24
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 take80. In the XIIIth. century, in his
Treatise on the Law, Thomas Aquinas wondered whether the recta ratio could ever be
apprehended by the power-holders81. 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The States which, in the history of international adjudication, have "withdrawn"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 Court83 (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.
82.
In most cases, non-appearance has been resorted to aiming at exerting
pressure upon the complaining party and the Court, but experience shows that nonappearing States have hardly gained anything - except criticisms - from such harmful
conduct84. Furthermore, it is to be kept always in mind that non-appearance and noncompliance are not synonymous at all; non-appearing - or "disappeared" - States are
under the duty to comply with Judgments in absentia (pacta sunt servanda).
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.
84
. As illustrated by the regrettable and much-criticized "withdrawal" of the United States in the Nicaragua
case, which it eventually lost in the merits (in 1986) as well; cf. ibid., pp. 67 and 71-72.
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