C ONCURRING O PINION OF J UDGE C ANÇADO TRINDADE
Table of Contents
Paragraphs
I. Prolegomena .............................................................................................................................. 1
II. Rights of States and of Individuals as Subjects of International Law........................................ 3
III. Presence of Rights of States and of Individuals Together........................................................ 12
IV. The Right to Information on Consular Assistance in the Framework of the Guarantees
of the Due Process of Law........................................................................................................ 16
V. The Fundamental (rather than “Plausible”) Human Right to be Protected: Provisional
Measures as Jurisdictional Guarantees of a Preventive Character ........................................... 19
VI. The Autonomous Legal Regime of Provisional Measures of Protection ................................. 24
VII. Final Considerations: The Humanization of International Law as Manifested in the
Domain of Consular Law......................................................................................................... 26
I. Prolegomena
1. I have voted in support of the adoption today, 18.05.2017, of the present Order of the
International Court of Justice (ICJ) in the case Jadhav (India versus Pakistan), — shortly after the
holding of the public hearings before the Court of 15.05.2017, — indicating provisional measures
of protection. Given the great importance that I attach to certain aspects pertaining to the matter
dealt with in the present Order, I feel obliged to append this Concurring Opinion thereto, under the
merciless pressure of time (ars longa, vita brevis, anyway), so as to leave on the records the
foundations of my own personal position thereon.
2. I shall thus consider, in the sequence next, the following points: (a) rights of States and of
individuals as subjects of international law; (b) presence of rights of States and of individuals
together; (c) the right to information on consular assistance in the framework of the guarantees of
the due process of law; (d) the fundamental (rather than “plausible”) human right to be protected:
provisional measures as jurisdictional guarantees of a preventive character; (e) the autonomous
legal regime of provisional measures of protection; and (f) the humanization of international law as
manifested in the domain of consular law.
II. Rights of States and of Individuals as Subjects of International Law
3. The present Jadhav case concerns alleged violations of the 1963 Vienna Convention on
Consular Relations with regard to the detention and trial of an Indian national (Mr. K.S. Jadhav),
sentenced to death (on 10.04.2017) by a Court Martial in Pakistan. It is not my intention in the
present Concurring Opinion to dwell upon the arguments advanced by the contending parties
themselves, India and Pakistan, during the public hearings before the1Court of 15.05.2017, as this
has already been done in the Court´s Order itself, of today, 18.05.2017 . I have carefully taken note
of such arguments, advancing distinct views of the interrelated issues of prima facie jurisdiction,
1Cf. paragraphs 19-25, 29, 37, 40-41, 43-44 and 51-52 of the present Order. - 2 -
the grounds for pro2isional measures of protection, the requirements of urgency and imminence of
irreparable harm .
4. On one sole point their respective views initially appeared not being so distinct, when
Pakistan, referring at first to a point raised originally by India in its Application Instituting
Proceedings (of 08.05.2017), — whereby Article 36 of the 1963 Vienna Convention on
Consular Relations (henceforth, the “1963 Vienna Convention”) was adopted to set up “standards
of conduct”, particularly concerning “communication and contact with nationals of the sending
State, which would contribute to the development of friendly relations amongst nations” (p. 16,
para. 34), — then added that “this is unlikely to apply in the context of a spy/terrorist sent by a
State to engage in acts of terror” . This is a point, however, that could be considered by the Court
only at a subsequent stage of the proceedings in the cas d´espèce (preliminary objections, or
4
merits), — as the ICJ itself has rightly pointed out in its Order just adopted today . At the present
stage of provisional measures of protection, the distinct views of the contending parties are thus
found all over their respective arguments.
