CHAPTER III

INTERNATIONAL OBLIGATIONS: PERU AND THE INTER-AMERICAN HUMAN RIGHTS SYSTEM

A. INTRODUCTION

1. The Inter-American Commission on Human Rights, as mentioned in the introduction to this report, has paid close attention to the human rights situation in Peru for several years. As part of its functions, the Commission has received hundreds of complaints under the individual case system in which the Peruvian State has been accused of violating human rights. The processing of those cases has followed the steps provided for in the American Convention and in all other pertinent instruments, and in many cases has resulted in the publication of reports by the Inter-American Commission. In those reports, the Commission has made recommendations on the actions that the State should take with respect to the violations found by the Commission. In view of the State's failure to carry out the Commission's recommendations, the Inter-American Commission submitted some of those cases, involving human rights violations committed by state agents such as assassinations, disappearances, torture, and violations of the freedom of expression, to the Inter-American Court for its consideration.

2. On July 9, 1999, the Peruvian State announced that it was withdrawing its acceptance of the Court's contentious jurisdiction, and also announced that its withdrawal had "immediate effect." The Inter-American Court rejected the claimed withdrawal, declaring it "inadmissible." Peru announced that it was not going to participate in the judicial proceedings before the Court in two recently-submitted cases, and that it was not going to carry out either the judgment in a case that the Court recently decided or the judgment on reparations handed down by the Court in a second case. Without prejudice to the Court rejecting the withdrawal infra, and given that this act may affect the Peruvian population and have a negative impact on the system, the Commission has prepared the following analysis.

B. FAILURE TO COMPLY WITH THE RULINGS OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS

1. Cases submitted by the Commission to the Court regarding Peru

3. Since 1990, the Inter-American Commission on Human Rights has litigated or continues to litigate the following nine (9) cases before the Court against the Republic of Peru: Neira Alegría et al. (Case 10.087); María Elena Loayza Tamayo (Case 11.154); Castillo Páez (Case 10.733); Cantoral Benavides (Case 11.337); Durand and Ugarte (Case 10.009); Castillo Petruzzi et al. (Case 11.319); Cesti Hurtado (Case 11.730); Baruch Ivcher (Case 11.762); and Constitutional Court (Case 11.760). The Peruvian State partially carried out the judgment in the Neira Alegría case, paying reparations to the victims' families, without yet locating and identifying the victims' remains and returning them to their family members. The Cantoral Benavides and Durand and Ugarte cases are still pending. Following is a discussion of the judgments in the cases of Castillo Páez, Loayza Tamayo, and Castillo Petruzzi et al., and the status of the Ivcher and Constitutional Court cases. The judgment of the Court in the Cesti Hurtado case was issued on September 29, 1999, and Mr. Cesti was released on November 10, 1999, in partial compliance with the judgment; fair compensation and other criminal and administrative measures remain pending.

a. Case of Castillo Páez

4. The Commission submitted the Castillo Páez case to the Court on January 12, 1995. Ernesto Rafael Castillo Páez was detained by agents of the Peruvian National Police on October 21, 1990; his whereabouts since that time have yet to be determined. The Commission asked the Court to declare that Peru had violated several articles of the American Convention. On November 3, 1997, the Court issued its judgment in this case, deciding unanimously that the Peruvian State had violated the following rights enshrined in the Convention: Article 7 (right to personal liberty), Article 5 (right to humane treatment), Article 4 (right to life), and Article 25 (right to judicial protection), all in relation to Article 1(1).

5. The Court handed down a judgment in the reparations phase in the Castillo Páez case on September 27, 1998, in keeping with its judgment of November 3, 1997, by which it ruled that the Peruvian State has the obligation to make reparations for the consequences of the events that occurred as of October 21, 1990, and decided:

To set the reparations that the State shall pay to the next of kin of Ernesto Rafael Castillo-Páez at US$ 245,021.80 or its equivalent in local currency.

That the State of Peru shall investigate the facts in the instant case, identify and punish those responsible and adopt the necessary domestic legal measures to ensure that this obligation is fulfilled.

That the payments indicated in operative paragraphs 1 and 5 shall be made within six months from the date of notification of [the] Judgment.

That any payment ordered in this judgment shall be exempt from any existing or future tax or duty.

To set the amount the State shall pay to the victim's next of kin to reimburse them for costs incurred in domestic legal proceedings at US$ 2,000 ... or its equivalent in the local currency of Peru.

6. As of December 15, 1999, the Peruvian State has done nothing to carry out the reparations ordered by the Court in this case, nor had it reported on compliance with the judgment.

b. Case of Loayza Tamayo

7. The Commission submitted the Loayza Tamayo case to the Court on January 13, 1995. María Elena Loayza Tamayo was detained on February 6, 1993, and the Commission asked that the Court declare that she had been arbitrarily deprived of her liberty, tortured, and subject to cruel, inhuman, and degrading treatment. Accordingly, it was denounced that Peru had violated several articles of the American Convention. In its judgment of September 17, 1997, the Court decided that Peru had violated Article 5 (right to humane treatment), Article 7 (right to personal liberty), and Article 8 (right to a fair trial) in relation to Article 1(1) and Article 25 of the American Convention. The Court also ordered Peru to make reparations to Mrs. María Elena Loayza Tamayo and her family for the harm suffered, and to decree her liberty within a reasonable time, pursuant to its domestic law. On October 16, 1997, Peru released Mrs. Loayza. [1]

8. The Court handed down its judgment on reparations and court costs in this case on November 27, 1998, in keeping with its judgment of September 17, 1997, in which it established that the Peruvian State must pay fair compensation to the victim and her family and compensate them for the expenses they incurred in bringing the matter before the Peruvian authorities. On June 3, 1999, the Court, at the request of the Peruvian State, handed down an interpretation of the scope of the order on the payment of attorneys' fees and court costs in the November 27, 1998 judgment on reparations, and reaffirmed the operative parts of its decision.[2] While Peru had yet to comply with the operative points of the November 27, 1998 judgment on the reinstatement of Mrs. Loayza Tamayo into her teaching position and payment of compensation as well as attorneys' fees and court costs, the Peruvian State submitted a resolution to the Inter-American Court handed down by Criminal Chamber "C" of the Supreme Court of Justice of Peru of June 14, 1999, in which the Supreme Court set forth a series of considerations on the validity of the decisions adopted by the Inter-American Court in the Loayza Tamayo case, and declared "unenforceable" ("inejecutable") the judgment on reparations handed down by the Inter-American Court on November 27, 1998.[3] No explanation is provided as to why the Supreme Court adopted a resolution regarding a final decision of the Inter-American Court.

c. Case of Castillo Petruzzi et al.

