62

DISSENTING OPINION BY M. PESSOA.

[Translation.]
I,

THE LACK OF JURISDICTION.

I.—The Court can only have jurisdiction under the terms
of Articles 13 and 14 of the Covenant, or of the Statute,
which form its constitutional laws.

According to both of these instruments, for the Court to
have jurisdiction it is not enough that the Parties should
be States or Members of the League of Nations (Art-
icles 34 and 36 of the Statute); it is also essential that the
case, in itself, should be ‘of an international character’ and
should be governed by international law (Articles 13 and 14
of the Covenant and 38 of the Statute). The latter condi-
tion has already been recognized and stated by the Court
‘on more than one occasion: Judgments No. 2, pages 12 and
16; No. 13, pages 27 and 28, etc. In all cases between two
States in which one has taken up the defence of the inter-
ests of its nationals, for instance in the Wizmbdledon, Mavrom-
matis, Upper Silesian cases, etc., the Court, in order to estab-
lish its jurisdiction, has always shown that the subject-
matter of the dispute was governed by international law and
that the purpose of the decision was to enforce principles
or apply instruments of international law.

Now, the judgment itself admits that the Franco-Serbian
dispute ‘‘is exclusively concerned with relations between the
borrowing State and private persons, that is to say, relations
which are, in themselves, within the domain of municipal law’’.
(Page 18.) |

It therefore seems to me clear that the Court is not com-
petent to deal with this dispute.

Even if an extension of the Court’s jurisdiction is desirable,
it is necessary to begin by modifying the texts governing that
jurisdiction.
JUDGMENT No. I4.—DISSENTING OPINION BY M. PESSÔA 63

2.—In order to establish the Court’s jurisdiction in this
case, the judgment (page 18) says that the Serbian Government,
having “‘contended that the service of the loans was being
effected by it in full conformity with the obligations resulting
from the contracts. This view .... was not shared by the Gov-
ernment of the French Republic. As from this point, therefore,
there exists between the two Governments a difference of
opinion... It is this difference of opinion between the two
. Governments and not the dispute between the Serb-Croat-
Slovene Government and the French holders of the loans,
which is submitted by the Special Agreement to the Court.”

There is however no distinction between this difference of
opinion and ‘‘the dispute between the Serbian Government and
the French bondholders”.

Serbia held that the service of the loans should be effected
in paper; the French holders claimed payment in gold.

The French Government decided to take up the case on
behalf of the bondholders. .

What is the difference of opinion between the two Govern-
ments? The same, absolutely the same as that existing
between. Serbia and the bondholders: the Serbian Government
continues to defend payment in paper, and the French Govern-
ment, representing the claims of the bondholders, continues
to maintain that payment should be in gold, as.the bond-
holders contended. There is no difference.

The fact that the two are identical is so evident that the
judgment is unable to avoid admitting it (page 18): “‘.... fund-
amentally’’, it says, the difference of opinion between the
two Governments is “identical with the controversy already
existing between the Serb-Croat-Slovene Government and its
creditors’. a |

But, if the difference of opinion between the two Govern-
ments is identical with the controversy existing between the
Serbian Government and its creditors, a dispute which, accord-
ing to the judgment, “is exclusively concerned with relations
at municipal law” (page 17) and consequently is outside the
Court’s jurisdiction, it is not easy to see why and how the
difference of opinion between the two Governments can be
within that jurisdiction.
JUDGMENT No. I4.—DISSENTING OPINION BY M. PESSOA 64

3.—The Court now contends that it is not only questions
of international law which may be submitted to it. And in
favour of this new doctrine, it cites paragraph 2 of Article 36
of the Statute, according to which States may recognize as
compulsory the Court’s jurisdiction in legal disputes concern-
ing ‘‘the existence of any fact which, if established, would
constitute a breach of an international obligation”. In sup-
port of this clause, the Court observes that Article 13 of. the
Covenant includes the disputes above mentioned ‘among
those which are generally suitable for submission to arbitra-
tion or judicial settlement’.

In the first place, however, the terms of Article. 36, para-
graph 2, only apply in respect of the optional clause régime,
a special régime, differing so widely from the normal régime,
that the Statute specifies separately the cases in which the
Court has jurisdiction under the two régimes (Articles 36
and 38). In the sécond place, in the Franco-Serbian case
there is no fact which, if established, would constitute a
breach of an «tternational obligation; there are contracts
concluded between, on the one hand, a Government, and on
the other, banks, companies or private individuals, contracts
which are governed by the municipal law of the debtor or of
the creditor, as is recognized by the Court itself, and the
breach of which is therefore merely a matter of private law.

4.—Another consideration. A State may take up a case on
behalf of its nationals. It is by application of this principle
that France has assumed the defence of the interests of the
French bondholders before the Court. |

But who are in this case the French nationals? Who are
the French bondholders ?

