, beyond
the strict inter-State dimension; (h) chronic violence and the tragedy of
human vulnerability; (i) provisional measures, and the protection of peo-
ple in territory ; and (j) the autonomous legal regime of provisional
measures of protection : duty of compliance with them, non-compliance
and State responsibility, prompt determination of their breaches, and
duty of reparation. I shall then move to my ﬁnal considerations in the
epilogue.

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         II. Conceptual Development of Provisional Measures
                           of Protection

  3. Provisional measures of protection already have a long history,
which originally ﬂourished in comparative domestic law ; as from their
early conceptualization, there followed their gradual transposition, over
the ﬁrst half of the twentieth century, from domestic into international
(procedural) law 1, in international arbitral and judicial practice. In
recent decades, there has occurred the clariﬁcation of their juridical pre-
ventive character, of their legal eﬀects, as well as their progressive
development 2.
  4. As from the times of the transposition of provisional measures into
the international legal order, in the era of the old Permanent Court of
International Justice (PCIJ), their relevance to the progressive develop-
ment of international law itself was detected 3. Provisional measures of
protection have indeed evolved historically, in my perception, from pre-
cautionary legal measures in domestic procedural law into jurisdictional
guarantees of a preventive character in international procedural law,
endowed with a truly tutelary character 4.

   5. Furthermore, provisional measures of protection have paved
the way for continuous monitoring, in prolonged situations of “extreme
gravity and urgency”, seeking to “avoid irreparable damage to persons”,
in particular those in a situation of great vulnerability, if not defenceless-
ness. In eﬀect, as I pointed out elsewhere, almost two decades ago,
where situations of “vulnerability of the fundamental rights of the
human person are prolonged pathologically in time”, the adopted
“provisional measures of protection have had likewise to be maintained

   1 Cf., on the case law of national tribunals, e.g., E. García de Enterria, La Batalla por

las Medidas Cautelares, 2nd rev. ed., Madrid, Civitas, 1995, pp. 25-385; and cf., on the
case law of international tribunals, e.g., R. Bernhardt (ed.), Interim Measures Indicated by
International Courts, Berlin/Heidelberg, Springer-Verlag, 1994, pp. 1-152.
   2 As I pointed out in another international jurisdiction: cf. A. A. Cançado Trindade,

“Preface by the President of the Inter-American Court of Human Rights”, in Compendium
of Provisional Measures (June 1996-June 2000), Vol. 2, Series E, San José of Costa Rica,
Inter-American Court of Human Rights (IACtHR), 2000, pp. VII-XVIII, and sources
referred to therein.
   3 Cf. P. Guggenheim, Les mesures provisoires de procédure internationale et leur influ-

ence sur le développement du droit des gens, Paris, Libr. Rec. Sirey, 1931, pp. 14-15 and 62.
Already in its time, the PCIJ admitted its prerogative to indicate or modify ex officio
provisional measures of protection, in terms other than the ones requested by either of
the contending parties; cf. G. Guyomar, Commentaire du Règlement de la Cour interna-
tionale de justice — Interprétation et pratique, Paris, Pedone, 1973, p. 348. And, as to the
earlier ICJ era, cf. for jurisdictional aspects, inter alia, L. Daniele, Le Misure Cautelari
nel Processo dinanzi alla Corte Internazionale di Giustizia, Milan, Giuﬀrè, 1993, pp. 5-183;
S. Rosenne, Provisional Measures in International Law, Oxford University Press, 2005,
pp. 85-187.
   4 A. A. Cançado Trindade, “Preface by the President of the Inter-American Court of

Human Rights”, op. cit. supra note 2, p. X.

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in time, in order to face up to the chronic threats to those fundamental
rights” 5.

   6. Provisional measures of protection have been evolving, with the
growing awareness of their importance in the realization of justice ; yet,
there remains a long way to go to that eﬀect. It has not passed unnoticed
in expert writing that the ﬁrst contemporary international tribunal “which
explicitly held that its provisional measures are binding, was the
Inter-American Court of Human Rights [IACtHR], which stated that the
relevant provision of the Convention ‘makes it mandatory for the State to
adopt the provisional measures ordered by this Tribunal’ 6” 7.

   7. This was made clear by the IACtHR in 1999-2000, in the period
when it achieved a remarkable jurisprudential construction on the mat-
ter 8; afterwards, the International Court of Justice [ICJ] did the same, in
the LaGrand case (Judgment of 27 June 2001), in the proceedings of
which the IACtHR’s pioneering jurisprudential construction was brought
to its attention by the contending parties 9. Within the ICJ, I have drawn
attention to this development in my separate opinion (paras. 167-172) in
the Diallo case (Merits, Judgment of 30 November 2010), to which I deem

     5Op. cit. supra note 4, p. XVII.
     6IACtHR, case of the Constitutional Tribunal v. Peru, provisional measures of protec-
tion, resolution of 14 August 2000; and cf. note 10, infra.
   7 K. Oellers-Frahm, “Expanding the Competence to Issue Provisional Measures —

Strengthening the International Judicial Function”, in International Judicial Law-Making
(eds. A. von Bogdandy and I. Venzke), Heidelberg, Springer, [2011], p. 398.
   8 This is examined in detail (particularly in the period 1999-2004) in my book of

memories of the IACtHR: A. A. Cançado Trindade, El Ejercicio de la Función Judicial
Internacional — Memorias de la Corte Interamericana de Derechos Humanos, 4th ed., Belo
Horizonte/Brazil, Edit. Del Rey, 2017, pp. 47-52, 199-208 and 277-278.
    9 The IACtHR was also the ﬁrst international tribunal to aﬃrm the existence of an

individual right to information on consular assistance in the framework of the guar-
antees of the due process of law, in its Advisory Opinion No. 16 on The Right to Infor-
mation on Consular Assistance in the Framework of the Guarantees of the Due Process of
Law (of 1 October 1999, paras. 1-141). The IACtHR, disclosing the impact of the interna-
tional law of human rights in the evolution of public international law itself, held therein
that non-compliance with Article 36 (1) (b) of the Vienna Convention on Consular Rela-
tions of 1963 took place to the detriment not only of a State party but also of the human
beings at issue (as the ICJ subsequently also admitted, in the LaGrand case, Judgment of
27 June 2001). This pioneering contribution by the IACtHR in 1999 was acknowledged by
expert writing on the subject; cf., e.g., G. Cohen-Jonathan, “Cour européenne des droits
de l’homme et droit international général (2000)”, 46 Annuaire français de droit interna-
tional (2000), p. 642; Ph. Weckel, M. S. E. Helali and M. Sastre, “Chronique de jurispru-
dence internationale”, 104 Revue générale de droit international public (2000), pp. 794 and
791; and, on the impact of aforementioned IACtHR’s Advisory Opinion No. 16 of 1999,
cf. A. A. Cançado Trindade, “The Humanization of Consular Law: The Impact of Advisory
Opinion No. 16 (1999) of the Inter-American Court of Human Rights on International Case
Law and Practice”, 6 Chinese Journal of International Law (2007), No. 1, p. 1-16.

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it suﬃcient to refer here. I have likewise drawn attention to this in my
writings on the matter 10.
   8. In eﬀect, even before the turn of the century (from 1999 onwards), I
have had occasions, in another international jurisdiction (the IACtHR,
wherein provisional measures of protection are also endowed with a con-
ventional basis), to dwell further upon the legal nature of provisional mea-
sures of protection and their binding character 11, and to keep on devoting
my attention, over the years, to the conceptual development of the
autonomous legal regime of those measures 12. I have identiﬁed obligations
emanating from provisional measures of protection per se, entirely dis-
tinct from obligations eventually ensuing from a Judgment as to the mer-
its (and reparations) on the cas d’espèce ; I have further pointed out that
non-compliance with the former — as well as the latter — generates the
responsibility of the State, with legal consequences 13.

    10 Cf. note 8, supra, and cf. also: A. A. Cançado Trindade, “The Evolution of Provi-

sional Measures of Protection under the Case Law of the Inter-American Court of
Human Rights (1987-2002)”, 24 Human Rights Law Journal,Strasbourg/Kehl (2003),
Nos. 5-8, pp. 162-168; A. A. Cançado Trindade, “Les mesures provisoires de protection
dans la jurisprudence de la Cour interaméricaine des droits de l’homme”, in Mesures
conservatoires et droits fondamentaux (eds. G. Cohen-Jonathan and J.-F. Flauss), Brus-
sels, Bruylant/Nemesis, 2005, pp. 145-163 ; A. A. Cançado Trindade, “Une ère d’avancées
jurisprudentielles et institutionnelles: souvenirs de la Cour interaméricaine des droits de
l’homme”, in Le particularisme interaméricain des droits de l’homme (eds. L. Hennebel and
H. Tigroudja), Paris, Pedone, 2009, pp. 65-66; A. A. Cançado Trindade, “La Expansión
y la Consolidación de las Medidas Provisionales de Protección en la Jurisdicción Inter-
nacional Contemporánea”, in Retos de la Jurisdicción Internacional (eds. S. Sanz Cabal-
lero and R. Abril Stoﬀels), Cizur Menor/Navarra, Cedri/CEU/Thomson Reuters, 2012,
pp. 99-117.
    11 Cf. IACtHR, case of James et al. regarding Trinidad and Tobago (resolution of

25 May 1999), concurring opinion of Judge Cançado Trindade, paras. 9-10 (where I
asserted the binding character of provisional measures of protection as a “jurisdictional
guarantee of preventive character”); IACtHR, case of the Haitians and Dominicans of
Haitian Origin regarding the Dominican Republic (resolution of 18 August 2000), concur-
ring opinion of Judge Cançado Trindade, paras. 13-25; cf. IACtHR, case of the Peace
Community of San José of Apartadó regarding Colombia (resolution of 18 June 2002,
pursuant to its previous resolution, in the same case, of 20 November 2000), concurring
opinion of Judge Cançado Trindade, paras. 14-17 and 19-20.
    12 Cf. IACtHR, case of Eloísa Barrios et al. regarding Venezuela (resolution of 29 June

2005), concurring opinion of Judge Cançado Trindade, paras. 4-11; IACtHR, ibid. (resolu-
tion of 22 September 2005), concurring opinion of Judge Cançado Trindade, paras. 2-9;
IACtHR, case of the Children Deprived of Liberty in the “Complexo do Tatuapé” of
Fundação CASA regarding Brazil (resolution of 17 November 2005), concurring opinion of
Judge Cançado Trindade, paras. 2-10; IACtHR, ibid. (resolution of 29 November 2005),
concurring opinion of Judge Cançado Trindade, paras. 13-36.
    13 IACtHR, case of the Peace Community of San José of Apartadó regarding Colombia

(resolution of 2 February 2006), concurring opinion of Judge Cançado Trindade, paras. 6-7,
and cf. also paras. 4 and 8-10; and cf., to the same eﬀect, IACtHR, case of the Commu-
nities of the Jiguamiandó and Curvaradó regarding Colombia (resolution of 7 February
2006), concurring opinion of Judge Cançado Trindade, paras. 6-7, and cf. also paras. 4
and 8-11.