9. On May 30, 1999, the Court handed down its judgment in the case of Castillo Petruzzi et al. This case involves four Chilean citizens, Jaime Castillo Petruzzi, María Concepción Pincheira Sáez, Lautaro Enrique Mellado Saavedra, and Alejandro Astorga Valdéz, who were sentenced to life imprisonment for the crime of "treason" ("traición a la patria") by a "faceless-judge" military court. The Court, in a 79-page judgment, which includes a concurring vote by Judge de Roux and another vote concurring in part and dissenting in part, by Peruvian Ad Hoc Judge Vidal Ramírez, invalidated the military judicial procedures against the four Chileans. The Court invalidated the procedures based on violations of different sections of Article 8 of the American Convention with respect to the lack of due process in these proceedings, and ordered that the Chileans be judged anew in a regular court with the requisite due process guarantees.[4] In addition, the Court ordered the State to take the appropriate steps to modify the norms that had been declared to be in violation of the Convention and ordered the State to pay US$ 10,000.00, or the equivalent in local currency, to the Chileans' families, as compensation for the cost of the proceeding. In addition, the Court found violations of Articles 1(1), 2, 5, 7(5), 7(6), 9, and 25 of the Convention; and it did not find any violation of Articles 8(3) and 20.

10. While Peru had yet to comply with the above-noted operative parts of the judgment, the Peruvian State submitted a resolution handed down by the Plenary Chamber of the Supreme Council of Military Justice ("CSJM") of Peru to the Inter-American Court on May 30, 1999.[5] No explanation is provided as to why the Supreme Council of Military Justice issued a resolution on a final decision of the Inter-American Court.

2. National "review" of judgments of the Inter-American Court

11. On July 1, 1999, the Peruvian State submitted a note to the Secretary General of the OAS in which it announced that it would not comply with the judgments of the Court in the case of Castillo Petruzzi et al. nor with the judgment on reparations in the Loayza Tamayo case. In that note, the Government of Peru set forth its position and the legal bases invoked in support of that decision, in relation to the impediments to compliance with these two judgments of the Court. Peru emphasized the need to set forth in clear terms its position in relation to the Court's legal conclusions in cases in which "terrorists who have been convicted and sentenced" claim to call into question the methods Peru has been forced to use to eradicate terrorist violence and protect the human rights of the Peruvian population. The State affirmed that it was not going to comply with those judgments, arguing reasons of law and political considerations.

12. With respect to the specific case of Castillo Petruzzi, for example, Peru noted that with the broad support of its population, it implemented a successful strategy for eradicating terrorism without having recurred, in general, to the systematic violation of human rights, and that in the isolated cases of violations that may have taken place, the persons responsible were tried and punished. In addition, Peru noted that the criminal actions of Shining Path and the MRTA were characterized by the political organs of the OAS as criminal and genocidal acts. It added that it found it disconcerting that the Court, according to the State, was not familiar with the agreements adopted by the Summit of the Americas in which the heads of state and government declared their intent "to eliminate the terrorist threat," which was reiterated in two inter-American specialized conferences on terrorism.

13. The State added in the above-mentioned note that the CSJM was forced to declare that compliance with the Court's judgment was impossible, since the Court seeks to invalidate constitutional and statutory provisions implemented by the State in order to control the situation of "internal war" unleashed by terrorist organizations.

14. With respect to the Loayza Tamayo case, the State noted, for example, that the Court ordered more than the Commission had sought in this case, as the Commission's application referred to "fair compensation" for Mrs. Loayza, and the Court included compensation for her family members as well.

3. The response of the Inter-American Commission

15. The IACHR, in response to the arguments of the Peruvian State, submitted its considerations with respect to the binding nature of the Court's decisions for Peru, based on the obligation that arises unequivocally from the American Convention and the general principles of international law that govern compliance with treaty obligations.

16. In effect, Peru ratified the American Convention on July 28, 1978, and accepted the jurisdiction of the Inter-American Court on January 21, 1981. The Commission noted that the two cases had been completely litigated before the Court and that pursuant to Article 68(1) of the American Convention, the States are obligated to comply with its judgments, once the Court's jurisdiction has been freely accepted by the State. It also noted that fundamental principles of treaty law, codified in the Vienna Convention on the Law of Treaties, provide that treaties must be carried out (pacta sunt servanda) and that the State cannot invoke its domestic legislation as a justification for the non-performance of a treaty.

17. The Commission highlighted in its written submission that Article 67 of the American Convention establishes that the Court's ruling is not subject to appeal:

On September 4, 1998, the Honorable Court issued a judgment on preliminary objections and, as indicated, on May 30, 1999, it issued its judgment on the merits. There is no element of fact or of law that makes it possible to cast doubt as to whether these proceedings took place in the proper time and manner, and have been reasoned, in keeping with the provisions of the American Convention. In this respect, reference should be made to Article 67 thereof:

The judgment of the Court shall be final and not subject to appeal. In case of disagreement as to the meaning or scope of the judgment, the Court shall interpret it at the request of any of the parties, provided the request is made within ninety days from the date of notification of the judgment.