5. In the present Concurring Opinion, I purport to concentrate attention on the
aforementioned points (part I, supra) bringing them into the realm of juridical epistemology. May I
begin by observing that, in my perception, the present case Jadhav (India versus Pakistan) brings to
the fore rights of States and of individuals emanating directly from international law. In effect, in
its Application Instituting Proceedings as well as in its Request for Provisional Measures of
Protection, both of 8 May 2017, India has deemed it fit to single out that the
1963 Vienna Convention confers rights upon States (under Article 36 (1) (a) and (c)) as well as
individuals (nationals of States arrested or detained or put on trial in other States, under
Article 36 (1) (b)) .5
6. As subjects of international law, individuals and States are, in the circumstances of the
cas d´espèce, titulaires of the rights of seeking and of having, respectively, consular access and
6
assistance . The Request for Provisional Measures of Protection further invokes, in addition to the
aforementioned 1963 Vienna Convention (Article 36), the 1966 U.N. Covenant on Civil and
2Cf. ICJ, doc. CR 2017/5, of 15.05.2017, pp. 11-43 (India); and ICJ, doc. CR 2017/6, of 15.05.2017, pp. 8-23
(Pakistan).
3
ICJ, doc. CR 2017/6, of 15.05.2017, p. 19.
4
Paragraph 43, and cf. also paragraphs 32-33, of the present Order.
5Cf. Application Instituting Proceedings, of 08.05.2017, p. 17, para. 34, and cf. also p. 3, para. 1; Request for the
Indication of Provisional Measures of Protection, of 08.05.2017, pp. 3-4, paras. 5 and 9.
6Article 36 of the 1963 Vienna Convention concerns “Communication and contact with nationals of the sending
State”, and paragraph 1 provides that:
“With a view to facilitating the exercise of consular functions relating to nationals of the sending
State: (a) consular officers shall be free to communicate with nationals of the sending State and to have
access to them. Nationals of the sending State shall have the same freedom with respect to
communication with and access to consular officers of the sending State; (b) if he so requests, the
competent authorities of the receiving State shall, without delay, inform the consular post of the sending
State if, within its consular district, a national of that State is arrested or committed to prison or to custody
pending trial or is detained in any other manner. Any communication addressed to the consular post by
the person arrested, in prison, custody or detention shall be forwarded by the said authorities without
delay. The said authorities shall inform the person concerned without delay of his rights under this
subparagraph; (c) consular officers shall have the right to visit a national of the sending State who is in
prison, custody or detention, to converse and correspond with him and to arrange for his legal
representation. They shall also have the right to visit any national of the sending State who is in prison,
custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall
refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly
opposes such action”. - 3 -
Political Rights (right to a fair trial, Article 14), so as to safeguard ultimately the inherent 7
fundamental right to life (Article 6), as “[i]nternational law recognizes the sanctity of human life” .
In effect, Public International law has, in this context as well, benefited from the impact of the
emergence and consolidation of the International Law of Human Rights (ILHR).
7. In contemporary international law, rights of States and of individuals are indeed to be
considered altogether, they cannot be dissociated from each other. Before the turn of the century,
the Inter-American Court of Human Rights [IACtHR] delivered its pioneering Advisory Opinion
n 16 on the Right to Information on Consular Assistance in the Framework of the Guarantees of
the Due Process of Law (of 01.10.1999), advancing the proper hermeneutics of Article 36(1)(b) of
the 1963 Vienna Convention, reflecting the impact thereon of the corpus juris of the ILHR.
8. I drew attention to this important point in my Concurring Opinion (para. 1) appended to
that Advisory Opinion n 16, wherein I pointed out that:
“The profound transformations undergone by international law, in the last five
decades, under the impact of the recognition of universal human rights, are widely
known and acknowledged. The old monopoly of the State of the condition of being
subject of rights is no longer sustainable, nor are the excesses of a degenerated legal
positivism, which excluded from the international legal order the final addressee of
juridical norms: the human being. (…) [T]his occurred with the indulgence of legal
positivism, in its typical subservience to State authoritarianism.
The dynamics of contemporary international life has cared to disauthorize the
traditional understanding that the international relations are governed by rules derived
entirely from the free will of the States themselves. [Contemporary international law]
(…) has for years withdrawn support to the idea, proper of an already distant past, that
the formation of the norms of international law would emanate only from the free will
of each State.