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   9. I have thus made the point that the “injured party” or victim may,
in my perception, appear promptly in the realm of provisional measures
of protection 14, in case of non-compliance with them. Accordingly,
non-compliance with, or breach of, such measures, engages autonomously
the international responsibility of the State at issue, within the domain of
provisional measures of protection 15, irrespective of the subsequent Judg-
ments as to the merits of the concrete cases (cf. infra).
   10. Hence, the utmost importance of compliance with those mea-
sures 16, for the realization of justice itself. Over a decade ago I deemed it
ﬁt to warn that one is not to take for granted advances in interim mea-
sures of protection (in distinct international jurisdictions), as such
advances still appear threatened by the increasing violence in the world
today, everywhere ; attention is thus to be kept so as to avoid steps back-
wards and to keep on enhancing the institute of provisional measures of
protection 17.
   11. In eﬀect, for the last eight years (2009 onwards), I have been devot-
ing myself to the conceptual development of the autonomous legal regime
of those measures, this time in the case law of the ICJ (cf. infra). In the
recent case of Questions relating to the Seizure and Detention of Certain
Documents and Data (Timor-Leste v. Australia), Provisional Measures,
Order of 22 April 2015, I have pointed out, in my separate opinion, that,
in our days, the progressive development of international law, by means
of provisional measures of protection, “requires an awareness of the
autonomous legal regime of provisional measures of protection, as well as

    14 Cf. IACtHR, case of Eloísa Barrios et al. regarding Venezuela (resolution of 29 June

2005). concurring opinion of Judge Cançado Trindade, para. 5; case of the Peace Commu-
nity of San José of Apartadó regarding Colombia (resolution of 2 February 2006), concurring
opinion of Judge Cançado Trindade, para. 5; case of the Communities of the Jiguamiandó
and Curvaradó regarding Colombia (resolution of 7 February 2006), concurring opinion of
Judge Cançado Trindade, para. 5. And, on “potential victims” in the realm of provisional
measures of protection, cf. IACtHR, case of the Members of the Group of Community
Studies and Psychosocial Action — ECAP (case of the Plan de Sánchez Massacre v. Guate-
mala) (resolution of 29 November 2006), separate opinion of Judge Cançado Trindade,
paras. 10 and 12.
    15 Cf. IACtHR, Matter of the Mendoza Prisons regarding Argentina (resolution of

30 March 2006), concurring opinion of Judge Cançado Trindade, paras. 11-12; IACtHR,
case of the Matter of the Persons Imprisoned in the “Dr. Sebastião Martins Silveira” Peni-
tentiary in Araraquara, São Paulo regarding Brazil (resolution of 30 September 2006),
concurring opinion of Judge Cançado Trindade, paras. 24-25.
    16 Cf. IACtHR, Communities of the Jiguamiandó and Curvaradó regarding Colombia

(resolution of 15 March 2005), concurring opinion of Judge Cançado Trindade, paras. 4
and 10; case of the Peace Community of San José of Apartadó regarding Colombia (reso-
lution of 15 March 2005), concurring opinion of Judge Cançado Trindade, paras. 4 and
10; Matter of Pueblo indígena de Sarayaku regarding Ecuador (resolution of 6 July 2004),
concurring opinion of Judge Cançado Trindade, paras. 2 and 30.
    17 Cf. IACtHR, case of the Members of the Group of Community Studies and Psycho-

social Action — ECAP (case of the Massacre of Plan de Sánchez (resolution of 29 November
2006)), separate opinion of Judge Cançado Trindade, paras. 1, 5, 10 and 14-15.

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judicial decisions which reﬂect it accordingly, with all its implications”
(I.C.J. Reports 2015 (II), p. 565, para. 10).

          III. Provisional Measures : Test of Vulnerability
                    of Segments of the Population

            1. Human Vulnerability in International Case Law
   12. The present case is not the ﬁrst one wherein the alleged vulnerabil-
ity of segments of the population concerned is brought to the Court’s
attention, in its consideration of provisional measures of protection. Suf-
ﬁce it here to recall a couple of examples to this eﬀect. In the case of
Armed Activities on the Territory of the Congo (Democratic Republic of
the Congo v. Uganda), e.g., where it was not disputed that there had
already occurred “grave and repeated violations of human rights and
international humanitarian law”, the ICJ found (Order of 1 July 2000,
I.C.J. Reports 2000, p. 128, paras. 42-43) that persons in the area of the
armed conﬂict (in the Democratic Republic of the Congo) remained
“extremely vulnerable”, undergoing “a serious risk that the rights at
issue” in the cas d’espèce might suﬀer further “irreparable prejudice”;
this being so, the ICJ, accordingly, decided to indicate provisional mea-
sures “as a matter of urgency in order to protect those rights” (ibid.,
para. 43).
   13. Subsequently, in the case of the Application of the International
Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v. Russian Federation), the ICJ again found (Order of 15 Octo-
ber 2008, I.C.J. Reports 2008, p. 396, para. 143) that, given “the ongoing
tension and the absence of an overall settlement to the conﬂict in the
region” of South Ossetia, Abkhazia and adjacent areas, the segments of
the population concerned “remain[ed] vulnerable” (ibid.). The ICJ pon-
dered that “the problems of refugees and internally displaced persons” in
the region at issue had “not yet been resolved in their entirety” ; the per-
sons concerned ran a “serious risk of irreparable prejudice”, which could
involve “potential loss of life or bodily injury”, in breach of rights under
the CERD Convention (ibid., paras. 142-143). The Court, accordingly,
decided likewise to indicate provisional measures of protection (ibid.,
p. 398, para. 149).

   14. In the ICJ’s Advisory Opinion on the Accordance with Interna-
tional Law of the Unilateral Declaration of Independence in Respect of
Kosovo (of 22 July 2010), I addressed in my separate opinion the over-
coming of the inter-State paradigm in contemporary international law
(I.C.J. Reports 2010 (II), pp. 596-598, paras. 182-188), and the growing
care of the United Nations and other international organizations in

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respect of the needs and values of peoples (I.C.J. Reports 2010 (II),
pp. 545-550, paras. 53-66). I focused on the people-centered outlook in
contemporary international law (ibid., pp. 591-593, paras. 169-176), and
the increasing attention to the centrality of the suﬀerings of peoples (ibid.,
pp. 585-591, paras. 161-168).

   15. In the same separate opinion, I then gave an account of the atten-
tion of the UN main organs — in particular the General Assembly (ibid.,
pp. 563-569, paras. 103-114) and the Secretary-General (ibid., pp. 571-576,
paras. 119-129) — to the needs of people, “especially of the most vulner-
able groups aﬀected by the conﬂict” (ibid., p. 565, para. 105). Further-
more, I recalled the humane ends of the State (ibid., pp. 594-595,
paras. 177-181), and dwelt upon the fundamental principle of humanity
in the framework of the law of the United Nations (ibid., pp. 602-607,
paras. 196-211). I then underlined the special attention required to those
in “situation of greater vulnerability and standing thus in greater need of
protection” (ibid., p. 597, para. 185), keeping always in mind the humane
ends of the State.
   16. Later on, in my dissenting opinion in the case of the Jurisdictional
Immunities of the State (Germany v. Italy : Greece intervening) (Judgment,
I.C.J. Reports 2012 (I), p. 99), I deemed it ﬁt to warn that there is greater
need of protection and justice not only to potential or actual victims,
“increasingly vulnerable, if not defenceless”, but also to “the social milieu
as a whole” (ibid., p. 243, para. 175). And, shortly afterwards, in my sep-
arate opinion in the case of Ahmadou Sadio Diallo (Republic of Guinea v.
Democratic Republic of the Congo) (Compensation, Judgment, ibid.,
p. 324), I deemed it necessary to draw attention to the needed measures
“intended to overcome the extreme vulnerability of victims” (ibid., p. 379,
para. 84).

   17. It is signiﬁcant that, in our times, cases pertaining to situations of
extreme adversity or vulnerability of human beings have been brought to
the attention of the ICJ as well as other international tribunals. This is, in
my perception, a sign of the new paradigm of the humanized international
law, the new jus gentium 18 of our times, sensitive and attentive to the
needs of protection of the human person in any circumstances of vulner-
ability. The case law of international human rights tribunals is particu-
larly illustrative in this respect.

  18. For example, there have been cases where the IACtHR was faced

   18 Cf. A. A. Cançado Trindade, A Humanização do Direito Internacional, 1st ed.,

Belo Horizonte/Brazil, Edit. Del Rey, 2006, pp. 3-409; 2nd rev. ed., Belo Horizonte/
Brazil, Edit. Del Rey, 2015, pp. 3-782; A. A. Cançado Trindade, La Humanización del
Derecho Internacional Contemporáneo, México, Edit. Porrúa/IMDPC, 2013, pp. 1-324;
A. A. Cançado Trindade, Los Tribunales Internacionales Contemporáneos y la Human-
ización del Derecho Internacional, Buenos Aires, Ed. Ad-Hoc, 2013, pp. 7-185.

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with the extreme vulnerability of the victims amidst the decomposition of
the public power and the social tissue 19, or else in the context of forced
displacement of members of (indigenous) communities amidst chronic
poverty 20. In such situations, the social exclusion of the victimized ren-
ders the international jurisdiction their “last hope”, given their situation
of extreme vulnerability and defencelessness 21.

  19. For its part, the ECHR has likewise been attentive to the alleged
“vulnerabilité” and “frustration” of some of the applicants in general 22.
Over the years, the ECHR acknowledged the vulnerability of children
and disabled persons, among other victimized individuals 23. In the case of
Mubilanzila Mayeka and Kaniki Mitunga v. Belgium (2006), the ECHR
outlined the “position of extreme vulnerability” of young and unaccom-
panied, undocumented migrants 24. And in the M.S.S. v. Belgium and
Greece case (2011), the ECHR focused on the particular “vulnerability
inherent” in the situation of homeless asylum-seekers 25.

  20. Furthermore, in the Tanrikulu v. Turkey case (1999), e.g., the
ECHR drew attention to the situation of vulnerability of the complain-
ant, like that of applicant villagers in previous cases, under intimidation
and “unacceptable pressure”, in breach of the right of individual petition
under the ECHR 26. And in the Cyprus v. Turkey case (2001), the ECHR
took into account the testimony of witnesses on “vulnerability and fear of
the enclaved population” 27.