No one knows. No one can know. Having regard to the
nature of the bonds, which are freely transferable, the French
bondholders at the time of the Special Agreement may even
no longer be the holders of the bonds. And in that case,
how ‘is the intervention of France to be justified? The
French Government itself does not know who the nationals,
whose interests it is defending, are. In the Mavrommatis,
Wimbledon and Upper Silesian cases, it was well known who
the Greek or German nationals concerned were. The respect-
JUDGMENT No. I4.—DISSENTING OPINION BY M. PESSOA 65

ive proceedings contained their names. Here it is not so;
they are not known and there is no means of knowing them.
In this suit, we have a State taking up a case on behalf of
persons unknown and anonymous.

It is true that Serbia, in spite of this, has accepted the
Special Agreement; but the Court’s jurisdiction cannot be
based on the wishes or sufferance of the Parties. The Court
either is competent under its Statute, or is not competent.
If it is not competent, no agreement between the Parties
can give it powers which its constitutional texts withhold
from it.

5.—For the reasons set out above, in my opinion the Court
should have declared that it had no jurisdiction and thus
left the States free to have recourse to direct agreement or
arbitration.

II.
THE INTERPRETATION OP THE PARTIES.

6.—There is no doubt that the gold clause appears some-
times in the contracts, sometimes in the bonds and sometimes
in the prospectuses of the Serbian loans. But this circum-
stance is of no importance for the purpose of giving judgment
in the question. What must be ascertained is whether this
clause really represents the results of a previous considered
and deliberate agreement between the Parties, and whether
it represents an intention and definite undertaking on the
part of Serbia to bear the depreciation of French money.
Now the evidence produced in this connection by the Serbian
Government has given rise to doubts in my mind which the
arguments of the judgment have not succeeded in overcoming. —

7.—The depreciation of the franc began in 1915. At that
time the pound sterling rose to frs. 27.96 (instead of 25.22)
and the dollar to frs. 6.09 (instead of 5.18). In 1916 the
extremes were: for the pound, frs. 27.81 to 28.97; for the
‘dollar, frs. 5.86 to 6.50. As from 1919, the fall increased in
alarming proportions, as is shown by the following table of
averages : .
JUDGMENT No. I4.—DISSENTING OPINION BY M. PESSOA 66

Years. Pound sterling. | Dollar.
1919. 31.844 7-307
1920 52.676 14.476
1921 52.204 13.541
1922 54.633 15.013
1923 73.689 : 16.572
1924 85.682 19.414

In 1925 the depreciation increased still further (£r =
102.237 frs.; $I = 21.17). In 1926, in July, a pound
equalled 243 francs! In the second half of that year a reac-
tion set in: the franc was reascending in value, and since
1927 it has represented about */, of its value (£1 = 124.21;
$I = 25.50).

Now from 1915-1928, or for nearly fourteen years—twenty-
seven completed periods of six months—the holders of the
Serbian loans, in spite of the enormous depreciation of the
franc and the loss of millions which this depreciation repre-
sented for them, quietly accepted, without protest or claim,
payment of the interest on their bonds in paper francs depre-
ciated to the extent indicated. Is it conceivable that they
would have acted in this way if they had been convinced
that the contracts guaranteed them payment in gold?

This seems to show that, in the eyes of the creditors them-
selves, the gold clause attached to the payment of interest
and redemption of the loans had not the significance now
attributed to it.

8. —As regards the judgment, “the period which may
have significance with respect to the conduct of the French
bondholders: is during the years from about 1919 to about
1925”, for before 1919 the difference between the value of
French currency and the gold basis was “slight”, and in
1925 “it thinks” that the diplomatic negotiations between the
two Governments began (pp. 37-38). _

The depreciation of the franc began in 1915 and not in
1919, as we have shown above, and even at the beginning it
was not so very slight, since it exceeded 10%, which on a
total amount of interest exceeding 40 millions, represents a
somewhat considerable sum. As regards the latter part of
the period during which the bondholders received payments
JUDGMENT No. I4.—DISSENTING OPINION BY M. PESSGA 67

in paper, the Special Agreement, which is dated April roth,
1928, and which must hold good against any information not
supported. by proof, states in its first article that these pay-
ments had taken place “hitherto” (jusqu'à présent), i.e. until
that date. We shall be right therefore in placing this period
between 1915 and 1928. |

But let us leave this point and accept the period fixed by
the judgment, that is to say 1019-1925.

We then find ourselves confronted with the following fact: .

The total value of the Serbian loans is gro million francs.
Their annual interest equals 40,725,000 francs. These figures,
according to the judgment, represent gold.

In 1910, the depreciation of the French bank-note was 21 %.
In receiving 1 paper their 40,725,000 francs of interest, the
bondholders lost 8,552,250 francs. In 1920, the depreciation’
was 53 % and the loss 21,584,250. In 1921, the depreciation
was 52% and the loss 21,177,000. In 1922, the depreciation
54 % and the loss 21,991,000. In 1923, the depreciation 67 %°
and the loss 27,285,750. Finally, in 1924, the depreciation was
71% and the loss 28,914,750.—We will stop there and omit
the first half of 1925.