With the demystification of the postulates of voluntarist positivism, it became
evident that one can only find an answer to the problem of the foundations and the
validity of general international law in the universal juridical conscience, starting with
the assertion of the idea of an objective justice. As a manifestation of this latter, the
rights of the human being have been affirmed, emanating directly from
international law, and not subjected, thereby, to the vicissitudes of domestic law”
(paras. 12-14).
9. I added that the constraints of legal positivism had wrongly been indifferent to other areas
of human knowledge, as well as to the existential time of human beings, reducing this latter to an
external factor in the framework of which one was to apply positive law (para. 3). The positivist-
voluntarist trend, with its obsession with the autonomy of the “will” of the States, came to the
extreme of conceiving (positive) law independently of time. It so happens that the very emergence
and consolidation of the corpus juris of the ILHR are due to the reaction of the universal juridical
conscience to the recurrent abuses committed against human beings, often warranted by positive
law: with that, the Law came to the encounter of human beings, the ultimate titulaires of their
inherent rights protected by its norms (para. 4).
7Request for Provisional Measures of Protection, cit. supra n . (5), p. 8, para. 17. - 4 -
10. In the framework of this new corpus juris, one cannot remain indifferent to the
contribution of other areas of human knowledge, nor to the existential time of human beings. And I
added that the right to information on consular assistance (to refer to one example), “cannot
nowadays be appreciated in the framework of exclusively inter-State relations”, as contemporary
legal science has come to admit that “the contents and effectiveness of juridical norms accompany
the evolution of time, not being independent of this latter” (para. 5). I then recalled, in the same
Concurring Opinion, that, despite of the fact that the 1963 Vienna Convention had been celebrated
three years before the adoption of the two Covenants on Human Rights (Civil and Political Rights,
and Economic, Social and Cultural Rights) of the United Nations, the IACtHR was aware that its
travaux préparatoires already disclosed “the attention dispensed to the central position occupied by
the individual” in the elaboration and adoption of its Article 36 (para. 16).
11. Thus, — I proceeded, — Article 36(1)(b) of the aforementioned 1963 Vienna
Convention, in spite of having preceded in time the provisions of the two U.N. Covenants on
Human Rights (of 1966), could no longer be dissociated from the international norms of protection
of human rights concerning the guarantees of the due process of law and their evolutive
interpretation (para. 15). The action of protection thereunder, “in the ambit of the International Law
of Human Rights, does not seek to govern the relations between equals, but rather to protect those
ostensibly weaker and more vulnerable”; it is this “condition of particular vulnerability” that the
right to information on consular assistance “seeks to remedy” (para. 23).
III. Presence of Rights of States and of Individuals Together
12. States and individuals are subjects of contemporary international law ; the crystallization
of the subjective individual right to information on consular assistance bears witness of such
evolution. Still oin my aforementioned Concurring Opinion in the IACtHR´s
Advisory Opinion n 16 on the Right to Information on Consular Assistance in the Framework of
the Guarantees of the Due Process of Law (1999), I recalled (para. 25) that the ICJ itself, in the
case of Hostages in Tehran (United States versus Iran, Provisional Measures, Order of 15.12.1979),
had pondered that the proper conduction of consular relations, established since ancient times
“between peoples”, is no less important in the context of contemporary international law, “in
promoting the development of friendly relations among nations, and ensuring protection and
assistance for aliens resident in the territories of other States”; this being so, — the Court added,
— no State can fail t9 recognize “the imperative obligations” codified in the 1961 and 1963
Vienna Conventions on Diplomatic and Consular Relations, respectively.