   19 E.g., IACtHR, case of Servellón Garcia et al. v. Honduras (judgment of 21 September

2006), para. 99; and separate opinion of Judge Cançado Trindade, singling out the extreme
vulnerability of the victimized (paras. 7, 17, 24, 26 and 32).
   20 E.g., IACtHR, case of the Case of the Sawhoyamaxa Indigenous Community v.

Paraguay (judgment of 29 March 2006), separate opinion of Judge Cançado Trindade,
paras. 14, and cf. paras. 16, 18-19, 24, 29 and 37 (on the situation of ﬂagrant and extreme
vulnerability and abandonment).
   21 Ibid., paras. 58, 67 and 73.
   22 E.g., ECHR/3rd Section, case Varnava and Others v. Turkey (judgment of 10 January

2008), para. 137. The case was then referred to the ECHR/Grand Chamber, which was
likewise attentive to the circumstances surrounding the victims case Varnava and Others v.
Turkey (judgment of 18 September 2009), paras. 147-149.
   23 Cf., inter alia, e.g., ECHR, case A. v. United Kingdom (judgment of 23 September

1998), para. 22; ECHR/1st Section, case Dordević v. Croatia (judgment of 24 July 2012),
para. 138, and cf. paras. 131 and 133.
   24 Cf. ECHR/1st Section (judgment of 12 October 2006, para. 103, and cf. para. 55),

in breach of Article 3 of the European Convention on Human Rights (paras. 59, 61
and 63).
   25 Cf. ECHR/Grand Chamber (judgment of 21 January 2011, paras. 232-233

and 258-259), in breach of Article 3 of the European Convention on Human Rights
(paras. 233-234 and 264).
   26 Cf. ECHR (judgment of 8 July 1999), paras. 130 and 142 (7).
   27 Cf. ECHR (judgment of 10 May 2001), para. 224.

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                    2. Human Vulnerability in the Cas d’Espèce

(a) Ukraine’s Request for provisional measures of protection

   21. In the present case, in its Request for provisional measures of pro-
tection, of 16 January 2017, Ukraine began by stating that it was seeking
to prevent further aggravation of the conﬂict with the respondent State
“ongoing for almost three years”, with alleged “continuing violations of
international law” (paras. 1, 4 and 9). It singled out that the requested
provisional measures aimed at the protection of “the lives and basic
human rights” of its people (para. 1, and cf. paras. 11 and 16-17), as “the
fundamental rights of civilians in Ukraine remain under constant threat”
(para. 4, and cf. para. 11).
   22. In its Request, the complainant State repeatedly drew attention to
the extreme vulnerability of segments of the civilian population in eastern
Ukraine and Crimea (paras. 4, 10, 13-14, 18-19 and 21). Ukraine stressed
that it was seeking the protection of “its rights, and those of its people”
(paras. 6-17). In eﬀect, the present case, opposing Ukraine to the Russian
Federation, is not the ﬁrst one wherein, in its consideration of provisional
measures of protection, the ICJ is called upon to take into account people
and territory together, and, more particularly, the protection of people in
territory.
(b) Arguments of the Contending Parties on human vulnerability
   23. In the oral phase of the present proceedings, there was not one
single round of public hearings before the Court (of 6-9 March 2017)
when the Contending Parties did not expressly address the test of vulner-
ability of segments of the population. Ukraine did so to a larger extent
than the Russian Federation. Although the object of their arguments was
the test of the vulnerability of segments of the population, they pointed,
as expected, to distinct directions.
   24. In the ﬁrst round of public hearings before the ICJ (6-7 March
2017), Ukraine contended that, given the very large number of displaced
persons, “any population could be called ‘vulnerable’ and in need of
protection” 28. It added that the populations, in both eastern Ukraine and
Crimea, “are vulnerable” 29, and that, by and large, the “ethnic Ukrainian
community has been vulnerable” 30. The Russian Federation, for its part,
challenged the accuracy of Ukraine’s claim that “Crimean Tatars are par-
ticularly vulnerable” 31.

     28 CR 2017/1, of 6 March 2017, p. 32, para. 25 (Koh).
     29 Ibid., p. 70, para. 51 (Gimblett).
     30 Ibid., p. 67, para. 43 (Gimblett).
     31 CR 2017/2, of 7 March 2017, p. 55, paras. 7-8 (Lukiyantsev).

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165             application of the icsft and cerd (sep. op. cançado trindade)

   25. In the second round of public hearings before the ICJ (8-9 March
2017), Ukraine retook its argument, referring to “the displacement of
some 1.7 million Ukrainian citizens”, and to the “fatalities and other
injuries to Ukraine’s vulnerable civilian population” 32. Such violations
were suﬀered by “a vulnerable population, stripped of (. . .) protections” 33;
it added that the “civilian populations of Ukraine, including in particular
eastern Ukraine and Crimea, are extremely vulnerable and require the
Court’s immediate protection” 34.

   26. The Russian Federation, in turn, referred to Ukraine’s claim “to
protect the vulnerable population”, in particular “in the east of
Ukraine” 35, and added that, to that eﬀect (of protection), it was necessary
to secure the implementation of the Minsk Agreements 36. This is how far
the Contending Parties have gone in their arguments on the vulnerability
of segments of the population. It is signiﬁcant that both of them deemed
it ﬁt to address the issue, each one in its own way.

          IV. Provisional Measures : Utmost Vulnerability of Victims,
                          Further Irreparable Harm,
                         and Urgency of the Situation

   27. Human vulnerability was thus addressed, in distinct ways, by both
Contending Parties in their pleadings before the ICJ (supra). Also in the
documents submitted to the ICJ by both Parties, shortly before the public
hearings, evidence was produced of the utmost vulnerability of segments
of the local population (e.g., in eastern Ukraine). In eﬀect, in the course
of the present proceedings on provisional measures of protection, the two
Contending Parties have shown procedural co-operation in providing rel-
evant evidence to the Court. They both brought to the attention of the
Court, in their documents lodged with it, e.g., several reports on the
human rights situation in Ukraine (mainly of the Oﬃce of the United
Nations High Commissioner for Human Rights (OHCHR)), containing
accounts of indiscriminate shelling of the civilian population from all
sides.

   28. The accounts of such shelling are numerous, going beyond the spe-
ciﬁc passages referred to by each of the two Contending Parties in their
arguments before the ICJ. The OHCHR reports address indiscriminate

     32 CR 2017/3, of 8 March 2017, p. 12, para. 2 (Koh).
     33 Ibid., p. 60, para. 31 (Gimblett).
     34 Ibid., p. 61, para. 5 (Zerkal).
     35 CR 2017/4, of 9 March 2017, p. 68, para. 20 (Kolodkin).
     36 Ibid., p. 69, para. 23 (Kolodkin).

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shelling of civilians — in breach of the human rights and international
humanitarian law — from all sides, in densely populated areas, both
government-controlled areas 37 and towns and villages controlled by
armed groups 38. Artillery and military weaponry have been kept within
or near those densely populated areas, so as to keep on conducting indis-
criminate shelling of their civilian residents.

   29. Some speciﬁc examples may here be pointed out. According to
OHCHR reports on the ongoing conﬂict in eastern Ukraine, all parties,
including Ukrainian forces and non-State armed groups, have carried out
indiscriminate shelling and used explosive weapons, with wide-area
eﬀects, in densely populated areas 39. Intense shelling remains a daily
occurrence in many locations 40 (including government-controlled areas as
well as towns controlled by non-State armed groups) 41. These widespread
attacks have resulted in heavy damages to civilians (injuries and
casualties) 42.

  30. For instance, indiscriminate shelling has struck and damaged resi-

     37   Such as Avdiivka, Debaltseve, Popasna, Shchastia and Stanychno Luhanske.
     38
      Including Donetsk city, Luhansk and Horlivka.
     39
      OHCHR, Report on the Human Rights Situation in Ukraine (16 November 2016 to
15 February 2017), paras. 18 and 22-24; OHCHR, ibid. (1 December 2014 to 15 February
2015), para. 5; OHCHR, ibid. (17 August 2014), paras. 4 and 26.
   40 OHCHR, ibid. (16 November 2016 to 15 February 2017), para. 18.
   41 OHCHR, ibid. (16 August to 15 November 2016), para. 23; ibid. (16 February

to 15 May 2016), para. 19; OHCHR, ibid. (16 August to 15 November 2016), para. 23;
OHCHR, ibid. (16 May to 15 August 2015), para. 4; OHCHR, ibid. (1 December 2014 to
15 February 2015), paras. 6, 23 and 44; OHCHR, ibid. (17 August 2014), para. 26.
   42 OHCHR, Accountability for Killings in Ukraine from January 2014 to May 2016,

para. 32:
             “The OHCHR estimates that up to 2,000 civilians may have been killed during
          the armed conﬂict period (. . .). About 85 to 90 per cent of these deaths, recorded
          by OHCHR both in the territories controlled by the Government and in the areas
          controlled by armed groups, are as a result of shelling of populated areas with
          mortars, canons, howitzers, tanks and multiple launch rocket systems.”

   And cf., likewise: OHCHR, Report on the Human Rights Situation in Ukraine (16 August
to 15 November 2016), para. 23; OHCHR, ibid. (16 May to 15 August 2016), para. 40;
OHCHR, ibid. (16 February to 15 May 2016), paras. 11, 19 and 25; OHCHR, ibid.
(16 August to 15 November 2015), para. 26; OHCHR, ibid. (16 May to 15 August 2015),
paras. 23 and 25-26; OHCHR, ibid. (1 December 2014 to 15 February 2015), paras. 5
and 7; OHCHR, ibid. (15 December 2014), paras. 5 and 38. And cf. also, more recently,
OHCHR, ibid. (16 November 2016 to 15 February 2017), paras. 28-31.

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dential buildings 43, hospitals 44, ambulances 45, schools 46, kindergartens 47,
and a school football pitch 48. In addition to the attacks on schools
(encompassing the military use of them 49), the OHCHR also reports
attacks on churches (including on priests and parishioners) 50. In some
towns, up to 80 per cent of residential buildings and public facilities have
been destroyed 51. Those injured and killed as a result of indiscriminate
shelling have included women 52, children 53, and elderly people 54, among
others 55.

