9
IV.
The Engagement of State Responsibility at the Domestic-Law
and International-Law Levels.
30.
In this decision, the Inter-American Court has let a one-time chance to provide
clarification on the meaning and scope of its Judgment on merits and reparations in
this Case of the Dismissed Congressional Employees in connection with paragraph
7(a) of petitioners’ request for Interpretation of Judgment slip by. In my opinion, said
paragraph, which is directly concerned with the core issue of access to justice – an
issue I consider as belonging in the realm of jus cogens-, deserved greater attention
by the Court. It is obvious we are dealing with an issue concerning the international
responsibility of the State (not a domestic organ).
31.
The responsibility of a State may be engaged at both the domestic and
International Law levels. If a public body ceases to adequately fulfill the duties
attributed to it by the constitution or a law, the State’s responsibility is engaged
domestically. Where a public organ created by the State to comply with a Judgment
rendered by an international tribunal ceases to adequately fulfill its duty to repair the
human rights violations, then the State’s responsibility is engaged in the field of
International Law. This is so notwithstanding the international responsibility of the
State already engaged as a result of the original wrongful act (or failure to act) that
had already given rise to the State’s international liability and the international
petition against it.
32.
In either case, whether at the domestic law or the International Law level,
responsibility lies with the State. This is yet another issue that should have been
clarified by the Inter-American Court in this Judgment on Interpretation, in connection
with paragraph 7(a) of petitioners’ request in this case of the Dismissed Congressional
Employees v. Peru. Actually, the Court has hardly provided any clarification, if any at
all, merely reserving its inherent power to monitor compliance with its Judgments, for
which this Judgment on Interpretation was not in the least necessary. And a later
order on monitoring of compliance with Judgment would not be the appropriate
means for providing clarification on, for instance, paragraph 7(a) of the
aforementioned request of petitioners.
33.
In this decision (para. 19), the Court has recognized that certain difficulties
may arise in connection with the State’s compliance with its Judgment on the merits
and reparations in the cas d'espèce; however, it has conveniently chosen not to clarify
the important issue raised in paragraph 7(a) of the request for Interpretation of
Judgment or deal with the fair concern expressed by the employees dismissed from
Peru’s Congress. It is due to all of the above that I have chosen, as I necessarily had
to, to use this Dissenting Opinion to provide the clarification which the Court has
elected not to provide, without even stating compelling reasons not to do so. I find it
difficult to shrug off the impression that the Court has acted as a domestic tribunal
faced with a conflict of interests in a contentious proceeding between private parties,
settling a dispute between equals but disregarding, however, the material importance
of the (additional) protection provisions of the American Convention.
34.
Regard should be had to the fact that cases such as this one only reach the
Court where there is an allegation that no justice has been done domestically. In
adjudicatory international proceedings on human rights, the parties enjoy their
inevitable legal equality; they do, however, suffer a regrettable inequality of fact. The
point is not the settling of a conflict of interests under the traditional and much
criticized view of subjective rights as legally-protected interests29 but, rather, the
29
.
Such view of subjective rights attributed to Ihering, which is somewhat utilitarian
and reductionist, received harsh criticism, e.g. from Alf Ross, as was also the case with
Windscheid’s construction, under which a subjective right was "a power or supremacy of will"