07 Jun In Memoriam: Judge A.A. Cançado Trindade’s Legacy at the International Court of Justice
[Ayan Garg is a student of law at the National Law University, Delhi. He is interested in international law generally, human rights law, and refugee law.]
“It is incumbent upon all of us, the still living, to resist and combat oblivion, so commonplace in our post-modern, ephemeral times… Remembrance is a manifestation of gratitude, and gratitude is perhaps the noblest manifestation of rendering true justice.” (Separate Opinion of Judge A.A. Cançado Trindade, Case of the Moiwana Community versus Suriname (Serie C No. 124, Inter-American Court of Human Rights, 15th June 2005) ¶ 93 [quoted here])
Last month, on 29th May 2022, the international legal community was shaken by the loss of one of its most towering figures, Judge Antônio Augusto Cançado Trindade, who passed away in Brazil at the rich age of 74.
It is impossible to summarise Judge Trindade’s exceptionally distinguished career, and his vast and many contributions to public international law and human rights law, within a single blog post. Indeed, Judge Trindade wore several hats (and all of them with ease): jurist par excellence, legal adviser, ‘Latin America’s Judge Hercules’, President of the Inter-American Court of Human Rights (‘IACtHR’), author of several hundred monographs, prolific lecturer, Judge at the International Court of Justice (‘ICJ’), and—most famously—an untiring advocate for the creation of a ‘humanized’ international law. This post looks at one of Judge Trindade’s favoured mediums for advocacy and education: his several Separate Opinions.
Frequently appending declarations and dissents, and writing about 1.4 pages on average for every page that the majority wrote in their counterpart judgement, Judge Trindade was no stranger to debates over his verbosity and tendency to write separately. In his thirteen years at the ICJ bench, he authored no less than 46(!) Separate Opinions, each about 44 pages long on average: over 2000 pages of rich judicial expression. This was no surprise; at the IACtHR, Judge Trindade had been equally prolific, authoring 103 Separate Opinions between 1991 and 2008. If Judge Anzilotti was nicknamed ‘the Great Dissenter’ over his (in comparison, mere) 11 Separate Opinions, then Judge Trindade was undoubtedly the Greatest Dissenter of all time! Reading these lengthy opinions tells us much about Judge Trindade’s weltanschauung: his views on the pedagogic value in international judgements, the role of an international judge as an educator, and the potency of international law itself as a force for realizing human justice.
Starting from his very first separate opinion after his election to the bench, which dissented from the majority’s decision to not issue provisional measures in the Obligation to Prosecute or Extradite case, Judge Trindade laid out what would become his go-to reason for writing a separate opinion:
“I regret not to be able to concur with the decision taken by the majority of the Court… Given the high importance that I attach to the issues raised in the present Order, I feel obliged to present and leave on the records, in this dissenting opinion, the foundations of my position on the matter.”
This is the classic example of Judge Trindade refusing to ‘[conceal] his ethical commitments behind the veneer of legal-technical neutrality’. He wrote a lengthy dissent (36 pages, almost twice the length of the majority opinion), not under the pretext of merely upholding the correct law, but because of the importance that he attached to the issue of provisional measures. Versions of the above paragraph subsequently appeared in many of Judge Trindade’s opinions, prefacing his infamous prolegomena. Indeed, Judge Trindade never shied from hiding his personal value judgements on issues before the Court. It was perfectly acceptable for him, rather, to acknowledge the importance that issues of human suffering had for him. This was one of the reasons why he also did not shy away from referencing to his previous opinions and other academic works; after all, as Sondre Torp Helmersen has found in his The Application of Teachings by The International Court Of Justice (CUP 2019), Judge Trindade did cite himself some 297 times!
This point about self-citations now brings me to something greater. In the same book, the author found that Judge Trindade alone accounted for over a third (34%) of the ICJ’s references to ‘teachings’. This was attributed to the fact that Judge Trindade’s opinions often ventured into philosophical questions, on which strictly positivist texts had nothing to offer. I would add that his emphasis on teachings came out of his belief that the international judge is, and must be, an educator. As Andrew Drzemczewski wrote in the General Introduction to The Construction of a Humanized International Law (Brill Nijhoff 2015), Judge Trindade ‘aim[ed] at making use of his position not merely to decide the case at hand, but also to inform others – fellow judges, academics, students, and victims of human rights violations – of the intellectual basis of his views in order to promote thought, discussion and possible reform and to provide an alternative to judicial consensus.’
Finally, a note on Judge Trindade’s vision of international justice, and the international judicial process. He had the distinction of being among the few judges who write passionate separate opinions even for ‘completely routine’ Orders, such as those on the fixing of time-limits for pleadings. In a series of Declarations in the Armed Activities case (see here, here, and here), Judge Trindade infused an empathy towards human suffering into the otherwise neutral-seeming Orders on the Fixing of Time-limits. He had the unique ability of excavating layers from ‘purely legal’ cases—like an archaeologist digging out the truth—and uncovering the human dimension at the bottom of them.
Why did I choose to write about Judge Trindade’s Separate Opinions? As a (very) young student of international law, reading these opinions was how I knew of him and his profound work. Much as I would have been honoured, I never got an opportunity to talk to ‘Judge Hercules’ himself. This, then, is the only way I can pay my respects to his memory. And, after all, Judge Trindade had himself said, when asked in an interview about his intended audience for his opinions at the IACtHR:
“With regard to the development of the law, I think of the victims themselves… Above all, the victims… And I can tell you something: this has also had a great repercussion among the young generations, wherever I go… Not necessarily [only the young generations of lawyers]… Also, sometimes the young generations of human rights workers who do not have a legal background… [Y]ou know the erosion of time takes everything away. But when you know that young people learn and identify themselves with the cause that has driven us to do this, there is a feeling of continuity in time. That younger people are taking this flag that once we took up, and they’ll take this fight on in the future—and continue to defend human rights for the years to come.”
The relevance and importance of Judge Trindade’s work was perhaps best captured by Andrea Bianchi, who once ended a blog here by saying: “One could paraphrase Voltaire and say that ‘If Cançado did not exist, it would be necessary to invent him’. Not so much for… established member[s] of the profession, but for all those students who approach the study of international law and want to believe in the redeeming force of human rights and universal justice for a better world.” As one such student, I couldn’t agree more. Reading Judge Trindade’s work is a reminder, a gentle affirmation, of the reasons why so many of us are attracted to studying international law: the possibilities it holds for the realization of justice. Judge Trindade’s zeal for the protection of human rights—a youthful fervour which transcended his age—was inspiring for anybody who read him, even if they did not agree with his ideas.
It feels fitting now to close with some reflections on Judge Trindade’s legacy in his own words. Quoting extensively from the interview I have referenced above:
“[Lauri R. Tanner]: As you speak of the passing of time and passing the torch, I wonder how you see your legacy. For example, what would you like to have written in your obituary? What would you want said about what you have achieved, what you wanted to achieve?
[Judge Trindade]: I haven’t thought of that before… but when the moment comes, I would like to be at peace with myself.
[Lauri R. Tanner]: Does “being at peace” with yourself relate to your life from here forward, like possibly becoming a judge at the World Court in The Hague?
[Judge Trindade]: Yes, absolutely, it’s about the cause of justice, and the realization of justice.”
This is the legacy that Judge Trindade leaves behind: a career and a life dedicated to the realization of justice through a humanized international law. It is one that will live on long after him.