So that from 1910 to 1924 the holders of the Serbian
loans—including holders who may be described as permanent.
holders such as bankers, companies, possessing from the.
date of subscription thousands of shares—received, instead of
244,350,000 francs, less than half, ie. 114,844,500 francs, thus
suffering a loss of 129,505,500 francs! |

Notwithstanding this colossal loss they never addressed a.
protest or claim either to the Governments or to the courts
or even to the papers!

g.—It will be said that all the bondholders are not French,
bondholders, and that the whole of this enormous loss cannot
be regarded as having been borne by the latter who are the.
only ones represented in this case. But the great majority
consists of French bondholders, the greater part of the losses
falls to their share and their inaction clearly shows that they
also were certain that the debtor was not obliged to pay in
gold. The silence of the creditors of other nationalities shows
that this conviction was unanimous. :
JUDGMENT No. I4.—DISSENTING OPINION BY M. PESSOA 68

10.—The judgment says to explain the inaction of the
creditors that ‘‘there were large numbers of them [French
bondholders]; it required time for them to arrange for con-
certed action and to interest the French Government in their
case”.

But the French bondholders had no need to organize
themselves and concert measures for the defence of their rights.
This defence was organized from the very beginning of the
fall of the franc, for the Association nationale des Porteurs
français de Valeurs mobilières, which asked the French Gov-
ernment to intervene in this case, has existed since 1808
and its object is precisely ‘the defence of the interests of
French holders of French and foreign securities issued or
negotiated in France”, as is expressly stated by Article x
of its statutes. Furthermore, the bonds of the loans are
chiefly in the hands of companies, bankers and capitalists,
and these have lawyers at their disposal and very well
know how to approach the governments and the courts.

1r.—It is also contended that as bonds transferable from
hand to hand are concerned, there is no way of identifying
these holders in order to compare the individual interpretation
of each one of them with the interpretation which follows
from the actual wording of the contracts. The judgment
however regards the French bondholders as perfectly identified,
otherwise it would not have recognized the French Govern-
ment’s capacity to appear before the Court. For the purposes
of our argument, however, this identification is not necessary,
since what we contend is that none of the bondholders,
whatever their name, nationality, capacity or profession may
be, has ever regarded the contracts as being gold contracts.
—The transferability of the bonds strengthens our argument.
It creates a presumption that the number of holders during the
period of six years fixed by the judgment must have been
really enormous and, in spite of this, there has been no oppo-
sition in any country to the payment of the Serbian loan im

paper!

iz.—It is therefore an indisputable fact that from 1915,
the date of the beginning of the depreciation of the franc, to
JUDGMENT No. 14.—DISSENTING OPINION BY M. PESSOA 69

1928, the date of the Special Agreement, or, according to the
judgment, from 1919, the date when the depreciation became
more marked, to 1925, the date on which “it would appear”
that the diplomatic negotiations began, Serbia always paid in
paper, and the subscribers and holders of bonds always
received payment in paper, thus suffering a loss which, during
the period from 1919 to 1924 alone, amounted to 129,505,500
francs out of 244,350,000!

Such is the interpretation placed upon the contracts by the
Parties.

' 13..But other facts, of the utmost importance, show that
such was the general belief. The proceedings in the case have
indeed enabled it clearly to be seen that not only the bond-
holders but also the bankers and, which is more serious, the
French Government itself, did not construe the contracts
otherwise.

Thus, whenever Serbia asked for payments in gold on account
of her loans, the banks made her pay an additional sum
described as a special premium. |

Thus again, in 1921, Serbia not yet having received a
portion (14 million francs) of her 1013 loan, this sum was
remitted to her in paper francs which were already much
depreciated (£1 = frs. 52.204; $1 = 13.541).

And again, when, in consequence of difficulties arising out
of the war, France, in agreement with England, undertook to
furnish Serbia with the funds necessary for the payments due
to the holders of these same loans, it was in already depre-
ciated paper francs that she provided the sums asked. for.
Counsel for the French Government has stated that the use
to which the sums in question were to be put was not known;
but Serbia by means of various documents has proved the
contrary.

14.—It is said that these facts cannot be used in argument
against the bondholders, who were not responsible for them.
But they serve to show how the contracts were interpreted
by all those who took part in carrying them out. Moreover,
with regard to the last fact mentioned (the furnishing of sums
in paper money to Serbia by the French Government for the
payment of these same loans), as. the Party appearing before
JUDGMENT No. I4.—DISSENTING OPINION BY M. PESSÔA 70

the Court is not the bondholders but the French Government
itself, the fact can perfectly well be used against the latter.

15.—It is easy to understand why the loans have always
been interpreted in this way.

At the date of the issue of the loans, the French bank-note
had for a long time had the same value as gold; its credit
was solidly placed on universal confidence and it offered the
most complete guarantees of stability. The expressions paper
franc, French franc, or gold franc were used indifferently ; all
were francs. Each of these expressions conveyed the same
idea, seeing that the note and gold were exactly equivalent.
Whether one paid in metal currency or in paper currency, it was
always payment in gold. No one imagined that this parity could
disappear. The gold clause was thus merely regarded as a
guarantee that the French bondholder would not be exposed to
surprises resulting from the variations of foreign exchange and
would be paid in his national currency, that is to say, francs.

