* Peter C. Hansen, Esq. is Editor of International Legal Materials at the American Society of International Law. This abstract originally appeared in the Society's International Law In Brief, which is archived at http://www.asil.org.

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 Chorzow, 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 International 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, Schwebel, E., “The Law of Treaties and Human Rights, ” 16 Archiv des Volkerrechts 1 (1973)Google Scholar, 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.