13. Shortly afterwards, in the same case of Hostages in Tehran (merits, Judgment of
24.05.1980), the ICJ, in referring again to the provisions of the Vienna Conventions on Diplomatic
Relations (of 1961) and on Consular Relations (of 1963), pointed out the great importance and the
Cf., in this sense, e.g., A.A. Cançado Trindade, “International Law for Humankind: Towards a New Jus Gentium
- General Course on Public International Law - Part I”, 316 Recueil des Cours de l´Académie de Droit International de
La Haye (2005) chs., XII and IX-X, pp. 203-219 and 252-317; A.A. Cançado Trindade, Le Droit international pour la
personne humaine, Paris, Pédone, 2012, pp. 45-368; A.A. Cançado Trindade, “The Human Person and International
Justice” (W. Friedmann Memorial Award Lecture 2008), 47 Columbia Journal of Transnational Law (2008) pp. 16-30;
A.A. Cançado Trindade, “La Persona Humana como Sujeto del Derecho Internacional: Consolidación de Su Posición al
Inicio del Siglo XXI”, in Democracia y Libertades en el Derecho Internacional Contemporáneo (Libro Conmemorativo
de la XXXIII Sesión del Programa Externo de la Academia de Derecho Internacional de La Haya, Lima, 2005), Lima,
The Hague Academy of International Law/IDEI (PUC/Peru), 2006, pp. 27-76; A.A. Cançado Trindade, “A Consolidação
da Personalidade e da Capacidade Jurídicas do Indivíduo como Sujeito do Direito Internacional”, in 16 Anuario del
Instituto Hispano-Luso-Americano de Derecho Internacional - Madrid (2003) pp. 237-288; A.A. Cançado Trindade, “A
Personalidade e Capacidade Jurídicas do Indivíduo como Sujeito do Direito Internacional”, in Jornadas de Derecho
Internacional (Mexico, Dec. 2001), Washington D.C., OAS Subsecretariat of Legal Affairs, pp. 311-347.
Paras. 40-41 of the ICJ´s Order of 15.12.1979. - 5 -
imperative character of their obligations, and invoked expressly, in relation to them, the contents of
the 1948 Universal Declaration of Human Rights (para. 26).
14. The presence of rights of States and of individuals together was, subsequently,
acknowledged in express terms by ICJ in the case of Avena and Other Mexican Nationals (Mexico
versus United States, Judgment of 31.03.2004), where it stated that “violations of the rights of the
individual under Article 36 [of the 1963 Vienna Convention] may entail a violation of the rights of
the sending State, and that violations of the rights of the latter may entail a violation of the rights of
the individual” (para. 40).
15. In the present Jadhav case, in its oral arguments in the very recent public hearings before
the Court of 15.05.2017, India referred to this dictum, and added that “[w]here the rights of an
individual are violated, consequences must follow. The [1963] Vienna Convention recognizes the
right of a State to seek redress on behalf of its national in this Court, where the rights of its
nationa11 and concomitantly its own rights under the Vienna Convention, are violated by another
State” . And it further pointed out that “[t]he rights of consular access are a significant step in the
evolution and recognition of the human rights in international law”, specifically referring to
provisions of the U.N. Covenant on Civil and Political Rights (Articles 6, 9 and 14) . 12
IV. The Right to Information on Consular Assistance in the Framework
of the Guarantees of the Due Process of Law
16. The insertion of the matter under examination into the domain of the international
protection of human rights, thus counted early on judicial recognition (cf. part III, supra), “there
being no longer any ground at all for any doubts to subsist as to an opinio juris to this effect”; in
effect, — as I further pondered in my aforementioned Concurring Opinion in the IACtHR´s
Advisory Opinion no 16 of 1999, — the subjective element of international custom is the
opinion juris communis, and “in no way the voluntas of each State individually13 ” (para. 27); “it
is no longer possible to consider the right to information on consular assistance (under
Article 36(1)(b) of the 1963 Vienna Convention on Consular Relations) without directly linking it
to the corpus juris of the ILHR” (para. 29).
