23
that is, judicial settlement76 (as illustrated, ironically, by the posture of Trinidad and
Tobago in the aforementioned cases in the inter-American human rights system).
76.
The precedent - among others - set up by the United States, of "withdrawal"
and non-appearance before the ICJ, after a Judgment adverse to it on preliminary
objections (in 1984) in the Nicaragua versus United States case, would be a very bad
example for Trinidad and Tobago to follow. On the occasion, the United States earned
much criticism from distinct corners of the international community, including from
some of its own most distinguished jurists (like the late Keith Highet77), for its
disservice to the international rule of law. In the words of K. Highet, the strategy of
non-appearance "may also backfire", and
"may suffer a setback, once its absurdity and overall uselessness
are correctly perceived. (...) The negative forces undermining the
progressive development of international law - non-production, noncooperation and non-appearance - (...) will now be seen for what they
are"78.
77.
In the same line of thinking, it was further pointed out, in other commentaries,
that the United States' defiant behaviour of withdrawing from that case and no longer
appearing in its proceedings before the ICJ
"appears not only injurious to the efficacy of the Court's
compulsory jurisdiction under Article 36(2), but detrimental to the
development of international lawfulness as well. Such lawfulness cannot
develop as long as States are inclined to place themselves above the
law"79.
78.
Is this the sad example that Trinidad and Tobago would really wish to follow? I
could hardly believe it. How would that appear to the future generations of its own
jurists? Expectations from the new generations of jurists are always high, - hoping that
they will succeed to right the wrongs made by their predecessors, - while, on the other
hand, politicians (also referred to rather elegantly as "decision-makers") look the same
everywhere in the world, and there seem to be no compelling reasons to expect much
from them.
76
. Ch. de Visscher, Aspects récents du droit procédural de la Cour Internationale de Justice, Paris, Pédone,
1966, pp. 204-205.
77
. Of whom I keep a good memory, in the meetings we had in Rio de Janeiro while he was a member of the
Inter-American Juridical Committee (IAJC), particularly of a panel we both participated in, together with Daniel
Bardonnet, in one of the annual Courses of International Law organized by the IAJC, precisely on peaceful
settlement of international disputes; the transcripts of that memorable panel were unfortunately never
published.
78
. K. Highet, "Evidence, the Court and the Nicaragua Case", 81 American Journal of International Law (1987)
p. 56.
79
. G.L. Scott and C.L. Carr, "The ICJ and Compulsory Jurisdiction: the Case for Closing the Clause", 81
American Journal of International Law (1987) p. 66. For my own criticisms of that defiance, cf. A.A. Cançado
Trindade, "Nicarágua versus Estados Unidos (1984-1985): Os Limites da Jurisdição `Obrigatória' da Corte
Internacional de Justiça e as Perspectivas da Solução Judicial de Controvérsias Internacionais", 37-38 Boletim
da Sociedade Brasileira de Direito Internacional (1983-1986) pp. 71-96.
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