   31. In such indiscriminate shelling — which, as warned by the OHCHR
in late 2014 and early 2015, “must cease immediately” 56 — there has been
an increasing and continuing ﬂow of heavy and sophisticated weaponry 57.
In the same period, the OHCHR also recorded “a considerable number
of alleged summary executions and killings of civilians who were not tak-
ing part in hostilities”, and also singled out the “vast majority of civilian

    43 OHCHR, Report on the Human Rights Situation in Ukraine (1 December 2014 to

15 February 2015), para. 44; OHCHR, ibid. (15 June 2014), para. 259.
    44 OHCHR, ibid. (16 November 2016 to 15 February 2017), para. 24; OHCHR,

ibid. (16 May to 15 August 2016), para. 36; OHCHR, ibid. (16 May to 15 August 2015),
para. 104; OHCHR, ibid. (1 December 2014 to 15 February 2015), paras. 7 and 44;
OHCHR, ibid. (15 June 2014), para. 172.
    45 OHCHR, ibid. (16 May to 15 August 2015), para. 104.
    46 OHCHR, ibid. (16 August to 15 November 2016), para. 19; OHCHR, ibid. (16 May

to 15 August 2016), para. 35; OHCHR, ibid. (1 December 2014 to 15 February 2015),
paras. 7 and 44.
    47 OHCHR, ibid. (16 November 2016 to 15 February 2017), para. 24; OHCHR, ibid.

(1 December 2014 to 15 February 2015), paras. 7 and 44.
    48 OHCHR, ibid. (15 December 2014), para. 38.
    49 Cf. also, on this particular point, Human Rights Watch, Studying under Fire —

Attacks on Schools, Military Use of Schools during the Armed Conflict in Eastern Ukraine,
11 February 2016 (https://www.hrw.org/report/2016/02/11/studying-under-ﬁre/attacks-
schools-military-use-schools-during-armed-conﬂict) [HRW Report]; Ukraine: Attacks,
Military Use of Schools, 11 February 2016 (https://www.hrw.org/news/2016/02/11/ukraine-
attacks-military-use-schools).
    50 Cf. OHCHR, Report on the Human Rights Situation in Ukraine (15 June 2014),

para. 315 (in the village of Perevalnoe, Crimea); OHCHR, ibid. (17 August 2014),
para. 163 (Ukrainian Orthodox Church of the Kyiv Patriarchate, village of Mramornoye,
near Simferopol); OHCHR, ibid. (15 December 2014), para. 84 (same church in same patri-
archate, again in Simferopol area); OHCHR, Accountability for Killings in Ukraine from
January 2014 to May 2016, Annex I, paras. 39-40 (evangelical church “Transﬁguration of
Christ”, town of Sloviansk).
   51 OHCHR, Report on the Human Rights Situation in Ukraine (16 February to 15 May

2015), para. 83.
   52 OHCHR, ibid. (1 December 2014 to 15 February 2015), para. 5.
   53 Ibid.
   54 Ibid.
   55 Cf. OHCHR, ibid. (15 June 2014), para. 172; OHCHR, ibid. (16 February to 15 May

2015), para. 65.
   56 OHCHR, ibid. (1 December 2014 to 15 February 2015), para. 2.
   57 Ibid., para. 3.

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168          application of the icsft and cerd (sep. op. cançado trindade)

casualties” as a result of “the indiscriminate shelling of residential areas,
in violation of the international humanitarian law principle of
distinction” 58. The OHCHR further warned, in mid-2016, that both sides
(Government forces and armed groups)

      “continue to disregard the protections aﬀorded under international
      humanitarian law to schools as civilian objects used for educational
      purposes. (. . .) Hospitals used for medical purposes have also been
      frequently hit by artillery ﬁre, in violation of their protected status
      under international humanitarian law. (. . .) In some cases, Govern-
      ment forces and armed groups have used educational and health facil-
      ities for military purposes.” 59

   32. Furthermore, indiscriminate shelling has had a serious impact on
civilian infrastructure, such as water pipes and ﬁltration systems, gas
pipelines and power stations. As a result, thousands of people have been
deprived of life-saving services (including heating, water and electricity),
thus triggering additional humanitarian needs 60. In some of the worst
aﬀected areas, there has been an “almost total economic and infrastruc-
ture breakdown” 61.
   33. Moreover, civilian populations attempting to ﬂee from such pre-
carious situations have been attacked at checkpoints, apparently by both
Government armed forces 62 and non-State armed groups 63. Such limita-
tions on freedom of movement have compelled civilians to spend pro-
longed periods exposed to the violence and risks of ongoing hostilities 64.
Despite the ever-growing civilian death toll, on no occasion have armed
groups or Government authorities taken responsibility for any civilian
victims of the conﬂict. As a result, civilian victims of indiscriminate shell-
ing have suﬀered both the eﬀects of their physical injuries (in addition to
casualties), and of the denial of social and legal protection 65.

   34. There were other reports brought to the Court’s attention, in addi-
tion to those of the OHCHR. A report of the Organization for Security
   58 OHCHR, Accountability for Killings in Ukraine from January 2014 to May 2016, p. 3

(Executive Summary).
   59 OHCHR, Report on the Human Rights Situation in Ukraine (16 May to 15 August

2016), paras. 35-37.
   60 OHCHR, ibid. (16 November 2016 to 15 February 2017), paras. 18 and 25-27;

OHCHR, ibid. (16 August to 15 November 2016), para. 18; OHCHR, ibid. (16 May
to 15 August 2016), para. 125; OHCHR, ibid. (16 February to 15 May 2016), para. 15;
OHCHR, ibid. (1 December 2014 to 15 February 2015), paras. 7 and 44.
   61 OHCHR, ibid. (1 December 2014 to 15 February 2015), para. 44.
   62 OHCHR, ibid. (16 February to 15 May 2016), para. 20.
   63 OHCHR, ibid. (17 August 2014), para. 4.
   64 OHCHR, ibid. (16 February to 15 May 2016), para. 20.
   65 OHCHR, ibid. (16 August to 15 November 2016), para. 136.

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169           application of the icsft and cerd (sep. op. cançado trindade)

and Cooperation in Europe (OSCE — Special Monitoring Mission to
Ukraine, of July 2016) referred to “ongoing hostilities, shelling and
general insecurity”, and “serious human rights violations”, as the main
reason for the massive internal displacement of persons in the areas
aﬀected 66.
  35. A report of the UN special rapporteur on the “Human Rights of
Internally Displaced Persons” (of April 2015) stated likewise that ongoing
hostilities have caused “massive internal displacement” in the eastern
regions of Ukraine ; it urged “all parties to the hostilities to bring the
ﬁghting to an end without delay”, and “to protect civilians”, as well as to
ensure the voluntary and safe return of internally displaced persons to
their homes 67.

                V. The Decisive Test : Human Vulnerability
                       over “Plausibility” of Rights

   36. The aforementioned indiscriminate shelling of civilians brings to
the fore the high probability of further irreparable damage, and the
urgency of the situation. The test of human vulnerability paves the way, in
my perception, even more cogently than the one of “plausibility” of
rights, for the indication of provisional measures of protection, whose
ultimate beneﬁciaries, in the present circumstances, are human beings.
Attention is, in my perception, to be focused, above all, on the vulnerabil-
ity of human beings.
   37. The so-called “plausibility” test is a recent invention of the Court :
it was introduced in the case of Questions relating to the Obligation to
Prosecute or Extradite (Belgium v. Senegal), Provisional Measures (Order
of 28 May 2009, I.C.J. Reports 2009, p. 139), and the ICJ has ever since
been trying to clarify it. Sometimes its invocation of the term “plausible”
appears to be related to rights, sometimes to facts, or else to arguments of
the parties, as can be seen in the erratic use of the term in paragraphs 63-64,
66-71, 74-75, 79 and 82-83 of the present Order.

  38. In eﬀect, in the present Order, the ICJ uses the term “plausible”
not only in respect of rights (paras. 63-64, 69, 75, 79 and 82), but also
more widely in respect of the application of international instruments
(para. 70), thus disclosing two distinct forms of legal “plausibility”. Like-

   66 OSCE — Special Monitoring Mission [SMM] to Ukraine, Thematic Report —

Conflict-Related Disappearances in Ukraine: Increased Vulnerabilities of Affected Popula-
tions and Triggers of Tension within Communities, July 2016, pp. 19 and 24.
   67 UN/Human Rights Council, Report of the Special Rapporteur on the Human

Rights of Internally Displaced Persons (C. Beyani) — Addendum: Mission to Ukraine,
UN doc. A/HRC/29/34/Add. 3, of 2 April 2015, p. 19, para. 75; and, cf. also, on refugees in
general, United Nations High Commissioner for Refugees [UNHCR], Profiling and Needs
Assessment of Internally Displaced Persons (IDPs), of 17 October 2014, pp. 1-116.

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170          application of the icsft and cerd (sep. op. cançado trindade)

wise, in the present Order, the ICJ uses the term “plausible” also in rela-
tion to facts (paras. 66, 68, 75 and 82-83), thus referring to another
distinct form, this time of factual “plausibility”. The term is used even by
reference to “intent” and “purpose” (para. 66). And the ICJ, in the pres-
ent Order, further uses the term “plausible” also in relation to arguments
or allegations (para. 71).
   39. Is it reasonable to use the “plausibility” test in this way, with an
entire lack of precision and surrounded by uncertainties ? And that is not
all : in the present Order, the ICJ seeks to apply “plausibility” not only as
a test (supra), but also even as a “condition” (para. 83). This ends up
creating a diﬃculty or obstacle for the consideration and adoption of
provisional measures of protection in relation to the dispute as a whole
before the Court, encompassing both the ICSFT and the CERD Conven-
tions, and extending to both Crimea and eastern Ukraine.
   40. This is not the ﬁrst time within the ICJ that I deem it ﬁt to warn
against the uncertainties surrounding the so-called “plausibility” test. I
have already highlighted this point, e.g., in my separate opinion in the
case of Questions relating to the Seizure and Detention of Certain
Documents and Data (Timor-Leste v. Australia), where I pondered that
“a right is a right, irrespective of its so-called ‘plausibility’ (whatever that
might concretely mean)” (I.C.J. Reports 2014, p. 186, para. 48). Attention
is to be kept on the needs of protection, rather than on strategies of litiga-
tion.

   41. I ﬁnd it regrettable that, in the present Order the ICJ distracts
attention from the key test of the vulnerability of victims (to which it just
brieﬂy refers to, as in paragraphs 92 and 96) to the inconsistencies
of so-called “plausibility”, whatever that might concretely mean. The
rights to be protected in the cas d’espèce are rights ultimately of human
beings (individually or in groups), to a far greater extent than rights of
States.
   42. The Court is here faced with a situation where the fundamental rights
to life (and of living) and to the security and integrity of the person are at
stake, in the circumstances of the cas d’espèce. The individuals concerned
live (or survive) in a situation of great vulnerability. In addition, there is here
another related point to be kept in mind, namely, that the rights protected
at the stage of provisional measures of protection are not necessarily identi-
cal to the rights vindicated later, at the stage of the merits of the case.
   43. The requirements for the granting of provisional measures of pro-
tection are the gravity of the situation, the urgency of the need of such
measures, and the probability of irreparable harm. They are met in a situ-
ation like that of the cas d’espèce, putting at stake, in eastern Ukraine, the
fundamental rights to life and to the security and integrity of the person,
among others. They are insuﬃciently dealt with, or even eluded to, in the
present Order, which, on the other hand, abounds in the aforementioned
inconsistencies of invocation of the “plausibility” test.

