By Francisco Manuel Balbín*, Camila Maria Fiorito Nuñez** and Laianne Brasil***
* Francisco Manuel Balbín is an Argentinian lawyer who graduated with honors from the University of Buenos Aires (UBA). Exchange student at the Autonomous University of Madrid and Fulbright Scholar at The University of Texas at Austin. Teaching Assistant in Constitutional Law (UBA). Currently, working as an external consultant at the Inter-American Commission of Human Rights and at the Public Defenders´ Office of Buenos Aires, Argentina.
** Camila Maria Fiorito Nuñez is an Argentinian Lawyer dedicated to Public International Law and International Human Rights Law. With a previous background in NGO work. She holds a Law degree (J.D equivalent) from the University of Buenos Aires (UBA). She is also an Assistant Professor in Constitutional Law (UBA) and currently works as an external consultant for the Inter-American Commission on Human Rights.
*** Laianne Brasil is a Brazilian lawyer passionate about international human rights law. Graduated in Law from Federal University of Bahia (2014-2019). Currently, LLM Candidate in International Human Rights at the National University of Ireland, Galway (2021-2022). Finalizing an ongoing International Law and Human Rights specialization at Pontifical Catholic University of Minas Gerais (2020-2022).
On March 29th International Law suffered a big loss. Antonio Augusto Cançado Trindade (1947-2022), a well-known Brazilian jurist, passed away. Cançado Trindade was a vanguardist in Public International Law and International Human Rights Law and served as a judge at the Inter-American Court of Human Rights (1995-2006) and as a judge at the International Court of Justice (2009-2022). He obtained his bachelor´s degree at the Federal University of Minas Gerais, Brazil, and a Maser´s degree and a PhD in International Law at the University of Cambridge, United Kingdom. He has also served as a lecturer in numerous universities and published prominent contributions to International Human Rights Law.
Cançado Trindade promoted an idea of a humanized international public order that upholds human rights as the essential foundation of the international legal system. In this regard, the public or general order should be defined by the recognition and effectiveness of human rights as an aspiration to satisfy the needs of humanity as a whole.
In the next few lines, we would like to honor Cançado Trindade by remembering his trajectory and legacy. In particular, we address three ideas posed by Cançado Trindade: (i) to broaden the concept of jus cogens; (ii) to uphold the importance of provisional measures for International Human Rights Law, and (iii) to insist on the recognition of international tribunals´ compulsory jurisdiction.
II. Jus cogens
The Vienna Convention on the Law of Treaties defines a jus cogens rule as a peremptory norm of general international law, from which no derogation is permitted, and which is accepted and recognized by the international community of States as a whole (Article 53). In other words, the purpose of a jus cogens norm is to uphold the principles, ideas and values shared by the international community and, to simultaneously establish a limit to the States´ sovereignty.
The concept of jus cogens cannot be defined as a closed category of rules; on the contrary, its content has been expanded and has been positively developed in the jurisprudence of various international tribunals. In particular, Cançado Trindade promoted the expansion of this concept from the perspective of a humanized international law. In this short article, we mention some international jus cogens rules proposed by the Cançado Trindade. However, this does not imply that other elements such as the human right to self-determination of peoples and the international humanitarian law should be ruled out as peremptory norms.
First, Cançado Trindade insisted on recognizing the prohibition of torture as an international jus cogens rule. His position was repeatedly pronounced in the following well-known cases of the Inter-American system: Blake v. Guatemala (January 14, 1998), Barrios Altos v. Peru (March 14, 2001) and Serrano Cruz Sisters v. El Salvador (November 13, 2004), among others (Cançado Trindade, "La ampliación del contenido material del ius cogens", 2007). In those three cases, victims were illegally detained and murdered by state agents and no effective legal actions were taken to investigate and punish the perpetrators. Hence, the Inter-American Court found the States to be responsible for the violation of the right to personal integrity and the right to access to justice, among others.
Specifically, the Inter-American Court of Human Rights has defined this prohibition of torture as absolute and non-derogable, even in contexts of war, fight against terrorism or other extreme situations of necessity (Caso Hermanos Gómez Paquiyauri v. Peru, July 8, 2004). Such recognition includes not only acts of physical or psychological torture, but also the prohibition of cruel, inhuman and degrading treatment (Tibi v. Ecuador (September 7, 2004) / Hermanos Gómez Paquiyauri v. Peru (July 8, 2004).
