22
of haphazard domestic factors, - and those who have no constraints to undermine it are
to bear the historical responsibility for such deconstruction. I feel confident that
Trinidad and Tobago will not come to this extreme.
71.
Trinidad and Tobago seems to be aware of the temporal and material limitations
of denunciation under Article 78 of the American Convention (supra), as it participated
in proceedings before the Court afterwards, including a public hearing of 10 August
2000 in the Hilaire case, more than one year after its denunciation of the American
Convention began to have effects (as from 26.05.1999). What is rather enigmatic is its
subsequent and prolonged non-appearance - not to say "disappearance" - before the
Court after its Judgments on preliminary objections (supra), adverse to it. Nonappearance does not at all pave the way for non-compliance. A State may choose not
to appear before the Court, at any stage of the proceedings, at its own risk, but it
cannot ignore the Court's Judgment without having its international responsibility
thereby engaged.
72.
Trinidad and Tobago's sudden non-appearance before the Court, - or rather,
disappearance from it, - is certainly to be regretted. It does not foster the rule of law at
international level, to say the least. If it is meant to be a prior notice of eventual noncompliance with decisions of the Court, then the respondent State has strong reasons
for concern, as the Law would not stand on its side. Let us hope this will prove not to
be the case. But were it to be so, Trinidad and Tobago would then stand outside the
Law, thus incurring into an additional violation of the American Convention.
73.
Although non-appearance has occurred from time to time in inter-State litigation
(e.g., before the Permanent Court of International Justice [PCIJ] and the International
Court of Justice [ICJ])75, there is no compelling reason why it should take place in
proceedings in human rights cases, opposing States to individuals, the ostensibly
weaker party. If by non-appearance the State is announcing eventual non-compliance
with the decisions of the Tribunal, it should bear the juridical consequences of its
attitude, - and the other States Parties should react to that, in the exercise of the
collective guarantee underlying all human rights treaties. Non-appearance does not
affect the condition of the State as a party to the case; whether it likes it or not, it
remains the respondent State in the case, even in absentia.
74.
Article 68(1) of the American Convention is clear in determining that "the States
Parties to the Convention undertake to comply with the judgment of the Court in any
case to which they are parties". Non-appearing States remain parties to the cases at
issue. Their duty of compliance corresponds to a basic principle of the law on the
international responsibility of the State, strongly supported by international case-law,
whereby States ought to comply with their conventional obligations in good faith (pacta
sunt servanda).
75.
It is somewhat surprising to witness that, as time goes by and the old ideal of
the realization of international justice gains ground (as with, for example, the recent
establishment of the International Criminal Court, pursuant to an original proposal by
Trinidad and Tobago at the United Nations), some States remain resistant to the
operation of the most perfected means of settlement of disputes at international level,
75
. Cf., e.g., P.M. Eisemann, "Les effets de la non-comparution devant la Cour Internationale de Justice", 19
Annuaire français de Droit international (1973) pp. 351-375.
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