22
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.
79.
Not only do they look the same everywhere, but they have further looked the
same at all times. Already over three centuries before our era, in his Nicomachean
Ethics, Aristotle could hardly hide or dissimulate his concern as to what politicians
might be thinking or what decisions were they about to take 80. In the XIIIth. century,
in his Treatise on the Law, Thomas Aquinas wondered whether the recta ratio could
ever be apprehended by the power-holders 81. It would be hard to deny that, with
extremely rare exceptions, politicians, always and everywhere, have appeared much
more engaged in gaining and retaining power (for power's sake), than in securing the
observance of the human rights of those they govern or are supposed to represent.
80.
The States which, in the history of international adjudication, have "withdrawn"
from contentious proceedings instituted against them (particularly after an initial
decision of the Tribunal adverse to them), have adopted a "self-judging conduct",
harmful to the international rule of law, and, ultimately, also to themselves, to their
own reputation, as
"A State which would be a judge in its own cause is an advocate
pleading into a void from which no clear answer is returned" 82.
81.
Non-appearance is in fact foreseen in Article 53 of the Statute of the ICJ, its
raison d'être being to secure that the Court carries out its functions whenever one of
the parties fails to appear before it; the non-appearing State remains a party to the
case, and remains fully bound by the decision rendered by the Court 83 (as if it had
appeared before the Court). This is what ensues also from Article 27 (on default
procedure) of the current Rules of Procedure of the Inter-American Court, which
likewise foresee non-appearance in the same understanding, and entitle the InterAmerican Court, whenever a party fails to appear in or continue with a case, to take
such measures, on its own motion, as may be necessary to complete the
consideration of the case. Article 27 adds that when a party enters a case at a later
stage of the proceedings, it shall take up the proceedings at that stage.
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.
80
. Cf. Aristóteles, Ética Nicomaquea - Política, Mexico, Edit. Porrúa, 2000; book I, section XIII, p. 15; book
VIII, section XI, p. 112; book X, section IX, pp. 144-146.
81
. Cf. Tomás de Aquino, Tratado de la Ley - Tratado de la Justicia - Gobierno de los Príncipes, Mexico, Edit.
Porrúa, 2000, pp. 35, 50 and 76-77.
82
. J.B. Elkind, Non-Appearance before the International Court of Justice - Functional and Comparative
Analysis, Dordrecht, Nijhoff/Kluwer, 1984, pp. 169 and 206.
83
. S.A. Alexandrov, "Non-Appearance before the International Court of Justice", 33 Columbia Journal of
Transnational Law (1995) n. 41, pp. 41-44, 60, 63 and 68.
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