This has been recognized by the judgment of the Court of
Paris of July 26th, 1926, which, in a case to which the
Brazilian Government was a Party, decided that the gold
guarantee, undertaken in that case by Brazil, was only
intended to ‘give to tts own currency a certain stability which
it did not possess at the time of the contract”. (Clunet, 1927,
p. 95.)

This is admitted by the French Case itself: after recalling
that stipulations regarding payment in gold ‘‘were, before 1914,
frequently .resorted to by States whose national currency was
subject to variation and who were endeavouring to obtain
capital from abroad”, it makes this admission: ‘It was in
these conditions that Brazil was led to insert them in the
greater part of its loans.”

16.—It is therefore an indisputable fact that the Parties,
for many years, and in perfect harmony, interpreted and execu-
ted the contracts as paper loans, which they were generally
understood to be. Now the rule of law which is contained in
Article 1156 of the French Civil Code and in virtue of which,
in the interpretation of contracts, “‘the joint intention of the
Parties must be ascertained and i will not suffice to take the
literal meaning of the terms’’,—this rule is accepted by most
JUDGMENT No. I4.—DISSENTING OPINION BY M. PESSÔA: 71

legislations. As we. have contended from the beginning, it is
not the literal meaning of the terms of the Serbian contracts
to which regard must be had in order to arrive at a sound
decision upon the case, but the infention of the Parties. It
matters little that these terms are not ambiguous: the terms
of contracts however clear are overcome by the intention under-
lying them if the manner in which they have been executed
“by the Parties proves that this intention was not precisely
that resulting from the literal meaning of the words.

17.—Let us admit however that the foregoing reasons are
not juridically sound. In that case it must at all event be
recognized that this is a doubtful case, which, moreover,
appears from the very fact that it has been submitted to the
Court and, under such conditions, the principle of law must be
-applied according to which, ‘‘in case of doubt, the contract
is to be interpreted against the person who has stipulated and
in favour of the person who has contracted the obligation’.
(French Civil Code, Article 1162.)

Tit.

THE FRENCH CIVIL CODE AND OTHER PUBLIC POLICY
LEGISLATION.

18.—But let us suppose that the gold clause in the Serbian
contracts really constitutes an undertaking to pay in gold or
its equivalent, to provide against the risks of depreciation in
French currency.

In this case, the gold clause would not be valid and the
contracts could not be executed in France.

The law which governs the conditions for and the currency
of payments in contracts such as those which form the
subject of. the present case, concluded between a State and
private subscribers or bondholders of another State, is the
territorial law of the country where payment is made. This
principle is found in numerous books on legal doctrine: it is
established by the decisions of French courts, as we shall
see later, and is already included in a Code of International
Private Law, adopted by several nations, the Bustamante
JUDGMENT No. I4.—DISSENTING OPINION BY M. PESSÔA 72

Code, of which Article 170 provides that ‘‘the local legis-
lation governs the conditions of payment and the currency
in which it is to be made”.

Now Article 1895 of the French Civil Code runs as follows :

“The obligation resulting from a loan in money is always
simply for the amount 17 figures indicated in the contract.

If there has been an increase or diminution of specie
before the time of payment, the debtor must return the amount
in figures lent and must return this amount only in the specte
in currency at the time of payment.”

Nothing could be clearer: the debtor must return the
amount in figures lent and must return this amount only
in the specie in currency at the time of payment.

This law was in force at the time when the Serbian loans
were contracted and the subscribers could not be ignorant
of it. They therefore knew that, in paying im paper, which
is one of the currencies which is legal tender (law of August
12th, 1870), a debtor would discharge himself of his obligation,
and a creditor would not be entitled to refuse the payment :
refusal would even constitute an offence which is expressly
provided for under Article 475, § 11, of the Penal Code.

r9.—In contracts, it may be said, it is the will of the
Parties that governs, and the Parties in this case may very
well have intended to exclude payment in bank-notes and to
provide for payment in gold alone.

No, that would not be possible: the laws governing legal
tender are laws appertaining to public policy, since they .are
directly concerned with the administration of the country and
with its social structure and consequently contracts of a pri-
vate law character have no force as against such laws. This
is the principle embodied in Article 6 of the French Civil
Code: [Translation] “Contracts of a private law character
cannot derogate from laws concerning public policy.”

“The rule’, Aubry and Rau state, “that payments of
sums of money must be made according to the nominal value
of the currency at the time when these payments were effected,
being a rule founded on interests relating to public policy, it
follows that any contract infringing such rule either directly
or indirectly must be considered as void.” (Cours de Droit civil,
4th ed., Vol. IV, § 318.)
JUDGMENT No. I4.—DISSENTING OPINION BY M. PESSOA 73

“Notes of the Bank of France”, Planiol states, “may be used
for payments in place of gold or silver, and that is so what-
ever be the sum to be paid. The creditor is not entitled to
refuse payment, and all contracts to the contrary are void, the
law making bank-notes legal tender being one of public policy.”
{Traité de Droit civil, Vol. II, 6th ed., p. 144, No. 23.)

