Symposium in Remembrance of Judge Antônio Augusto Cançado Trindade: “Above the Will Stands the Conscience” – Antônio Cançado Trindade’s Missionary Jurisprudence

[Jorge Contesse is Professor of Law & Director of the Center for Transnational Law at Rutgers Law School, United States.]

The passing of Judge Antônio Augusto Cançado Trindade, on 29 May 2022, shocked the Latin American international law community—and even beyond the confines of Latin America.  Cançado Trindade is among the few Latin American jurists who have held some of the most prominent positions in international law: he was a judge of the Inter-American Court of Human Rights, serving as both president and vice-president, and went on to become a member of the International Court of Justice, until his passing.  In his native Brazil, he held several positions, serving as legal adviser on international legal affairs and having a salient career as a Professor of public international law.

Judge Cançado Trindade is undoubtedly among the most—if not, the most—prolific writer of international law in Latin America.  As a scholar, he published “78 books and around 790 monographs, contributions to books, essays and articles on international law.”  As a judge of the Inter-American Court of Human Rights, which is the subject of this short commentary, he penned dozens of separate opinions.  Scholars in both Latin American and beyond are not shy to praise Judge Cançado Trindade, as “an undisputed giant of Latin American international law” (emphasis in original), “Latin America’s Judge Hercules”, a judge “leading his own revolution within public international law”, and, looking two or three decades ahead, “one of two, if not the, most influential judge on the current bench” of the ICJ, only comparable to former Judge James Crawford (here).

What made Judge Cançado Trindade such a prominent figure of Latin American international law was his vision—his “weltanschauung”, as Andrea Bianchi once put it—of “a humanized international law”, based on the notion of “a new jus gentium”.  Cançado Trindade was a jurist who saw international law, or law in general, as a collection of principles that should guide humankind towards peace and human fulfillment, a notion based on natural law and general principles, with jus cogens norms at the center of all debates on international legal obligations.  Cançado Trindade’s view of international law was not state-centric, but centered around human beings—in particular, those who are wronged.  This is why his tenure at the Inter-American Court of Human Rights, between 1995 and 2006, is so important to understand and situate his legacy, a legacy that showed, on the one hand, a relentless commitment to the rights of victims and the realization of justice; and, on the other hand, an often lack of preoccupation with the formal requirements of the law, a feature that, in my view, has had more lasting effects on the Court’s caselaw.  As he saw it, international tribunals had a “common mission” to realize justice—and his jurisprudence attests to that.

During the decade that Judge Cançado Trindade sat on the Inter-American Court, the Court handed down a number of consequential decisions, both under its contentious and advisory jurisdiction.  It is impossible to do justice to the rich jurisprudence that he articulated during his tenure as an inter-American judge, so I focus on what is, in my view, the most salient feature of his legacy: the expansion of jus cogens norms and the effects that such substantive move has had on the Court’s functions since.

As it is well-known, in 2003, at the request of Mexico, the Inter-American Court handed down its advisory opinion on the Juridical Condition and Rights of Undocumented Migrants.  The opinion was a determined (though not overt) step to challenge developments in U.S. immigration law, particularly after a 2002 decision by the U.S. Supreme Court that held that undocumented workers were not entitled to back pay as a remedy for wrongful termination for union activity.  In one of the most critical passages of the opinion, the Inter-American Court unanimously held that the principle of equality and non-discrimination had attained the status of a jus cogens norm.  Judge Cançado Trindade, as was almost routine, penned a separate opinion, in which he further elaborated his view on the emergence of this jus cogens norm, the erga onmes obligations that stemmed from such recognition, and how the Court’s opinion “contribute[d] to the current process of the necessary humanization of International Law” (para. 88).  In a striking passage of his separate opinion, Judge Cançado Trindade attempted to reformulate the doctrine of customary international law, noting that customary international law, “emanates not so much from the practice of States (not devoid of ambiguities and contradictions), but rather from the opinio juris communis of all the subjects of International Law (the States, the international organizations, and the human beings). Above the will is the conscience”.

After the opinion came down, commentators noted that the doctrine was “likely to have broad implications for the future development of international human rights law”, and would “potentially lay the groundwork for securing greater protections for unauthorized workers in the United States”.  Two decades after the adoption of the doctrine, this has unfortunately not happened: with the exception of the Inter-American Court, no other international tribunal has adopted the doctrine.  And when it comes to the protections for unauthorized workers in the United States, it’s hard to see how the past two decades have made things better for them.  If anything, things have gone backwards for immigrants and unauthorized workers in the United States.

Is the Inter-American Court, and Judge Cançado Trindade in particular, to blame for this?  Of course, not.  But the 2003 opinion marked a point where both Cançado Trindade’s jus cogens jurisprudence and the Court’s expansive approach to adjudication took off.  He embarked on a mission to expand jus cogens norms to other areas of the law, such as the right to access to justice, without a clear and solid doctrinal foundation.  In fact, the Court’s reasoning in the advisory opinion is strikingly simple (despite Judge Cançado Trindade’s description, years later, of the Court’s “extensive reasoning  . . . in its historical Advisory Opinion”).  In paragraph 101, the Court simply noted that non-discrimination was now a jus cogens norm, “because the whole legal structure of national and international public order rests on it and it is a fundamental principle that permeates all laws”.  One could say the same of the principle of good faith or the duty to respect life or the right to due process, but more is needed to render those principles peremptory norms.  

For inter-American human rights law, his naturalistic vision of law and the missionary character of international courts have had an impact that extends beyond Cançado Trindade’s time on the Court.  Let me just mention two examples.  First, the undisputed primacy of fundamental rights over popular will.  In 2011, the Court held that the popular ratification of Uruguay’s Expiry Law was in violation of the Convention, following the Court’s caselaw on the incompatibility of self-amnesty laws with the Convention.  As commentators have noted, in Gelman, the Court was not “sufficiently respectful to democracy or, more precisely, to what local communities democratically decide”.  The reason lies on the rather shallow explanation that, “democratic legitimacy of specific facts in a society is limited by the norms of protection of human rights recognized in international treaties” (para. 239).  One can easily assume that Judge Cançado Trindade would have largely agreed with such conclusion, presumably penning a separate opinion praising the Court for placing the conscience above the will. 

Second, the Court’s recent caselaw on social rights, which largely rests on the notion that the Court has a mandate to “transform” Latin American social structures.  Resorting to the iura novit curia principle, the Court—with the strong opposition of some its members—has embarked on a mission to remedy social injustice, by rendering all social rights justiciable, despite the fact that both the American Convention and its Additional Protocol do not give the Court such power.  Again, one can assume that Judge Cançado Trindade, who favored a naturalistic vision of law, and denounced legal positivism as an obstacle to the realization of justice, would have fervently supported the Court’s conclusion.

The question, however, is whether these developments make international law a more powerful tool to hold states accountable for their wrongs.  The Inter-American Court’s commitment to the realization of justice—its “transformative mandate”, as it is normally explained—risks undermining the Court’s general authority, as it places the Court beyond the parameters of the norms and principles that support the inter-American system.  Judge Cançado Trindade’s vision of international courts as missionaries is a potent one, but requires careful attention to how such mission is deployed, for international law, in general, and international courts in particular, have been under attack for some time.  In order to protect courts, and to make them stronger in a context of a rise of anti-human rights rhetoric, we will need our conscience, but also our will.  No one has made us reflect on these matters more than Judge Cançado Trindade, and to such effect we, scholars of international law, should further his relentless commitment to the international order as a vehicle for the realization of justice.