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 InterAmerican 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 protection of the weaker party who has been
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" (incapable of