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171            application of the icsft and cerd (sep. op. cançado trindade)

   44. As I have been sustaining along the years, time and time again,
provisional measures of protection have an autonomous legal regime of
their own. This being so, it is clear to me that human vulnerability is a
test even more compelling than “plausibility” of rights for the indication
or ordering of provisional measures of protection. In so acknowledging
and sustaining, one is contributing to the ongoing historical process of
humanization of contemporary international law.

      VI. The Necessity and Importance of Provisional Measures
                 of Protection in the CAS D’ESPÈCE

   45. In the present case, in my understanding the Court is entitled and
obliged, in view of the evidence produced before it, to indicate provi-
sional measures of protection, on the basis of both the ICSFT Conven-
tion and of the CERD Convention. At this stage of the proceedings, it
suﬃces to determine the Court’s prima facie jurisdiction thereunder ; an
in-depth analysis of these two Conventions is not required, and should be
kept for the merits stage 68. The evidence already submitted to the Court
is suﬃcient for the purposes of provisional measures.
   46. To determine its prima facie jurisdiction at the present stage, the
Court does not need to establish deﬁnitively breaches of the two Conven-
tions at issue (Article 18 of the ICSFT Convention, and Articles 2 (1) and
5 (b) of the CERD Convention). At the stage of provisional measures,
the Court cannot make deﬁnitive ﬁndings of fact nor ﬁndings of attribu-
tion of responsibility 69, issues to be determined later on, at the stage of
the merits. At the present stage, the ICJ — as the International Court of
Justice — is under the duty to focus, on the basis of the evidence pro-
duced, on the protection of the vulnerable civilian population living (or
surviving) in the areas concerned.

  47. On the basis of the documents and evidence submitted by the
Parties, there appear to be ongoing attacks on civilians in eastern
Ukraine (particularly in Avdiivka) ; this situation has been ongoing since
2014 70 and continues to result in fatalities, deaths and bodily injuries.
There were and there continue to be armed incidents causing loss of life
or bodily injuries, which by their nature and gravity are inherently

    68 Cf., in this sense Request for Interpretation of the Judgment of 15 June 1962 in the Case

concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand),
Provisional Measures, Order of 18 July 2011, I.C.J. Reports 2011 (II), p. 550, para. 53.
    69 Cf., Application of the International Convention on the Elimination of All Forms of

Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of
15 October 2008, I.C.J. Reports 2008, pp. 395-396, para. 141.
    70 On the very recent escalation of hostilities in Avdiivka/Donetsk/Makiivka,

cf. OHCHR, [Report on] Conflict-Related Civilian Casualties in Ukraine (6 March 2017),
p. 1; OHCHR, Escalation of Hostilities Has Exacerbated Civilian Suffering — UN Report
(4 March 2017), pp. 1-2.

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172           application of the icsft and cerd (sep. op. cançado trindade)

irreparable 71. There is urgency in the situation, and the Court is to pro-
tect the vulnerable segments of the population. The fact that after the two
Minsk Agreements (of 5 September 2014 and 12 February 2015) 72 the
situation remains unstable, and the tensions and indiscriminate shelling
(from all sides) are still ongoing 73, stresses the ICJ’s duty to order provi-
sional measures of protection.
   48. For its part, the CERD Convention is a core UN human rights
convention intended to protect rights of the human person at intra-State
level. Accordingly, concern for the protection of vulnerable segments of
the population must inform the Court’s ﬁnding that the test of human
vulnerability here applies, requiring provisional measures of protection.
To this end, there is prima facie jurisdiction under the CERD Convention
(inter alia Articles 2 (1) and 5 (b)), as well as under the ICSFT Conven-
tion (Article 18, as related to Article 2), and undue and groundless obsta-
cles to access to justice thereunder are to be discarded.

   49. Where there is a risk to human life or health, the Court has duly
considered the probability of a damage which would be ipso facto irrepa-
rable. Imminence of breaches of rights under the CERD Convention,
insofar as they could involve privation, hardship, anguish and danger to
life and health, can result in damages that can be properly qualiﬁed as
irreparable ; such risk of irreparable harm renders certain ethnic segments
of local populations (in Crimean Tatar and ethnic Ukrainian communi-
ties) particularly vulnerable 74.

   50. As the security of the vulnerable segments of the population
remains at risk, provisional measures by the Court are necessary to pro-
tect them. Furthermore, the state of armed conﬂict and the application of
international humanitarian law do not exclude the application of the
ICSFT and CERD Conventions : they are not mutually-excluding, but
rather, they reinforce each other in the factual context of the cas d’espèce,

   71 Cf., in this respect, Application of the International Convention on the Elimination of

All Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures,
Order of 15 October 2008, I.C.J. Reports 2008, p. 396, para. 142.
   72 Both agreements contain very similar provisions, including speciﬁc commitments to,

inter alia: an immediate bilateral ceaseﬁre (with monitoring and veriﬁcation by the OSCE);
the withdrawal of illegal armed groups from Ukraine; the release of hostages and other
unlawfully detained individuals; the unimpeded provision of humanitarian assistance.
   73 As reported, e.g., by the OSCE Special Monitoring Mission to Ukraine, based on

information received up to 30 January 2017.
   74 Application of the International Convention on the Elimination of All Forms of Racial

Discrimination (Georgia v. Russian Federation), Provisional Measures, Order of 15 October
2008, I.C.J. Reports 2008, p. 396, paras. 142-143.

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173          application of the icsft and cerd (sep. op. cançado trindade)

so as to secure the protection due to persons in situations of great vulner-
ability.
   51. It is reassuring that the ICJ, as “the principal judicial organ of the
United Nations” (Article 92 of the UN Charter), orders provisional mea-
sures of protection in face of the imminence of (new) breaches of human
rights and of international humanitarian law. The circumstances of the
cas d’espèce call for a vue d’ensemble of the relevant provisions of the
ICSFT and CERD Conventions, and ILHR and IHL in the exercise of
hermeneutics. Other main organs of the United Nations (like the General
Assembly 75 and the Security Council 76) have likewise expressed their con-
cerns with the circumstances of the cas d’espèce.

VII. The Concern of the International Community with the Living
            Conditions of the Population Everywhere

   52. This is not the ﬁrst time that, in face of the victimization of vulner-
able segments of the population in an ongoing armed conﬂict or hostili-
ties, I upheld the “approximations and convergences”, and the concomitant
application, of international humanitarian law and other international con-
ventions (of human rights and others), a situation which, as I pointed out
15 years ago in another international jurisdiction, clearly requires the rec-
ognition of the eﬀects of the Convention at issue vis-à-vis others, simples
particuliers (Drittwirkung) 77. In the cas d’espèce, such is the case of the
ICSFT and CERD Conventions : Drittwirkung has as incidence here, as
both Conventions cover inter-individual relations as well, without thereby
excluding the determination of State responsibility (even if by omission, a
question for consideration at the subsequent stage of the merits).

  53. As I have already pointed out in the present separate opinion, the
vulnerability of victims, with its implications, are thus clearly acknowl-
edged in contemporary international case law, of distinct international

   75 Cf. UN General Assembly resolution 68/262, of 27 March 2014 (paragraph 4, on

the need of protection of human life in Ukraine); General Assembly resolution 71/205, of
19 December 2016 (paras. 1 and 2 (b), concern with discriminatory measures and practices
in Crimea).
   76 Cf. UN Security Council resolution 2202 (2015), of 17 February 2015 (paragraphs 1

and 3, on the needed implementation of the “Package of Measures for the Implementation
of the Minsk Agreements” of 12 February 2015).
   77 Cf. IACtHR, case of the Peace Community of San José of Apartadó regarding

Colombia (resolution of 18 June 2002), concurring opinion of Judge Cançado Trindade,
para. 14; IACtHR, Matter of the Mendoza Prisons regarding Argentina (resolution of
30 March 2006), concurring opinion of Judge Cançado Trindade, para. 5.

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tribunals (cf. Part III, supra). In a still wider framework, may I just add,
in this connection, that the cycle of world conferences of the United
Nations 78 (during the 1990s and the beginning of the last decade), came
signiﬁcantly to disclose a common denominator, giving cohesion to the
ﬁnal documents they adopted, namely, the recognition of the legitimacy
of the concern of the international community as a whole with the condi-
tions of living of the population everywhere 79.

   54. The UN World Conference of Vienna (1993), in particular, added
an important element to this common denominator, namely, the special
attention devoted to the vulnerable segments of the population every-
where. The protection of the vulnerable constitutes the great legacy of the
II World Conference of Human Rights (Vienna, 1993) 80: more than any
other of the world conferences of that cycle, it presented, given its wide
theme, a systemic vision of all segments of the population aﬀected by
vulnerability or extreme adversity.

   55. The Declaration and Programme of Action of Vienna, ﬁnal docu-
ment adopted by the 1993 Vienna Conference, sought to concentrate spe-
cial attention on persons suﬀering from discrimination and vulnerable
groups, on the socially excluded, in greater need of protection 81. The
aforementioned document much contributed to the recognition of the
centrality of victims in the present domain of protection, with special
attention to their living conditions amidst vulnerability. In its legacy, such
centrality of the victims is projected until current times, and underlined in

    78 World Conferences on Environment and Development, Rio de Janeiro, 1992; on

Human Rights, Vienna, 1993; on Population and Development, Cairo, 1994; on Social
Development, Copenhagen, 1995; on Rights of Women, Beijing, 1995; on Human Settle-
ments — Habitat-II, Istanbul, 1996; and World Conference against Racism, Durban,
South Africa, 2001.
    79 Cf. A. A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos,

Vol. I, 2nd ed., Porto Alegre/Brazil, S. A. Fabris Ed., 2003, Chaps. III-VII, pp. 165-338;
and cf. A. A. Cançado Trindade, “Sustainable Human Development and Conditions
of Life as a Matter of Legitimate International Concern: The Legacy of the UN World
Conferences”, in Japan and International Law — Past, Present and Future (Symposium of
the Centennial of the Japanese Association of International Law), The Hague, Kluwer,
1999, pp. 285-309.
    80 Cf. A. A. Cançado Trindade, A Proteção dos Vulneráveis como Legado da II Confer-

ência Mundial de Direitos Humanos (1993-2013), Fortaleza, Brazil, IBDH/IIDH/SLADI,
2014, pp. 13-363.
    81 A. A. Cançado Trindade, “Nouvelles réﬂexions sur l’interdépendence ou

l’indivisibilité de tous les droits de l’homme, une décennie après la Conférence mondiale
de Vienne”, in El Derecho Internacional : Normas, Hechos y Valores — Liber Amicorum
J. A. Pastor Ridruejo (eds. L. Caﬂisch et al.), Madrid, Universidad Complutense, 2005,
pp. 59-73.