This provision establishes unequivocally that the judgments issued as a result of the contentious process before the Honorable Court are "not subject to challenge." Even though a judgment was already handed down on the merits, the resolution of the Criminal Chamber of the Supreme Council of Military Justice of June 11, 1999, clearly expresses the intent of the Illustrious State to not comply fully with the judgment of May 30, 1999.

18. In addition, the Commission, in its brief, noted the following crucial point, enshrined in Article 68(1) of the American Convention, which reiterates the general principle of international law, i.e. pacta sunt servanda:

The Commission considers that this position is an open challenge to the performance of the obligation contracted under Article 68(1) of the American Convention. This provision reads:

The States Parties to the Convention undertake to comply with the judgment of the Court in any case to which they are parties.

This provision proclaims the binding nature of the judgments of the Honorable Court, and establishes categorically and unequivocally the obligation of the States parties to the Convention to comply with what is mandated by its decisions. It is a treaty obligation that the State is obliged to carry out in good faith.

International law is based on the principle of good faith in the performance of treaty obligations. The principle of pacta sunt servanda has been codified at Article 26 of the Vienna Convention on the Law of Treaties, which provides: "Every treaty in force is binding upon the parties to it and must be performed by them in good faith."[6] The Honorable Court has already had an opportunity to echo this principle in the exercise of its jurisdiction.[7]

19. The Commission noted that upon joining the international system for the protection of human rights, a State freely accepts certain limitations on its own jurisdiction so as to respect and ensure respect for the fundamental rights and guarantees enjoyed by the persons residing in its territory. Hence the obligation to comply with and enforce the decisions of the organ that exercises international jurisdiction, in this case the Inter-American Court of Human Rights.

20. The considerations of the Peruvian State on the alleged "inability to enforce" ("inejecutabilidad") of those judgments are based on its interpretation of its own domestic law. In this regard, the Commission indicated that if the decisions of the Inter-American Court had to be in line with the respective domestic legal orders of the States parties--in this case the constitutional order of Peru--in order to be enforceable, the protection afforded by international human rights law would be illusory and would be entirely at the discretion of the State--even when it has been determined that it has violated its obligations under the Convention--not of the supranational organ whose decisions the States have undertaken to carry out.

21. In addition, Article 27 of the Vienna Convention codifies the general principle of international law that establishes: "A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty." This supremacy is absolute and is not affected by the rank of the domestic norms presumably affected. According to the doctrine, "the obligation to bring internal law into line with international law extends even to the Constitution, whose provisions, especially with respect to the system of rights, do not stand in the way of the primacy of international law nor of the State's responsibility when, under the pretext of a discrepancy with the Constitution, there is non-compliance or a violation of an international treaty."[8]

22. The Commission noted in its written submission that Peru, paradoxically, is among the States parties whose internal laws explicitly provide for a mechanism that guarantees compliance with the Court's judgments:

Paradoxically, Law 23,506 on Habeas Corpus and Amparo, and the Organic Law of the Judiciary, both in force in Peru, suggest that the judgments of the Honorable Court are valid and have full legal effect in the domestic jurisdiction of the Illustrious State, and are enforceable with no need to review their compatibility with domestic law. Specifically, these rules provide:

The resolution of an international organ to whose compulsory jurisdiction the Peruvian State has submitted does not require, for its validity and effect, any recognition, review or prior examination whatsoever. The Supreme Court of Justice of the Republic shall receive the resolutions issued by the international organ and shall order its enforcement and compliance in keeping with the domestic rules and procedures in force on enforcement of judgments. (Article 40 of Law 23,506).

The judgments issued by international tribunals, constituted under treaties to which Peru is a party, are transcribed by the Ministry of Foreign Affairs to the President of the Supreme Court, who forwards them to the Chamber in which the domestic jurisdiction was exhausted, and orders enforcement of the supranational judgment by the specialized or mixed judge with jurisdiction. (Article 151 of the Organic Law on the Judiciary)

23. The Commission, in conclusion, is of the view that after having voluntarily undertaken to respect the norms of the American Convention and after having participated fully in the litigation before the Inter-American Court as a party in the cases of Loayza Tamayo and Castillo Petruzzi et al., the Peruvian State is fully bound to comply with the judgments issued by the Inter-American Court of Human Rights in those cases. Peru is not authorized to invoke its internal law as an impediment to compliance with the judgments of the Inter-American Court or as a basis for calling into question its results. The Commission considers it beyond doubt that the failure of the Peruvian State to comply with the judgments of the Inter-American Court constitutes flagrant contempt for the decision of an international tribunal, to whose jurisdiction and competence it submitted voluntarily, and without reservations.

4. The Court's decision in these cases

24. On November 17, 1999, the Court issued two resolutions, one on the Loayza Tamayo case and one on the case of Castillo Petruzzi et al., referring to compliance with the judgments, in which it resolved: "To hold that, in accordance with the principle of pacta sunt servanda, and in conformity with that provided for in Article 68(1) of the American Convention on Human Rights, the State has a duty to promptly comply with the May 30, 1999 Judgment rendered by the Inter-American Court of Human Rights in the Castillo Petruzzi et al. Case [and the Loayza Case]."

C. THE CLAIMED "WITHDRAWAL" FROM THE COURT'S CONTENTIOUS JURISDICTION

25. On July 2, 1999, Mr. Jorge Bustamante Romero, Minister of Justice of Peru, sent a letter to then-President of the Council of Ministers and Minister of Economy and Finance, Mr. Víctor Joy Way, submitting his "legal opinion" on the "possibility of the Peruvian State withdrawing its recognition of the contentious jurisdiction of the Inter-American Court of Human Rights," whose instrument was deposited by act of January 21, 1981, before the Secretary General of the Organization of American States. The letter indicates that the Government of Peru could adopt the decision to withdraw its recognition of the Court's jurisdiction on the following basis: The judgment of the Court in the case of Castillo Petruzzi et al. "repudiates" ("desconoce") the Constitution and domestic law of Peru "by calling into question the jurisdiction of the military courts to judge civilians for the crimes of terrorism and treason"; there are more complaints before the Commission "on behalf of terrorists convicted by the Peruvian courts"; the noted case recently ruled on by the Court constitutes a precedent in this regard and as such reflects the opinion of the Court; and terrorism "will take advantage of the artificial creation of a climate of insecurity and agitation generated by the initiation of a new public procedure in the civilian jurisdiction which, however, may not reach conclusions different from the previous one given that they are convicted and confessed terrorists." The only solution for the State, it concluded, is "withdrawing its recognition of the Court's contentious jurisdiction."