17. In the framework of this latter, the international juridical personality of the human being,
emancipated from the domination of the State, — as foreseen by the so-called “founding fathers” of
international law (the droit des gens), — has been established nowadays. (…) A “normative”
Convention, of codification of international law, such as the 1963 Vienna Convention, acquires a
life of its own, being clearly independent from the “will” of individual States Parties. That
Convention represents much more than the sum of the individual “wills” of the States Parties, and
fosters the progressive development of international law (paras. 30-31).
18. The intermingling between Public International Law and the International Law of
Human Rights gives testimony of the recognition of “the centrality, in this new corpus juris, of the
universal human rights, — what corresponds to a new ethos of our times” (para. 34). It has thus
1Paras. 62, 88, and 91-92 of the Court´s Judgment of 24.05.1980.
11
ICJ, doc. CR 2017/5, of 15.05.2017, p. 39, para. 89.
1Pertaining to the right to life, the right to liberty and security of person, and the right to a fair trial, respectively;
ibid., pp. 38-39, para. 86.
13
A.A. Cançado Trindade, “Contemporary International Law-Making: Customary International Law and the
Systematization of the Practice of States”, Thesaurus Acroasium - Sources of International Law (XVI Session, 1988),
Thessaloniki/Greece, Institute of Public International Law and International Relations, 1992, pp. 77-79. - 6 -
become indispensable to link, for the purpose of protection, “the right to information on consular
assistance with the guarantees of the due process of law set forth in the instruments of international
protection of human rights” (para. 34). This, in turn, bears witness of “the process of humanization
of international law” (para. 35), as manifested in particular also in the domain of consular law
nowadays (cf. part VII, infra).
V. The Fundamental (rather than “Plausible”) Human Right to be Protected: Provisional
Measures as Jurisdictional Guarantees of a Preventive Character
19. The right to information on consular assistance is, in the circumstances of the
cas d´espèce, inextricably linked to the right to life itself, a fundamental and non-derogable right,
rather than a simply “plausible” one. This is true not only for the stage of the merits of the case at
issue, but also for the stage of provisional measures of protection, endowed with a juridical
autonomy of their own (cf. infra). Fundamental rights are duly safeguarded by provisional
measures of protection endowed with a conventional basis (such as those of the ICJ and of the
14
IACtHR, as truly fundamental (not only “plausible”) rights are at risk .
20. In this respect, in my book of personal memories of the IACtHR I recalled, in connection
with the importance of compliance with provisional measures of protection, inter alia, the case of
James and Others versus Trinidad and Tobago (1998-2000), pertaining to the guarantees of the due
process of law and the suspension of execution of death penalty:
“[T]eníamos conciencia de que trabajábamos contra el reloj, y no podríamos
retardar nuestra decisión, pues estaba amenazado, además del derecho a las garantías
judiciales, el propio derecho fundamental a la vida. Nuestra acción eficaz [decisión de
la suspensión de la ejecución de pena de muerte], acatada por el Estado, llevó a que las
vidas de los condenados a la muerte en Trinidad y Tobago fueran salvadas, y las
sentencias condenatorias de los tribunales nacionales fueran conmutadas”. / “We were
conscious that we worked against the clock, and could not delay our decisión, as the
right to judicial guarantees, in addition to the fundamental right to life itself, were
threatened. Our effective action [decision of suspension of the execution of death
penalty], complied with by the State, saved the lives of those condemned to death in
Trinidad and Tobago, and the condemnatory sentences of the national tribunals were
commuted” [my own translation] . 15
21. The IACtHR extended the protection afforded by successive provisional measures
(adopted in 1998-1999) to a growing number of individuals that had been condemned to death (so-
called “mandatory” death penalty). To the Order of 25.05.1999 in the James and Others case, e.g.,
I appended a Concurring Opinion wherein I observed that, also in relation to provisional measures
of protection, the international Court (be it the IACtHR or the ICJ) has the inherent power to
determine the extent of its own competence (compétence de la compétence / Kompetenz-
Kompetenz), it is the guardian and master of its own jurisdiction (jurisdictio, jus dicere, to say what
the Law is), as its jurisdiction cannot be at the mercy of facts (either at domestic or international
level) other than its own actions (paras. 7-8).