But there is no need to have recourse to text-books to prove
that Article 1895 of the French Civil Code is a provision of
the nature of public policy. This nature is recognized by the
Criminal Code, which, by Article 475, § 11, as has already been
observed, punishes ‘‘whosoever refuses coin or money of the
realm not being false or defalsed for their current value”.

20.—Besides the Civil Code, other laws relating to public
policy, the law of legal tender (August 12th, 1870) and that
of forced currency (August 5th, 1914) render the gold clause in
France illegal.

TV.
THE JURISDICTION OF FRENCH COURTS.

21.—The judgment in fact agrees with this conclusion as
regards forced currency but draws a distinction according to
which “any gold clause is void when it relates to a domestic
transaction but it is not in the case of international contracts
even if payment is to be made in France”.

And in support of this, the jurisprudence of the French
courts is cited (page 46). |

But the jurisprudence of the French courts in this matter
has not as yet that continuous, uniform and fixed character
which is required in order to make it binding. The pleadings
before the Court have clearly shown that for the purpose of
estimating the validity or nullity of the gold clause, this prac-
tice bases itself at times on the nationality of the Parties, at
others on domicile, at others on the locality of payment and
at others on the nature of the contract. .

Jugdments exist in support of varying opinions.

Anyhow, M. Georges Hubrecht, in a book published only
about five months ago, in which he considers at length all
the phases of the practice of the French courts and net merely
a few judgments, observes that after a number of modifications
JUDGMENT No. I4.—DISSENTING OPINION BY M. PESSOA 74

this practice appears to have become fixed and may be embo-
died in the following principle: “J¢ is the place of paymeni
which is the sole determining factor for deciding whether the
gold clause or the foreign currency clatise is valid or not on
grounds of forced currency.” |

It is therefore not sufficient that there shall be an interna-
tional agreement in order to render the law on forced currency
imapplicable ; account must be taken of the place of payment
under the agreement; if it is in France, the French law on
forced currency is applicable.

“In the case of any payments of French francs which are
made in France”, M. Savatier states, “the French laws on
fiduciary circulation are obligatorily applicable; paper francs
and gold francs as we have defined them ave necessarily con-
sidered to be identical... On the contrary, there is no authority
compelling the application to a foreigner of laws of police and
public safety such as those with which we are concerned... It
is thus seen how simply and easily the question of the validity
of the gold clause in international relations may be decided;
it will be sufficient to look to the place of payment.” (Dalloz,
1926, 2, 107.) |

And M. Niboyet says: ‘Forced currency is obligatory in
international relations in the same way as in domestic relations,
in all cases. when that payment is to be made on French territory.”
(Revue de Droit international privé, 1925, pp. 161 et sqq.)

22.—Reference is made to the law of June 25th, 1928 (¢wo
months later in date than the Special Agreement), which abol-
ished the forced currency set up by the law of August 5th,
1914, and, after defining. the franc as the French monetary
unit, declares (Article 2) that: “This definition shail not apply
to international payments which, prior to the promulgation of the
present law, may have been validly stipulated in gold francs.”

But no argument can be drawn from that provision as
regards the Franco-Serbian affair. An act.subsequent to the dis-
pute and emanating exclusively from one of the Parties cannot
be invoked against a right previously acquired by the other Party.

23.—The considerations set forth in this last chapter serve
to show that, even admitting the obligation to pay in gold,
JUDGMENT ‘No. I4.—-DISSENTING OPINION BY M. PESSÔA 75,

the conclusions of the judgment are too absolute: due account
should have been taken of the restrictions by which French
public policy legislation—the Civil Code, the laws on legal
tender and on forced currency—limits the Court’s latitude of
choice in the matter.

(Signed) EPITACIO Pesséa.

ro


247

                       SEPARATE OPINION
                  OF JUDGE CANÇADO TRINDADE

                            table of contents

                                                                   Paragraphs

     I. PROLEGOMENA                                                      1-2
  II. Rights of States and of Individuals as Subjects of Inter-
      national Law                                                      3-11
 III. Presence of Rights of States and of Individuals
      Together                                                         12-15
 IV. The Right to Information on Consular Assistance in
     the Framework of the Guarantees of the Due Process of
     Law                                                               16-18
     V. The Fundamental (Rather than “Plausible”) Human
        Right to Be Protected: Provisional Measures as Jurisdic-
        tional Guarantees of a Preventive Character                    19-23
 VI. The Autonomous Legal Regime of Provisional Measures of
     Protection                                                        24-25
VII. Final Considerations: The Humanization of International
     Law as Manifested in the Domain of Consular Law                   26-33

                                     *

                             I. PROLEGOMENA

   1. I have voted in support of the adoption today, 18 May 2017, of the
present Order of the International Court of Justice (ICJ) in the case Jad-
hav (India v. Pakistan) — shortly after the holding of the public hearings
before the Court of 15 May 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 separate opinion thereto, under the merciless pressure of time
(ars longa, vita brevis, anyway), so as to leave on the records the founda-
tions of my own personal position thereon.