26. Mr. Bustamante concludes his letter to the President of the Congress noting the following points, which were to become the legal basis for defending Peru's withdrawal from the Court's contentious jurisdiction: "The accession of the Peruvian State to the Inter-American Court's contentious jurisdiction was a unilateral and sovereign act. The withdrawal of such recognition, accordingly, is also a unilateral and sovereign act"; "the withdrawal ... does not mean denouncing the American Convention in part or in whole.... Peru will continue to be a State party to that Convention, as it was during the period from July 28, 1978, until January 20, 1981"; "the denunciation of the American Convention and the withdrawal of recognition of the jurisdiction of the Inter-American Court are international acts expressing the will of the different States that are entirely distinct in nature. Any effort to liken the one to the other leads to an unacceptable confusion." "The withdrawal of the recognition ... would produce immediate effects from the moment the respective instrument is deposited in the General Secretariat of the OAS."

27. On July 5, 1999, Mr. Alberto Fujimori, President of Peru, through official note No. 086-99-PR, communicated to the President of the Congress that, by the favorable vote of the Council of Ministers, it had been decided to withdraw the Peruvian State's recognition of the Inter-American Court's contentious jurisdiction, effective immediately. The bases of that withdrawal were expressed in Official Note No. 328-99-JUS/DM, of July 2, 1999, forwarded by the Ministry of Justice. The Office of the Human Rights Ombudsman, exercising his mandate to ensure the observance of human rights, urged Congress, through official note No. DP-99-462, of July 6, 1999, to adopt a decision respectful of the provisions of Article 205 of the Constitution and the provisions of the American Convention, and consequently not to approve the withdrawal, by the Peruvian State, from the Court's contentious jurisdiction.

28. Despite the exhortation by the Human Rights Ombudsman, the Congress of the Republic approved Legislative Resolution No. 27,152 of July 8, 1999, which provided for the approval of "the withdrawal, with immediate effect, of the recognition of the contentious jurisdiction of the Inter-American Court of Human Rights." On July 9, 1999, the Government of Peru proceeded to deposit, in the General Secretariat of the Organization of American States, the instrument by which it declares that it withdraws its declaration recognizing the contentious jurisdiction of the Inter-American Court. The written submission signed by the Minister of Foreign Affairs, Mr. Fernando de Trazegnies Granda, dated July 8, 1999, is an instrument of withdrawal. This instrument:

Declares that, pursuant to the American Convention on Human Rights, the Republic of Peru withdraws the declaration recognizing the optional clause on submission to the contentious jurisdiction of the Inter-American Court of Human Rights, made in due course by the Peruvian Government.

This withdrawal of recognition of the contentious jurisdiction of the Inter-American Court shall have immediate effect and shall apply to all cases in which Peru had not answered the application filed with Court.

1. The Commission's press release

29. On July 9, 1999, the Commission issued the following press release on Peru's "withdrawal":

PRESS RELEASE

Nº 21/99

The Inter-American Commission on Human Rights (hereinafter "the Commission") has learned that, on the initiative of the Government of President Alberto Fujimori, the Congress of the Republic of Peru adopted a legislative resolution on July 7 whereby the Peruvian state issues "its withdrawal, effective immediately, of recognition of the contentious jurisdiction of the Inter-American Court of Human Rights."

The Commission deplores this unprecedented decision by the Peruvian State, which is intended to restrict the protection afforded by the hemispheric human rights system as regards the inhabitants of Peru, and which runs counter to the prevailing regional trend of accepting the contentious jurisdiction of the Inter-American Court, demonstrated by the recent actions of Brazil, Haiti, Mexico, and the Dominican Republic.

The Commission notes that the decision in question neither alters in any way the obligation of the Peruvian State to comply fully with the judgments of the Inter-American Court nor affects the competence of the Court to hear the cases of Baruch Ivcher, the Constitutional Tribunal, and the others pending in the system. As for the remaining matters, the Commission is now assessing the validity of the Peruvian State's decision in the light of international law, and will make its position known at the appropriate time and in the appropriate forum. In any case, the Peruvian State remains obligated to comply with its international human rights obligations under the jurisdiction of the Commission.

Finally, the Commission calls upon the Peruvian State to reconsider its decision to remove itself from the contentious jurisdiction of the Inter-American Court.

Washington, D.C., July 9, 1999

2. Case of Ivcher Bronstein

30. This case, mentioned supra, refers to Mr. Baruch Ivcher Bronstein, born in Israel, who acquired Peruvian citizenship in 1984. In April 1997, Channel 2 ("Canal 2"), a television station whose operating company's majority shareholder and president was Mr. Ivcher, disseminated news on torture committed by members of the Army Intelligence Service against an agent of that same institution; on the multi-million dollar income of Mr. Vladimiro Montesinos Torres, adviser to the Army Intelligence Service; and on human rights violations by the Peruvian State.

31. In July 1997, the Government issued a resolution annulling the earlier recognition of Baruch Ivcher's nationality; in August 1997 a judge suspended Mr. Ivcher's shareholder rights, and revoked his appointment as president of the company. Once Mr. Ivcher was separated from Channel 2, that channel changed its editorial line and stopped airing complaints of grave human rights violations. In addition, the Peruvian State brought judicial actions, both civil and criminal, not only against Mr. Ivcher, but also against his wife and daughters, his employees, attorneys, and other persons close to him.