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cases of systematic violation of their fundamental rights, amidst particu-
larly aggravating circumstances 82.

     VIII. Provisional Measures : Protection of the Human Person,
                beyond the Strict Inter-State Dimension

   56. Eight years ago, in the case of Questions relating to the Obligation
to Prosecute or Extradite (Belgium v. Senegal), the ICJ decided, in its
Order of 28 May 2009, not to indicate provisional measures of protec-
tion. I appended a dissenting opinion to that Order, recalling the saga of
the victims of the Hissène Habré regime (1982-1990) in Chad
(I.C.J. Reports 2009, pp. 176-182, paras. 30-45) in their search for justice ;
and, after drawing attention to the preventive juridical nature of such
provisional measures, granted without prejudice to the Court’s ﬁnal deci-
sion on the merits of the case at issue (ibid., p. 169, para. 12), as well as to
their truly tutelary character (ibid., p. 170, para. 13), I deemed it ﬁt to
point out that, during recent decades, there have been occasions when the
ICJ, in deciding on provisional measures of protection, has endeavoured
gradually to overcome the strictly inter-State outlook, in acknowledging
the need of preservation of “human life and personal integrity”, funda-
mental rights of individuals (ibid., p. 174, paras. 20-21).
   57. Whenever alleged grave violations of the international law of
human rights (ILHR) and international humanitarian law (IHL) are at
the origin of the inter-State contentieux before the ICJ, this has not been
controverted by the contending parties themselves (ibid., p. 180, para. 40) ;
requesting States themselves have, in their arguments before the ICJ,
“gone beyond the strictly inter-State outlook of the past”, in vindicating
the protection, by means of provisional measures, of “the fundamental
rights of the human person” (ibid., p. 175, para. 23). In eﬀect, I added in
my aforementioned dissenting opinion, in recent decades,

      “provisional measures indicated in successive Orders of the ICJ have
      transcended the artiﬁcial inter-State dimension of the past, and have
      come to preserve also rights whose ultimate subjects (titulaires) are
      the human beings. This reassuring development admits no steps back-
      wards, as it has taken place to fulﬁl a basic need and aspiration not
      only of States, but of the contemporary international community as
      a whole.” (Ibid., p. 175, para. 25.)

   82 Cf. A. A. Cançado Trindade, State Responsibility in Cases of Massacres: Contempo-

rary Advances in International Justice, Universiteit Utrecht, 2011, pp. 1-71; A. A. Cançado
Trindade, The Access of Individuals to International Justice, Oxford University Press,
2011, Chap. X, pp. 179-191; A. A. Cançado Trindade, “Die Entwicklung des interameri-
kanischen Systems zum Schutz der Menschenrechte”, 70 Zeitschrift für ausländisches
öffentliches Recht und Völkerrecht (2010), pp. 629-699.

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   58. I singled out the importance and time dimension of provisional
measures of protection, particularly in face of the briefness and vulnera-
bility of human life (I.C.J. Reports 2009, p. 182, paras. 46-47), and warned
that prolonged delays in a situation of adversity or even defencelessness
may amount to an aggravating circumstance (ibid., p. 186, para. 59). Sub-
sequently, in the same case of Questions relating to the Obligation to Pros-
ecute or Extradite (Belgium v. Senegal) (Merits, Judgment, I.C.J. Reports
2012 (II), p. 422), I pondered that the central position is of the human
person, of the victims (and not of the States), and attention to their situ-
ation of great vulnerability requires further development in the treatment
of the matter (ibid., p. 555, para. 174).
   59. And, in my separate opinion in the case of Ahmadou Sadio Diallo
(Republic of Guinea v. Democratic Republic of the Congo) (Merits, Judg-
ment, I.C.J. Reports 2010 (II), p. 639), I pointed out that “humaneness is
to condition human behaviour in all circumstances, in times of peace as
well as of disturbances and armed conﬂict” (ibid., p. 762, para. 102), par-
ticularly in face of a “situation of vulnerability, or even defencelessness”
(ibid., para. 105). More recently, in my dissenting opinion in the Court’s
Order of 16 July 2013 in 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) (Provi-
sional Measures, Order of 16 July 2013, I.C.J. Reports 2013, p. 230), I
pointed out that

         “After all, the beneﬁciaries of the compliance with, and due perfor-
      mance of, obligations under ordered provisional measures of protec-
      tion, are not only States, but also human beings. A strictly inter-State
      outlook does not reﬂect this important point. The strictly inter-State
      dimension has long been surpassed, and seems insuﬃcient, if not inad-
      equate, to address obligations under provisional measures of protec-
      tion.” (Ibid., p. 263, para. 56.)
   60. May I, at this stage, brieﬂy recall the two cases Ukraine v. Russian
Federation, pending before the European Court of Human Rights
(ECHR), illustrative of the protection of the human person, beyond the
strict inter-State dimension. The ECHR applied provisional measures of
protection in those (inter-State) cases, in addition to over 150 individual
cases (out of a total of more than 1400 individual cases) lodged by indi-
viduals against Ukraine, or the Russian Federation or both 83.

    83 In a third Ukraine v. Russia case (application No. 49537/14), provisional measures

were promptly adopted by the ECHR, in a case concerning security of the person of a
Ukrainian national of the Crimean Tatars ethnic group, a case which was then struck oﬀ
its list of cases; cf. ECHR, Press Release 286 (2015), of 24 September 2015, p. 1. In the

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   61. In the ﬁrst case, Ukraine v. Russian Federation, for example, the
ECHR, in applying provisional measures of protection, called upon both
contending parties to refrain from taking any measures (in particular mil-
itary action) which might entail breaches of the ECHR rights of the civil-
ian population (including putting their life and health at risk), as well as
to comply with their engagements under the ECHR, notably in respect of
the fundamental right to life (Art. 2) and the prohibition of inhuman or
degrading treatment (Art. 3) 84.

                          IX. Chronic Violence
                 and the Tragedy of Human Vulnerability

   62. The briefness and vulnerability of human life have attracted the
attention of philosophers over the centuries, as widely known. The point
assumes a dramatic dimension in face of persisting and chronic violence,
and even of policies leading to it. Humanist thinking has always stood
against that, and in defence of human life, and digniﬁed conditions of liv-
ing. May I here recall one example, the reﬂections of the universal writer
Leo Tolstoy, which remain as topical nowadays, even in changed and
entirely new circumstances, as at the time he wrote them.
   63. Already in his earlier writings (of 1854-1856), on the conﬂict of
Sevastópol (the Sevastópol Sketches) during the War of Crimea (from
December 1854 to August 1856), Tolstoy gave expression to his humanist
and paciﬁst outlook, supporting non-violent resistance to injustice and
oppression, and warning against the irrationality and cruelty of war. To
Tolstoy, it was unjustiﬁable to prepare people to slaughter each other in
war, to send people into the battleﬁeld to inﬂict suﬀerings, wounds and
death to each other. In face of this fostering of hatred, either war was a
madness, or those who produced such madness were not rational crea-
tures. War was a tragedy of the human condition, leaving survivors sur-
rounded by corpses ; it was an evil to be avoided 85, he concluded.

  64. Years later, Tolstoy permeated also his epic masterpiece novel War
and Peace (1869) with philosophical humanist considerations. Over the

second pending case Ukraine v. Russia (application No. 43800/14, concerning abducted
persons, then returned to Ukraine), provisional measures were promptly adopted and then
lifted by the ECHR; cf. ECHR, Press Release 345 (2014), of 26 November 2014, p. 2. As to
the more than 150 individual cases, cf. ECHR, Press Release 296 (2015), 1 October 2015,
p. 2; and ECHR, Press Release 122 (2015), of 13 April 2015, p. 1.
   84 Cf. ECHR, Press Release 73 (2014), 13 March 2014, p. 1; and cf. also ECHR, Press

Release 345 (2014), of 26 November 2014, pp. 1-2.
   85 L. Tolstoy, Contos de Guerra [1855-1856], Lisbon, Relógio d’Agua Edit., 2015 [reed.],

pp. 21, 26, 32 and 74.

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centuries, he wrote, “millions of men perpetrated so great a mass of
crime[s]” with the utmost wickedness, not looking at them as crimes 86.
Often with patriotism they prepared themselves for murder, the “object
of warfare” ; they met together to murder the others, glorifying victories,
“supposing that the more men have been slaughtered the greater the
achievement” 87.
   65. Tolstoy warned that, against “all humanity”, “[g]reatness would
appear to exclude all possibility of right and wrong”, even in face of
atrocities ; nothing was esteemed as wrong, in face “of glory and of
greatness” 88. To him, quite to the contrary, he concluded in War and
Peace, “there can be no free will”, as human action is to be controlled,
and knowledge is to bring “the essence of life under the laws of reason”,
and man can only know himself “through consciousness” 89.

   66. Tolstoy kept his concerns in mind along the years. Much later on in
his life, after writing his acclaimed literary novels War and Peace and Anna
Karenina, he devoted himself to his writings on religious thinking, focusing
attention more on non-violence and passive resistance. Thus, in a subse-
quent book (The Slavery of Our Times), he again warned (in 1900) against
organized and extreme violence, criticizing the recruitment of personnel to
be sent to war and to kill vulnerable and defenseless persons 90.
   67. In the remaining years of his life, in his book The Kingdom of God
Is Within You (1894-1897), Tolstoy positioned himself against war and
armamentism 91, invoking the “conscience of mankind” 92. In particular,
he condemned the compulsory military recruitment of persons to be sent
to war 93 as a form of State violence, depriving those persons of their pri-
vate and family life 94. This, he added, was an inversion of the humane
ends of the State 95, it was a form of “military slavery” 96, sending the
recruited persons to the slaughtering of others and to their own death 97.
This amounted to inﬂicting evil on others and on themselves 98.

    86 L. Tolstoy, War and Peace [1869], N.Y., Ed. Modern Library/Random House, 2002

[reed.], p. 687.
     87   Ibid., pp. 885-886.
     88
      Ibid., pp. 1218 and 1291.
     89
      Ibid., pp. 1370 and 1382.
   90 L. Tolstoy, La Esclavitud de Nuestro Tiempo [The Slavery of Our Times, 1900], Barce-

lona, Littera, 2000 [reed.], pp. 86-87, 89, 91, 97, 101, 103-104 and 121.
   91 L. Tolstoy, El Reino de Dios Está en Vosotros [Tsarstvo Bozhie Vnutrí Vas], 7th ed.,

Barcelona, Edit. Kairós, 2016, pp. 21, 152-153, 157 and 170.
   92 Ibid., pp. 24 and 229, and cf. pp. 412 and 414.
   93 Ibid., pp. 186-189, 209 and 353.
   94 Ibid., pp. 211-212 and 230-231.
   95 Ibid., p. 213.
   96 Ibid., p. 216, and cf. p. 364.
   97 Ibid., pp. 371-372.
   98 Ibid., pp. 387 and 393.