22. In cases of the kind, involving the fundamental human right to life, — I proceeded, —
the Court, by means of provisional measures of protection, goes well beyond the simple search for
a balance of the interests of the contending parties (which used to suffice in traditional international
14
Article 41 of the ICJ Statute, and Article 63(2) of the American Convention on Human Rights, respectively.
1A.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. 48. - 7 -
law); one is here safeguarding a fundamental human right, and this shows — I concluded — that
“provisional measures cannot be restrictively interpreted”, and they impose themselves, to the
benefit of the persons concerned, as “true jurisdictional guarantees of a preventive character that
they are” (paras. 13-14, 16 and 18).
23. I also pondered that they are transformed into such jurisdictional guarantees by the
proper consideration of their constitutive elements of extreme gravity and urgency, and prevention
of irreparable damage to persons (para. 10), — even more cogently when the fundamental right to
life is at stake. Provisional measures of protection have an important role to play when the rights of
the human person are also at stake; developed mainly in contemporary international case-law, they
have, however, been insufficiently studied in international legal doctrine to date.
VI. The Autonomous Legal Regime of Provisional Measures of Protection
24. May I now reiterate, in the present Concurring Opinion, my understanding that
provisional measures of protection are endowed with a juridical autonomy of thei16own. I have
sustained it in my Individual Opinions in successive cases within the ICJ (and, earlier on, within
the IACtHR), thus contributing to its conceptual elaboration in the jurisprudential construction on
the matter. I soon identified the component elements of such autonomous legal regime, namely: the
rights to be protected, the obligations proper to provisional measures of protection; the prompt
determination of responsibility (in case of non-compliance), with its legal consequences; the
presence of the victim (or potential victim, already at this stage), and the duty of reparations for
damages.
25.The present ICJ Order of today, 18.05.2017, in the Jadhav case (India versus Pakistan),
affords yet another illustration to the same effect, contributing to that jurisprudential construction.
In the present Concurring Opinion, I have already drawn attention to the presence of rights of
States and of individuals together (part III, supra). In effect, as to the ICJ, even though the
proceedings in contentious case keeps on being a strictly inter-State one (by attachment to an
outdated dogma of the past), this in no way impedes that the beneficiaries of protection in given
circumstances are the human beings themselves, individually or in groups, — as I pointed out, e.g.,
in my Dissenting Opinion in the case concerning Questions Relating to the Obligation to Prosecute
or to Extradite (Order of 28.05.2009), and in my Separate Opinion in the case of Application of the
International Convention for the Suppression of the Financing of Terrorism [ICSFT] and of the
1Such as: in my Dissenting Opinion in the case concerning Questions Relating to the Obligation to Prosecute or
to Extradite (Belgium versus Senegal, Order of 28.05.2009); in my Separate Opinion in the case of the Temple of Préah
Vihéar (Cambodia versus Thailand, Order of 18.07.2011); in my Dissenting Opinion in the cases of Construction of a
Road in Costa Rica along the San Juan River and of Certain Activities Carried out by Nicaragua in the Border Area
(Nicaragua versus Costa Rica, and Costa Rica versus Nicaragua, Order of 16.07.2013); in my Separate Opinion in the
case of Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica versus Nicaragua, Order of
22.11.2013); in my Separate Opinion in the joined cases of Certain Activities Carried out by Nicaragua in the Border
Area and of Construction of a Road in Costa Rica along the San Juan River (Costa Rica versus Nicaragua, and Nicaragua
