462

                       SEPARATE OPINION
                  OF JUDGE CANÇADO TRINDADE

                            table of contents

                                                                 Paragraphs

     I. PROLEGOMENA                                                    1-4
     II. Jurisprudential Construction: The Legacy of the Pio-
         neering Advisory Opinion No. 16 (1999) of the IACtHR          5-9

 III. The Evolution with the Advisory Opinion No. 18 (2003) of
      the IACtHR                                                     10-14
 IV. The Case Law of the ICJ (2001-2004) Subsequent to the
     Advisory Opinion No. 16 (1999) of the IACtHR                    15-26

     V. Insufficiencies of the ICJ’s Reasoning in the Cases of
        LAGRAND (2001) and of AVENA (2004)                           27-31
 VI. Interrelationship between Right to Information on Con-
     sular Assistance, and Human Rights to Due Process of
     Law and Fair Trial, on the Twentieth Anniversary of a
     Ground-Breaking Advisory Opinion                                32-42

VII. CORPUS JURIS GENTIUM: Wrongfulness in the Death
     Penalty as a Breach of Human Rights                             43-52

VIII. Condemnation of the Death Penalty at World Level:
      Initiatives and Endeavours in the United Nations               53-66
        1. Human Rights Committee under the CCPR                     54-59
        2. Former UN Commission on Human Rights                      60-62
        3. UN Council on Human Rights                                63-66
 IX. The Death Penalty and the Large Extent of the Harm
     Done to Human Rights                                            67-70

     X. Long-standing Humanist Thinking: Cruelty of the Death
        Penalty as a Breach of Human Rights                          71-84

48

463               jadhav (sep. op. cançado trindade)

 XI. The Importance of Providing Redress                                 85-93
XII. Epilogue: A Recapitulation                                         94-107

                                      *

                             I. PROLEGOMENA

   1. I have voted in support of the adoption today, 17 July 2019, of the
present Judgment of the International Court of Justice (ICJ) in the case
of Jadhav (India v. Pakistan). I arrive at the conclusions of the ICJ set
forth in the dispositif of the present Judgment on the basis of a reason-
ing encompassing some points which, in my understanding, deserve more
attention. Resolutory points Nos. (7) and (8) of the dispositif, for example,
appear insuﬃcient to me. And, in respect of such key points in the
cas d’espèce, examined in detail herein, my reasoning goes well beyond
that of the Court. I thus feel obliged, in the present separate opinion, to
dwell upon them, — under the usual and unwise pressure of time, — so
as to lay on the records the foundations of my own personal position
thereon.

   2. To that end, I begin by addressing a point once again brought to the
attention of the ICJ in the course of the present proceedings in the case of
Jadhav (paras. 24-25, India ; and para. 26, Pakistan, — infra), namely, the
jurisprudential construction with the legacy of the pioneering Advisory
Opinion No. 16 (1999) of the Inter-American Court of Human Rights
(IACtHR) on the matter at issue, followed by the Advisory Opinion
No. 18 (2003) of the IACtHR. In logical sequence, I then dwell upon the
case law of the ICJ itself (2001-2004), subsequent to the Advisory Opin-
ion No. 16 (1999) of the IACtHR.
   3. Following that, I identify the insuﬃciencies of the ICJ’s reasoning in
the cases of LaGrand (Germany v. United States of America) (2001) and
of Avena and Other Mexican Nationals (Mexico v. United States of Amer-
ica) (2004). Next, I turn attention to the interrelationship between the
right to information on consular assistance, and human rights to due pro-
cess of law and fair trial. I then address the trend towards the abolition of
the death penalty, as seen nowadays in the corpus juris gentium acknowl-
edging the wrongfulness in the death penalty as a breach of human rights,
as well as in initiatives and endeavours in the United Nations in condem-
nation of the death penalty at world level. This is followed by my obser-
vations on the large extent of the harm done to human rights by the death
penalty.
   4. The way is then paved for my consideration of long-standing human-
ist thinking, in its denunciation of the cruelty of the death penalty as a
breach of human rights. In logical sequence, I then address the importance
of providing redress. Last but not least, I proceed, in an epilogue, to a reca-
pitulation of the points of my position sustained in my present separate

49

464                jadhav (sep. op. cançado trindade)

opinion. I thus purport herein to make it quite clear that my own under-
standing goes beyond the ICJ’s reasoning, in that I focus on the needed
transcending of the strictly inter-State outlook, and, moreover, on the right
to information on consular assistance in the framework of the guarantees
of the due process of law transcending the nature of an individual right, as
a true human right, with all legal consequences ensuing therefrom.

            II. Jurisprudential Construction: The Legacy
           of the Pioneering Advisory Opinion No. 16 (1999)
                            of the IACtHR

   5. To start with, it should not pass unnoticed that we are completing
two decades since international jurisprudence started being constructed
for the proper interpretation and application of Article 36 (1) (b) of the
1963 Vienna Convention on Consular Relations (VCCR), with the adop-
tion of the pioneering Advisory Opinion No. 16 of the IACtHR on the
Right to Information on Consular Assistance in the Framework of the
Guarantees of the Due Process of Law (of 1 October 1999). In advancing,
for the ﬁrst time, the proper hermeneutics of the key provision of Arti-
cle 36 (1) (b) of the VCCR, the IACtHR underlined the impact thereon
of the corpus juris of the International Law of Human Rights (ILHR).
   6. The IACtHR singled out therein that the rights under
Article 36 (1) (b) of the VCCR had as a characteristic the fact that their
titulaire is the individual, — being thus “a notable advance over interna-
tional law’s traditional conceptions of this subject” (Advisory Opinion
No. 16, paras. 81-82) ; the rights accorded thereunder are “rights of indi-
viduals” (ibid., para. 83), being the
      “the counterpart to the host State’s correlative duties. This interpre-
      tation is supported by the Article’s legislative history. [T]here was no
      reason why that instrument should not confer rights upon individuals.
      (. . .)
         Therefore, the consular communication to which Article 36 of the
      Vienna Convention on Consular Relations refers, does indeed con-
      cern the protection of the rights of the national of the sending State
      (. . .). This is the proper interpretation of the functions of ‘protecting
      the interests’ of that national and the possibility of his receiving ‘help
      and assistance’, particularly with arranging appropriate ‘representa-
      tion before the tribunals.’” (Ibid., paras. 84 and 87.)
   7. In this ground-breaking Advisory Opinion No. 16 (1999), the IAC-
tHR held that Article 36 of the 1963 VCCR recognizes to the foreigner
under detention individual rights, — among which the right to informa-
tion on consular assistance, — as true human rights to which correspond
duties incumbent upon the receiving State (irrespective of its federal or
unitary structure) (ibid., paras. 84 and 140).

50

465               jadhav (sep. op. cançado trindade)

   8. The IACtHR further pointed out that the evolutive interpretation
and application of the corpus juris of the ILHR have had “a positive
impact on international law in aﬃrming and developing the aptitude of
this latter to regulate the relations between States and human beings
under their respective jurisdictions” (Advisory Opinion No. 16, paras. 114-
115). The IACtHR expressed the view that the individual right to infor-
mation under Article 36 (1) (b) of the VCCR renders eﬀective the right
to the due process of law (ibid., para. 124).
   9. The IACtHR in this way linked the right at issue to the evolving
guarantees of due process of law, and added that its non-observance in
cases of imposition and execution of the death penalty amounts to an
arbitrary deprivation of the right to life itself (in the terms of Article 4 of
the American Convention on Human Rights and Article 6 of the UN Cov-
enant on Civil and Political Rights — CCPR), with all the juridical con-
sequences inherent to a violation of the kind, that is, those pertaining to
the international responsibility of the State and to the duty of reparation
(ibid., para. 137). This historical Advisory Opinion No. 16 (1999) of the
IACtHR, truly pioneering, has served as inspiration for the emerging
international case law, in statu nascendi, on the matter, and promptly had
a sensible impact on the practice of the States of the region on the matter.

      III. The Evolution with the Advisory Opinion No. 18 (2003)
                           of the IACtHR

   10. This Advisory Opinion No. 16 (1999) was succeeded by the like-
wise relevant Advisory Opinion No. 18 of the IACtHR on the Juridical
Condition and Rights of Undocumented Migrants (2003), wherein the IAC-
tHR held that States ought to respect and ensure respect for human rights
in the light of the general and basic principle of equality and non-
discrimination, and that any discriminatory treatment with regard to the
protection and exercise of human rights generates the international
responsibility of the States. In the view of the IACtHR, the fundamental
principle of equality and non-discrimination has entered into the domain
of jus cogens.
   11. The IACtHR added that States cannot discriminate or tolerate dis-
criminatory situations to the detriment of migrants, and ought to guaran-
tee the due process of law to any person, irrespective of her migratory
status. This latter cannot be a justiﬁcation for depriving a person of the
enjoyment and exercise of her human rights, including labour rights.
Undocumented migrant workers have the same labour rights as other
workers of the State of employment, and this latter ought to ensure
respect for those rights in practice. States cannot subordinate or condi-
tion the observance of the principle of equality before the law and non-
discrimination to the aims of their migratory or other policies.

51

466                  jadhav (sep. op. cançado trindade)

   12. The Advisory Opinion No. 18 (2003) of the IACtHR promptly
had, for all its implications, a considerable impact in the American conti-
nent, and its inﬂuence was to irradiate elsewhere as well, given the impor-
tance of the matter. It propounded the same dynamic or evolutive
interpretation of the ILHR heralded by the IACtHR, four years earlier,
in its historical Advisory Opinion No. 16 (1999) 1.

   13. Furthermore, Advisory Opinion No. 18 (2003) was constructed on
the basis of the evolving concepts of jus cogens and obligations erga omnes
of protection. The repercussions of the Advisory Opinions Nos. 16 and 18
of the IACtHR drew attention to the necessity and relevance of securing
the protection of those in great need of it, in situations of vulnerability
and defencelessness, — as illustrated by the pitiless world nowadays,
marked by a profound crisis of values, appearing to be marked by a social
blindness.
   14. In both Advisory Opinions Nos. 16 and 18, of utmost importance,
the IACtHR clariﬁed that, in its interpretation of the norms of the Amer-
ican Convention on Human Rights, it should extend protection in new
situations (such as those concerning the observance of the right to infor-
mation on consular assistance, and the rights of undocumented migrants,
respectively) on the basis of preexisting rights. Advisory Opinion No. 18
(2003) was constructed on the basis of the evolving concepts of jus cogens
and obligations erga omnes of protection.

                IV. The Case Law of the ICJ (2001-2004)
            Subsequent to the Advisory Opinion No. 16 (1999)
                            of the IACtHR

   15. As already pointed out, the IACtHR, by means of its historical
Advisory Opinion No. 16 (1999), became the ﬁrst international tribunal
to warn that non-compliance with Article 36 (1) (b) of the VCCR would
be to the detriment not only of a State party but also of the human beings
concerned, as well as to aﬃrm the existence of an individual right to
information on consular assistance in the framework of the guarantees of
the due process of law (paras. 1-141).

