SEPARATE OPINION OF JUDGE A.A. CANÇADO TRINDADE
1.
Almost fourteen years after its decision in the Aloeboetoe and Others versus Suriname
case (of 04.12.1991), - my first case in this Court and a Sentence which was complied with in
an exemplary way by the respondent State, a young country struck by material poverty but
rich in cultural manifestations, - the present Judgment of the Inter-American Court of Human
Rights in the case of the Moiwana Community versus Suriname, for the adoption of which I
concurred with my vote, raises issues of great transcendence, from the juridical perspective. In
the paragraphs that follow I shall endeavour to identify those issues, on which I feel obliged to
leave my personal reflections on the records, in the hope that they may contribute to the
future evolution of international law in what appears to me to be its terra nova or incognita at
the present stage of its evolution.
I.
Preliminary Observations.
2.
In indicating, in my Separate Opinion in the cas d'espèce, the foundations of my
position of the multiple aspects of the matter at issue, as I perceive them, I shall, thus,
develop three lines of reflections. In the first one, I shall address the following issues: a) the
legal subjectivity of peoples in international law; b) uprootedness as a human rights problem
confronting the universal juridical conscience; c) the projection of human suffering in time; and
d) the illusion of the "post-modern" and the incorporation of death into life. In the second one,
I shall dwell upon the following points: a) mortality and its inescapable relevance to the living;
b) the duties of the living towards their dead; and c) the duties towards the dead in the origins
and development of international law and domestic law. And, in the third one, I shall present
my reflections, entirely de lege ferenda, on what I see it fit to call: a) the moving from the
right to a project of life (proyecto de vida) to the right to a project of after-life (proyecto de
post-vida); b) the configuration of the spiritual damage (daño espiritual), beyond the moral
damage; and c) my concluding observations in the form of a plea against oblivion.
3.
Some of my thoughts developed herein are, to the best of my knowledge, advanced for
the first time, - particularly my third line of reflections, on the right to a project of after-life
(proyecto de post-vida) and the configuration of the spiritual damage (daño espiritual), in the
sense I conceive it, beyond the moral damage, focusing on the human person in her life and
after-life. I have not yet seen them being considered, at any depth, in the so-called "centres of
academic excellence" of post-industrial societies, where normally authors engage themselves
in quoting each other, - in agreement or in disagreement, disclosing a blend of parochialism
and self-sufficiency, - and almost invariably in their own and same language, apparently
disconnected, to a large extent, from the day-to-day problems that afflict "common people".
4.
On my part, I feel entirely free, besides obliged, to give expression to my thoughts on
the aforementioned points, living (or being based on) as I do, in extremis, in the surrealistic
city of Brasília, in the middle of nowhere, where the convincing sunset and the penetrating
moonlight far outweigh and overwhelm, in my own perception, the "ultra-modern"
architectural frenzy. Neither impressed nor constrained by "post-modernism" at all, I sense I
can properly value the griefs of the Maroon N'djukas of the Moiwana Community, in the
present case opposing them to the State of Suriname.
II.
The Legal Subjectivity of Peoples in International Law.
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