It was in the early days of June, while on a visit to my native country Trinidad and Tobago, that I learned about the sad passing of Judge Antonio Augusto Cançado Trindade. Although I never met the learned Judge in person, as a sitting Member of the International Court of Justice (ICJ) for well over a decade, I felt like I “knew” him vicariously through his work at this august institution. There are three reasons why I gravitated towards the esteemed Judge (and these reasons ascend in importance tremendously in chronological order). The first reason is that one of his names – “Trindade” – makes me feel somewhat nostalgic as it reminds me of the name of my beloved island. Secondly, coming from the GRULAC (Group of Latin America and Caribbean countries), I was pleased that our region was represented by a Judge of such a high intellectual calibre and international standing. Thirdly, I was impressed by the Judge’s academic career and the quality of his judgments handed down, first at the Inter-American Court of Human Rights and later at the ICJ. For all intents and purposes this essay will focus on the third reason.
Antonio Augusto Cançado Trindade was born in 1947, in Belo Horizonte, Brazil to a family of medical doctors. He obtained a Bachelors’ degree in law from the Federal University of Minas Gerais (receiving the First Prize in Civil Law in 1969). He later obtained an LLM (1973) and a PhD (1977), both in International Law, at the University of Cambridge. For his PhD thesis on “Developments in the Rule of Exhaustion of Local Remedies in International Law” he was awarded the coveted Yorke Prize. Following his university success were a series of academic appointments and Visiting Professorships which included: Professor of Public International Law at the University of Brasilia, Lecturer at The Hague Academy of International Law, Lecturer at the International Institute of Human Rights in Strasbourg and Lecturer at the Academy on Human Rights and Humanitarian Law at Washington D.C.
In terms of judicial appointments, he was elected as a Judge of the Inter-American Court of Human Rights in 1995, serving as its President between 1999 and 2004. In February 2009, Judge Trindade became a member of the ICJ. Having been re-elected to the Court in February 2018, his term of office was due to expire in 2027. In a press release issued by the ICJ a day after his demise, the Court expressed that the late Judge “led an illustrious career in the fields of international law and human rights.” This is evinced not only by his judicial pronouncements, but also by his broad publication of scholarly work. His curriculum vitae states that he authored 78 books and some 790 monographs, including contributions to books, essays and articles on international law which were published in numerous countries and in several languages. It therefore comes as no surprise that fellow countryman, Rodolfo Ribeiro, described the Judge as “a towering figure of international law” and one whose “inexhaustible intellectual curiosity and deep passion for international law were only matched by his kindness and humility.” Such an apt description is evidently seen in the Judge’s judicial pronouncements.
While presiding at the Inter-American Court of Human Rights, the Judge’s consistent reasoning on jus cogens principles (peremptory norms) and their application to distinct human rights has been very instructive. For example, in his 1998 landmark judgment of Blake v Guatemala, the Judge viewed the prohibition of torture as an international jus cogens rule. In Advisory Opinion No. 18, the Judge, now sitting as President of the Court, held that under international human rights law jus cogens also applied to the principles of equality and non-discrimination. In this Advisory Opinion, Judge Cançado Trindade was swift to add that human rights do not belong to the domain of jus dispositivum and therefore cannot be considered as simply “negotiable”. On the contrary, human rights are of a higher status, and permeate both the national and international legal order. Judge Cançado Trindade continued expressing his views on jus cogens while sitting as Judge of the ICJ. In his Separate Opinion in the Legal Consequences of the Separation of The Chagos Archipelago From Mauritius in 1965 he addressed, as a matter of importance, the jus cogens right of peoples to self-determination.
Judge Cançado Trindade also constantly underlined the importance and the necessity of a compulsory jurisdiction of International Tribunals. In the interest of time and space, I would like to highlight his views to this effect in the ICJ case of Marshall Islands v Pakistan. Not only does his Dissenting Opinion in this case display his underlying wisdom, but also his unwavering commitment to achieve a fair and just result. In Marshall Islands v Pakistan, the Marshall Islands claimed that Pakistan had not fulfilled its obligation under customary international law to pursue good faith negotiations to cease the nuclear arms race at an early date. The case against Pakistan was brought by the Marshall Islands on the basis that Pakistan recognised the compulsory jurisdiction of the Court (art 36 (2) of the ICJ Statute). Pakistan in response claimed that the ICJ lacked jurisdiction to entertain the alleged dispute by the Marshall Islands, and consequently the latter’s application to the Court was inadmissible. One of the preliminary objections raised by Pakistan was that at the time of filing the application, there was no legal dispute existing between the two Parties. As a result, since there was no dispute, art 36(2) of the ICJ Statute could not have been invoked.
The Court, in a majority decision, agreed with Pakistan. The Court held that the determination of a dispute was a matter of substance and not a question of form or procedure, and that at the time of filing the application Pakistan was not aware that its views were positively opposed by the Marshall Islands. In arriving at this decision, the Court noted, inter alia, that the Marshall Islands failed to refer to any bilateral diplomatic exchanges between it and Pakistan.
Judge Cançado Trindade disagreed. Indeed, a strong and passionate disagreement is recorded in the opening lines of his Dissenting Opinion [at 44]:
I entirely disagree with the present Judgment… In doing so, I distance myself as much as I can from the position of the Court’s majority, so as to remain in peace with my conscience.
As to whether a dispute exists, the Judge opined that this was a matter for an “objective determination” by the Court and that “the mere denial of the existence of a dispute does not prove its non-existence.” Judge Cançado Trindade particularly noted that the majority judgment was not in line with previous ICJ decisions. One of these was the case of the Land and Maritime Boundary between Cameroon and Nigeria (1988) where the ICJ stated, in its obiter dicta, that the positive opposition of the claim of one party by the other need not necessarily be stated expressis verbis. For Judge Cançado Trindade there was a dispute, and this dispute was: whether there was a concrete breach of the customary international law obligation of nuclear disarmament. The ICJ should not have shirked its responsibility in addressing this issue on its merits.
At this point, it would be remiss of me if I did not refer to the related case of Marshall Islands v United Kingdom. There Judge Cançado Trindade’s explored nuclear disarmament in depth in his powerful Dissenting Opinion. According to the learned Judge, nuclear disarmament is a matter of concern to humankind as a whole and that the raison d’humanité (reason of humanity) prevails over the raison d’Etat (reason of the state). These words of the Judge still resonate with us today.
As an intellectual warrior for human rights and as a Judge from the Global South, we salute ICJ Judge Antônio Augusto Cançado Trindade as one of the few who possessed a truly three-dimensional view of humankind and international law (the expression “three-dimensional” originates from the celebrated writer and Nobel laureate V.S. Naipaul, who also hailed from Trinidad and Tobago). Judge Cançado Trindade’s passing comes at a time when the Pacific Island state of Vanuatu is championing a human rights and climate change ICJ Advisory Opinion at the United Nations. If this Advisory Opinion proceeds to the ICJ for a determination, it is left to our imagination what Judge Cançado Trindade’s views would be.
Judge Cançado Trindade will certainly be missed.
Justin Sobion was admitted to the Bar to practise law in Trinidad and Tobago in 2002 and later in Dominica (in 2008). After spending some time in private practice, Justin moved to diplomacy serving as First Secretary to Trinidad and Tobago’s UN Mission in Geneva, Switzerland. He also served as an Associate Human Rights Officer at the Office of the President of the UN Human Rights Council in Geneva. Justin holds an LLM in International Law (University of Cape Town) and an LLM in Environmental Law (University of Auckland). He is currently pursuing his PhD at The University of Auckland, New Zealand.