  16. As I explained in detail in my separate opinion (paras. 75, 81, 87,
158-162, and 169) appended to the ICJ’s Judgment (of 30 November
     1
     Cf. A. A. Cançado Trindade “The Humanization of Consular Law: The Impact of
Advisory Opinion No. 16 (1999) of the Inter-American Court of Human Rights on Inter-
national Case Law and Practice”, 6 Chinese Journal of International Law (2007), No. 1,
pp. 1-16; A. A. Cançado Trindade, “Le déracinement et la protection des migrants dans
le droit international des droits de l’homme”, 19 Revue trimestrielle des droits de l’homme,
Brussels (2008), No. 74, pp. 289-328.

52

467                 jadhav (sep. op. cançado trindade)

2010) in the case of Ahmadou Sadio Diallo (Republic of Guinea v. Demo-
cratic Republic of the Congo) (merits), the Advisory Opinion No. 16
(1999) of the IACtHR paved the way for the subsequent case law of the
ICJ on the matter (in the cases, e.g., of LaGrand (2001) and Avena (2004)).
In the aforementioned separate opinion of 2010 in the case of Ahmadou
Sadio Diallo, furthermore, I examined the advanced and irreversible
humanization of consular law (I.C.J. Reports 2010 (II), pp. 790-792,
paras. 163-172), and I recalled, in this respect, relevant passages of the
travaux préparatoires of the VCCR (ibid., pp. 784-788, paras. 176-181)
from the Official Records of the UN Conference on Consular Relations
(Vienna, 4 March-22 April 1963).
   17. The strict inter-State outlook was transcended already on that occa-
sion, as, in respect of Article 36 (1) (b) of the Draft VCCR, several dele-
gates drew attention to the incidence thereon of the rights of individuals,
even three years before the adoption of the two UN Covenants on Human
Rights of 1966. I do not ﬁnd it necessary to reiterate here all statements
made, in support of fundamental rights of the individual, in the course of
the travaux préparatoires of Article 36 (1) (b) of the VCCR, which I exam-
ined at length in my aforementioned separate opinion (ibid.,p. 739,
paras. 33-34, pp. 755-759, paras. 82-92 and pp. 782-794, paras. 158-188) in
the case of Ahmadou Sadio Diallo (merits, Judgment of 30 November 2010).
   18. May I further recall that, throughout the contentious proceedings
in the ICJ in the case of LaGrand (Germany v. United States of America),
the earlier advisory proceedings conducive to the Advisory Opinion
No. 16 (1999) of the IACtHR as well as its Advisory Opinion itself, were
constantly brought to the attention of the ICJ, in both the written and
oral phases. Thus, in the written phase of the proceedings in the LaGrand
case, Germany, in its Memorial (of 16 September 1999), expressly referred
to the request by Mexico for an Advisory Opinion pending before the
IACtHR 2.
   19. Likewise, in its Counter-Memorial (of 27 March 2000) in the
LaGrand case, the United States expressly referred to the Advisory Opin-
ion No. 16 of the IACtHR 3. This latter was extensively referred to, also
in the oral arguments before the ICJ 4. In its Judgment of 27 June 2001 in
the LaGrand case, the ICJ found that the United States breached its obli-
gations to Germany and to the LaGrand brothers under Article 36 (1)
and (2) of the 1963 VCCR 5. Yet, the ICJ, in so deciding, did not refer to
the pioneering contribution of the IACtHR’s Advisory Opinion No. 16

     2
     Memorial of the Federal Republic of Germany (LaGrand case), Vol. I, 16 September
1999, p. 69, para. 4.13.
   3 Counter-Memorial of the United States (LaGrand case), 27 March 2000, pp. 85-86,

para. 102, note 110.
   4 Cf., in particular, pleadings of the Co-Agent and Counsel for Germany (B. Simma),

CR 2000/26, of 13 November 2000, pp. 60-62; and CR 2000/27, of 13 November 2000,
pp. 9-11, 32 and 36.
   5 LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001,

pp. 515-516 (resolutory points 3 and 4).

53

468                   jadhav (sep. op. cançado trindade)

(1999), continuously brought to its attention by the contending parties.
This attitude of the ICJ of apparent indiﬀerence promptly generated
strong criticism in expert writing 6.

   20. Subsequently, in the case of Avena and Other Mexican Nationals
(2004), once again the complainant State before the ICJ, this time Mex-
ico, referred in its Memorial (of 20 June 2003) extensively to the Advisory
Opinion No. 16 (of 1999) of the IACtHR, quoting excerpts of it reiterat-
edly 7. The ICJ, once again, established a breach by the respondent State,
the United States, of the obligations, this time to Mexico, under Arti-
cle 36 (1) (b) and (c) of the 1963 VCCR, again failing to refer to the
relevant precedent of the IACtHR’s Advisory Opinion No. 16 (1999).
   21. In the meantime, expert writing continued to reproach the ICJ’s
failing to refer to the initial contribution of the IACtHR’s Advisory
Opinion No. 16 (1999) 8, and to emphasize that it should have done so.
This criticism stressed the points I made in my own concurring opinion
appended to Advisory Opinion No. 16 (1999) 9, among which the ponder-
ation I made, 36 years after the adoption of the 1963 VCCR, then at the
end of the twentieth century, that “one can no longer pretend to dissoci-
ate the (. . .) right to information on consular assistance from the corpus
juris of human rights” (para. 1).

     6On the “diﬃdent” attitude of the ICJ, which “failed to mention” the judicial precedent
of the Advisory Opinion No. 16 (1999) of the IACtHR holding that Article 36 of the 1963
VCCR was among the minimum guarantees essential for a fair trial of foreign nationals,
cf. J. Fitzpatrick, “Consular Rights and the Death Penalty after LaGrand”, American
Society of International Law, Proceedings of the 96th Annual Meeting (2002), p. 309;
and cf. J. Fitzpatrick, “The Unreality of International Law in the United States and the
LaGrand Case”, 27 Yale Journal of International Law (2002), pp. 429-430 and 432. Cf. also,
on the “lamentable” and “narrower” outlook of the ICJ: M. Mennecke and C. J. Tams,
“[Decisions of International Tribunals: The International Court of Justice] LaGrand Case
(Germany v. United States of America)”, 51 International and Comparative Law Quarterly
(2002), pp. 454-455. And cf. also, Ph. Weckel, M. S. E. Helali and M. Sastre, “Chronique
de jurisprudence internationale”, 105 Revue générale de droit international public (2000),
pp. 770, 791 and 794 ; Ph. Weckel, “Chronique de jurisprudence internationale”, 105 Revue
générale de droit international public (2001), pp. 764-765 and 770.

     7
     Avena and Other Mexican Nationals (Mexico v. United States of America), Memorial
of Mexico, 20 June 2003, pp. 80-81, 136-137, 140-141 and 144, and cf. p. 65. — It further
referred expressly to other decisions of the IACtHR, also in contentious cases (cf. ibid.,
pp. 119-121, 151, 153 and 155-157, and cf. p. 55), pertinent to the matter at issue before the
ICJ, in sum, to the relevant jurisprudence constante of the IACtHR on the subject.
     8
     Cf. criticism to this eﬀect in M. Mennecke, “Towards the Humanization of the
Vienna Convention of Consular Rights — The LaGrand Case before the International
Court of Justice”, 44 German Yearbook of International Law/Jahrbuch für internationales
Recht (2001), pp. 431-432, 451-455, 459-460 and 467-468.
   9 Cf. ibid., pp. 451, 453 and 467.

54

469                    jadhav (sep. op. cançado trindade)

   22. By then, a gradually larger understanding was being formed that
the right to consular assistance accorded to the detained foreign national
a human rights safeguard, there being interrelationship between consular
law and human rights 10. By the time the ICJ’s Judgment in LaGrand case
(2001) was delivered, there was a strong criticism of the overlooking of
“the best, and most comprehensive, judicial opinion regarding the
enforcement of the Vienna Convention in death penalty cases”, namely,
the IACtHR’s Advisory Opinion No. 16 (1999), which “concluded that
the execution of a foreign national violates international law, if that per-
son was not aﬀorded the right to consular notiﬁcation and assistance” 11.
It then quoted a paragraph of my own concurring opinion appended to
Advisory Opinion No. 16 (1999), wherein I observed that

             “The action of protection, 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.
          Such action of protection assumes growing importance in a world
          torn by distinctions between nationals and foreigners (including
          de jure discriminations, notably vis-à-vis migrants), in a ‘globalized’
          world in which the frontiers open themselves to capitals, inversions
          and services but not necessarily to human beings. Foreigners under
          detention, in a social and juridical milieu and in an idiom diﬀerent
          from their own and that they do not know suﬃciently, experience
          often a condition of particular vulnerability, which the right to infor-
          mation on consular assistance, inserted into the conceptual universe
          of human rights, seeks to remedy.” (Para. 23.)

  23. Over the last decade, the strong criticism of the ICJ’s reasoning in
the cases of LaGrand (2001) and of Avena (2004) for not having expressly
acknowledged its debt to the pioneering contribution of the IACtHR’s

     10
      V. S. Mani, “The Right to Consular Assistance as a Basic Human Right of Aliens
— A Review of the ICJ Order Dated 3 March 1999”, 39 Indian Journal of International
Law (1999), pp. 438-439; and cf. also E. Decaux, “La protection consulaire et les droits
de l’homme”, Société française pour le droit international, La Protection consulaire
(Journée d’Etudes de Lyon), Paris, Ed. Pedone, 2006, pp. 57 and 71-72. Subsequently, it
was stated that the right of consular assistance under Article 36 of the VCCR is generally
recognized nowadays as “a customary right in the law of human rights”, and the ICJ has
been “too restrained, in particular on the issue of remedies for a consular access viola-
tion”; J. B. Quigley, “Vienna Convention on Consular Relations: In Retrospect and into
the Future”, 38 Southern Illinois University Law Journal (2013), p. 25, and cf. pp. 12-13
and 16-17.
   11 S. L. Babcock, “The Vienna Convention on Consular Relations (VCCR): Litigation

Strategies”, www.capdefnet.org/fdprc/contents/relevant_reading/101001-01, of 2001, pp. 2
and 9, and cf. p. 7.