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            X. Provisional Measures : Protection of People
                            in Territory

   68. I have already made the point that, amidst generalized violence,
the ultimate beneﬁciaries of obligations under ordered provisional mea-
sures of protection are human beings. A strictly inter-State outlook is, in
my perception, insuﬃcient and surpassed, to address adequately obliga-
tions under provisional measures (cf. Part VIII, supra). Thus, over half a
decade ago, in my separate opinion in the case of Request for Interpreta-
tion of the Judgment of 15 June 1962 in the Case concerning the Temple of
Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), (Provi-
sional Measures, Order of 18 July 2011, I.C.J. Reports 2011 (II)), for
example, I deemed it ﬁt to draw attention to this point (in my separate
opinion, (ibid., pp. 588-590, 592-593 and 606, paras. 66, 70, 77 and 113)),
wherein I pondered that
         “International law in a way endeavours to be anticipatory in the
      regulation of social facts, so as to avoid disorder and chaos, as well
      as irreparable harm. (. . .) We are here before the raison d’être of
      provisional measures of protection, to prevent and avoid irreparable
      harm in situations of gravity and urgency. They are endowed with a
      preventive character, being anticipatory in nature, looking forward in
      time. They disclose the preventive dimension of the safeguard of
      rights. Here, again, the time factor marks its presence in a notorious
      way.” (Ibid., p. 588, para. 64.)
  69. I added that provisional measures, intended to protect human life,
call for a humanist outlook, as they encompass, besides territory, people,
“the most precious constituent element of statehood” (ibid., pp. 589-590,
paras. 70 and 81). People and territory are to be brought together, giving
“proper weight to the human factor” (ibid., p. 599, para. 97). After all, I
concluded on this point,

        “Not everything can be subsumed under territorial sovereignty.
      The fundamental human right to life is not at all subsumed under
      State sovereignty. The human right not to be forcefully displaced or
      evacuated from one’s home is not to be equated with territorial sov-
      ereignty. The Court needs to adjust its conceptual framework and its
      language to the new needs of protection, when it decides to indicate
      or order the provisional measures requested from it.” (Ibid.,
      pp. 599-600, para. 99.)
   70. Shortly afterwards, I had the occasion to elaborate further on this
issue, in the consideration of the matter in the 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) : in its Order of 16 July 2013,
as the ICJ decided not to order provisional measures, I appended a dis-

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senting opinion thereto ; and in its subsequent Order of 22 November
2013, where the Court indicated provisional measures, I appended a sepa-
rate opinion thereto.
   71. In my dissenting opinion of 16 July 2013, I underlined the fact that
the Court was once again faced with the requested protection of people in
territory (I.C.J. Reports 2013, pp. 257 and 260, paras. 39 and 46-47),
drawing attention to the preventive dimension of the safeguard of the
rights at issue (ibid., p. 258, para. 41). After recalling other situations of
the kind, I added that

      “along the last three decades, the ICJ has gradually overcome the
      strictly inter-State outlook in the acknowledgement of the rights to
      be preserved by means of its Orders of provisional measures of pro-
      tection.
       . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
         Facts tend to come before the norms, requiring of these latter the
      aptitude to cover new situations they are meant to regulate, with due
      attention to superior values 99. Before this Court, States keep on hold-
      ing the monopoly of jus standi, as well as locus standi in judicio, in so
      far as requests for provisional measures are concerned, but this has
      not proved incompatible with the preservation of the rights of the
      human person, together with those of States. The ultimate beneﬁciar-
      ies of the rights to be thereby preserved have been, not seldom and
      ultimately, human beings, alongside the States wherein they live. Pro-
      visional measures indicated in successive Orders of the ICJ have tran-
      scended the artiﬁcial inter-State dimension of the past, and have come
      to preserve also rights whose ultimate subjects (titulaires) are human
      beings.” (Ibid., p. 261, paras. 49-50.)

   72. I then observed that provisional measures are “truly tutelary”, as
States are bound “to protect all persons under their respective jurisdic-
tions”, thus avoiding “harm in the form of bodily injury or death” (ibid.,
p. 263, para. 56). Provisional measures have an autonomous legal regime
of their own, which needs conceptual reﬁnement, focusing attention on
the legal consequences of non-compliance with them, generating State
responsibility and entailing legal consequences (ibid., pp. 267-268,
paras. 69-72).

  73. The obligations which the ordering of those measures generates
“are distinct from the obligations” ensuing from the Court’s judgments as

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

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

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to the merits (I.C.J. Reports 2013, p. 269, para. 75). I concluded that this
calls for “a more pro-active posture” on the part of the Court, so as

           “to contribute eﬀectively to the avoidance or prevention of irrepara-
           ble harm in situations of urgency, to the ultimate beneﬁt of all subjects
           of international law, States as well as groups of individuals, and sim-
           ples 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.” (Ibid., p. 270, para. 76.)

     XI. The Autonomous Legal Regime of Provisional Measures of
              Protection: Duty of Compliance with Them

   74. Now, in the present case, we again ﬁnd ourselves within the realm
of the autonomous legal regime of provisional measures of protection,
which I have already referred to in the present separate opinion. Such
legal regime is conﬁgured by the rights to be protected (not necessarily
identical to those vindicated later in the merits stage), by the obligations
emanating from the provisional measures of protection, generating
autonomously State responsibility, with its legal consequences, and by the
presence of (potential) victims already at the stage of provisional mea-
sures of protection.

   75. As the cas d’espèce shows, the claimed rights to be protected
encompass the fundamental rights of human beings, such as the right to
life, the right to personal security and integrity, the right not to be force-
fully displaced or evacuated from one’s home. The duty of compliance
with provisional measures of protection brings to the fore another ele-
ment conﬁguring their autonomous legal regime, to which I now turn
attention, in its component elements, namely : non-compliance and the
prompt engagement of State responsibility ; prompt determination by the
Court of breaches of provisional measures of protection ; and the ensuing
duty of reparation for damages resulting from those breaches.

   76. Shortly after my aforementioned dissenting opinion in the Court’s
Order of 16 July 2013, in my separate opinion in the Court’s following
Order of 22 November 2013 in the same joined cases opposing Costa
Rica and Nicaragua, I began by observing that, much as provisional mea-
sures of protection have expanded in our times, the conﬁguration of the
autonomous legal regime of their own 100 keeps on calling for further
elaboration, for example, in respect of the necessary compliance with
     100   Cf. note 10, supra.

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them (I.C.J. Reports 2013, pp. 378-381, paras. 20-26). Given that provi-
sional measures generate per se obligations, non-compliance with them
generates State responsibility and entails legal consequences (ibid.,
pp. 382-383, para. 29).

                           1. Non-Compliance
                         and State Responsibility
   77. The beneﬁciaries of compliance with provisional measures, I pro-
ceeded, can be “States as well as groups of individuals, and simples par-
ticuliers” (ibid., p. 384, para. 31). I then added that, had the ICJ, in its
previous Order of 16 July 2013 in the aforementioned merged cases
(supra), indicated or ordered the provisional measures requested, “prob-
ably the present situation in the disputed territory (. . .) would not have
arisen” (ibid., p. 387, para. 38). And I concluded that non-compliance
with provisional measures “entails an additional ground of responsibility ;
the task ahead of us is to extract the consequences ensuing therefrom”
(ibid., para. 40).
   78. Two years later, in the same joined cases of Certain Activities Car-
ried 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), in the Court’s Order of 16 December 2015, I
appended a new separate opinion, wherein I presented a plea for the
prompt determination by the ICJ of breaches of provisional measures of
protection (I.C.J. Reports 2015 (II), p. 759, para. 3 and pp. 769-772,
paras. 34-44) and sustained the duty of reparation (in its distinct forms)
for damages resulting from those breaches (ibid., p. 759, para. 3 and
pp. 773-775, paras. 47-52).

      2. Prompt Determination of Breaches of Provisional Measures :
                     An Anti-Voluntarist Posture
   79. The determination of breaches of provisional measures of protec-
tion, I stressed, does not need to wait until the end of proceedings as to
the merits of the case at issue (I.C.J. Reports 2015 (II), p. 767, para. 26
and p. 769, para. 33), as obligations of prevention are additional ones, in
relation to those ensuing from the judgment on the merits ; in order to
serve better their anticipatory rationale, “the determination of a breach of
provisional measures of protection is not — should not be — conditioned
by the completion of subsequent proceedings as to the merits of the case
at issue” (ibid., p. 770, para. 35). And I added that “contemporary inter-
national tribunals have, in my understanding, an inherent power or fac-
ulté to order provisional measures of protection, whenever needed, and to
determine, ex officio, the occurrence of a breach of provisional measures,
with its legal consequences” (ibid., para. 36).
   80. In the realm of provisional measures of protection, I added,

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      “once again the constraints of voluntarist legal positivism are, in my
      view, overcome 101. 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 tribunal, it stands above the will of the con-
      tending parties. This is an important point that I have been making
      on successive occasions within the ICJ, in its work of international
      adjudication.

       . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
         [T]he Court is to assume the role of guarantor of compliance with
      conventional obligations, beyond the professed intention or will of
      the parties.
       . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
         The Court, may I reiterate, is not an arbitral tribunal, it stands
      above the will of the contending parties. (. . .). It has an inherent
      power or faculté to proceed promptly to the determination of a breach
      of provisional 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.” (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), I.C.J. Reports
      2015 (II), p. 771, paras. 39-40 and p. 772, para. 42.)

                      3. Breaches of Provisional Measures
                          and the Duty of Reparation
   81. In case of a ﬁnding of breaches of provisional measures, I pro-
ceeded in the same separate opinion in the two joined cases, the Court is
entitled to address reparations (in all its forms), irrespective of subsequent
proceedings on the merits, as “breach and reparation come together”
(I.C.J. Reports 2015 (II), p. 773, paras. 47-48 and p. 774, para. 51). In the
interests of the sound administration of justice (la bonne administration de
la justice), an international tribunal has the inherent power or faculté to
supervise motu proprio compliance with its Orders of provisional mea-
sures, and, in case of non-compliance, to address the legal consequences
ensuing therefrom and to determine the duty of reparation (ibid.,
pp. 778-779, paras. 62-63).

    101 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.