Secondly, thanks to Cançado Trindade, the principle of equality and non-discrimination also falls within the concept of international jus cogens. Cançado Trindade, as president of the Inter-American Court, has recognized the importance of this principle as a peremptory rule in the Advisory Opinion No. 18 (September 17, 2003) of the Inter-American Court of Human Rights. He explained that the principle of non-discrimination is incorporated into international law as a jus cogens norm, so that it prevents States from discriminating as regards human rights recognition and protection, with special emphasis on international refugee law.
Thirdly, Cançado Trindade has promoted the incorporation of the right of access to justice as an international jus cogens rule (Cançado Trindade, 2007). In this sense, he stated that the right to access to justice is often the only way to achieve the full effectiveness of human rights and, therefore, must be considered an international peremptory rule (Beldeón García v. Peru. April 6, 2006). The Inter-American Court has been incorporating this idea in cases of serious human rights violations. For instance, the Court has indicated that in cases of enforced disappearance, the correlative obligation to investigate and sanction the responsible, as a way of enforcing the right of access to justice, also belongs to the category of jus cogens (Goiburú et al. v. Paraguay. September 22, 2006).
As illustrated in this section, Cançado Trindade has promoted a gradual expansion of the content of international jus cogens rules, which is one of his most important legacies to International Human Rights Law.
III. Provisional Measures
Cançado Trindade´s ideas on the juridical nature of provisional measures were of fundamental importance in the instrument's evolution in the Inter-American Court of Human Rights and, later, in the International Court of Justice (ICJ). In particular, we briefly discuss their tutelary nature in international human rights litigation and their autonomous legal regime.
A provisional measure is a procedural law instrument transposed from national to international jurisdiction that aims to preserve the integrity of the merits of a case. It also has the common purpose of maintaining the equilibrium between parties during a judgment. In International Human Rights Law, its primary purpose is to avoid irreparable harm in situations of extreme urgency and gravity.
As a judge at the Inter-American Court, Cançado Trindade regularly expressed his views on this matter. During his mandate, he presented 26 concurring opinions, being the judge who issued the most opinions in provisional measures judgments between 1987 and 2009. Notably, he supported the role of provisional measures in relation to the protection of human rights and, therefore, the need to strengthen this institution (Burbano Herrera, Clara ‘Provisional Measures in the Case Law of the Inter-American Court of Human Rights’, 2010, Intersentia).
One of his most innovative analyses is about the transformation of provisional measures’ nature. In accordance with the judge’s ideas, preventive measures in International Human Rights Law go beyond the ordinary situations inasmuch as they seek a whole new sphere of protection (Trindade, Antônio Augusto Cançado. ‘The Evolution of Provisional Measures of Protection under the Case-Law of the Inter-American Court of Human Rights (1987-2002)’, 2003).
In his own words, provisional measures do not adjust themselves to the abstraction of a “juridical world”, disconnected from the day-to-day problems and operating in a vacuum. In fact, they will have essentially a preventive character, effectively protecting fundamental rights by avoiding irreparable harm to the individual as a subject of the international law of human rights (Cançado Trindade, 2003). In this sense, he reinforces the pro homine approach by recalling that the ambit of the matter is precisely the protection of the human being.
More than being precautionary –aiming at guaranteeing, not directly subjective rights per se, but rather the jurisdictional process itself–, provisional measures have a tutelary nature (Cançado Trindade, 2003). In other words, they go beyond the procedural grounds and directly ensure the protection and effectiveness of the rights guaranteed in the Convention, being a jurisdictional guarantee of preventive character.
The judge also constantly defended the autonomous legal regime of provisional measures. As argued in the separate opinion of ICJ’s joined cases ‘Certain Activities Carried out by Nicaragua in the Border Area’ and ‘Construction of a Road in Costa Rica along the San Juan River’ (Judgment December 16, 2015), he believed that a breach of provisional measure is additional to any other that may arise in merits of the case.
The State responsibility thus arises not only in matters related to the facts, but also in the occurrence and determination of a breach of an order of the Court. Moreover, this breach per se carries autonomous legal consequences related to the preventive protection of rights and legal goods, which can be enforced even before the final judgment on the merits.
This aspect makes provisional measures more enforceable and, consequently, more effective, since it imposes mandatory respect for emergency protection by the States parties, in compliance with the commitment assumed in the ratified treaties (pacta sunt servanda), especially when it comes to human rights protection.