55

470                    jadhav (sep. op. cançado trindade)

ground-breaking Advisory Opinion No. 16 (1999) persisted 12. The per-
ception was that those two ICJ decisions were “strongly inﬂuenced” by
the IACtHR’s Advisory Opinion No. 16, which considered the “right to
consular notiﬁcation” as part of the “minimum guarantees of due process
required for a fair trial”, without which there would be “a violation of the
alien’s human rights” incurring the State’s duty to provide reparations 13.
A quotation was again made of another paragraph of my own concurring
opinion appended to the IACtHR’s Advisory Opinion No. 16, wherein I
sustained that

             “At this end of century, we have the privilege to witness the process
          of humanization of international law, which today encompasses also
          this aspect of consular relations. In the conﬂuence of these latter with
          human rights, the subjective individual right 14 to information on con-
          sular assistance, of which are titulaires all human beings who are in
          the need to exercise it, has crystallized: such individual right, inserted
          into the conceptual universe of human rights, is nowadays supported
          by conventional international law as well as by customary interna-
          tional law.” (Para. 35.)
   24. In the proceedings of the present case of Jadhav (India v. Pakistan)
before the ICJ, references have been made to the aforementioned pioneer-
ing contribution of the IACtHR by India, but not so by Pakistan. Thus,
the Memorial of India contains a section (paras. 151-163) carefully
devoted to the jurisprudence of the IACtHR. India focuses on the inter-
pretation and application of Article 36 of the VCCR by the IACtHR,
ﬁnding them instructive for the interpretation and application by the ICJ
of the same provision of the VCCR in the present case of Jadhav
(para. 151).
   25. India highlights several key points in the IACtHR’s Advisory
Opinion No. 16 (1999), including the notion that a treaty can serve to
protect human rights, even if its principal or central purpose is not con-
cerned with human rights (para. 154) 15. Still in its Memorial, India
stresses the IACtHR’s ﬁnding that the evolving corpus juris of the ILHR
enshrining due process standards ought to guide the interpretation of

     12
      Cf. C. M. Cerna, “Impact on the Right to Consular Notiﬁcation”, The Impact of
Human Rights Law on General International Law (eds. M. T. Kamminga and M. Scheinin),
Oxford University Press, 2009, pp. 171, 173, 175, 180, 182-183 and 186; C. M. Cerna, “The
Right to Consular Notiﬁcation as a Human Right”, 31 Suffolk Transnational Law Review
(2008), pp. 420, 422-423, 425, 430-435, 437-439, 449 and 451-455.
   13 Cf. C. M. Cerna, “Impact on the Right to Consular Notiﬁcation”, op. cit. supra

note (12), pp. 173 and 175.
   14 Already by the middle of the century one warned as to the impossibility of the evolu-

tion of law without the subjective individual right, the expression of a true “human right”;
J. Dabin, El Derecho Subjetivo, Madrid, Ed. Rev. de Derecho Privado, 1955, p. 64.
   15 Referring to paragraph 76 of the IACtHR’s Advisory Opinion No. 16 (1999).

56

471                    jadhav (sep. op. cançado trindade)

Article 36 of the 1963 VCCR (paras. 157-159) 16. Furthermore, India
again singles out the signiﬁcance and contribution of the IACtHR’s Advi-
sory Opinion No. 16 (1999) also in its oral arguments presented in the
public hearing of 18 February 2019 before the ICJ 17.
   26. Pakistan, for its part, in the oral proceedings (public hearing of
19 February 2019 before the ICJ), taking issue with India’s arguments and
invocation of the IACtHR’s Advisory Opinion, contends that it would not
be appropriate to raise them before the ICJ — making reference to deci-
sions of the Inter-American Commission (not Court) of Human Rights
— and ﬁnding India’s quotation of such decisions incomplete 18. This
divergence between the two Contending Parties in the cas d’espèce, in my
perception, calls for a careful consideration of the matter by the ICJ —
not given by it — to which I now proceed in the present separate opinion.

 V. Insufficiencies of the ICJ’s Reasoning in the Cases of LAGRAND
                     (2001) and of AVENA (2004)

   27. In its Judgment in the case of LaGrand (2001), the ICJ acknowl-
edged that Article 36 (1) (b) and (c) of the VCCR creates “individual
rights”, which may be invoked by the national State of the detained per-
son (I.C.J. Reports 2001, p. 494, para. 77). Subsequently, in its Judgment
in the case of Avena (2004), the ICJ reiterated its ﬁnding that Arti-
cle 36 (1) (b) and (c) sets forth “individual rights” (I.C.J. Reports
2004 (I), p. 36, para. 40), coexisting with rights of the sending State.
However, the ICJ avoided to consider that the individual’s right under
Article 36 of the VCCR has the character of a human right.

   28. Earlier on, in its aforementioned pioneering Advisory Opinion
No. 16 (1999), the IACtHR held that a provision of a treaty “can concern
the protection of human rights” (like Article 36 of the VCCR), irrespec-
tive of what the main purpose of the treaty at issue might be (paras. 76
and 85). It added that the individual rights guaranteed by Article 36 of
the VCCR help to guarantee that the individual concerned enjoys the
guarantees of a fair trial and the due process of law (paras. 121-123). And
it further added that :
          “the individual’s right to information, conferred in Article 36 (1) (b)
          of the Vienna Convention on Consular Relations, makes it possible
          for the right to the due process of law upheld in Article 14 of the
          International Covenant on Civil and Political Rights, to have practi-
          cal eﬀects in tangible cases; the minimum guarantees established in

     16
      Referring to paragraphs 113-122 of the IACtHR’s Advisory Opinion No. 16 (1999).
     17
      CR 2019/1, of 18 February 2019, pp. 39-42, paras. 145-153.
   18 CR 2019/2, of 19 February 2019, pp. 47-49, paras. 101-104; Pakistan also criticizes

India’s arguments relating to “minimum due process” (ibid., para. 104).

57

472                 jadhav (sep. op. cançado trindade)

      Article 14 of the International Covenant can be ampliﬁed in the light
      of other international instruments like the Vienna Convention on
      Consular Relations, which broadens the scope of the protection
      aﬀorded to those accused.
       . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
         Because the right to information is an element of Article 36 (1) (b)
      of the Vienna Convention on Consular Relations, the detained for-
      eign national must have the opportunity to avail himself of this right
      in his own defence. Non-observance or impairment of the detainee’s
      right to information is prejudicial to the judicial guarantees.”
      (Paras. 124 and 129.)

   29. May I reiteratedly recall, in the present separate opinion, now that
we approach the twentieth anniversary of the historical Advisory Opinion
No. 16 (1999) of the IACtHR, that this latter considered therein that the
individual rights guaranteed by Article 36 of the VCCR are directly
related to the human rights to due process of law and a fair trial. The
IACtHR stressed that the observance of the right of a detained individual
to be informed of his rights guaranteed by Article 36 (1) (b) becomes “all
the more imperative” in face of a sentence to death (paras. 135-137).

   30. The ICJ, for its part, in the case of LaGrand (2001), after establish-
ing a breach of the individual rights under Article 36 (1) of the VCCR,
found it unnecessary to further consider Germany’s argument that the
right of the individual to be informed without delay guaranteed by Arti-
cle 36 (1) of the VCCR “has today assumed the character of a human
right” (para. 78). And, subsequently, in the case of Avena (2004), the ICJ
dismissed Mexico’s argument that “the right to consular notiﬁcation and
consular communication under the Vienna Convention is a fundamental
human right that constitutes part of due process in criminal proceedings”
(para. 124). The ICJ did not examine the issue whether the VCCR (Arti-
cle 36) established human rights ; it noted that “[w]hether or not the
Vienna Convention rights are human rights is not a matter that this Court
need decide” (para. 124).

   31. There was, in my perception, no reason for the ICJ to have adopted
such an insuﬃcient approach to the matter dealt with in its Judgments in
the two aforementioned cases of LaGrand and Avena, which were both
followed by non-compliance on the part of the respondent State. The fac-
tual context of the present case of Jadhav (2019) provides yet another
occasion to examine the individual rights under Article 36 of the VCCR
as directly related to the human rights to due process of law and a fair
trial. In my understanding, it is necessary to do so, but, once again, the
ICJ followed its own insuﬃcient approach.

58

473                 jadhav (sep. op. cançado trindade)

 VI. Interrelationship between Right to Information on Consular
  Assistance, and Human Rights to Due Process of Law and Fair
   Trial, on the Twentieth Anniversary of a Ground-Breaking
                         Advisory Opinion

   32. As, by the turn of the century, two decades ago, the ground-
breaking IACtHR’s Advisory Opinion No. 16 (1999) on the Right to
Information on Consular Assistance in the Framework of the Guarantees of
the Due Process of Law, inspiring the emerging case law, in statu nascendi,
on the matter, correctly determined the interrelationship between the
individual rights under Article 36 of the VCCR and the human rights to
due process of law and fair trial under the CCPR (Article 14) and general
international law, it appears necessary to me to consider this issue in
the framework of the hermeneutics of the breach of the rights under
Article 36 of the VCCR established by the ICJ in the present case of
Jadhav.
   33. After all, consular assistance is essential to the eﬀectiveness of the
human rights to due process of law and fair trial. In its Advisory Opinion
No. 16 (1999), the IACtHR, in its hermeneutics, did not hesitate to inter-
relate Article 36 (1) (b) of the VCCR and Article 14 of the CCPR
(paras. 117 and 124). In the present case of Jadhav, the ICJ now has had
the proper occasion to perfect its own restrained case law on the matter,
provided to it by the factual context of the cas d’espèce.

   34. The contemporary international legal order counts on, and is ben-
eﬁted by, the coexistence of international tribunals. This could not have
been foreseen some decades ago, and has been contributing to advances
achieved in the new jus gentium. International tribunals have identiﬁed
the need of, and have become used to, taking into account the relevant
case law of each other ; in this way, they have been contributing to a har-
moniously progressive development of international law.
   35. Although their jurisdictions are distinct, they have a common mis-
sion of realization of justice. In the accomplishment of this common mis-
sion, they foster the prevalence of a universal law of nations, and a
growing compliance with the rule of law (état de droit), a key item inserted
and continuously present in the agenda of the UN General Assembly
since 2006 until presently.
   36. The right to consular notiﬁcation under Article 36 of the VCCR is,
in my understanding, closely interrelated with the fundamental rights of
due process of law and fair trial. Not only did the IACtHR establish this
in its Advisory Opinion No. 16, of 1 October 1999 (paras. 124 and 129),
but also, subsequently to it, several countries, in their practice, equated
the right of notiﬁcation to consular assistance with the corpus juris of
human rights, given its close relationship with the rights of due process of
law and to a fair trial 19.

     19
     Cf. A. A. Cançado Trindade, “The Humanization of Consular Law: The Impact of
Advisory Opinion No. 16 (1999) of the Inter-American Court of Human Rights on Inter-

59

474                  jadhav (sep. op. cançado trindade)

   37. There is reason to proceed in this constructive hermeneutics (with-
out the need to establish an additional violation of the CCPR in the cas
d’espèce), as we are here in the realm not only of the VCCR (Article 36)
but also of human rights in general or customary international law. In my
understanding, the right to information on consular assistance under the
VCCR (Article 36) is an individual right, and is undoubtedly interrelated
with human rights.

   38. It is beyond doubt that a foreign national facing criminal proceed-
ings abroad will only be able to obtain full procedural equality if granted
access to consular assistance. Therefore, a breach of a foreign national’s
right to consular notiﬁcation set forth in Article 36 of the VCCR neces-
sarily entails a breach of the human rights to due process of law and a fair
trial in general or customary international law. It is clear that we are here
in the domain of human rights, and this is to be duly acknowledged.

   39. In the absence of consular assistance, there are no guarantees of
due process of law and fair trial, and the execution of a death penalty
ensuing therefrom is a breach of general and basic principles of interna-
tional law — such as that of equality and non-discrimination — and of
human rights themselves, entailing the international responsibility of the
State concerned 20. Two decades ago, the IACtHR’s Advisory Opinion
No. 16 gave the initial contribution and paved the way for the process
— advanced today — of humanization of consular law 21.