32. In December 1998, the Inter-American Commission on Human Rights issued a report on the case, and determined that the Peruvian State violated Mr. Ivcher's rights to nationality, due process, freedom of expression, property, and effective judicial protection, enshrined in the American Convention. The Commission made several recommendations to the Peruvian State. The IACHR sponsored an effort to reach a friendly settlement, but in the end none was reached. Therefore, on March 31, 1999, the Commission submitted the case to the Inter-American Court, and requested that the Court order Peru to restore and ensure Mr. Bronstein's full enjoyment of his rights that had been violated, and in particular that he be able to have his Peruvian nationality fully and unconditionally recognized, with all the corresponding rights and attributes; that his property in the company be returned to him; that the acts of persecution and harassment of Mr. Ivcher and the persons close to him should cease; and that reparation and compensation be made to Mr. Ivcher for the human rights violations committed against him. The case is currently under consideration by the Inter-American Court.

3. Case of the Constitutional Court

33. The Commission submitted an application to the Inter-American Court in case 11.760, on the Constitutional Court, on July 2, 1999. The case refers to the removal of three of the seven judges of the Constitutional Court of Peru by the majority in Congress, for having decided not to apply Law No. 26,657, as they considered that it authorized the current President of Peru to be re-elected for a second time, in violation of Article 112 of the Constitution, which limits the presidency to two consecutive five-year terms.[9] The removal of these three judges (Delia Revoredo Marsano de Mur, Manuel Aguirre Roca, and Guillermo Terry Rey) has dismantled the current Court, as it now has only four members, who are legally barred from exercising the Court's essential function, i.e. to review the constitutionality of statutes by filing motions on grounds of unconstitutionality, leaving the population of Peru defenseless and unprotected.

34. The Commission filed the application with the Court, against Peru, asking that the Court find violations of the right to judicial guarantees (Article 8(1) and 8(2)(c)(d)(f)), political rights (Article 23(1)(c)), and the right to judicial protection (Article 25), all of the American Convention, to the detriment of the alleged victims. In addition, the Commission considers that Peru has violated Article 1(1) in relation to the obligation to respect the rights and freedoms enshrined in the Convention, as well as the duty established at Article 2, to adopt provisions of domestic law to ensure and guarantee the free and full exercise thereof to all persons subject to the jurisdiction of the State.

4. The Commission's position with respect to the claimed "withdrawal"

35. In its instrument of "withdrawal" deposited with the General Secretariat of the OAS, the Peruvian State specifically excludes from the contentious jurisdiction of the Court the cases pending before the Court in which Peru had not answered the application. As of July 8, 1999, the date of "withdrawal," five (5) cases were pending against Peru: Durand and Ugarte, Cantoral Benavides, Gustavo Cesti, Ivcher, and the Constitutional Court. Peru had not answered the application in the last two, i.e. Ivcher and the Constitutional Court. Consequently, by note RE(GAB) No. 6/24, of July 15, 1999, the Peruvian State returned the applications with their annexes in these two cases to the Court. The Court transmitted to the Commission a copy of the note from the State to a series of documents related to it, asking that it submit its observations within the time granted.

36. The Commission submitted its considerations on the jurisdiction of the Court in both cases, and on the claimed "withdrawal," to the Inter-American Court. With respect to the first point, the Commission noted that this case was "unprecedented, since no state had ever attempted to withdraw its acceptance of the compulsory jurisdiction of the Court and at the same time continue to be a State party to the Convention." The Commission argued that the Inter-American Court already had jurisdiction over both cases at the moment when Peru attempted to "withdraw" its acceptance, given that the Court took jurisdiction at the time the application was submitted:

The filing of the application is the key event that sets in motion the procedures before the Inter-American Court of Human Rights, as before other international tribunals, such as the ICJ or the European Court of Human Rights. Article 32 of the Regulations of the Inter-American Court provides for "Institution of the Proceedings," stipulating: "For a case to be referred to the Court under Article 61(1) of the Convention, ten copies of the application shall be filed with the Secretariat in each of the working languages of the Court. The filing of an application in only one working language shall not suspend the proceeding, but the translations in the other language or languages shall be filed within 30 days."

Similarly, in the context of the application filed with the Honorable Court for an advisory opinion, it is the submission of the application that sets the procedure in motion:

Once set in motion the advisory proceedings, and notified the consultation to all the member States and main organs of the Organization of American States (OAS), and being the Court already seized of the petition, there is no way to seek to deprive the Court of its competence, not even by the withdrawal of the original request. The Court has the competence of the competence, and decides, in its own discretion, whether or not to render the Advisory Opinion. The withdrawal of the request has no effect whatsoever over its competence already established. The Court is already seized of the subject-matter of the petition, and is master of its jurisdiction.[10]

In the context of the inter-state practice of the ICJ, Article 40(2) of its Statute makes reference to the respective appointment of agents "when the procedure begins through an application." It is the filing of this application that makes it possible to determine whether the necessary elements are present to confer jurisdiction over the case. "'When a case is submitted to the Court, it is always possible to determine which are, at that moment, the mutual obligations of the parties based on their respective declaration.' It is almost a consequence of that provision that it is not possible to make that determination more than at the time a case is submitted to the Court...."[11]

37. The Commission continued stating that "... the decisive date in relation to the jurisdiction of an international court is the date it effectively begins its consideration of a matter. If the court has jurisdiction as of that date, that jurisdiction cannot be affected by subsequent events or acts of the parties." The Commission concluded: "As already indicated, it is also a fundamental principle of law that once jurisdiction is assumed in a case, a court is the owner of its own jurisdiction. The existence or scope of that jurisdiction cannot, contrary to what Peru argues, be made to depend on the subsequent conduct of one of the parties."

