21
two international human rights Tribunals (the European and Inter-American Courts)
have been engaged in a converging jurisprudential construction in respect of
reservations to treaties to the effect of avoiding to deprive human rights treaties of
their effet utile, thus preserving the mechanisms of protection of the human person
established by them.
III.
International Rule of Law: Non-Appearance and the Duty
of Compliance.
67.
Until the Inter-American Court's Judgments of 01.09.2001 dismissing Trinidad
and Tobago's preliminary objections in the Hilaire, Constantine et allii, and Benjamin et
allii cases (cf. supra), the respondent State appeared before the Court, having
participated in the contentious proceedings and presented its arguments before the
Court. In the Hilaire case, in particular, it appeared before the Court in the public
hearing of 10 August 2000, wherein it submitted its views in an orderly and
procedurally constructive way. After being notified of the Court's adverse decision,
Trinidad and Tobago no longer appeared before the Court, neither in the proceedings
on the merits in the aforementioned cases (joined), nor in the proceedings of the
subsequent and present Caesar case.
68.
Despite its non-appearance73, Trinidad and Tobago remains bound by the
Court's Judgments in all these cases: though rendered after its denunciation of the
American Convention, they pertain to acts taken by the State before the denunciation,
in accordance with the terms of Article 78 of the American Convention. Together with
the subsequent Judgments on the merits and reparations, the Court's decisions remain
all binding upon the respondent State, and an eventual failure of this latter to comply
with the Court's Judgments on the merits and reparations in those previous cases and
with the present Judgment in the Caesar case, would amount to an additional violation
of the American Convention (Article 68), as well as of general international law (pacta
sunt servanda), with all the juridical consequences attached thereto.
69.
Any interpretation to the contrary, tending to "explain" or "justify" noncompliance with the Judgments, would amount to contempt of Court, and disclose a
lack of familiarity with the most elementary principles of international legal procedure.
A State may, of course, choose not to appear before the Court, but in doing so it ought
to bear the consequences of such non-appearance, rendering itself unable to rebut the
evidence produced74 and to defend itself. What a State is not entitled to do is to ignore
a Judgment that is clearly binding upon it, as that would undermine the very
foundations of international jurisdiction, which have required so much endeavour from
past generations to be built and established in this part of the world.
70.
Having always been a strong supporter of the cause of international justice, I
feel obliged to state in the present Separate Opinion that international jurisdiction
cannot be left at the mercy of the caprice of governments, usually under the pressure
Human Rights (eds. R.St.J. MacDonald, F. Matscher and H. Petzold), Dordrecht, Nijhoff, 1993, pp. 66 and 73.
73
. For a general study of non-appearance, cf. J.B. Elkind, Non-Appearance before the International Court of
Justice..., op. cit. infra n. (80), pp. 1-206; H.W.A. Thirlway, Non-Appearance before the International Court of
Justice, Cambridge, University Press, 1985, pp. 1-184.
74
. On the practice on this particular point, mainly of the Inter-American Commission on Human Rights, cf. D.
Rodríguez Pinzón, "Presumption of Veracity, Non-Appearance, and Default in the Individual Complaint
Procedure of the Inter-American System on Human Rights", 25 Revista del Instituto Interamericano de
Derechos Humanos (1998) pp. 125-148.
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