  40. In Advisory Opinion No. 16 (1999), the IACtHR, besides referring
to its own ongoing case law, had no diﬃculty to refer also to the pertinent
case law of the ICJ : it recalled (para. 113), e.g., the ICJ’s Advisory Opin-
ion on Namibia (1971), wherein the ICJ acknowledged its own duty to
      “take into consideration the changes which have occurred in the
      supervening half-century, and its interpretation cannot remain unaf-
      fected by the subsequent development of law. (. . .) Moreover, an
      international instrument has to be interpreted and applied within the

national Case Law and Practice”, op. cit. supra No. (1), pp. 7-8, and cf. pp. 1-16; S. Vene-
ziano, “The Right to Consular Notiﬁcation: The Cultural Bridge to a Foreign National’s
Due Process Rights”, 49 Georgetown Journal of International Law (2017), p. 533.
   20 Cf. A. A. Cançado Trindade, International Law for Humankind — Towards a New

Jus Gentium, 2nd rev. ed., Leiden/The Hague, Nijhoﬀ/The Hague Academy of Interna-
tional Law, 2013, p. 508, and cf. pp. 499 and 504; L. Ortiz Ahlf, Derecho Internacional
Público, 4th ed., Mexico/Oxford, OUP, 2015, pp. 553-557.
   21 Cf. A. A. Cançado Trindade, “The Humanization of Consular Law: The Impact of

Advisory Opinion No. 16 (1999) of the Inter-American Court of Human Rights on Inter-
national Case Law and Practice”, op. cit. supra note 1, pp. 1-16.

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475                    jadhav (sep. op. cançado trindade)

          framework of the entire legal system prevailing at the time of the
          interpretation. (. . .) [T]he corpus iuris gentium has been considerably
          enriched, and this the Court, if it is faithfully to discharge its func-
          tions, may not ignore.” (Legal Consequences for States of the Contin-
          ued Presence of South Africa in Namibia (South West Africa)
          notwithstanding Security Council Resolution 276 (1970), Advisory
          Opinion, I.C.J. Reports 1971, pp. 31-32, para. 53.)
   41. The IACtHR’s Advisory Opinion No. 16 further recalled (para. 75),
inter alia, that, in the ICJ’s proceedings in the case of United States Dip-
lomatic and Consular Staff in Tehran (United States of America v. Iran)
(Judgment of 24 May 1980), the applicant State linked Article 36 of the
VCCR to “the rights of nationals of the sending State” ; and the IACtHR
added (para. 75) that, for its part, the ICJ cited (para. 91) the Universal
Declaration of Human Rights in its Judgment of 24 May 1980) 22.
   42. The two international tribunals, and others, have been sensitive to
the progressive development of international law, in the framework of the
historical process of humanization of the law of nations 23. With all the
more reason, in the present case of Jadhav (2019), the ICJ has before itself
the ineluctable interrelationship — which it should have acknowledged
— between the right to information on consular assistance, and the
human rights to due process of law and fair trial, with all legal conse-
quences ensuing therefrom.

 VII. CORPUS JURIS GENTIUM: Wrongfulness in the Death Penalty
                  as a Breach of Human Rights

  43. A person condemned to death abroad without having had consular
assistance has had his individual right under Article 36 (1) (b) of the

     22
      The ICJ stated therein that: “Wrongfully to deprive human beings of their freedom
and to subject them to physical constraint in conditions of hardship is in itself manifestly
incompatible with the principles of the Charter of the United Nations, as well as with the
fundamental principles enunciated in the Universal Declaration of Human Rights” (I.C.J.
Reports 1980, p. 42, para. 91).
   23 On the contribution of contemporary international tribunals to this historical

process of humanization of the droit des gens, cf. A. A. Cançado Trindade, International
Law for Humankind — Towards a New Jus Gentium, 2nd rev. ed., op. cit. supra note 20,
pp. 531-591; A. A. Cançado Trindade, Os Tribunais Internacionais e a Realização da Justiça,
3rd rev. ed., Belo Horizonte, Edit. Del Rey, 2019, pp. 1-507; A. A. Cançado Trindade, Los
Tribunales Internacionales Contemporáneos y la Humanización del Derecho Internacional,
Buenos Aires, Ed. Ad-Hoc, 2013, pp. 7-185; A. A. Cançado Trindade, La Humanización
del Derecho Internacional Contemporáneo, Mexico, Edit. Porrúa/IMDPC, 2014, pp. 1-324 ;
A. A. Cançado Trindade, “Les tribunaux internationaux et leur mission commune de réali-
sation de la justice : développements, état actuel et perspectives”, 391 Recueil des cours de
l’Académie de droit international de La Haye (2017), pp. 19-101 ; and, on the presence of
natural law inﬂuence, cf. also A. Peters, Beyond Human Rights — The Legal Status of the
Individual in International Law, Cambridge University Press, 2018 (reprint), pp. 23-25, 38,
48, 65 and 395-396.

61

476                 jadhav (sep. op. cançado trindade)

VCCR, interrelated with his human rights, breached. His condemnation,
in such circumstances, is by itself a breach of the ILHR, entailing the
international responsibility of the State concerned. The death penalty is
thereby outlawed, thus going beyond simple “review and reconsidera-
tion” of an unlawful conviction. A corpus juris gentium has been formed,
in line with the trend towards the abolition of the death penalty in con-
temporary international law.

   44. This is an important point which deserves closer attention. In my
understanding, a decision of condemnation to death accompanying a vio-
lation of Article 36 (1) (b) of the VCCR — as in the present case of
Jadhav — cannot serve as basis for “review and reconsideration” simply :
it is an unlawful decision which does not generate any eﬀects. An unlaw-
ful condemnation to death is clearly discarded, and cannot be restated or
reformulated at all. In such circumstances, the death penalty itself is
entirely discarded, not at all only opened simply to “review and reconsid-
eration”.

   45. And there is another relevant aspect to consider, namely, the cru-
elty of the death penalty has been widely acknowledged : it goes beyond
execution itself, the time spent by the convicted person contemplating his
own death while waiting his own execution. Persons convicted to death
are treated as persons without a future ; they keep waiting for their execu-
tion in special cells, “death rows”. Besides the right to life, other rights
are aﬀected and breached, also of other persons.

  46. The cruelty of the death penalty, generally condemned by law,
extends to relatives and friends of the convicted persons. The suﬀering
generated does not lessen the loss to the close relatives of the executed
person, nor does it put an end to their prolonged pain and anguish. They
are simply not taken into account 24. The execution of the death penalty is
a violation of human rights. One cannot simply overlook the widespread
reaction to the cruelty of the death penalty.

   47. Such acknowledgement by human conscience ﬁnds nowadays
expression in general international law, as well as in several international
treaties along the last decades. Among these, there are conventions which
strictly limit the death penalty, aiming to put an end to it, namely : the
1966 UN Covenant on Civil and Political Rights, Article 6 (2) and (4) ;

   24 Council of Europe, The Death Penalty — Abolition in Europe, Strasbourg, Council

of Europe Publ., 1999, p. 18; Amnesty International, When the State Kills: The Death
Penalty vs. Human Rights, London, Amnesty International Publ., 1989, pp. 61 and 68-70,
and cf. p. 54.

62

477                   jadhav (sep. op. cançado trindade)

the 1969 American Convention on Human Rights, Article 4 (2) to (5) ; the
2004 Arab Charter on Human Rights, Articles 10 to 12.

   48. Furthermore, there are signiﬁcantly international instruments
which expressly prohibit, or seek abolition of, the death penalty, namely :
the Protocol No. 6 (1983) to the European Convention of Human Rights,
Article 1 25; the Protocol No. 13 (2002) to the European Convention of
Human Rights, Article 1 26; the 1989 Protocol to the American Conven-
tion on Human Rights to Abolish the Death Penalty, Article 1 27; the Sec-
ond Optional Protocol (1989) to the UN Covenant on Civil and Political
Rights, Article 1 28.

   49. Such prohibition has, furthermore, found expression in interna-
tional case law. For example, with its landmark judgment (merits and
reparations, of 21 June 2002) in the case of Hilaire, Constantine and
Benjamin v. Trinidad and Tobago, the IACtHR became the international
tribunal which for the ﬁrst time established the incompatibility with
a human rights treaty (the American Convention on Human Rights) of
the “mandatory” death penalty (for the delict of murder).

   50. The IACtHR held therein that the right to life was violated by the
automatic application of the death penalty, without individualization and
without the guarantees of the due process of law, and it ordered, as one
of the measures of reparation, the suspension of the execution of such
penalty. Among those measures of reparation was also the duty of the
respondent State to modify its penal legislation so as to harmonize it with
the norms of international human rights protection, and to abstain itself,
in any case, from executing the condemned person(s).
   51. In my concurring opinion appended thereto, I pondered, inter alia,
that in eﬀect, the legal order which applies the death penalty resorts itself
to the extreme violence which it intends to ﬁght ; by means of the applica-
tion of the millennial lex talionis, the public power itself resorts to vio-
lence, disposing of the life of a person, in the same way that this latter
deprived another person of his or her life, — and all this “despite the
historical evolution, likewise millennial, of justice to overcome revenge
(public and private)” (para. 4).
   52. Still in that concurring opinion, I further recalled, in this respect,
that, e.g., the Human Rights Committee (under the UN Covenant on

     25Article 1: “The death penalty shall be abolished. No one shall be condemned to such
penalty or executed”.
   26 Article 1: “The death penalty shall be abolished. No one shall be condemned to such

penalty or executed”.
   27 Article 1: “The States Parties to this Protocol shall not apply the death penalty in

their territory to any person subject to their jurisdiction”.
   28 Article 1: “1. No one within the jurisdiction of a State Party to the present Protocol

shall be executed. 2. Each State Party shall take all necessary measures to abolish the death
penalty within its jurisdiction.”

63

478                  jadhav (sep. op. cançado trindade)

Civil and Political Rights — CCPR) has consistently sustained that the
imposition of the death penalty, at the end of a trial without the guaran-
tees of the due process of law, and without the possibility of an appeal for
revision of the respective judgment, constitutes per se a violation of the
right to life (in breach of Article 6 of the CCPR) 29. Such violation, I
added, takes place irrespectively of the execution or not of the death pen-
alty, “even if those condemned to death are still alive” ; there is need “to
avoid an additional harm” (para. 18) 30.

          VIII. Condemnation of the Death Penalty at World Level:
               Initiatives and Endeavours in the United Nations

   53. In eﬀect, there is an important aspect which cannot be overlooked
in the cas d’espèce, namely, the condemnation of the death penalty at a
world level, as shown by initiatives and endeavours in the United Nations
over the years. The present case of Jadhav is focused on the established
breach of Article 36 of the VCCR, but one cannot make abstraction of
the factual context of the subject-matter. At United Nations level, atten-
tion can be drawn to conventional supervisory organs (such as the Human
Rights Committee under the CCPR), as well as other United Nations
organs (such as the former UN Commission on Human Rights, and pres-
ently the UN Council on Human Rights).