38. With respect to the claimed "withdrawal" by Peru of its acceptance of the contentious jurisdiction of the Court, the Commission defended the following position before the Court:

To summarize the positions that will be set forth in this section, the Commission considers that the provisions of the inter-American human rights system, and those of international law, indicate that the "withdrawal" that Peru has attempted should be considered invalid since, from the legal standpoint, and as having no effect whatsoever. Our regional system provides for a single procedure by which a State may rescind, renounce, or withdraw from the obligations assumed under the Convention, provided for in Article 78, for denouncing the treaty as a whole, so long as the requirements indicated are met. The text provides for no alternative procedure. The interpretation of this text pursuant to the norms of international human rights law and the object and purpose of the Convention, leads the Commission to declare that there is no legal basis for the supposed "withdrawal" by Peru from its unconditional recognition of jurisdiction. The framers of the Convention established a unitarian system of rights and obligations in the multilateral ambit, not a series of relationships among States essentially contractual and reciprocal in nature. While the unilateral withdrawal from obligations assumed conditionally in the sphere of relations among the States of the latter category may be permissible under certain circumstances, as shall be set forth in the following analysis, such an act has no legal basis in the special regime for human rights, and is incompatible with the object and purpose of the Convention.

39. With respect to the sui generis nature of the regime of human rights treaties, the Commission noted that:

International human rights law has the supreme objective of protecting individual rights and freedoms. In light of that objective, this legal regime possesses specialized attributes which in some moments differ from those of other branches of international law. As per the description by the Honorable Court:

modern human rights treaties in general, and the American Convention in particular, are not multilateral treaties of the traditional type concluded to accomplish the reciprocal exchange of rights for the mutual benefit of the contracting States. Their object and purpose is the protection of the basic rights of individual human beings irrespective of their nationality, both against the State of their nationality and all other contracting States. In concluding these human rights treaties, the States can be deemed to submit themselves to a legal order within which they, for the common good, assume various obligations, not in relation to other States, but towards all individuals within their jurisdiction.[12]

"The distinct character of these treaties," the Honorable Court has indicated, has been recognized by the European Commission on Human Rights, and by the ICJ, among other organs, in addition to having been expressed in the Vienna Convention.[13]

40. In conclusion, the Commission asked the Court to:

1. Declare that the devolution, by the Peruvian State, of the denunciation and related documents in the case of [Baruch Ivcher Bronstein] [Constitutional Court] has no legal effect whatsoever, and it continues to exercise its jurisdiction in this case.

2. Convoke a hearing on the merits at the first possible procedural opportunity.

5. The judgments on the Court's jurisdiction

41. The Inter-American Court issued two rulings on jurisdiction in the Ivcher Bronstein and Constitutional Court cases of September 24, 1999. In those judgments, the Court set forth the following considerations, among others:

The Court must settle the question of Peru's purported withdrawal of its declaration recognizing the contentious jurisdiction of the Court and of its legal effects. The Inter-American Court, as with any court or tribunal, has the inherent authority to determine the scope of its own competence (compétence de la compétence/Kompetenz-Kompetenz).

The jurisdiction of the Court cannot be contingent upon events extraneous to its own actions. The instruments consenting to the optional clause concerning recognition of the Court's binding jurisdiction (Article 62(1) of the Convention) presuppose that the States submitting them accept the Court's right to settle any controversy relative to its jurisdiction. An objection or any other action taken by the State for the purpose of somehow affecting the Court's jurisdiction has no consequence whatever, as the Court retains the compétence de la compétence, as it is master of its own jurisdiction.

Interpreting the Convention in accordance with its object and purpose (cf., infra 39), the Court must act in a manner that preserves the integrity of the mechanism provided for in Article 62(1) of the Convention. That mechanism cannot be subordinated to any restrictions that the respondent State might add to the terms of its recognition of the Court's binding jurisdiction, as that would adversely affect the efficacy of the mechanism and could obstruct its future development.

Acceptance of the Court's binding jurisdiction is an ironclad clause to which there can be no limitations except those expressly provided for in Article 62(1) of the American Convention. Because the clause is so fundamental to the operation of the Convention's system of protection, it cannot be at the mercy of limitations not already stipulated but invoked by States Parties for internal reasons.

There is no provision in the Convention that expressly permits the States Parties to withdraw their declaration of recognition of the Court's binding jurisdiction. Nor does the instrument in which Peru recognizes the Court's jurisdiction, dated January 21, 1981, allow for that possibility.

An interpretation of the Convention done "in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose" leads this Court to the view that a State Party to the American Convention can only release itself of its obligations under the Convention by following the provisions that the treaty itself stipulates. In the instant case, under the Convention, the only avenue the State has to disengage itself from the Court's binding contentious jurisdiction is to denounce the Convention as a whole (cf. infra 46, 50); if this happens, then the denunciation will only have effect if done in accordance with Article 78, which requires one year's advance notice.

Article 29(a) of the American Convention provides that no provision of the Convention shall be interpreted as permitting any State Party, group, or person to suppress the enjoyment or exercise of the rights and freedoms recognized in the Convention or to restrict them to a greater extent than is provided for therein. Any interpretation of the Convention that allows a State Party to withdraw its recognition of the Court's binding jurisdiction, as Peru would in the instant case, would imply suppression of the exercise of the rights and freedoms recognized in the Convention, would be contrary to its object and purpose as a human rights treaty, and would deprive all the Convention's beneficiaries of the additional guarantee of protection of their human rights that the Convention's jurisdictional body affords.

For the foregoing reasons, the Court considers inadmissible Peru's purported withdrawal of the declaration recognizing the contentious jurisdiction of the Court effective immediately, as well as any consequences said withdrawal was intended to have, among them the return of the application, which is irrelevant.

42. Accordingly, in its judgments on jurisdiction in the Ivcher Bronstein and Constitutional Court cases, the Inter-American Court unanimously resolved to:

1. Declare that:

(a) the Inter-American Court of Human Rights is competent to consider the present case;

(b) the purported withdrawal, with immediate effects, by the Peruvian State, of the declaration of recognition of the contentious jurisdiction of the Inter-American Court of Human Rights is inadmissible.

2. Continue with the consideration and the proceedings of the present case.

3. Empower its President to summon on occasion the Peruvian State and the Inter-American Commission on Human Rights to a public hearing on the merits of the case to be held at the seat of the Inter-American Court of Human Rights.

