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
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
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.
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.
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).
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:
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.
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.
the payments indicated in operative paragraphs 1 and 5 shall be made within six
months from the date of notification of [the]
any payment ordered in this judgment shall be exempt from any existing or future
tax or duty.
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.
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.
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. 
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.
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
No explanation is provided as to why the Supreme Court adopted a resolution
regarding a final decision of the Inter-American Court.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
The Commission highlighted in its written submission that Article 67 of
the American Convention establishes that the Court's ruling is not subject to
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:
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
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.
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:
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:
States Parties to the Convention undertake to comply with the judgment of the
Court in any case to which they are parties.
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
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."
The Honorable Court has already had an opportunity to echo this principle in the
exercise of its jurisdiction.
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.
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.
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
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:
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:
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).
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)
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.
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]."
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."
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
withdrawal of the recognition ... would produce immediate effects from the
moment the respective instrument is deposited in the General Secretariat of the
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.
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.
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.
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.
On July 9, 1999, the Commission issued the following press release on
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."
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.
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.
the Commission calls upon the Peruvian State to reconsider its decision to
remove itself from the contentious jurisdiction of the Inter-American Court.
D.C., July 9, 1999
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.
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.
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
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. 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.
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.
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.
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:
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."
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
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.
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...."
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."
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:
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.
With respect to the sui generis
nature of the regime of human rights treaties, the Commission noted that:
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:
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.
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
In conclusion, the Commission asked the Court to:
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.
Convoke a hearing on the merits at the first possible procedural
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:
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).
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.
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.
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.
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.
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.
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.
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.
Accordingly, in its judgments on jurisdiction in the Ivcher Bronstein and
Constitutional Court cases, the Inter-American Court unanimously resolved to:
the Inter-American Court of Human Rights is competent to consider the
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.
Continue with the consideration and the proceedings of the present case.
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.
Give notice of this Judgment to the Peruvian State and the Inter-American
Commission on Human Rights.
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:
That it did not order the release of the Chilean citizens implied in the
said case. What the Court unanimously decided, was the following:
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.
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.
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.
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
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.
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....
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. In addition, a large
number of Peruvian individuals and organizations rejected the claimed
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
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,
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.
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.
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.
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:
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.
That the Peruvian State fully comply with the decisions of the
Inter-American Court of Human Rights.
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.
Inter-American Court of Human Rights, Case of Loayza Tamayo, Interpretation
of the Judgment on Reparations, Judgment of June 3, 1998.
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
See analysis in Chapter II.
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
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.
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.
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.
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.
See Inter-American Court of Human Rights, Advisory Opinion OC-15/97, supra,
Concurring opinion of Judge A.A. Cançado Trindade, para. 7.
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).
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.
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,
For example, UN organs, several governments, the European Union, and the
European Court of Human Rights.