                 1. Human Rights Committee under the CCPR
   54. In eﬀect, under the CCPR, the Human Rights Committee has sus-
tained its condemnation of the death penalty in numerous deci-

     29
      Cf., e.g., its earlier decisions in the cases L. Simmonds v. Jamaica (23 October 1992,
para. 8.5), C. Wright v. Jamaica (27 July 1992, para. 8.7), A. Little v. Jamaica (1 November
1991, para. 8.6), and R. Henry v. Jamaica (1 November 1991, para. 8.5). Other decisions,
to the same eﬀect, were rendered by the Human Rights Committee, in the course of
the last decade of the twentieth century, namely: cases Brown v. Jamaica, of 23 March
1999, para. 6.15; Marshall v. Jamaica, 3 November 1998, para. 6.6; Morrison v. Jamaica,
3 November 1998, para. 8.7; Levy v. Jamaica, 3 November 1998, para. 7.3; Daley v.
Jamaica, 31 July 1998, para. 7.7; Domukovsky et al. v. Georgia, 6 April 1998, para. 18.10;
Shaw v. Jamaica, 6 June 1996, para. 7.7; Taylor v. Jamaica, 2 April 1998, para. 7.5;
McLeod v. Jamaica, 31 March 1998, para. 6.5; Peart and Peart v. Jamaica, 19 July 1995,
para. 11.8; Currie v. Jamaica, 29 March 1994, para. 13.6; Smith v. Jamaica, 31 March 1993,
para. 10.6; and G. Campbell v. Jamaica, 30 March 1992, para. 6.9.
   30 My concurring opinion appended to the aforementioned judgment (of 2002) in

the case of Hilaire, Constantine and Benjamin v. Trinidad and Tobago is reproduced in
Judge A. A. Cançado Trindade, The Construction of a Humanized International Law —
A Collection of Individual Opinions (1991-2013), Vol. I (IACtHR), Leiden/The Hague,
Brill/Nijhoﬀ, 2014, pp. 740-760; and A. A. Cançado Trindade, Esencia y Transcendencia
del Derecho Internacional de los Derechos Humanos (Votos en la Corte Interamericana de
Derechos Humanos, 1991-2008), Vol. I, 2nd rev. ed., Mexico D.F., Ed. Cam. Dips., 2015,
pp. 447-467.

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479                   jadhav (sep. op. cançado trindade)

sions. Besides those rendered in the last decade of the twentieth century 31,
in the last two decades it has likewise sustained that the imposition of a
death sentence upon conclusion of a trial wherein the provisions of the
CCPR have not been respected constitutes a violation of Article 6 (right
to life) of the CCPR. It so upheld, during the ﬁrst decade of the twenty-
ﬁrst century, in its decisions in 22 cases 32.

   55. Among those decisions, in the case of Kodirov v. Uzbekistan (2009),
the death sentence was commuted to life imprisonment, so that there was
no violation of Article 6 ; and, likewise, in the case of Dunaev v. Tajikistan
(2009), the death sentence was commuted by the Supreme Court of Tajiki-
stan, so that there was no violation of Article 6 of the CCPR. More recently,
along the present decade, the Human Rights Committee has, in new deci-
sions in eight cases, recalled that the imposition of a death sentence upon
conclusion of a trial wherein the provisions of the CCPR have not been
respected constitutes a violation of Article 6 (right to life) of the CCPR 33.
   56. During three decades of work, the Human Rights Committee has
upheld that the imposition of a death sentence upon conclusion of a trial
by a military court without the guarantees of a fair trial amounts to a
violation of Articles 6 and 14 of the CCPR (as stated, e.g., in its decisions
in the cases of S. Kurbanova v. Tajikistan, of 6 November 2003, paras. 7.6-
7.7 and 8 ; and of K. Turaeva v. Uzbekistan, of 20 October 2009, para. 9.4).
The Committee has furthermore found that the seeking by the condemned
person of clemency or pardon “does not secure adequate protection to
the right to life” under Article 6 of the CCPR : such as “discretionary
measures by the executive”, in comparison with “appropriate judicial
review of all aspects of a criminal case” (decision in the case of E. Thomp-
son v. St. Vincent and Grenadines, of 18 October 2000, para. 8.2).

     31
      Cf. note 29, supra.
     32
      Namely: cases Kodirov v. Uzbekistan, of 20 October 2009, para. 9.4; Tolipkhuzhaev v.
Uzbekistan, of 22 July 2009, para. 8.5; Dunaev v. Tajikistan, of 30 March 2009, para. 7.4;
Uteeva v. Uzbekistan, of 26 October 2007, para. 7.4; Tulyaganova v. Uzbekistan, of 30 July
2007, para. 8.3; Strakhov and Fayzullaev v. Uzbekistan, of 20 July 2007, para. 8.4; Chiku-
nova v. Uzbekistan, of 16 March 2007, para. 7.5; Gunan v. Kyrgystan, of 29 January 2007,
para. 6.5; Sultanova v. Uzbekistan, of 30 March 2006, para. 7.6; Shukurova v. Tajikistan, of
17 March 2006, para. 8.6; Sigareva v. Uzbekistan, of 1 November 2005, para. 6.4; Chan v.
Guyana, of 31 October 2005, para. 6.4; Aliboeva v. Tajikistan, of 18 October 2005, para. 6.6;
Deolall v. Guyana, of 1 November 2004, para. 5.3; Khodimova v. Tajikistan, of 29 July
2004, para. 6.6; Mulai v. Guyana, of 20 July 2004, para. 6.3; Saidova v. Tajikistan, of 8 July
2004, para. 6.9; Smartt v. Guyana, of 6 July 2004, para. 6.4; Arutyunyan v. Uzbekistan, of
29 March 2004, para. 6.4; Kurbanova v. Tajikistan, of 12 November 2003, para. 7.7; Aliev v.
Ukraine, of 7 August 2003, para. 7.4; Hendricks v. Guyana, of 28 October 2002, paras. 6.4
and 7; E. Thompson v. St. Vincent and Grenadines, of 18 October 2000, para. 8.2.
   33 Namely: cases P. Selyun v. Belarus, of 6 November 2015, para 7.7; Burdyko v.

Belarus, of 15 July 2015, para. 8.6; Grishkovtsov v. Belarus, of 1 April 2015, para. 8.6;
Yuzepchuk v. Belarus, of 24 October 2014, para. 8.6; S. Zhuk v. Belarus, of 30 October
2013, para. 8.7; Kovaleva and Kozyar v. Belarus, of 29 October 2012, para. 11.8; Kamoyo
v. Zambia, of 23 March 2012, para. 6.4; Mwamba v. Zambia, of 10 March 2010, para. 6.7.

65

480                      jadhav (sep. op. cançado trindade)

  57. In its relatively recent decision in the case of P. Selyun v. Belarus,
of 6 November 2015, the Human Rights Committee, in reiterating its
position that a death penalty imposed at the end of a trial without the
guarantees of due process under Article 14 of the CCPR is a breach of it
as well as of the right to life under Article 6 of the CCPR (para. 7.7). The
Committee deemed it ﬁt to refer to its own General Comment No. 6 (of
1982) on the right to life, comprising also procedural guarantees.

  58. May I here recall some signiﬁcant ponderations of the Committee’s
very early General Comment No. 6 (of 30 April 1982), namely :
             “The protection against arbitrary deprivation of life which is explic-
          itly required by the third sentence of Article 6 (1) [of the CCPR] is of
          paramount importance. (. . .) The deprivation of life by the authorities
          of the State is a matter of the utmost gravity. (. . .)

             The expression ‘inherent right to life’ cannot properly be under-
          stood in a restrictive manner, and the protection of this right requires
          that States adopt positive measures. (. . .)
             The procedural guarantees (. . .) prescribed [in Article 6 of the
          CCPR] must be observed, including the right to a fair hearing by an
          independent tribunal, the presumption of innocence, the minimum
          guarantees for the defence, and the right to review by a higher tribu-
          nal.” (Paras. 3, 5 and 7.)
  59. The international treaties prohibiting, or seeking abolition of, the
death penalty, which I have already listed (in paragraph 48, supra), have
furthermore had repercussion in international institutions (at global —
UN — and regional levels), in the world-wide condemnation of the death
penalty. Within the United Nations, for example, the Second Optional
Protocol to the CCPR has kept on attracting attention for the realization
of its mission of prohibition of the death penalty 34. Parallel to the con-
ventional supervisory organs, such as the Human Rights Committee, the
United Nations human rights organs have kept on encouraging Member
States to ratify or accede to that Protocol, among other instruments,
bearing in mind the cruel and irreversible nature of the death penalty.

                     2. Former UN Commission on Human Rights
   60. As already pointed out, attention is here, in this respect, to focus
also on the initiatives and endeavours of United Nations human rights
organs along the years. The former UN Commission on Human Rights,
for instance, from 1997 to 2005, adopted successive resolutions calling for
the abolition of the death penalty, and invoking to that eﬀect the Second

     34   It contains no provisions for denunciation or withdrawal.

66

481               jadhav (sep. op. cançado trindade)

Optional Protocol to the CCPR, namely: resolution 1997/12, of 3 April
1997 (preamble and para. 1); resolution 1998/54, of 3 April 1998 (pre-
amble and para. 2); resolution 1999/61, of 28 April 1999 (preamble and
para. 2); resolution 2000/65, of 26 April 2000 (preamble and para. 2);
resolution 2001/68, of 25 April 2001 (preamble and para. 3); resolu-
tion 2002/77, of 25 April 2002 (preamble and para. 3); resolution 2003/67,
of 24 April 2003 (preamble and para. 3); resolution 2004/67, of 21 April
2004 (preamble and para. 3); and resolution 2005/59, of 20 April 2005
(preamble and para. 6).
   61. In the sequence of those resolutions, the former UN Commission
on Human Rights expressed, in their preambles, its belief that the aboli-
tion of the death penalty contributes to the “enhancement of human dig-
nity” and to the “progressive development of human rights”. From 2001
onwards, it made, in its own resolutions, references to a pertinent resolu-
tion (of 2000) of its former Sub-Commission on the Promotion and Pro-
tection of Human Rights (resolution 2001/68, para. 2 ; resolution 2002/77,
para. 2 ; resolution 2003/67, para. 2 ; resolution 2004/67, para. 2 ; and
resolution 2005/59, preamble).
   62. From 2003 onwards, the former UN Commission on Human
Rights enhanced its expression of concern, in calling upon all States that
still maintained the death penalty to abolish it “completely and, in the
meantime, to establish a moratorium on executions” (resolution 2003/67,
para. 5 (a) ; resolution 2004/67, para. 5 (a) ; and resolution 2005/59,
para. 5 (a)). And from 1999 to 2005, the former Commission signiﬁcantly
and correctly interrelated the obligations attached to certain rights
protected under the CCPR — such as the right to life in Article 6, and
procedural guarantees in Article 14 — with those in respect of the
rights under Article 36 of the VCCR (resolution 1999/61, para. 3 (d);
resolution 2000/65, para. 3 (d); resolution 2001/68, para. 4 (d);
resolution 2002/77, para. 4 (e); resolution 2003/67, para. 4 (f) ;
resolution 2004/67, para. 4 (h) ; and resolution 2005/59, para. 6 (h)).