4. Give notice of this Judgment to the Peruvian State and the Inter-American Commission on Human Rights.

43. On September 27, 1999, the Court issued a press communique in relation to the judgment on the merits in the case of Castillo Petruzzi case against Peru on May 30, 1999, with the intent of clarifying the following points:

1. That it did not order the release of the Chilean citizens implied in the said case. What the Court unanimously decided, was the following:

declares the invalidity of the process against Jaime Francisco Sebastián Castillo Petruzzi, María Concepción Pincheira Sáez, Lautaro Enrique Mellado Saavedra and Alejandro Luis Astorga Valdez because of its incompatibility with the American Convention of Human Rights, and orders that a new trial in compliance with the due process of law be granted to them.

Evidently, we are not facing a prosecution that fulfills the minimum requirements of "due process of law," which is the essence of the judicial guarantees established in the Convention. Such circumstance motivates the invalidity of the process and deprives the Judgment of value; said Judgment does not meet the requirements so that it may subsist and produce the effects that regularly, a procedure of this nature brings within. It is the State's duty to perform -in a reasonable term- a new procedure that fulfills ab initio the requirements of the due process of law, performed before a competent tribunal (ordinary jurisdiction) and with the defendants' due guarantees of public hearing and defense. The Court does not declare about these persons' free on parole because it understands that the adoption of such preventive measure corresponds to the competent national tribunal.

2. It did not order the State to indemnify the said Chilean citizens. What the Court unanimously decided was to order the Peruvian State to reimburse a total of US$10.000,00 to the victims' relatives that prove having incurred the equivalent legal fees and costs in the present case.

44. The judgments on jurisdiction in the Ivcher and Constitutional Court cases were reported to the Peruvian State on September 27, 1999, and returned to the Court the same day. By letter dated October 1, 1999, Peruvian Foreign Minister Fernando de Traznegies Granda, Minister of Foreign Affairs, addressed the Secretary General of the OAS in the following terms:

I am honored to address Your Excellency to inform you that the Inter-American Court of Human Rights, on September 27, sent two texts to the Peruvian State called "judgments on jurisdiction" with respect to two cases over which it claims to have jurisdiction.

On September 29, the Government of Peru has answered that the Peruvian State is not a party to the proceedings in question, and that it does not consider the above-referenced communication as notice....

45. The international community, through civil society organizations, governments, legislatures, and international organizations, expressed its rejection of the position taken by the Peruvian Government vis-à-vis its international obligations.[14] In addition, a large number of Peruvian individuals and organizations rejected the claimed withdrawal.

D. FRIENDLY SETTLEMENTS

46. During 1999, the State created the Special High-Level Commission (CEAN: Comisión Especial de Alto Nivel) to establish a more fluid and effective relationship with the mechanisms of the inter-American human rights system in the effort to identify concrete solutions to the cases submitted to these organs. In this context, it is noted that the CEAN has pursued initiatives for friendly settlement agreements. These initiatives yielded their first successful results in the agreement reached in Case 12.041.

47. Similarly, negotiations were held in the framework of the above-noted friendly settlement process, including Case 11.166, 11.756, 12.084, and 12.191, among others.

E. CONCLUSIONS

48. Peru's refusal to carry out the decisions of the Inter-American Court, whether prior to or after Peru's attempt to remove itself from the Court's contentious jurisdiction, goes to the very essence of international law, i.e. good-faith performance of treaty obligations.

49. The Inter-American Court is the judicial organ of the system enshrined in the American Convention. Once its contentious jurisdiction has been accepted, its decisions are not subject to interpretation by the domestic jurisdictions of the States parties, as provided for in their own respective legal orders. It is the State's duty to adopt, "in accordance with its constitutional processes and the provisions of [the American] Convention, such legislative or other measures as may be necessary" to give effect to the rights and freedoms set forth in the Convention.

50. The Commission affirms that, after having voluntarily undertaking to respect the norms of the American Convention without reservations, the Peruvian State is fully obliged to carry out the judgments handed down by the Inter-American Court of Human Rights. Peru is not authorized to invoke its domestic law, nor its effort to remove itself from the contentious jurisdiction of the Court, as an impediment to compliance with the judgments of the Inter-American Court. The Commission considers it beyond doubt that the failure of the Peruvian State to comply with judgments of the Inter-American Court constitutes flagrant contempt of international law.

F. RECOMMENDATIONS

51. The State, in its response to the report, reiterates the arguments it made in due course before the Inter-American Court, calling into question its jurisdiction. As the Court has made pronouncements on this issue, there is no need to reiterate the Commission's arguments, which were presented in due course. One should cite Article 68 of the American Convention, which reads: "The States Parties to the Convention undertake to comply with the judgment of the Court in any case to which they are parties. moreover, it is a fundamental principle of public international law that treaties must be respected (pacta sunt servanda) Based on the foregoing, the Commission makes the following recommendations to the Peruvian State:

1. That the Peruvian State desist in its position of not complying with its freely-contracted international commitments, challenging the jurisdiction of the Inter-American Court of Human Rights.

2. That the Peruvian State fully comply with the decisions of the Inter-American Court of Human Rights.

Notes__________________

[1] The release of Mrs. Loayza is the first time a state has complied with a judgment of the Court ordering the release of an individual.

[2] Inter-American Court of Human Rights, Case of Loayza Tamayo, Interpretation of the Judgment on Reparations, Judgment of June 3, 1998.

[3] Among other things, this Resolution invokes as grounds for the alleged "non-enforceability," issues having to do with exhaustion of domestic remedies; the impossibility of double jeopardy in the Peruvian legal order; the allegation that the judgment of the Inter-American Court "must be adjusted to the constitutional order of the signatory states, or otherwise binding if their respective constitutions provide for the supremacy of the constitutions over treaties or conventions related to matter in this ambit"; the allegation that "the Constitution in force establishes that no authority may void rulings [of the Peruvian courts] that have become res judicata"; and that "the so-called 'supervision' of compliance with judgments, ordered in the ruling of the Inter-American Court ... constitutes a power that has not been assigned to it by the instruments to which the Republic of Peru is a signatory, and which, therefore, are unenforceable."