In summary, either in academia or in his judgments -in both ICJ and Inter-American Court-, Cançado Trindade dedicated himself to improving and developing the regime of provisional measures in the international jurisdiction. His belief in the potential of this instrument to prevent human rights violations and other vital assets, such as the environment and cultural heritage, is of significant importance to the advancement of new levels of international protection and demonstrates his dedication to a more humanized international law.
IV. Compulsory jurisdiction
Additionally, Cançado Trindade has constantly underlined the importance and the necessity of a compulsory jurisdiction of International Tribunals. He particularly expressed his concern regarding the lack of automatization of such international jurisdiction. This way, he emphasized the need to overcome the voluntarist conception of the international legal order, which conceives the pre-eminence to the will of the State when accepting the compulsory jurisdiction of international courts.
Cançado Trindade believed that it was necessary to abandon political interests in order to have a more “cohesive and institutionalized international community”. Therefore, he considered that it was necessary to move to a Jus Naecessarium conception, which sees international jurisdiction as a need, independently of State’s will (Case Constantine et al. v. Trinidad and Tobago, September 1, 2001).
During his work as a Judge of the Inter-American Court of Human Rights and his mandates at the International Court of Justice, Cançado Trindade stressed the distortion of the use of “optional clauses” in order to accept the jurisdiction of an International Tribunal (Case Concerning Application of The International Convention on The Elimination of All Forms of Racial Discrimination. Judgment of 1 April 2011). He analyzed the history of optional clauses, identifying its initial inclusion in 1920 when the Permanent Court of International Justice was created. By doing so, he affirmed that, even though the ideal was to create a compulsory jurisdiction, those types of clauses were included at first to attract the acceptance of as many States as possible. Because of this, an international jurisdiction would be established safeguarding the legal equality of States. According to Cançado Trindade this was an initial step from which States should have moved on as time went by, taking a step forward to an eventual automatic acceptance of the compulsory jurisdiction.
However, in practice, the step forward has not been taken. On the contrary, States have begun to add new restrictions when accepting international jurisdiction through “optional clauses” that were not contemplated in statutes, distorting the objective of the optional clause of compulsory jurisdiction.
From Cançado Trindade’s perspective, since 1920 the world could have advanced in the improvement of the judicial solution of international controversies. Nevertheless, the ideal of international justice has been affected by State voluntarism, which is contrary to the evolution of international law, preventing from accomplishing the real objective of international justice: to create a more “a more equitable and just world” (Cançado Trindade “Reflexiones sobre los Tribunales Internacionales Contemporáneos y la Búsqueda de la Realización del Ideal de la Justicia Internacional”, 2010).
Having this in mind, not only did he warn about this problem, but he also encouraged the need to move from the conception of a “voluntary international legal order” to a compulsory one. Additionally, Cançado Trindade presented a proposal to amend Article 62 of the American Convention on Human Rights, in order to adopt the automatic obligatory jurisdiction of the Inter-American Court when ratifying the Convention. He believed this would strengthen the Inter-American mechanism of protection for human rights (Cançado Trindade, 2010).
These ideas guided Cançado Trindade´s work as a judge. In this sense, and retaking his idea of a humanized international public order, Cançado Trindade highlighted that giving in to State voluntarism when human rights are involved, can result in the unprotection of people who consider themselves victims of ongoing human rights violations, which is completely unacceptable (Case Hermanas Serrano Cruz v. Perú. March 1, 2005).
We have covered only a few of the great contributions that Cançado Trindade has brought to International Law, in particular, to International Human Rights Law. There is no doubt that those have been invaluable. His commitment to protecting human rights and consolidating a humanized international law has constantly guided his work both as a judge and as a jurist.
Cançado Trindade´s proposals have always been innovative and favorable to strengthen the protection of human rights. Furthermore, his work has had a huge impact on the consolidation of the Inter-American system of Human Right. In particular, the three contributions analyzed in this brief tribute demonstrate his clear intentions to prevent human rights violations, to repair the ones occurred and to provide compensation to the victims of those violations.
The impact that his work has had, both as a judge of the International Court of Justice and the Inter-American Court as well as in the academia, meant a breaking point in the very understanding of International Law, characterized by the protection of human rights. In fact, his work has guided and will continue to guide many others. This is why his career and legacy will always be remembered.
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