                     3. UN Council on Human Rights
   63. Subsequently to the former UN Commission on Human Rights, in
the current new era (2006 onwards) of the UN Council on Human Rights,
this latter recalled all resolutions of the former UN Commission on Human
Rights (supra) in its more recent endeavours to the same eﬀect. After doing
so, e.g., in the preamble of its resolution 36/17, of 29 September 2017, the
UN Council on Human Rights recognized also the role of regional and
subregional instruments and initiatives towards the abolition of the death
penalty, and drew attention, inter alia, to the importance of access to con-
sular assistance for foreign nationals provided for in the VCCR.
   64. In its operative part, the same resolution 36/17 of 2017, stressing
the need of fully abolishing the death penalty, called upon all States that

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482                   jadhav (sep. op. cançado trindade)

have not yet done so to accede to, or ratify, the Second Optional Protocol
to the CCPR (para. 2) ; it also called upon States to comply with their
obligations under Article 36 of the VCCR (para. 7). The UN Council on
Human Rights thus considered those international instruments in their
interrelated way.

   65. Its resolution has been followed by the very recent Report of the
UN Secretary-General on the “Question of the Death Penalty”, submit-
ted to the UN Council on Human Rights 35, at the request of this latter,
to update previous reports on the matter. The Report, inter alia, records
that, until then, 85 States have ratiﬁed the Second Optional Protocol to
the CCPR 36; it concludes with recommendations “towards the universal
abolition of the death penalty” 37.
   66. This factual context, in my perception, cannot simply be over-
looked in the handling by the ICJ of the present case of Jadhav. One can-
not at all dissociate the violation of the individual human right under
Article 36 (1) (b) of the VCCR rightly established by the ICJ in the pres-
ent Judgment 38 from its eﬀects on the human rights under Articles 6 and
14 (right to life and procedural guarantees) of the CCPR. It is, in my
view, a duty to consider these eﬀects, so as to render possible the proper
and necessary consideration of redress (Part XI, infra).

              IX. The Death Penalty and the Large Extent
                   of the Harm Done to Human Rights

   67. In the present case of Jadhav, however, the ICJ has pursued a very
restrictive reasoning in light of its ﬁnding of jurisdiction (para. 38) under
Article I of the Optional Protocol to the VCCR. The Court is used to
being attentive in particular to the “will” of States. In my understanding,
the fact that its jurisdiction is grounded thereon, does not mean that it
can only consider the breaches of rights under Article 36 of the VCCR, in
isolation. Not at all; in my understanding, should the Court have consid-
ered the interrelationship of the violation it established of Arti-
cle 36 (1) (b) of the VCCR with human rights aﬀected under the CCPR
as well. They are all interrelated.

     35Cf. UN doc. A/HRC/39/19, of 14 September 2018, pp. 1-17.
     36Ibid., pp. 5-6, para. 10.
    37 Ibid., p. 16, para. 48.
    38 In the present Judgment, the ICJ establishes the breach by the respondent State of

the individual’s right under Article 36 (1) (b) of the VCCR (para. 102), as well the breach
of its obligations to the consular oﬃcers of the applicant State under Article 36 (1) (a) and
(c) of the VCCR (para. 119).

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483                   jadhav (sep. op. cançado trindade)

   68. In its present Judgment in the case of Jadhav, the ICJ makes brief
and rather restrictive references to related human rights under the CCPR
(paras. 36, 125-126 and 135), observing that it is beyond its jurisdiction to
consider them in the cas d’espèce, as its jurisdiction “is limited to the
interpretation and application” of the VCCR. I do not at all share such a
strict outlook. One cannot simply make abstraction of the eﬀects of the
breach of Article 36 (1) (b) of the VCCR on interrelated human rights of
the victim under the CCPR, which are also part of customary human
rights law. Such a restrictive view overlooks the interrelationship between
law and justice.
   69. Law and justice come indeed together, and one cannot simply close
one’s eyes to aﬀected rights, which have in eﬀect been addressed in the
course of the present proceedings. After all, in the present case of Jadhav,
both Contending Parties (India and Pakistan) are States parties to the
CCPR 39, and some of the rights thereunder (e.g., Articles 14 and 6) have
been aﬀected. As their corresponding provisions are also part of general
international law, the ICJ could and should have considered and exam-
ined them. This being so, one cannot make abstraction of the rights under
the CCPR aﬀected by the established violation in the cas d’espèce of Arti-
cle 36 (1) (b) of the VCCR.

  70. In this understanding, moreover, it should not pass unnoticed that,
in their written and oral arguments presented to the ICJ in the present
case of Jadhav, both Contending Parties have made references also to
aﬀected human rights under the CCPR. India has done so to a much
greater extent, in its Memorial 40, its Reply 41 and its oral arguments 42;
and Pakistan has also referred to them in its Counter-Memorial 43, and its
oral arguments 44. A consideration of those rights is essential for an assess-
ment of the eﬀects of the breach of the right under Article 36 (1) (b), as
well as of the importance of providing redress (cf. Part XI, infra).

   39 India became party to the CCPR in 1979, and Pakistan in 2010, but neither of them

are parties to the Second Optional Protocol to the CCPR.
     40Memorial of India, pp. 4-5, paras. 18-25 ; p. 10, para. 39 ; p. 19, para. 78 ; p. 38,
paras. 130-131 ; pp. 40-42, paras. 140-143 ; pp. 47-48, paras. 157-158; pp. 55-57,
paras. 164-168; p. 59, para. 173; pp. 60-61, paras. 175-179; p. 79, para. 192; p. 83, para. 204;
p. 86, paras. 211-212; p. 88, para. 214.
   41 Reply of India, p. 16, para. 47 (c).
   42 CR 2019/1, of 18 February 2019, p. 26, para. 83; pp. 35-38, paras. 127-139; pp. 41-46,

paras. 150-163; p. 57, para. 195; p. 59, para. 204; and CR 2019/3, of 20 February 2019,
p. 11, para. 21; pp. 34-35, para. 2 (a); and p. 35, para. 5 (iii).
   43 Counter-Memorial of Pakistan, pp. 27-28, para. 91; and pp. 111-112, para. 387.
   44 CR 2019/2, of 19 February 2019, p. 47, para. 100.

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484                       jadhav (sep. op. cançado trindade)

                       X. Long-standing Humanist Thinking:
                     Cruelty of the Death Penalty as a Breach
                                 of Human Rights

   71. Underlying the corpus juris gentium condemning the wrongfulness
in the death penalty as a breach of human rights (supra), there are the
foundations of humanist thinking, which in my view cannot be over-
looked: for a long time such precious thinking has been warning against
the cruelty of the death penalty, and calling for its abolition all over the
world. After all, an arbitrary deprivation of life can occur by means of
“legal” actions and omissions of organs of the State on the basis of a law
which by itself is the source of arbitrariness.
   72. For a long time humanist thinking has emerged against State arbi-
trariness in this context 45. Thus, it may be recalled that, e.g., already in the
eighteenth century, in his classic book Dei Diritti e delle Pene (1764),
Cesare Beccaria warned :
             “Which right can these [men] confer upon themselves to break into
          pieces their fellowmen? (. . .) Who has wished to leave to other men
          the discretion to make one die? (. . .) The death penalty is not useful
          for the example it gives to men of atrocity. (. . .) [A]ll the more dread-
          ful as legal death is inﬂicted with a studious and planned formality.
          It seems absurd that the laws, that is, the expression of the public will,
          which detest and punish murder, commit it themselves, and, to sepa-
          rate the citizens from the intention to kill, order a public murder.” 46

     45In a more distant past, e.g., the Renaissance humanist philosopher Thomas More
(author of Utopia, 1516) was himself unjustly condemned to death; he was beheaded on
6 July 1535, facing it naturally, in the belief that one may lose one’s head without being
spiritually harmed (for an account, cf., e.g., H. Corral Talciani, El Proceso contra Tomás
Moro, Madrid, Ed. Rialp, 2015, pp. 107-111). His execution followed the ancient historical
example of the inﬂuential philosopher Socrates, who was likewise unjustly condemned to
death; Socrates preferred to die with injustice (drinking the poison) in 399 bc, than to
commit injustice. Sensitive to this sad occurrence of his mentor and friend, Plato wrote,
some years later, his Apology of Socrates (circa 390-385 bc), wherein the philosopher
himself rebutted the arguments of his accusers and boldly assumed the unjust sentence. In
this classical defence of Socrates, Plato referred to the victim’s last address to the court that
wrongly condemned him to death, in which Socrates pondered, inter alia, that

          “[n]o one (. . .) should try to escape death by any means he can devise. (. . .)

          [T]he diﬃcult thing is not to avoid death, more diﬃcult is avoiding viciousness,
          because viciousness is a faster runner than death” (lines 39a-39b).
     46
     C. Beccaria, De los Delitos y de las Penas (1764), Madrid, Alianza Ed., 2000 (reed.),
Chap. 28, pp. 81 and 86-87. In his comment, of 1766, on the aforementioned work of
C. Beccaria, Voltaire underlined the deep pain — “much more terrible than that of
death” — of the uncertainty and waiting, and pondered that “the reﬁned punishments
which human knowledge has invented in order to make death horrible, seem to have been

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485                   jadhav (sep. op. cançado trindade)

   73. In sequence, in the ﬁrst half of the nineteenth century, Victor
Hugo, through his book Le dernier jour d’un condamné [The Last Day of
a Condemned Man] (1829), referred himself to, and heavily condemned,
judicial executions as “public crimes”, which badly aﬀected all members
of the “social community” 47. In upholding his view, Hugo was motivated
by his own life experience when he was younger. Three years after the
original appearance of his book in 1829, he included a preface in its
reedition of 1832 (reproduced from then onwards), making therein quite
clear that his book was meant to be a manifesto for the abolition of the
death penalty 48. In his own words, he added :
         “When one of those public crimes, called legal executions, was com-
      mitted, his conscience told him that he was not conjointly liable; and
      he no longer felt that drop of blood on his forehead which spurted from
      La Grève upon the head of every member of the social community.
         But this was not enough. To wash one’s hands is good, but to stop
      the ﬂow of the blood is better.
         He knows no higher, no holier, no nobler aim than this,—to strive
      for the abolishment of capital punishment . . ., and enlarge as much
      as possible the gash made by Beccaria, sixty years ago, on the old
      gallows which has stood for so many centuries over Christen-
      dom . . . capital punishment is one of the instruments which [a revo-
      lution] is most loath to give up. 49
  74. In his own view, the death penalty was a “barbarous punishment”,
challenging the “inviolability of human life”; it amounts to “most irrepa-
rable of irreparable punishments”, as, in executing a person, Hugo added,
“you behead his whole family. And here, again, you kill innocent
beings” 50. Present and future societies, in his perception, call for the end
of the death penalty given its cruelty. This critical humanist position was
pursued by other inﬂuential thinkers.
  75. Thus, later on, in the second half of the nineteenth century, another
universal writer, Fyodor Dostoevsky, in his Memoirs from the House of

invented by tyranny rather than by justice”; cit. in ibid., pp. 129 and 149. In another essay,
The Price of Justice (1777), Voltaire again referred to the “deep pain” which prison is,
and added that one should not punish murder with another murder, as “death repairs
nothing”; Voltaire, O Preço da Justiça, São Paulo, Martins Fontes, 2001, pp. 17-19 and
101; to him, the raison d’Etat was nothing but an “expression invented to serve as an excuse
to the tyrants”; ibid., p. 80.
   47 Cf. Victor Hugo, The Last Day of a Condemned Man (1829), Dover Publications;

Victor Hugo, Romans, Vol. I, Paris, Eds. Seuil, 1963 (reed.), pp. 218, 220 and 234.
   48 Cf. ibid., p. 205.
   49 Ibid., p. 206.
   50 Ibid., pp. 205-208 and 211-213. Also cf. Victor Hugo, The Last Day of a Condemned

Man (1829), Dover Publications, Preface, pp. xvi and xxx. Hugo’s abolitionist position and
plea, to put an end to the death penalty, are recalled even nowadays: cf., e.g., R. Badinter,
Contre la peine de mort, Paris, Fayard, 2006, pp. 272 and 294 (“le vœu de Victor Hugo”).
Hugo’s book has been reedited ever since; cf., recently, e.g., V. Hugo, Le dernier jour d’un
condamné [The Last Day of a Condemned Man], Paris, Gallimard, 2017 (reed.), pp. 15-175.

