34
to prevent the Court from hearing all the cases in which it had not answered
the application.
Despite that decision, Peru did not respond to the
Commission’s arguments, nor did it attend the hearing in the instant case.
Although the American Convention does not regulate this possibility, article
27 of the Court’s Rules of Procedure is clear when it establishes that, should
any of the parties fail to appear, the Court shall, on its own motion, take
such measures as may be necessary to complete consideration of the case;
b)
In view of the absence of a precedent in the inter-American system,
the provisions of article 53(1) and 53(2) of the Statute of the International
Court of Justice may provide guidance; they stipulate that whenever one of
the parties does not appear before the Court or fails to defend its case, the
other party may call on the Court to decide in favor of its claim; and,
c)
Furthermore, this Court must examine whether the application
contains sufficient de facto and de jure grounds to declare it admissible. The
State’s failure to appear has less impact on the examination of the
allegations of fact, owing to the iura novit curia principle and because the
Court is not restricted to the legal arguments of the parties, since clarification
of the factual aspects often depends on the parties’ actions.
*
59.
*
*
Article 27 of the Court’s Rules of Procedure stipulate:
1.
When a party fails to appear in or continue with a case, the Court shall, on its
own motion, take such measures as may be necessaryu to complete the consideration of
the case.
2.
When a party enters a case at a later stage of the proceedings, it shall take up
the proceedings at that state.
60.
This Court observes that procedural inactivity does not give rise to a specific
sanction against the parties, nor does it affect the development of the proceeding;
but, it may eventually prejudice them, if they take the decision not to exercise fully
their right to defense or to execute the appropriate procedural actions that are in
their interests, in accordance with the audi alteram partem principle.
61.
Regarding the Commission’s arguments, it is sufficient that the Court has, on
its own motion, taken such measures as are necessary to complete consideration of
the case and has evaluated the arguments and the evidence tendered during the
proceeding, on the basis of which this Court exercises its jurisdictional functions and
delivers a judgment.
62.
International jurisprudence has recognized that the absence of one of the
parties at any stage of the case, does not affect the validity of the judgment44;
44
Cf. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment, I.C.J. Reports 1986, p. 23, para. 27. See also, Cf., inter alia, Fisheries
Jurisdiction (United Kingdom v. Iceland), Jurisdiction of the Court, Judgment, I.C.J. Reports 1973, p. 7,
para. 12; Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, I.C.J. Reports 1974, p. 9,
para.17; Nuclear Tests (Australia v. France), Judgment of 20 December 1974, I.C.J. Reports 1974, p. 257,
para. 15; Aegean Sea Continental Shelf, Judgment, I.C.J. Reports 1978, p. 7, para. 15; and United States
Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, p. 18, para. 33.