20

248                 jadhav (sep. op. cançado trindade)

   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 guar-
antees of a preventive character; (e) the autonomous legal regime of pro-
visional 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 April 2017) by a court martial in Pakistan. It is not my intention in the
present separate opinion to dwell upon the arguments advanced by the
Contending Parties themselves, India and Pakistan, during the public
hearings before the Court of 15 May 2017, as this has already been done
in the Court’s Order itself, of today, 18 May 2017 1. I have carefully
taken note of such arguments, advancing distinct views of the inter-
related issues of prima facie jurisdiction, the grounds for provisional
measures of protection, the requirements of urgency and imminence
of irreparable harm 2.
   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 8 May 2017), —
whereby Article 36 of the 1963 Vienna Convention on Consular Rela-
tions (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” (Application
instituting proceedings, 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” 3. 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 merits), as the ICJ itself has rightly pointed
out in its Order just adopted today 4. At the present stage of provisional

     1
     Cf. paragraphs 19-25, 29, 37, 40-41, 43-44 and 51-52 of the present Order.
     2
     Cf. CR 2017/5, of 15 May 2017, pp. 11-43 (India); and CR 2017/6, of 15 May 2017,
pp. 8-23 (Pakistan).
   3 CR 2017/6, of 15 May 2017, p. 19.
   4 Paragraph 43, and cf. also paragraphs 32-33, of the present Order.

21

249                   jadhav (sep. op. cançado trindade)

measures of protection, the distinct views of the Contending Parties are
thus found all over their respective arguments.
   5. In the present separate 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 percep-
tion, the present case Jadhav (India v. 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 assistance 6. The Request
for provisional measures of protection further invokes, in addition to
the aforementioned 1963 Vienna Convention (Article 36), the 1966
UN Covenant on Civil and Political Rights (right to a fair trial, Arti-
cle 14), so as to safeguard ultimately the inherent fundamental right to
life (Article 6), as “[i]nternational law recognizes the sanctity of human

   5 Cf. Application instituting proceedings, of 8 May 2017, p. 17, para. 34, and cf. also

p. 3, para. 1; Request for the indication of provisional measures of protection, of 8 May
2017, pp. 3-4, paras. 5 and 9.
   6 Article 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.”

22

250                       jadhav (sep. op. cançado trindade)

life” 7. 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 individu-
als 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
No. 16 on the Right to Information on Consular Assistance in the Frame-
work of the Guarantees of the Due Process of Law (of 1 October 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 No. 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 mono-
         poly 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 de-
         authorize the traditional understanding that international relations
         are governed by rules derived entirely from the free will of States
         themselves. [Contemporary international law] (. . .) has for years with-
         drawn 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 interna-

     7   Request for provisional measures of protection, op. cit. supra note 5, p. 8, para. 17.

23

251                jadhav (sep. op. cançado trindade)

      tional law, and not subjected, thereby, to the vicissitudes of domestic
      law.” (Right to Information on Consular Assistance in the Framework
      of the Guarantees of the Due Process of Law, paras. 2-14.)

   9. I added that the constraints of legal positivism had wrongly been
indiﬀerent to other areas of human knowledge, as well as to the existen-
tial time of human beings, reducing this latter to an external factor in the
framework of which one was to apply positive law (ibid., 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 inde-
pendently of time. It so happens that the very emergence and consolida-
tion 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 (ibid., para. 4).

   10. In the framework of this new corpus juris, one cannot remain indif-
ferent to the contribution of other areas of human knowledge, nor to the
existential time of human beings. And I added that the right to informa-
tion 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” (ibid., para. 5). I then recalled, in the
same concurring opinion, that, despite the fact that the 1963 Vienna Con-
vention 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 dis-
pensed to the central position occupied by the individual” in the elabora-
tion and adoption of its Article 36 (ibid., 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 UN 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”
(ibid., para. 23).

24

252                  jadhav (sep. op. cançado trindade)

                      III. Presence of Rights of States
                        and of Individuals Together

   12. States and individuals are subjects of contemporary international
law 8; the crystallization of the subjective individual right to information
on consular assistance bears witness of such evolution. Still in my afore-
mentioned concurring opinion in the IACtHR’s Advisory Opinion No. 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 United States Diplomatic and Consular Staff
in Tehran (United States of America v. Iran), Provisional Measures, Order
of 15 December 1979, I.C.J. Reports 1979, p. 7), had pondered that the
proper conduct 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 to recognize “the imperative obligations” codiﬁed in the
1961 and 1963 Vienna Conventions 9 on Diplomatic and Consular Rela-
tions, respectively.