71

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the Dead (1862), expressed himself eloquently against the “unlimited
power” of certain individuals over others, generator of the brutality and
perversion which contaminated society as a whole ; to him, this is the case
of the corporal punishments, applied amidst the indiﬀerence of the soci-
ety “already contaminated” and in a state of decomposition 51.
   76. Dostoevsky dwelt further upon the matter, in one of his subse-
quent books, The Idiot (1869). He pondered therein, that the death pen-
alty, — was an “outrage on the soul”, — that the worst pain is not in the
“bodily suﬀering”, but rather in waiting for the execution, the moment
when “the soul will leave the body” and one will cease to be a human
being ; and he added :
             “To kill for murder is punishment incomparably worse than the
          crime itself. Murder by legal sentence is immeasurably more terrible
          than murder by brigands. (. . .) There is the sentence, and the whole
          awful torture lies in the fact that there is certainly no escape, and there
          is no torture in the world more terrible.” 52

   77. At that time, the jurist Rudolph von Ihering, in his classic mono-
graph The Struggle for Law (1872), in referring to capital punishment,
observed that “the judicial murder, as our German language perfectly
calls it, is the true mortal sin of the law” 53. In his perception, a legal
regime which orders to kill, resorting to the same methods of total elimi-
nation that it condemns in the acts of the murderers, is deprived of cred-
ibility. One should not lose sight of the fact that, underlying legal norms,
there is a whole system of values 54.
   78. In the mid-twentieth century, Albert Camus warned, in his pene-
trating Reflections on the Guillotine (1957), that “the Talión is of the order
of nature and instinct”, and not of law, which, “by deﬁnition, cannot
obey the same rules than nature. If murder is in the nature of man, the
law is not made to imitate or reproduce this nature”, but to correct it.
Even if one admits the arithmetic compensation of one death (that of the
victim) by another (that of the criminal), the execution of capital punish-
ment is not simply the death, as it adds to this latter a regulation, an
organization, a “public premeditation”, which are “a source of moral suf-
ferings more terrible than death”, there being, thus, no equivalence 55.

     51In his same book Memoirs from the House of the Dead (1862), he warned that the
degree of civilization achieved by any society could be evaluated by entering into its prisons;
F. Dostoevsky, Memoirs from the House of the Dead, Oxford University Press, 1983 (reprint).
    52 F. Dostoevsky, The Idiot (1869), Ware/Hertfordshire, Wordsworth Ed., 2010

(reprint), pp. 19-20.
    53 R. von Ihering, La Lucha por el Derecho (1872), Madrid, Ed. Civitas, 1989 (reprint),

p. 110.
    54 The punishments also reﬂect the scale of values prevailing in a given social milieu;

cf. R. von Ihering, El Fin en el Derecho (1877), Buenos Aires, Omeba Ed., 1960, p. 236.
    55 A. Camus, “Réﬂexions sur la guillotine”, in A. Camus and A. Koestler, Réflexions

sur la peine capitale, Paris, Calmann-Lévy, 1979 (reprint 1997), pp. 140-141.

72

487                       jadhav (sep. op. cançado trindade)

  79. Knowing with much anticipation that he is going to be executed
(everything takes place “outside of him”), the condemned person, impo-
tent in face of the public coalition that wants his death, is “maintained in
absolute necessity, that of the inert matter, but with a conscience that is
his main enemy”. The condemned person is, in this way, Camus added,
destroyed by the waiting for the execution of the capital punishment well
before dying: “two deaths are inﬂicted upon him”, the ﬁrst one being
“worse than the other. (. . .) Compared to this deep suﬀering, the penalty
of Talión appears still as a law of civilization” 56. Yet, Camus concluded,
given the evil in the world, the right of living is necessary for “moral life”,
the deprivation of which should be outlawed 57.
  80. Still in the mid-twentieth century, the jurist Gustav Radbruch, in
his last years of teaching in Heidelberg, formulated an eloquent defence
of jusnaturalism, with incursions into both international law and penal
law 58. It ought to be asked, Radbruch pondered,
          “what does the penalty mean for those in charge of imposing it and
          executing it, for the whole society, since this latter could also end up
          debilitated in its values by means of the imposition of inhuman pen-
          alties. (. . .) The death penalty, just like all corporal punishments, (. . .)
          is reproachable from the human point of view, as it downgrades man
          to the category of a purely corporal being.
           . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

     56   Cf. op. cit. supra note 55, pp. 143 and 146.
     57   In his own words, marked in my view by wisdom, he rightly pondered:
              “There are no just people — merely hearts more or less lacking in justice. Living
          at least allows us to discover this and to add to the sum of our actions a little of the
          good that will make up in part for the evil we have added to the world. Such a right
          to live, which allows a chance to make amends, is the natural right of every man, even
          the worst man . . . Without that right, moral life is utterly impossible . . . There will
          be no lasting peace either in the heart of individuals or in social customs until death
          is outlawed.” (Ibid., pp. 159-160, 164, 166 and 170.)
    58 Cf. also, on the matter, e.g., Association Internationale Vitoria-Suárez, Vitoria et

Suárez — Contribution des théologiens au droit international moderne, Paris, Pedone, 1939,
pp. 3-170 ; L. Le Fur, “La théorie du droit naturel depuis le XVIIe siècle et la doctrine
moderne”, 18 Recueil des cours de l’Académie de droit international de La Haye (1927),
pp. 297-399 ; A. A. Cançado Trindade, O Direito Internacional em um Mundo em Trans-
formação, Rio de Janeiro, Ed. Renovar, 2002, pp. 540-550 and 1048-1109. On the services
rendered by jusnaturalism, G. Radbruch wrote that it “opened the eyes to humanity
about its own chains, teaching it thus to shake them. It fought servitude, in the name of
the inalienable human right to freedom (. . .); it undermined the absolutism of govern-
ments (. . .). It safeguarded the personality against the arbitrariness of police abuses and
it proclaimed the idea of the rule of law (Estado de Derecho); it fundamentally corrected
penal law, in ﬁghting justice based upon arbitrariness and establishing certain types of
delict; it eliminated, as incompatible with human dignity, the corporal punishments of
mutilation, it put an end to torment in penal procedure and persecuted those who perse-
cuted witches.” (G. Radbruch, Introducción a la Filosofía del Derecho, 3rd ed., Mexico/
Buenos Aires, Fondo de Cultura Económica, 1965, pp. 112-113.)

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488                     jadhav (sep. op. cançado trindade)

             The changes which become landmarks in the history of law are
          determined, more than by any other factor of juridical thinking, by
          the transformations that the image of man experiences, such as the
          legislator conceives it. (. . .) Every legal order has to start necessarily
          from a general image, of an average type of man. (. . .) The respect
          for subjective rights is almost as important for the legal order as the
          compliance with the legal duties.” 59

  81. Shortly afterwards, in the 1960s, L. Recaséns Siches confessed his
anguish in face of retribution as justiﬁcation of the penalty (lex talionis),
warning that one is to be watchful as to the failings of human justice and
the irreparable character of judicial error 60. In his major work, Recaséns
Siches went further, discarding the “objective idea” of retribution 61, in
support of the necessary individualization of the penalty as an inherent
faculty of the exercise of the judicial function.

   82. Also in the 1960s, Marc Ancel identiﬁed the tendency, already then
discernible, of the gradual general abandonment of the so-called “manda-
tory character” of the death penalty 62 (clearly in Western Europe and
Latin America), and which persisted then only in a very small number of
countries. Ancel observed that the anguish generated by the retributive
punishment of the death penalty derived from the ancient lex talionis, was
being contained, due to its gradual disappearance, under the new inﬂu-
ence of the “philosophy of human rights” and “humanist aspirations” 63.
   83. As it can be seen, lucid jurists, philosophers and writers, in con-
demning the wrongfulness of the death penalty, have converged in mak-
ing it clear that law and justice come together, they cannot be separated
one from the other. It is necessary to keep this point always in mind,
including in our World Court, which is the International Court of Justice.
Yet, there have been occasions when, at domestic law level, certain tribu-
nals (such as military courts) only focus on methods to render their deci-
sions eﬀective, making abstraction of values.

     59Cf. op. cit. supra note 58, p. 156. To the author, the death penalty was, in historical
perspective, the “ﬁnal point” of a series of punishments, above all corporal (including the
penalty of mutilation), — and is nowadays a remnant of those punishments, — which “is
separated from the other types of penalty by an insurmountable abyss”; G. Radbruch,
Introdução à Ciência do Direito, São Paulo, Martins Fontes, 1999, pp. 111-112.
    60 L. Recaséns Siches, “La Pena de Muerte, Grave Problema con Múltiples Facetas”,

A Pena de Morte (International Colloquy of Coimbra of 1967), Vol. II, Coimbra, Univer-
sity of Coimbra, 1967, pp. 12, 14-17 and 19-20.
    61 L. Recaséns Siches, Panorama del Pensamiento Jurídico en el Siglo XX, Vol. II

(1st ed.), Mexico, Edit. Porrúa, 1963, p. 796.
    62 M. Ancel, Capital Punishment (1962), N.Y., United Nations Department of

Economic and Social Aﬀairs, 1968 (reed.), p. 13.
    63 M. Ancel, “Capital Punishment in the Second Half of the Twentieth Century”,

2 Review of the International Commission of Jurists (1969), pp. 33 and 39-41, and
cf. pp. 37-38.

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489               jadhav (sep. op. cançado trindade)

   84. The fact that such methods, when utilized by the public power,
seem conﬁrmed by positive law, in my view in no way justiﬁes them. In
my perception, legal positivism has always been a subservient servant of
established power (irrespective of the orientation of this latter), paving
the way for decisions that do not realize justice. This is a distortion that
no true jurist can ignore. Law cannot prescind from justice. Law and jus-
tice come ineluctably together.

