06 Dec Symposium in Remembrance of Judge Antônio Augusto Cançado Trindade: A Formalist’s Defense of Judge Antonio Cançado Trindade
[Moisés A. Montiel Mogollón is a Professor at the Faculty of Law at the Universidad Iberoamericana, Mexico City Campus and Universidad Panamericana, Guadalajara campus (Mexico).]
The late judge Antonio Cançado Trindade is often criticized by legal formalism on account of his interpretive elasticity when positive law failed to meet the most “elementary dictates of public conscience”. This piece -a homage from the enemy trenches- aims to reclaim his contributions and frame them as a necessary reminder for law-makers and operators, rigorous and meticulous in the method of law as they should be, about whom and what the law is for.
The late judge Antonio Cançado Trindade was, and will continue to be, a figure beyond indifference. Supporters and critics feel passionately about his work and legacy in international law. As a formalist by training and vocation, my reaction would be to criticize his contributions to modern international law by labelling it as judicial activism, human-rightism gone rogue, or maybe even as a proposed ‘tyranny of morality’. However, that would not be fair, and it would be a missed opportunity to explore the intent behind the judge’s flexibility when it came to law as a method.
Thinking of Cançado, I am reminded of Oswald Spengler who wrote in The Hour of Decision something along the lines of “in hatred there is a silent acknowledgment of the opponent”. While in adamant dissent with most of his views, I would not see my opinions towards the Brazilian jurist as ‘hateful’. I believe the term “collegial opposition” would be more suitable (to the extent that one can disagree with such an authoritative figure). Antonio Cançado Trindade ought to be acknowledged and his mission reclaimed, although maybe with a certain restraint when it comes to the how which is so imperative in law, lest we sacrifice the essence of the exercise to the urgency of the aims.
Judge Cançado was, until his passing, the foremost champion of international legal naturalism or -as he would have put it- humanism in our days. As Catalina Fernandez Carter observed, his extensive dissents and separate opinions at the International Court of Justice (ICJ) were probably not written for his colleagues in the bench but rather addressed ‘to the future’. Perhaps he did this on the intelligence that the present was lacking in will or structure to finish the task entrusted to international law after the end of the Second World War.
International Law: An Unfinished Project
The emergence of international human rights law and international criminal law, accompanied by the development of contemporary international humanitarian law instruments, with a newly found focus on protected categories rather than on the conduct of belligerents exclusively, signaled the -if not the first, at least the most visible- disruption of a system designed by states for states alone. In other words, it welcomed the human individual to share the quality of subject of international law. Now more than a mere object upon which law fell, this new subject obtained agency within the system, including both rights and duties. The emergence of regional human rights’ systems and their eventual admission of the legal standing of individuals to bring claims against states as well as entertaining their capacity to be convicted for the commission of international crimes leaves no doubt that PIL remembered that the raison d’etre of law is, ultimately and unavoidably, the regulation of human conduct.
Judge Cançado understood this and endeavored to find the human element to every international legal problem he had to address in his career as a judge. This was never more evident than during his tenure at the ICJ. Whenever a dispute was brought to the bench he would always display the greatest interest to the human dimensions and implications of the case, as opposed to those concerned with purely state-centric dynamics. If one could not be found or created, he would lose the urgency to make his views known as in the cases of Arbitral Award of 3 October 1899 or Maritime Delimitation in the Indian Ocean where he simply joined the majority.
Dissenting Opinions to Protect Humankind
In the cases where law could serve to further the cause of the protection of humankind, his dissents and separate opinions were lengthy, richly written, and copiously researched. For example, in the jurisdictional immunities of the State case, he adamantly opposed accepting that war crimes could possibly be understood as acta jure imperii, warranting absolute immunity from jurisdiction and shielding Germany from being subjected to civil claims brought by individuals before Italian courts seeking reparation for war crimes (paras. 172-176). The implicit conclusion is that, in his view, a state which deliberately uses the force to attack individuals ought not to enjoy the procedural benefits of statehood when, after all, the main purpose of the state is the service of its population.
In the Jadhav case, he called out the shyness of the LaGrand and Avena benches to recognize the right of access to consular assistance upon arrest as a human right instead of just as an indirect harm derived from rights appertaining to the state under the Vienna Convention on Consular Relations (paras. 27-42). Perhaps the reticence could be explained by concerns about extending the Court’s ratio personae competence which would flow from entertaining the human rights’ dimension of this illicit. Judge Cançado was having none of it. In explaining his reasoning, he used the case law of the Inter-American Court of Human Rights, as was his custom and where he developed much of the current standards dealing with the right of access to international justice for individuals. In doing so, he attempted to include ICJ in the so-called jurisprudential dialogue of human rights’ courts.
For example, in the application of the Genocide Convention case between Croatia and Serbia, he argued for the automatic application of the Genocide Convention, and its treaty obligations, to seceding states even when the (slight, insufficient, and unintelligible) blackletter law on the matter could hardly be interpreted to support such conclusion (paras. 55-84). He based his reasoning, as was his personal preference, on concerns of humanity and necessity, guided by his distinguishing brand of teleological interpretation deeply informed by humanist morality. The paucity of positive law seldom constituted an obstacle for his conclusions and, he would have, no doubt, found the proposition that the freedom principle -as enshrined in the Lotus case by the PCIJ and later taken up by the ICJ in the Nuclear Weapons and Kosovo opinions (Cançado actually issued a separate opinion on the latter)- barred such an outcome as atrocious and treacherous of the true mandate of PIL.
This latter point sums up the most common criticism of the late Judge. His borderline contempt for formalism as a method of doing law when such an exercise would run counter to the protection of human dignity, is what makes his notions difficult to embrace when one conceives international law as an amoral product of state interaction from a law-creating perspective. While his views offered a philosophically and morally consistent approach to vague concepts like “the laws of humanity and the requirements of public conscience” or the contested doctrine of the substantive dimension of jus cogens rules, they are found problematic on grounds of authority when the premise of judiciaries as lawmakers is challenged.
From a moral point of view, one would have to be inhumane to disagree with the desirability of the outcomes sought by Cançado Trindade in trying to make the protection of individuals the center and leitmotif of international law. However, that is a political question and not, strictly speaking, a legal one.
The hammer is indifferent to whether it is being used to fix a nail or break a skull. But perhaps, what ought to be acknowledged from his robust legacy is a warning not to the law but to the person who wields it and to the states that make it to always seek to humanize both norms and processes. Law devoid of morality in its conception is fertile ground for tyranny, formally valid as it may be, and thus a betrayal of the single greatest idea ever had by human society: that by binding ourselves we are free to honor the dignity in each other.