versus Costa Rica, Judgment of 16.12.2015); in my Separate Opinion in the case of Application of the International
Convention for the Suppression of the Financing of Terrorism [ICSFT] and of the International Convention on the
Elimination of All Forms of Racial Discrimination [CERD] (Ukraine versus Russian Federation, Provisional Measures,
Order of 19.04.2017). With the exception of this last one, all other Individual Opinions of mine, referred to in the present
Separate Opinion (which I have presented within both within the ICJ and, earlier on, the IACtHR), are reproduced in the
three-volume collection (Series “The Judges”): Judge A.A. Cançado Trindade - The Construction of a Humanized
International Law - A Collection of Individual Opinions (1991-2013), vol. I (Inter-American Court of Human Rights),
Leiden, Brill/Nijhoff, 2014, pp. 9-852; vol. II (International Court of Justice), Leiden, Brill/Nijhoff, 2014, pp. 853-1876;
vol. III (International Court of Justice, 2013-2016), Leiden, Brill/Nijhoff, 2017, pp. 9-764. - 8 -
International Convention on the Elimination of All Forms of Racial Discrimination [CERD] (Order
of 19.04.2017) .7
VII. Final Considerations: The Humanization of International Law as Manifested in the
Domain of Consular Law
26. Last but not least, I could not conclude the present Concurring Opinion without
addressing a point which has been grabbing my attention since the nineties, successively in
two international jurisdictions (IACtHR and ICJ): I refer to the ongoing historical process of the
humanization of international law, manifesting itself, as in the present Jadhav case, in particular
also in the domain of consular law. In the present Concurring Opinion, in focusing attention on the
rights of States and of individuals as subjects of international law, I recalled the reflections I made
in my Concurring Opinion in the IACtHR´s Advisory Opinion n 16 on the Right to Information on
Consular Assistance in the Framework of the Guarantees of the Due Process of Law (of
01.10.1999).
27. I pondered therein that, in spite of the fact that the 1963 Vienna Convention on Consular
Relations precedes chronologically the two 1966 U.N. Covenants on Human Rights, Article 36(1)
of the former was soon to be interpreted under the impact of the ILHR (cf. part II, supra). One
could no longer dissociate the rights enshrined in that provision from the evolutive interpretation of
the relevant norms of protection of human rights. States and individuals, as subjects of international
law, and their corresponding rights, came to be taken together, as they should have been, in the new
humanized jus gentium.
28. Shortly afterwards, in my following Concurring Opinion in the IACtHR´s
complementary Advisory Opinion n . 18 on the Juridical Condition and Rights of Undocumented
Migrants (of 17.09.2003), I retook the point that, by the turn of the century, the humanization of
international law was manifested, with judicial recognition, in new developments in the domain of
consular law (paras. 1-2). I singled out the relevance, in this evolution, of fundamental principles,
laying on the foundations themselves of the law of nations (le droit des gens, as foreseen by the
“founding fathers” of the discipline), as well as of the emergence of jus cogens and the
corresponding obligations erga omnes of protection, in their horizontal and vertical dimensions
(paras. 3 and 44-85).
29. Among general principles of law (in both comparative domestic law and
international law), those which are endowed with a true fundamental character, — I went on, — do
indeed form the substratum of the legal order itself, revealing the right to the Law (droit au Droit),
of which are titulaires all human beings, irrespective of their statute of citizenship or any other
circumstance (para. 55). Without such principles, — which are truly prima principia, —
wherefrom norms and rules emanate and wherein they find their meaning, the “legal order” simply
“is not accomplished, and ceases to exist as such” (para. 46).