               XI. The Importance of Providing Redress

   85. In order to keep law and justice together, one cannot accept being
restrained by legal positivism: one is to transcend its regrettable limita-
tions. In the present separate opinion, I ﬁnd it necessary to address like-
wise, at this stage, the issue of redress for the unlawful act established by
the ICJ in the present case of Jadhav, ensuing from the breach of Arti-
cle 36 (1) (b) of the VCCR. The necessary redress is meant to wipe out all
consequences of the unlawful act, i.e., in the cas d’espèce, the condemna-
tion of Mr. K. S. Jadhav to death by a military court.
   86. Redress, in my own understanding, goes well beyond the simple
“review and reconsideration”, as ordered by the ICJ, of the death sen-
tence of the military court following a breach of consular law. The State’s
duty of redress encompasses putting an end to the unlawful act as well as
preventing any continuing eﬀects ensuing therefrom. It is, in sum, a duty
of restoration of the situation existing before the occurrence of the unlaw-
ful act.
   87. In my perception, “review and reconsideration”, repeated by the
ICJ in the present case of Jadhav, in the line of its previous decisions in
the cases of LaGrand (2001) and of Avena (2004), are manifestly insuﬃ-
cient and inadequate, leaving the whole matter in the hands of the respon-
dent States at issue. As I have pointed out from the start of the present
separate opinion, resolutory points Nos. (7) and (8) of the dispositif of the
present ICJ Judgment are insuﬃcient.
   88. As the Court, once again in its case law, has ordered “review and
reconsideration”, it should moreover have taken care of overcoming their
limitation in the present case of Jadhav, so as to make clear that a reitera-
tion of the death penalty is discarded. In my understanding, Pakistan’s
eﬀective “review and reconsideration” of the death sentence at issue
against Mr. K. S. Jadhav cannot constitute again a death sentence. There
are three compelling reasons for this.
   89. First, as already clariﬁed, there is evidence that there is an evolving
customary international law of prohibition of the death penalty, as sus-
tained by an opinio juris communis (cf. supra). There are nowadays, as
already observed, international treaties on the abolition of the death pen-
alty (para. 48, supra). There remain some States, however, that in practice
seem to overlook this relevant development, in keeping on applying the
death penalty ; yet, they cannot at all pretend to exclude themselves from

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490                      jadhav (sep. op. cançado trindade)

the evolving customary international law in prohibition of the death pen-
alty. This would amount to a breach of it, in the present case interrelated
with the breach of Article 36 (1) (b) of the VCCR.

   90. Secondly, the ICJ, as “the principal judicial organ of the United
Nations” (Article 92 of its Charter), is bound to uphold the progressive
development of international law in prohibition of the death penalty. The
United Nations itself has endorsed such development (cf. supra). Among
the aforementioned international instruments, may I here single out that
the Second Optional Protocol to the UN Covenant on Civil and Political
Rights 64, provides for the abolition of the death penalty, recognizing that
such abolition contributes to the protection of the right to life. The ICJ,
as the principal judicial organ of the United Nations, is to render justice
in line with the progressive development of international law as applica-
ble in the cas d’espèce, determining the abolition of the death penalty.

   91. Thirdly, one must also turn attention to the basic principle of good
faith (bona fides). In eﬀect, in the present case no records have been pro-
vided to the ICJ as to Mr. K. S. Jadhav’s trial by a military court ; there
is lack of evidence of due process of law and observance of his fundamen-
tal human right to life. Lack of due process and a fair trial ensue from the
respondent State’s breach of its obligation to provide information on
consular assistance (Article 36 (1) (b) of the VCCR), established by the
ICJ (Judgment, paras. 140-141 and 143). The prosecution, conviction and
sentencing of Mr. K. S. Jadhav in such circumstances disclose a lack of
bona fides.

   92. In the present Judgment in the case of Jadhav, the ICJ stated that
“it is not clear whether judicial review of a decision of a military court is
available on the ground that there has been a violation of the rights set
forth” in Article 36 (1) of the VCCR (para. 141). It further asserted that
there is “no evidence before the Court” as to the outcome of Mr. K. S. Jad-
hav’s petitions or appeals of mercy (para. 140), and added that “[no] evi-
dence has been submitted to the Court regarding the presidential clemency
procedure” (para. 143).
   93. The ICJ, though overtaken by such uncertainties, nonetheless
points to “remedies” essentially at domestic law level (paras. 134-139, 142
and 144-148), limiting itself to “review and reconsideration” of the death
penalty. In view of the lack of evidence before it, I ﬁnd its position on this
     64   Of 15 December 1989, having entered into force on 11 July 1991.

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491               jadhav (sep. op. cançado trindade)

particular point unsatisfactory, if not untenable. My own position is that
the facts of the present case of Jadhav, as presented to the Court, bar the
execution of the death penalty against Mr. K. S. Jadhav, and call for
redress for the violation of Article 36 (1) of the VCCR.

                   XII. Epilogue: A Recapitulation

   94. From all the preceding considerations, it is crystal clear that my
own reasoning goes well beyond that of the ICJ in the present Judgment
on the case of Jadhav, in respect of the points examined in the present
separate opinion. This being so, I deem it ﬁt, last but not least, to reca-
pitulate with clarity all the interrelated points that I have examined
herein, in my present separate opinion. My position, as seen, is grounded
above all on issues of principle, to which I attach much importance, in the
search for the realization of justice.
   95. Primus : Along the last two decades a reassuring jurisprudential
construction has emerged and developed, as from the pioneering Advi-
sory Opinion No. 16 (1999) of the IACtHR, on the right to information
on consular assistance (Article 36 of the VCCR) as directly related to the
international law of human rights. Secundus : This right under Arti-
cle 36 (1) (b) of the VCCR is related in particular to the right to life and
the guarantees of due process of law (Articles 6 and 14 of the CCPR).

   96. Tertius : In sequence, the Advisory Opinion No. 18 (2003) of the
IACtHR constructed on the basis of the evolving concepts of jus cogens
(encompassing the fundamental principle of equality and non-
discrimination) and obligations erga omnes of protection. Quartus : Sub-
sequent to the Advisory Opinion No. 16 (1999) of the IACtHR, the ICJ,
for its part, adjudicated the cases of LaGrand (2001), Avena (2004), and
now Jadhav (2019) ; in the contentious proceedings of these three cases,
the applicant States brought to the attention of the ICJ the historical
importance of the construction of the pioneering Advisory Opinion
No. 16 (1999) of the IACtHR, — not taken into account by the ICJ in its
three aforementioned Judgments.
   97. Quintus : Yet, in its Judgments in the three cases of LaGrand, Avena
and Jadhav, the ICJ acknowledged the “individual rights” under Arti-
cle 36 of the VCCR, but it avoided to consider their character as of
human rights. Sextus : In eﬀect, the individual rights under Article 36 of
the VCCR are directly related to the right to life and to the human rights
to due process of law and a fair trial (as under the CCPR, Articles 6
and 14).

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492               jadhav (sep. op. cançado trindade)

   98. Septimus : There was no reason for the ICJ to have adopted its
insuﬃcient approach to the matter in its Judgments in the cases of
LaGrand, Avena and Jadhav. Octavus : Beyond what the ICJ has held,
there is an ineluctable interrelationship between the right to information
on consular assistance and the human rights to due process of law and
fair trial, with an incidence on the fundamental right to life.

  99. Nonus : There is need to proceed in this constructive hermeneutics,
so as to keep on fostering the current historical process of humanization
of consular law, and, ultimately, of international law itself. Decimus :
There is a corpus juris gentium (international treaties and instruments,
and general international law) on the wrongfulness in the death penalty
as a breach of human rights. Undecimus : There is likewise the case law of
the IACtHR to this eﬀect.

   100. Duodecimus : There has been a consistent and strong condemna-
tion of the death penalty at world level, expressed in initiatives and
endeavours in the United Nations. Tertius decimus : In face of the death
penalty and the large extent of the human harm done to human rights,
the ICJ has pursued (as from its own jurisdiction) a very restrictive rea-
soning. Quartus decimus : It is to be kept in mind that law and justice
come together, this being essential when human rights are aﬀected.

   101. Quintus decimus : For a long time humanist thinking has emerged
against State arbitrariness in the execution of the death penalty. Sextus
decimus : There is, in eﬀect, a long-standing humanist thinking on the part
of lucid jurists, philosophers and writers, condemning the wrongfulness in
the death penalty, and converging in making it clear that law and justice
come together, and cannot be separated one from the other ; their inter-
relationship is ineluctable.
   102. Septimus decimus : Even when the death penalty is executed in
conformity with positive law, despite its arbitrariness, this in no way justi-
ﬁes it ; after all, legal positivism has always been a subservient servant of
established power (irrespective of the orientation of this latter), paving
the way for decisions that do not realize justice. Duodevicesimus : No such
distortions can be acquiesced with, as positive law cannot prescind from
justice.
   103. Undevicesimus : Accordingly, it is necessary to address the issue of
redress for the unlawful act established by the ICJ in the present case of
Jadhav, ensuing from the breach of Article 36 (1) (b) of the VCCR. Vic-
esimus : The necessary redress is meant to wipe out all consequences of
the unlawful act (the condemnation of Mr. K. S. Jadhav to death by a
military court). Vicesimus primus : Redress in the cas d’espèce goes well
beyond the simple “review and reconsideration”, as ordered by the ICJ,
of the death sentence of the military court following a breach of consular
law.

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493               jadhav (sep. op. cançado trindade)

  104. Vicesimus secundus : The State’s duty of redress amounts to resto-
ration of the situation existing before the occurrence of the unlawful act,
encompassing putting an end to it and preventing any continuing eﬀects
ensuing therefrom. Vicesimus tertius: “Review and reconsideration”, once
again repeated by the ICJ in the present case of Jadhav (like earlier in the
cases of LaGrand and of Avena), are manifestly insuﬃcient and inade-
quate, leaving the whole matter in the hands of the respondent State.

   105. Vicesimus quartus : Resolutory points Nos. (7) and (8) of the dis-
positif of the present ICJ Judgment are insuﬃcient. Vicesimus quintus :
Pakistan’s eﬀective “review and reconsideration” of the death sentence
against Mr. K. S. Jadhav cannot constitute again a death sentence. Vic-
esimus sextus : There is nowadays an evolving opinio juris communis on
the prohibition and the abolition of the death penalty. Vicesimus septi-
mus : The ICJ, as the principal judicial organ of the United Nations, is to
render justice in line with the progressive development of international
law on the prohibition and the abolition of the death penalty.

   106. Vicesimus octavus : The prosecution, conviction and sentencing to
the death penalty of Mr. K. S. Jadhav, in the circumstances of the cas
d’espèce, disclose a lack of bona fides. Vicesimus nonus : In the present
Judgment in the case of Jadhav, the ICJ has acknowledged the lack of
evidence as to the availability of judicial review of a decision of a military
court, and the outcome of Mr. K. S. Jadhav’s petitions or appeals of
mercy or clemency.
   107. Trigesimus : Given such uncertainties, “remedies” essentially at
domestic law level, as contemplated by the ICJ in limiting itself to “review
and reconsideration” of the death penalty, disclose an unsatisfactory, if
not untenable, position. Trigesimus primus : The facts of the present case
of Jadhav, as presented to the ICJ, bar the execution of the death penalty
against Mr. K. S. Jadhav, and call for redress for the violation established
of Article 36 (1) of the VCCR.

                      (Signed) Antônio Augusto Cançado Trindade.

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