A Call for Reflections on the Legacy of Judge Cançado Trindade for the Global South

Photo Credit: Universidade Federal da Integração Latino-Americana, 2015

Judge Antônio Augusto Cançado Trindade passed away on 29 May 2022 in Brazil. Judge Cançado Trindade had been a Member of the International Court of Justice since 2009 and before that served as President to the Inter-American Court of Human Rights. In a long and illustrious career, he served as legal advisor to the Brazilian Foreign Ministry and represented Brazil in several important international conferences. He was consistently committed to international and regional cooperation and provided his international law expertise to UNDP, UNEP, UNESCO, UNHCR, OAS, IACHR, and the Council of Europe, among others. He was a professor and lecturer at numerous renowned universities, academies, and institutes, and a prolific author. The honors he received from every region and the numerous countries and languages in which he published testify to his global influence. His major contribution to the development of international law as an academic and judge is undeniable.

A central tenet of Judge Cançado’s work was that all law exists for the human being and the law of nations is no exception. His remarkable output of individual opinions consistently advocated for making the alleviation of individual suffering a primary concern of international law. He advocated for some of those most vulnerable to oppression, including undocumented migrants, refugees, Indigenous peoples, as well as the environment. He focused particularly on those persecuted by the state through massacres, unjust detention, assassination, forced disappearance, and torture, and argued for the notion of crimes of state to punish such state behavior. He thought deeply about the long-term trauma and anguish that state persecution inflicted on societies and believed that historical recognition of state atrocities was indispensable for reconciliation in the aftermath of internal conflict or mass human rights violations. For this reason, his lifelong commitment to international human rights law included an emphasis on the right to truth, the right to peace, as well as the right to development. He focused on the right of individuals to access justice domestically and internationally as a cornerstone of international human rights law and he was committed to using creatively a wide range of reparations to ensure that the needs of victims were prioritized. He took a long view of the role of the judge in disciplinary development. The richness of reasoning in his judgments reveal a dedication to the role of the judge as an educator, taking the time to explain his logic in a way that promoted further thought and debate. His judgments also provided insight into the deliberation process of the court, and they continue to shed light on the way in which individual judgments can set the trajectory for future developments in international law.

In contemplating his contribution to international law in the global South, it is worth considering the ways in which the approach of Judge Trindade aligns as well as deviates from that of Third World Approaches to International Law (TWAIL). Like many TWAILers, his judgments are interdisciplinary, turning to philosophy, literature, theology, and ethics to understand holistically the meaning of a just outcome. His commitment to protecting individuals and peoples from the selfish behavior of governing elites resonates strongly with TWAIL scholarship, much of which writes against the unrepresentative and harmful behavior of states across the global South and North. His faith in the potential of the international legal order to provide justice is also what drives the TWAIL movement. His ability to combine the rigor of academic analysis and persuasive legal argument with the zeal and inspiring rhetoric of the advocate is something all international lawyers could aspire to and learn from. Judge Trindade’s rejection of the positivist view of law, when he believed it to be necessary, is also a stance he shares with TWAIL. However, in his turn away from positivism and towards general principles of law as well as broader principles of individual justice, he had an unwavering commitment to universalism – a commitment that sat uneasily alongside the diversity of views across the global South. For instance, he was widely regarded as the major contemporary exponent of the Latin American doctrine of international law, and his work consistently shed light on the substantial influence of Latin American scholars and practitioners on the evolution of international law. Yet, he always contextualized Latin American contributions as part of building an ever more universalist discipline and did not address the ways in which such contributions also complicated, contested, and undermined such universality.

In the spirit of the rigorous intellectual debate that Judge Cançado Trindade created, fostered and enjoyed, we would welcome Reflections on his international law legacy from the point of view of the global South. Please follow TWAILR Submission Guidelines for Reflections and send your contributions to submissions@twailr.com before 31 August 2022.