O Jus Cogens como Mecanismo de Proteção dos Direitos Humanos: O Impacto da Voz Dissidente do Juiz Antônio Augusto Cançado Trindade

Jus cogens or peremptory norms are those norms of international law accepted and recognized by the international community of States as a whole as those from which no modification, derogation or revocation is permitted, except by another norm of the same nature. In essence, jus cogens norms enshrine the most fundamental values of the international community and, as a result, they are hierarchically superior to other international and national norms and are universally applicable. Jus cogens has a prominent role in the process of humanization of international law promoted by Antônio Augusto Cançado Trindade, as its strong axiological core and inherent hierarchy are useful tools for the deconstruction of voluntarist elements and the consolidation of norms and procedures aimed at the protection of humanity. However, as an international judge, Cançado Trindade used jus cogens differently when he served at the Inter-American Court of Human Rights (IACtHR) and later at the International Court of Justice (ICJ). Through the analysis of his individual opinions, this article aims at showing how jus cogens was perceived and employed by Cançado Trindade depending on the international court in which he acted. While at the IACtHR Cançado Trindade found wide receptivity to his humanization project, resulting in a significant material, horizontal and vertical expansion of jus cogens for the purpose of protecting human rights, the very different scenario of the ICJ, where the voluntarism of classical international law still persists, motivated Cançado Trindade to modify his approach, now using jus cogens as part of a counter-hegemonic argumentative strategy.