  13. Shortly afterwards, in the same case of Hostages in Tehran (Merits,
Judgment of 24 May 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
imperative character of their obligations, and invoked expressly, in rela-

   8 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), Chaps. XII
and IX-X, pp. 203-219 and 252-317; A. A. Cançado Trindade, Le droit international pour
la personne humaine, Paris, Pedone, 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 Trin-
dade, “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 Sub-Secretariat of
Legal Aﬀairs, pp. 311-347.
   9 United States Diplomatic and Consular Staff in Tehran (United States of America v.

Iran), Provisional Measures, Order of 15 December 1979, I.C.J. Reports 1979, pp. 19-20,
paras. 40-41.

25

253                    jadhav (sep. op. cançado trindade)

tion to them, the contents of the 1948 Universal Declaration of Human
Rights 10 (I.C.J. Reports 1980, 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 v. United States of America),
where it stated that “violations of the rights of the individual under Arti-
cle 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” (Judgment, I.C.J. Reports
2004 (I), p. 36, para. 40).

  15. In the present Jadhav case, in its oral arguments in the very recent
public hearings before the Court of 15 May 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 national, and concomitantly its own rights under the Vienna
      Convention, are violated by another State” 11.
And it further pointed out that “[t]he rights of consular access are a sig-
niﬁcant step in the evolution and recognition of the human rights in inter-
national law”, speciﬁcally referring to provisions of the UN Covenant on
Civil and Political Rights (art. 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, 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 individually 13” (para. 27);

   10 United States Diplomatic and Consular Staff in Tehran (United States of America v.

Iran), Judgment, I.C.J. Reports 1980, pp. 30-31, para. 62, and pp. 41-43, paras. 88 and 91-92.
   11 CR 2017/5, of 15 May 2017, pp. 39-40, para. 89.
   12 Pertaining 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

26

254                  jadhav (sep. op. cançado trindade)

      “it is no longer possible to consider the right to information on con-
      sular assistance (under Article 36 (1) (b) of the 1963 Vienna Conven-
      tion on Consular Relations) without directly linking it to the corpus
      juris of the ILHR” (IACtHR’s Advisory Opinion No. 16 of 1999,
      para. 29).

   17. In the framework of this latter, the international juridical personal-
ity 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 (ibid., paras. 30-31).
   18. The intermingling between public international law and the inter-
national 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” (ibid., para. 34). It has thus
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” (ibid.). This, in turn, bears witness of “the process of humaniza-
tion of international law” (ibid., 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 circum-
stances 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 IACtHR, as truly
fundamental (not only “plausible”) rights are at risk 14.

Sources of International Law (XVI Session, 1988), Thessaloniki/Greece, Institute of Public
International Law and International Relations, 1992, pp. 77-79.
   14 Article 41 of the ICJ Statute, and Article 63 (2) of the American Convention on

Human Rights, respectively.

27

255                  jadhav (sep. op. cançado trindade)

   20. In this respect, in my book of personal memories of the IACtHR
I recalled, in connection with the importance of compliance with pro-
visional measures of protection, inter alia, the case of James and Others
v. 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 eje-
      cución 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 con-
      mutadas.” [“We were conscious that we worked against the clock, and
      could not delay our decision, 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 the death
      penalty], complied with by the State, saved the lives of those con-
      demned to death in Trinidad and Tobago, and the condemnatory
      sentences of the national tribunals were commuted.”] [My own trans-
      lation.] 15
   21. The IACtHR extended the protection aﬀorded by successive provi-
sional measures (adopted in 1998-1999) to a growing number of individu-
als that had been condemned to death (so-called “mandatory” death
penalty). To the Order of 25 May 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
(James and Others, 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 law);
one is here safeguarding a fundamental human right, and this shows — I
concluded — that “provisional measures cannot be restrictively inter-
preted”, and they impose themselves, to the beneﬁt of the persons con-

   15 A. A. Cançado Trindade, El Ejercicio de la Función Judicial Internacional — Memo-

rias de la Corte Interamericana de Derechos Humanos, 4th ed., Belo Horizonte/Brazil, Edit.
Del Rey, 2017, p. 48.

28

256                  jadhav (sep. op. cançado trindade)

cerned, as “true jurisdictional guarantees of a preventive character that
they are” (IACtHR, James and Others, 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 (ibid., para. 10), — even more cogently when the fundamental
right to life is at stake. Provisional measures of protection have an impor-
tant 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 separate opinion, my under-
standing that provisional measures of protection are endowed with a
juridical autonomy of their own. I have sustained it in my individual
opinions in successive cases within the ICJ 16 (and, earlier on, within the
IACtHR), thus contributing to its conceptual elaboration in the jurispru-
dential construction on the matter. I soon identiﬁed the component ele-
ments of such autonomous legal regimes, namely: the rights to be
protected, the obligations proper to provisional measures of protection;