[4] See analysis in Chapter II.

[5] Among other considerations, this resolution invokes as the grounds for the alleged "unenforceability" issues relating to the exhaustion of domestic remedies; the resolution of issues not raised before the Commission nor included in the application before the Court; the allegation that the Inter-American Court has "overstepped the bounds of its jurisdiction" for having addressed the issue of the incompatibility of domestic law with the Convention, which it only has jurisdiction to do, according to the State, "by way of consultation, and in the manner of an opinion," and "exclusively at the initiative of the States parties (Articles 63, 64 of the American Convention), which is not the case in the present matter"; the allegation that "the order to reform legal provisions emanating from the Legislative branch requires a new legal rule, which implies ordering that the members of the Congress vote a certain way" when "the members of Congress represent the Nation and are not subject to an imperative order," consequently, the Court "cannot order them as to the content or form of their votes, since the members of Congress answer only to their constituents"; the allegation that the judgment of the Court in question seeks to "repudiate the Constitution of Peru and subject it to the American Convention on Human Rights"; the allegation that the "final judgment" of May 3, 1994, "issued by the Special Supreme Military Tribunal had the effect of res judicata ... therefore it could not be the subject of a new judgment, for it would be a violation of the rule set forth in the Constitution at Article 139 of the Peruvian Constitution" "and whose realization would constitute a constitutional violation"; the allegation that "the arguments of the Court, on having considered that Military Justice, in the case of judging civilians ... does not meet the essential attributes ... has not had the essential support, nor sufficient and satisfactory grounding, nor has it displayed a presumed prohibition of Military Justice over civilians in respect of certain issues provided for in the Constitution of Peru, which prohibition is not regulated by the American Convention, and consequently should not be validly invoked to judge a supposed violation of the Convention."

[6] The International Court of Justice, in a recent decision, has observed that "the principle of good faith is a well-established principle of international law. It is set forth in Article 2, paragraph 2, of the Charter of the United Nations; it is also embodied in Article 26 of the Vienna Convention on the Law of Treaties of 23 May 1969. It was mentioned as early as the beginning of this century in the Arbitral Award of 7 September 1910 in the North Atlantic Fisheries case (United Nations, Reports of International Arbitral Awards, Vol. XI, p. 188). It was moreover upheld in several judgments of the Permanent Court of International Justice (Factory of Chorzów, Merits, Judgment No. 13, 1928, P.C.I.J., Series A, No. 17, p. 30; Free Zones of Upper Savoy and the District of Gex, Order of 6 December 1930, P.C.I.J., Series A, No. 24, p. 12, and 1932, P.C.I.J., Series A/B, No. 46, p. 167). Finally, it was applied by this Court as early as 1952 in the case concerning Rights of Nationals of the United States of America in Morocco (Judgment, I.C.J. Reports 1952, p. 212), then in the case concerning Fisheries Jurisdiction (Federal Republic of Germany v. Iceland) (Jurisdiction of the Court, Judgment, I.C.J. Reports 1973, p. 18), the Nuclear Tests cases (I.C.J. Reports 1974, pp. 268 and 473), and the case concerning Border and Transborder Armed Actions (Nicaragua v. Honduras) (Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 105)." This cite has been transcribed from the case of Cameroon v. Nigeria, Preliminary Objections, 11 June 1998, para. 38.

[7] In its Advisory Opinion No. 14, the Court stated: "Pursuant to international law, all obligations imposed by it must be fulfilled in good faith; domestic law may not be invoked to justify nonfulfillment." OC-14/94, para. 35. The system of interpretation of the Vienna Convention has been used by the Honorable Court in the exercise of both its advisory and contentious jurisdictions. See Inter-American Court of Human Rights, OC-3/83, para. 50; Case of Velásquez Rodríguez, Preliminary Objections, Judgment of January 21, 1987, paras. 44 and 45; Case of Fairén Garbi and Solís Corrales, Preliminary Objections, Judgment of January 21, 1987, paras. 47 and 48.

[8] Germán Bidart Campos, "Jerarquía y Prelación de Normas en un Sistema Internacional de Derechos Humanos" in Liber Amicorum: Héctor Fix-Zamudio, 1998, Vol. I, p. 459.

[9] Given that the Constitutional Court did not have the necessary quorum (6 of 7) for declaring the law unconstitutional, the three magistrates decided to exercise their own judicial function of "diffuse control" of constitutionality, applying the constitutional rule instead of the new law, which they interpreted as contradictory.

[10] See Inter-American Court of Human Rights, Advisory Opinion OC-15/97, supra, Concurring opinion of Judge A.A. Cançado Trindade, para. 7.

[11] ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, I.C.J. Reports 1984, Separate opinion of Judge Jennings, p. 547 (citing the case Right of passage over Indian Territory, I.C.J. Reports 1957, p. 143).

[12] Inter-American Court of Human Rights, The Effect of Reservations on the Entry Into Force of the American Convention on Human Rights (Arts. 74 and 75 ), Advisory Opinion OC-2/82 of September 24, 1982, Inter-Am.Ct.H.R. (Ser. A) No. 2, para. 29.

[13] Id., paras. 29-30, citing the European Commission on Human Rights, Austria v. Italy, App. No. 788/60, 4 Eur. Yearbook of H.R. 116, p. 140 (1961); ICJ, Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (1951 I.C.J. 15); and, with respect to the Vienna Convention, citing, in general, E. Schwebel, "The Law of Treaties and Human Rights," 16 Archiv des Volkerrechts 1 (1973), reprinted in Toward World Order and Human Dignity, p. 262 (W.M. Reisman and B. Weston, directors of the publication, 1976).

[14] For example, UN organs, several governments, the European Union, and the European Court of Human Rights.