23
82.
In most cases, non-appearance has been resorted to aiming at exerting
pressure upon the complaining party and the Court, but experience shows that nonappearing States have hardly gained anything - except criticisms - from such harmful
conduct84. Furthermore, it is to be kept always in mind that non-appearance and noncompliance are not synonymous at all; non-appearing - or "disappeared" - States are
under the duty to comply with Judgments in absentia (pacta sunt servanda).
83.
On this particular subject, the Institut de Droit International adopted a
clarifying resolution 85 in its session of Basel of 1991, in which it took into account the
difficulties that non-appearance of a party may present to the other party and to the
Court itself86. In its preamble, the resolution pondered inter alia that "the absence of
a party is such as to hinder the regular conduct of the proceedings, and may affect
the good administration of justice" 87. The resolution recalled, in its operative part, the
State's "duty to cooperate in the fulfilment of the Court's judicial functions" (Article 2),
and added that
"Each State entitled (...) to appear before the Court and with
respect to which the Court is seized of a case is ipso facto (...) a party
to the proceedings, regardless of whether it appears or not" (Article 1).
84.
The resolution of the Institut further provided that, notwithstanding the nonappearance of a State, this latter remains
"bound by any decision of the Court in that case, whether on
jurisdiction, admissibility or the merits" (Article 4).
And the resolution concluded that "a State's non-appearance before the Court is in
itself no obstacle to the exercise by the Court of its functions" (Article 5). This is an
accurate statement of the applicable law in cases of non-appearance, which by no
means can be taken to lead to non-compliance, amounting to an additional violation
of international law.
IV.
The Expanding Material Content and Scope of Jus Cogens in
Contemporary International Law.
85.
May I conclude this Separate Opinion in the present Caesar case in a positive
tone, with an expression of support for the present Judgment in absentia of the InterAmerican Court, in respect particularly to two remaining aspects that I see it fit to
dwell upon here. Firstly, the Court has expressly and rightly admitted in the present
Caesar case that, in certain circumstances, the existence of a law (such as that of
Corporal Punishment Act of Trinidad and Tobago), manifestly incompatible with the
relevant provisions of the American Convention (Article 5(1) and (2)), may per se
constitute - by its nature and effects - a violation of this latter 88. In support of this
view, may I refer to my arguments, to this effect, in my Dissenting Opinion in the El
Amparo case, concerning Venezuela (Judgments on reparations, of 14.09.1996), as
well as in my Dissenting Opinion in the Caballero Delgado and Santana case,
84
. As illustrated by the regrettable and much-criticized "withdrawal" of the United States in the Nicaragua
case, which it eventually lost in the merits (in 1986) as well; cf. ibid., pp. 67 and 71-72.
85
. I.D.I., 4th. Commission, rapporteur G. Arangio Ruiz.
86
. Institut de Droit International, Resolution on Non-Appearance before the International Court of Justice, of
31.08.1991, preamble, 6th. considerandum.
87
. Ibid., 5th. considerandum.
88
. Paragraphs 73-74 and 93-94 of the present Judgment.
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