30. I further made a point of underlying, in the same Concurring Opinion, that the “great
legacy of the juridical thinking of the second half of the XXth century, in my view, has been, by
1Cf. also, on the same jurisprudential construction, my Separate Opinion in the case A.S. Diallo (Guinea versus
D.R. Congo, merits, Judgment of 30.11.2010); and cf. also my reflections in, inter alia: A.A. Cançado Trindade, “La
Expansión y la Consolidación de las Medidas Provisionales de Protección en la Jurisdicción Internacional
Contemporánea”, in Retos de la Jurisdicción Internacional (eds. S. Sanz Caballero and R. Abril Stoffels), Cizur
Menor/Navarra, Cedri/CEU/Thomson Reuters, 2012, pp. 99-117; A.A. Cançado Trindade, “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), Bruxelles, Bruylant/Nemesis, 2005, pp. 145-163. - 9 -
means of the emergence and evolution of the ILHR, the rescue of the human being as subject” of
the law of nations, endowed with international legal personality and capacity (para. 10). This was
due to the awakening of the universal juridical conscience (paras. 25 and 28), — the recta ratio
inherent to humanity, — as the ultimate material source of the law of nations 18 , standing well
above the “will” of individual States. It was necessary, in our days, — I added, — “to stimulate this
awakening of the universal juridical conscience19o intensify the process of humanization of
contemporary international law” (para. 25) .
31. This outlook was to have prompt repercussions in the region of the world I originally
come from, though it in effect looked well beyond it: in acknowledging the expansion of
international legal personality and capacity of individuals (along with of States), this development
kept in mind the universality of the law of nations, as originally propounded by its “founding
fathers” (totus orbis and civitas maxima gentium), and re-emerged in our times.
32. That outlook has decisively contributed to the formation, inter alia and in particular, of
an opinio juris communis as to the right of individuals, under Article 36(1)(b) of the 1963 Vienna
Convention, reflecting the ongoing process of humanization of international law, encompassing
20
relevant aspects of consular relations . Always faithful to this humanist universal outlook, I deem
it fit to advance it, once again, in the present Concurring Opinion in the Order that the ICJ has just
adopted today, 18.05.2017, in the Jadhav case.
33. The ICJ has, after all, shown awareness that the provisional measures of protection
rightly indicated by it in the present Order (resolutory point I of the dispositif) are aimed at
preserving the rights of both the State and the individual concerned (para. 48) under Article 36(1)
of the 1963 Vienna Convention. The jurisprudential construction to this effect, thus, to my
satisfaction, keeps on moving forward. Contemporary international tribunals have a key role to
play in their common mission of realization of justice.
(Signed) Antônio Augusto C ANÇADO T RINDADE .
____________
1Cf., in this respect, A.A. Cançado Trindade, “International Law for Humankind…”, op. cit. supra n. (8), ch. VI,
pp. 177-202.
1As I had earlier asserted also, e.g., in my Concurring Opinion (para. 12) in the IACtHR´s Order on provisional
measures of protection in the case of Haitians and Dominicans of Haitian Origin in the Dominican Republic (of
18.08.2000).
20
A.A. Cançado Trindade, “The Humanization of Consular Law: The Impact of Advisory Opinion n. 16 (1999)
of the Inter-American Court of Human Rights on International Case-Law and Practice”, in 6 Chinese Journal of
International Law (2007) n. 1, p. 1-3, 5 and 15. I further pointed out the impact of that outlook was also acknowledged in
expert writing, as from the IACtHR´s Advisory Opinion n. 19, of 01.10.1999, followed by the subsequent decision of the
ICJ of 27.06.2001 in the LaGrand case (Germany versus United States); I further recalled that the then U.N.
Subcommission on the Promotion and Protection of Human Rights, in a statement issued on 08.08.2002 (and made public
in a press release of the U.N. High Commissioner for Human Rights of the same date), urged the respondent State in the
LaGrand case to stay the execution of a Mexican national (Mr. J.S. Medina), “on the basis of the Advisory Opinion
no. 16 of the IACtHR and the subsequent Judgment of the ICJ in the LaGrand case (27.06.2001)”; ibid., p. 10. And, on
the pioneering character of the aforementioned IACtHR´s Advisory Opinion no. 16 of 1999, - in addition to that of its
case-law of that time asserting the binding character of provisional measures of protection, - cf. also G. Cohen-Jonathan,
“Cour Européenne des Droits de l’Homme et droit international général (2000)”, 46 Annuaire français de Droit
international (2000) p. p. 642.
Concurring opinion of Judge Cançado Trindade