20
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 produced 74 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 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. Non-appearance does not at all pave the way for noncompliance. 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
non-compliance 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
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.
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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