   16 Such as: in my dissenting opinion in the case concerning Questions relating to the

Obligation to Prosecute or to Extradite (Belgium v. Senegal), Order of 28 May 2009, I.C.J.
Reports 2009; in my separate opinion in the case of the Temple of Préah Vihéar (Cambodia
v. Thailand), Order of 18 July 2011, I.C.J. Reports 2011 (II); in my dissenting opinion
in Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nica-
ragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua
v. Costa Rica), Order of 16 July 2013, I.C.J. Reports 2013; in my separate opinion in the
same case in the Order of 22 November 2013; in my separate opinion in the Judgment of
16 December 2015 in the joined cases (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), Judgment, I.C.J. Reports 2015 (II)); in my
separate opinion in the case of Application of the International Convention for the Suppres-
sion of the Financing of Terrorism and of the International Convention on the Elimination of
All Forms of Racial Discrimination (Ukraine v. Russian Federation), Provisional Measures,
Order of 19 April 2017, I.C.J. Reports 2017. With the exception of this last one, all other
individual opinions of mine, referred to in the present separate opinion (which I have
presented 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 Construc-
tion 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.

29

257                  jadhav (sep. op. cançado trindade)

the prompt determination of responsibility (in case of non-compliance)
with its legal consequences; the presence of the victim (or potential vic-
tim, already at this stage), and the duty of reparations for damages.

   25. The present ICJ Order of today, 18 May 2017, in the Jadhav case
(India v. Pakistan), aﬀords yet another illustration to the same eﬀect,
contributing to that jurisprudential construction. In the present separate
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 Ques-
tions relating to the Obligation to Prosecute or to Extradite (Belgium v.
Senegal) (Order of 28 May 2009), and in my separate opinion in the case
of Application of the International Convention for the Suppression of the
Financing of Terrorism and of the International Convention on the Elimina-
tion of All Forms of Racial Discrimination (Ukraine v. Russian Federa-
tion) (Order of 19 April 2017) 17.

  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 separate opin-
ion 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 par-
ticular also in the domain of consular law. In the present separate opin-
ion, in focusing attention on the rights of States and of individuals as
subjects of international law, I recalled the reﬂections I made in my con-
curring opinion in the IACtHR’s Advisory Opinion No. 16 on the Right

   17 Cf. also, on the same jurisprudential construction, my separate opinion in the case

Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits,
Judgment, I.C.J. Reports 2010 (II); 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 Interna-
cional (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),
Brussels, Bruylant/Nemesis, 2005, pp. 145-163.

30

258                jadhav (sep. op. cançado trindade)

to Information on Consular Assistance in the Framework of the Guarantees
of the Due Process of Law (of 1 October 1999).

   27. I pondered therein that, in spite of the fact that the 1963 Vienna
Convention on Consular Relations precedes chronologically the two 1966
UN 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 No. 18 on the Juridical
Condition and Rights of Undocumented Migrants (of 17 September 2003),
I retook the point that, by the turn of the century, the humanization of
international law was manifested, with judicial recognition, in new devel-
opments in the domain of consular law (paras. 1-2). I singled out the rel-
evance, 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 (ibid., 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 funda-
mental 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 (ibid., 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” (ibid., 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 twen-
tieth century, in my view, has been, by means of the emergence and evolu-
tion of ILHR, the rescue of the human being as subject” of the law
of nations, endowed with international legal personality and capacity
(ibid., para. 10). This was due to the awakening of the universal juridical
conscience (ibid., 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 conscience

   18 Cf., in this respect, A. A. Cançado Trindade, “International Law for Human-

kind . . .”, op. cit. supra note 8, Chap. VI, pp. 177-202.

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259                  jadhav (sep. op. cançado trindade)

to intensify the process of humanization of contemporary international law”
(IACtHR’s complementary Advisory Opinion No. 18 of 17 September 2003,
para. 25) 19.
   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 individu-
als, under Article 36 (1) (b) of the 1963 Vienna Convention, reﬂecting the
ongoing process of humanization of international law, encompassing rel-
evant aspects of consular relations 20. Always faithful to this humanist
universal outlook, I deem it ﬁt to advance it, once again, in the present
separate opinion in the Order that the ICJ has just adopted today, 18 May
2017, in the Jadhav case.
   33. The ICJ has, after all, shown awareness that the provisional mea-
sures 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 inter-
national tribunals have a key role to play in their common mission of the
realization of justice.
                          (Signed) Antônio Augusto Cançado Trindade.

   19 As 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 Domini-
cans of Haitian Origin in the Dominican Republic (of 18 August 2000).
   20 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 Inter-
national Case-Law and Practice”, in 6 Chinese Journal of International Law (2007), No. 1,
pp. 1-3, 5 and 15. I further pointed out the impact of that outlook was also acknowl-
edged in expert writing, as from the IACtHR’s Advisory Opinion No. 19, of 1 October
1999, followed by the subsequent decision of the ICJ of 27 June 2001 in the LaGrand
case (Germany v. United States of America); I further recalled that the then UN Sub-
Commission on the Promotion and Protection of Human Rights, in a statement issued
on 8 August 2002 (and made public in a press release of the UN 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 June 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. 642.

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