Igor de Toledo Pennacchi Cardoso MACHADO, Ricardo Migliorini MUSTAFÁ FILHO


The present research approaches the acceptance of the Inter-American
Court of Human Rights (hereinafter “the Court”) jurisdiction as an eternity clause,
using for that the Ivcher Bronstein vs. Peru case. In this sense, Baruch Ivcher
Bronstein was a naturalized Peruvian citizen whom had his nationality title deprived
arbitrarily by the Republic of Peru, in order to remove him from the editorial control of
a television channel, in which he was director and president, curbing his freedom of
expression, because he was denouncing acts of corruption and grave human rights
violations. In return, the Inter-American Commission of Human Rights submitted an
application to the Court, so it could decide whether the Republic of Peru had or had
not violated countless points of the Inter-American Convention of Human Rights
(hereinafter “the Convention”), such as the right to a fair trial (article 8), the freedom
of thought and expression (article 13), right of nationality (article 20), right to property
(article 21) and judicial protection (article 25). Occurs that, during the procedure, the
Peruvian Republic informed a legislative resolution by which the Congress would
have approved the withdrawal of the country of the Court contentious jurisdiction.
Well, the article 62.1 of the Convention indeed brings the idea of an optional
jurisdiction clause, which allows a State Party to choose, or not, to recognize the
jurisdiction of the Court on all subjects related to the interpretation or application of
the Convention. Nevertheless, the Court did not accept the request, because, in
accordance with the Court’s understanding, once the jurisdiction is recognized it
binds the State and becomes an eternity clause. Thus, if a State Party wants to
revoke the Court’s jurisdiction, it can only be done by denouncing the Convention in
its entirety, attending to the article 44.1 of the Vienna Convention on the Law of
Treaties. Furthermore, the article 78 of the Convention itself should also be
respected, which predicts a five-year period from the date of its validity and a notice
to the Secretary General of the Organization with one year in advance to a valid
denounce of the Convention. Therefore the Republic of Peru undoubtedly could not
revoke the jurisdiction of the Court after the international procedure of human rights
violation has started. Hence, from the trial of the Ivcher Bronstein vs. Peru case, the
Inter-American Court of Human Rights decided that once the State accepts the
Court’s jurisdiction, which is optional, the State Party cannot renounce it, unless by
the denounce of the whole Convention one year in advance, creating a form of
eternity clause in the International Law of Human Rights.

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