07 Dec Symposium in Remembrance of Judge Antônio Augusto Cançado Trindade: The Pursuit of a Universal Juridical Conscience & International Law for Humankind
[Cecilia M. Bailliet is Professor in the Department of Public & International Law, Faculty of Law, University of Oslo, Norway.]
In this post, the author explores how Judge Cançado Trindade presented his views of universal juridical conscience of mankind and international law for humankind in his dissenting opinions as a judge of the International Court of Justice. For the author, these concepts contribute to bringing back the mission of international law as a field that serves the people and not just state interests.
Judge Antônio Augusto Cançado Trindade considered the evolution of a universal juridical conscience to be de lege ferenda, progressing with every generation’s “search for the realization of the good in face of human suffering”. As stated in his 2020 book, International Law for Humankind: Towards a new Jus Gentium”, he blamed positivistic approaches to the interpretation of international law as decoupling values and ethics, thereby impeding international law from fulfilling social needs (page 139).
In his view, “International law is absolutely not at all reduced to an instrument at the service of power; its final addresses are ultimately the human beings, it being incumbent upon itself to fulfil their needs, among which the realization of justice. Its material “source” lies in human conscience itself (page 141).” Cançado Trindade characterized conscience as countering injustice and oppression and containing an irreducible minimum forming a recta ratio linked to Aquinas’ common good, de Vitoria’s right reason and enlightenment, and Kant’s categorical imperative (page 143). He suggested that the lack or absence of the recta ratio resulted in atrocity crimes- hence the recognition of the universal juridical conscience was necessary to establish an international law for humankind.
The humanization of international law
Cançado Trindade identified the 1948 Convention Against Genocide, the Rome Statute of the International Criminal Court, and the Inter-American Convention on Forced Disappearance of Persons, the Martens Clause of Additional Protocol II of the Geneva Conventions, the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons, and the over 70 human rights treaties as evoking conscience. Moreover, he claimed that the universal juridical conscience formed the foundation of jus cogens norms, as well as the case law of the international criminal tribunals and the international human rights courts, as well as the resolutions of the UN General Assembly, grounding the humanization of international law and legitimizing it as well (page 148).
Cançado Trindade lamented the negative consequences of the selective globalization of free movement of capital, goods, and services (but not human beings) as emanating in the marginalization and economic exploitation of vulnerable groups who flee hunger, misery, and armed conflicts instead of individualized persecution. These persons are then labeled “illegal” or “irregular migrants” and denied protection, in spite of the fact that they are human beings with basic rights.
In his concurring opinion in the Inter American Court of Human Rights’ Advisory Opinion on the Juridical Condition and the Rights of the Child, he set forth the transcendental quality of the recognition of the standing of vulnerable persons to bring claims against violations by state actors as promoting the international rule of law:
“The truth is that the international subjectivity of the human being (whether a child, an elderly person, a person with disability, a stateless person, or any other) erupted with all vigour in the legal science of the XXth century, as a reaction of the universal juridical conscience against the successive atrocities committed against the humankind (para. 29).”
Dissenting opinions to clarify the role of International Law
In his Dissenting Opinion Case of Jurisdictional Immunities of the State Germany v. Italy, he sets forth the universal juridical conscience counters state immunity against human rights violations, specifically asserting that “purported inter-State waivers of rights inherent to the human person are inadmissible ; they stand against the international ordre public, and are to be deprived of any juridical effects (para. 304).” Cançado Trindade underscores this perspective in his dissenting opinion in the ICJ in the Case of the Application of the Convention Against Genocide, Croatia v. Serbia, in which he outlines the basis for his disappointment in the majority for failing to analyze the issue of state succession for responsibility of genocide in light of the need for international justice for victims and the imperative to avoid the record of violations from falling into oblivion:
“The Genocide Convention is concerned with human groups in situations of vulnerability or defencelessness. In its interpretation and application, fundamental principles and human values exert a relevant role. There is here the primacy of the concern with the victims of human cruelty, as, after all, the raison d’humanité prevails over the raison d’Etat (para. 547).”
He expanded the scope of international law of humankind beyond human rights law and IHL/ICL to also include international environmental law, law of the sea, and law of outer space. The concept of the universal juridical conscience and international law of humankind may be linked to intergenerational equity perspectives. In turn, the recognition of intergenerational equity supports the concepts of the common heritage and common concern of humankind as basic values of the international community prompting solidarity to face global challenges (para. 349). Hence, it may argued that the universal juridical conscience and international law of humankind present a platform for law to be future oriented.
In his dissenting opinion in the Case of Marshall Islands v. United Kingdom, Cançado Trindade invokes the universal juridical conscience because “the obligation to render the world free of nuclear weapons (is) an imperative of recta ratio and not a derivative of the “will” of States. In effect, to keep hope alive it is necessary to bear always in mind humankind as a whole (para.115).” He cites the use or threat of use of nuclear weapons being a clear breach of international law, international humanitarian law, and international human rights law, due to the absolute prohibitions of arbitrary deprivation of human life, of cruel, inhuman, or degrading treatment, and of infliction of unnecessary suffering, the lack of distinction, proportionality, or necessity, and the obligation of nuclear disarmament.
He frankly states that a policy of deterrence has a “suicidal component (para. 141)”. In his view, the universal juridical conscience grounds the perspective that “A single use of nuclear weapons, irrespective of the circumstances, may today ultimately mean the end of humankind itself. All weapons of mass destruction are illegal, and are prohibited . . . The threat or use of such weapons is condemned in any circumstances by the universal juridical conscience (paras. 152 and 196).” His conclusion is resolute in its disappointment over the majority’s failure to contribute to the growing opinio juris condemning nuclear weapons as a threat to humankind:
“A world with arsenals of nuclear weapons, like ours, is bound to destroy its past, dangerously threatens the present, and has no future at all. Nuclear weapons pave the way into nothingness. In my understanding, the International Court of Justice, as the principal judicial organ of the United Nations, should, in the present Judgment, have shown sensitivity in this respect, and should have given its contribution to a matter which is a major concern of the vulnerable international community, and indeed of humankind as a whole (para. 327).”
At present it is estimated that there are 3,730 nuclear warheads which are deployed with operational forces around the world and The Atlantic recently published an article in which it cited authorities as claiming that “the risk of nuclear war today is greater than at any time since the Cuban Missile Crisis”. It is likely that petitions to other international courts will be pursued addressing nuclear weapons in relation to human rights, including the right to a healthy environment, and thus the universal juridical conscience will evolve within new emanations, as was the aspiration of Judge Cançado Trindade.