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184         application of the icsft and cerd (sep. op. cançado trindade)

   82. In this domain, I continued, international case law seems to be pre-
ceding legal doctrine, and it is a source of satisfaction to me to endeavour
to keep on contributing to that (I.C.J. Reports 2015 (II), p. 779, para. 66).
This development portrays the relevance of the preventive dimension in
contemporary international law (ibid., pp. 775-776, paras. 53-56). After
all, in their autonomous legal regime, provisional measures of protection
guarantee rights and generate per se obligations, which are not necessarily
the same as those dealt with in the subsequent proceedings as to the mer-
its. I then concluded that a breach of provisional measures engages by
itself State responsibility, with the duty to provide prompt reparation
(ibid., pp. 780-781, paras. 68-72). Contemporary international tribunals
are to foster this progressive development, “to the beneﬁt of all the justi-
ciables” (ibid., p. 781, para. 73).

   83. As I further pointed out in my separate opinion in the case of
Questions relating to the Seizure and Detention of Certain Documents and
Data (Timor-Leste v. Australia), Provisional Measures, Order of 22 April
2015 (I.C.J. Reports 2015 (II)), such rights and obligations being proper
to provisional measures, the ICJ is fully entitled to decide on the legal
consequences of non-compliance with them (including the due repara-
tions),

      “without waiting for the manifestations of the ‘will’ of a contending
      State party. It is human conscience, standing above the ‘will’, that
      accounts for the progressive development of international law. Ex
      conscientia jus oritur.” (Ibid., p. 566, para. 13.)

                              XII. Epilogue

   84. The matter brought to the Court’s attention in the factual context
of the request which led to the adoption of the present Order of provi-
sional measures of protection in the case of the Application of the Interna-
tional Convention for the Suppression of the Financing of Terrorism and of
the International Convention on the Elimination of All Forms of Racial
Discrimination (Ukraine v. Russian Federation), requires, as I have
endeavoured to demonstrate, much reﬂection, from a humanist outlook.
This is ineluctable, given the central position occupied by the victims
(including potential victims) in the consideration of requests of provi-
sional measures of protection like the present one. We here ﬁnd human
beings in great need of protection, in situations of vulnerability or even
defencelessness.

  85. In these circumstances, the decisive test, in my understanding, is
that of human vulnerability, rather than so-called “plausibility” of rights.

84

185           application of the icsft and cerd (sep. op. cançado trindade)

In face of the gravity of the situation, of urgency and risks of (further)
irreparable damage, provisional measures of protection are required.
Their indication is oriented by the principle pro persona humana, pro vic-
tima. Those measures bear witness to the current historical process of
humanization of international law, which is irreversible. The protection of
human beings in situations of great vulnerability has thus found expres-
sion at international law level in our times, as a sign of such historical
process ; yet, there remains a long way to go.

   86. The pressing need to secure protection of human beings in situa-
tions of great vulnerability, in my perception, requires the ICJ to go
beyond the strict inter-State dimension (the one it is used to, attached to
a dogma of the past), and to concentrate attention on victims (including
the potential ones 102), be they individuals 103, groups of individuals 104,
peoples or humankind 105, as subjects of international law, and not on
inter-State susceptibilities. Human beings in vulnerability are the ultimate
beneﬁciaries of provisional measures of protection, endowed nowadays
with a truly tutelary character, as true jurisdictional guarantees of preven-
tive character.

   87. I have already pointed out that, in the course of the proceedings
leading to the adoption of the present Order, the situation of utmost vul-
nerability of segments of the population — calling for provisional mea-
sures of protection — was brought to the attention of the Court
(cf. Part III, supra). The two Contending Parties have provided the Court
with extensive documentation on it, which I have examined in the present
separate opinion (cf. Part IV, supra).
   88. I ﬁnd it regrettable that such human vulnerability is not duly dealt
with in the reasoning of the Court, nor expressly reﬂected in the dispositif
of the present Order, where, despite the constatation in that documenta-
tion of the situation of human vulnerability of segments of the population
(e.g., under indiscriminate shelling), the protection of the fundamental

   102 On the notion of potential victims in the framework of the evolution of the notion

of victim (or the condition of the complainant) in the domain of the international law of
human rights, cf. A. A. Cançado Trindade, “Co-Existence and Co-ordination of Mecha-
nisms of International Protection of Human Rights (At Global and Regional Levels)”,
202 Recueil des cours de l’Académie de droit international de La Haye (1987), Chap. XI,
pp. 243-299, esp. pp. 271-292.
   103 As I pointed out in my separate opinions of the Ahmadou Sadio Diallo case (Judg-

ments of 30 November 2010, merits; and of 19 June 2012, reparations).
   104 As I sustained in my dissenting and separate opinions in the case of Questions

relating to the Obligation to Prosecute or Extradite (Order of 28 May 2009, and Judgment
of 20 July 2012, respectively), as well as in my dissenting opinion in the case of the Applica-
tion of the Genocide Convention (Judgment of 3 February 2015).
   105 As I upheld in my three dissenting opinions in the three Marshall Islands cases

(Judgments of 5 October 2016).

85

186        application of the icsft and cerd (sep. op. cançado trindade)

rights to life and to the security and integrity of the person is not even
mentioned.
   89. Even so, point (2) of the dispositif, addressed to both Contending
Parties, and the only one covering the dispute as a whole before the Court
(encompassing both the ICSFT and the CERD Conventions), in both
Crimea and eastern Ukraine, in my understanding implicitly extends pro-
tection also to those fundamental rights, in ordering that “[b]oth Parties
shall refrain from any action which might aggravate or extend the dispute
before the Court or make it more diﬃcult to resolve”.
   90. The principle of humanity comes to the fore. There are no restric-
tions ratione personae (e.g., attempting to focus exclusively on relations
between States and individuals). International conventions, like the two
invoked in the present case (the ICSFT and the CERD Conventions), as
I have already pointed out, have a Drittwirkung eﬀect, they cover likewise
inter-individual relations, without thereby excluding the subsequent con-
sideration of State responsibility (as to the merits), even if by omission.
   91. After all, the principle of humanity permeates the whole corpus
juris of contemporary international law (encompassing the converging
trends of the international law of human rights, international humanitar-
ian law, international law of refugees, international criminal law). The
principle of humanity has a clear incidence on the protection of persons
in situations of great vulnerability. The raison d’humanité prevails here
over the raison d’Etat. Human beings stand in need, ultimately, of protec-
tion against evil, which lies within themselves.

                      (Signed) Antônio Augusto Cançado Trindade.

86


GERMAN MINORITY SCHOOLS IN UPPER SILESIA 31

ANNEX 1.

I.—-DoOCUMENTATION RELATING TO THE DECISION TAKEN BY THE COUNCIL ON
JANUARY 24th, 1931, TO CONSULT THE COURT.

60th Session of the Council (September, 1930) ; Official Journal, November, 1930:

1.—Minutes of second meeting, September 9th, 1930.
Point 2668, page 1310.

61st Session of the Council (September, 1930) ; Official Journal, November, 1930 :

1.—Annex 1249, page 1640:
(a) Appeal by the Deutscher Volksbund of June 5th, 1930.
(b) Observations of the Polish Government accompanying the Appeal.
(c) Opinion given on February 1oth, 1930,' by the President of the
Mixed Commission for Upper Silesia.
2.—Minutes of fifth meeting, September 27th, 1930.
Point 2713, page 1521.

Apart from the Acts of the Council.

Opinion given by the President of the Mixed Commission for Upper Sile-
sia on February 15th, 1929, mentioned in the Opinion of February 1oth,

1930. .

II.——DocUMENTATION CONCERNING THE LANGUAGE TESTS MENTIONED IN THE
COUNCIL RESOLUTION OF MARCH I2th, 1927.

44th Session of the Council (March, 1927); Official Journal, April, 1927:

1.—Annex 942 (a), page 481:
Appeal by the Deutscher Volksbund of January 15th, 1927.
2.—Minutes of third meeting, March 8th, 1927. -
Point 1884, page 376.
3.—Amnnex 942, page 474:
Report by M. Urrutia.
4—Minutes of seventh meeting, March i2th, 1927.
Point 1915, page 400. .

48th Session of the Council (December, 1927) ; Official Journal, February, 1928

1.—Annex 1003, page 217:
Polish Note of October 18th, 1927.
2.—Annex 1003 (a), page 218:
Letter from M. Urrutia,.of November 4th, 1927.
3.—Annex 1003 (b), page 219:
Telegram from the German Government, of November 14th, 1927.
4.—Minutes of fifth meeting, December 8th, 1927.
Point 2086, page 156. .

31


INTERNATIONAL COURT OF JUSTICE

YEAR 2001
2001
12 April
General List
No. 121
12 April 2001

CASE CONCERNING THE ARREST WARRANT
OF 11 APRIL 2000
(DEMOCRATIC REPUBLIC OF THE CONGO v. BELGIUM)

ORDER
The President of the International Court of Justice,

Having regard to Article 48 of the Statute of the Court and to Article 44,
paragraphs 3 and 4, of the Rules of Court,

Having regard to the Order dated 14 March 2001, whereby the Court extended until
17 April 2001 and 31 July 2001 respectively the time-limits for the filing of the Memorial
of the Democratic Republic of the Congo and the Counter-Memorial of the Kingdom of
Belgium;

Whereas, by a letter dated 10 April 2001 received in the Registry on 11 April 2001
by facsimile, the Agent of the Democratic Republic of the Congo requested the Court to
extend by 30 days the time-limit for the filing of the Memorial, and indicated the reasons
for that request; and whereas, on receipt of that letter, the Registrar, referring to Article 44,
paragraph 3, of the Rules of Court, transmitted a copy thereof to the Agent of Belgium;

Whereas, by letter dated 12 April 2001 and received in the Registry on the same day
by facsimile, the Agent of Belgium indicated that his Government was not opposed to the
extension of the time-limit requested by the Democratic Republic of the Congo, and
requested that the time-limit fixed for the filing of the Counter-Memorial be extended until
17 September 2001;

Taking account of the reasons given by the Democratic Republic of the Congo and of
the agreement of the Parties,

Extends to 17 May 2001 the time-limit for the filing of the Memorial of the
Democratic Republic of the Congo;
-2-

Extends to 17 September 2001 the time-limit for the filing of the Counter-Memorial
of the Kingdom of Belgium; and

Reserves the subsequent procedure for further decision.

Done in French and in English, the French text being authoritative, at the Peace
Palace, The Hague, this twelfth day of April, two thousand and one, in three copies, one of
which will be placed in the archives of the Court and the others transmitted to the
Government of the Democratic Republic of the Congo and the Government of the
Kingdom of Belgium, respectively.

(Signed) Gilbert Guillaume,
President.

(Signed) Philippe Couvreur,
Registrar.