Spanish Version

Lima, May 8, 2007.

MANIFESTATION GIVEN BY MR. RAUL DIEZ CANSECO TERRY IN RELATION TO MULTILATERAL AGREEMENT ON THE LIBERALIZATION OF INTERNATIONAL AIR TRANSPORTATION (“OPEN SKIES”)

Questions made by Congressman José Alfonso Maslucan Culqui, Coordinator of the Workgroup “Aeronáutica Civil”

1.- Kindly respond, do you have any knowledge about who elaborated supreme decree D.S. 081-2001-RE signed by you, stating that Peru is committed to the  Multilateral Agreement on the Liberalization of International Air Transportation (Open Skies)?

On October 17, 2001, in my position of First Vice-president circumstantially in charge of the Presidential Office, because President Alejandro Toledo was abroad on official mission, it was my duty to hold the Agreements meeting with Dr. Luis Solari de la Fuente, Health Minister in charge of the Foreign Affairs Portfolio, in the absence of Chancellor Diego García-Sayán, who was abroad along with the President. At this meeting, doctor Solari produced the bill of supreme decree 081-2001-RE to be signed, referring to me that the Chancellery had informed to him of some particular urgency to approve said agreement, because President Toledo was supposed to take part in the Summit for the Asia-Pacific Economic Cooperation - APEC, to be held in China, where he was going to officially announce our commitment to said Multilateral Agreement. 

This was the first time I ever read the wording of said Supreme Decree, which I had to sign due to the circumstance of being in charge of the Office of the Presidency of the Republic.  I had no previous participation in the elaboration process, nor did I have any participation after I signed it.  I am not aware of the internal procedure for elaborating said DS in the Ministry of Foreign Affairs or of who were the officers to have done this task.  I must mention, however, that during the constitutional accusation procedure against me on this grounds, evidence was produced in the form of documents (reports, memoranda) which beyond doubt proved that months before signing the DS, several reports had been issued by the Ministry of Transport and Communication and the Ministry of Foreign Affairs giving favorable opinion on said  Multilateral Agreement on the Liberalization of International Air Transportation, and recommending prompt elaboration and signature of the commitment instrument.  

Thus, my hand on this DS was just the final step of a process started several months before, even as far back as the Transition Government, in the Ministry of Transport and Communications and the Ministry of Foreign Affairs, who considered it national interest to commit to this Multilateral Agreement as State Policy. Based on the support provided by these technical opinions and the information Dr. Solari de la Fuente gave on the urgency of this instrument, we proceeded to the signature of Supreme Decree 081-2001-RE.

2.- Kindly respond, from your viewpoint, was this agreement convenient or detrimental for the interests of the Peruvian State?

The economic relevance of APEC and the need for Peru to be actively inserted in said Forum have been, for a few years, a State Policy and a priority for our country that is beyond discussion. The Multilateral Agreement on the Liberalization of International Air Transportation, known as “Open Skies” Agreement, was not a Bilateral Air Agreement between Peru and Chile. APEC members include countries such as China, Russia, Korea, Japan, Thailand, Taiwan, Singapore, Malaysia, Indonesia, the United States, Canada, Australia, New Zealand, Peru, Chile, etc. A number of these countries had already committed to the Open Skies Agreement and it was considered timely for Peru to get committed. The China Summit was a very important political and economic scenario, to be taken advantage of in reaffirming the participation of Peru in APEC.  This commitment to the Multilateral Agreement Open Skies intended to promote the receptive tourism from Asia to Peru, as well as the cargo freight as a result of commercial transactions; also, given the strategic geographic location of our country in South America, this was intended to attract Asian air lines to come and operate in Peru.

3.- Kindly respond, whether the valid document for the commitment of Peru to the Multilateral Agreement on the Liberalization of International Air Transportation was D.S. 081-2001-RE signed by you or the Commitment instrument signed by former President Mr. Alejandro Toledo and the former Ministry of Foreign Affairs, Mr. Diego García Sayán.

I am not a lawyer or an expert in International Law, thus I was not aware of the proper procedure for the approval or ratification of an international treaty for its perfection and entrance in force. Later on I have learned that signing the Supreme Decree means the culmination of the internal approval procedure for the Multilateral Agreement, but that deposit of the international commitment instrument, signed by President Toledo and Chancellor García-Sayán, on October 30, 2001, is the act that really perfects its approval on the part of Peru and enters in force for the international relationship with the countries Member of the Agreement.   

4.-  Kindly respond, who ordered you to sign D.S. 081-2001-RE?

The Constitution - Art 115°, second paragraph - states that whenever the President of the Republic leaves the national territory on official mission, it is up to the First Vice-President of the Republic to take over the Presidential Office. On this proviso, the Vice-President in charge of the Presidential Office acts invested with the political competences and immunities that correspond to the President of the Republic, being empowered to perform acts pertaining to the presidential function such as promulgate laws, approve or sign supreme decrees or resolutions, etc. These competences and their adequacy to the Constitution were corroborated by the reports of outstanding lawyers and university lecturers in Constitutional Law. Therefore, the Vice-President in charge of the Presidential Office does not work under “orders” of any particular individual, but rather in an office position foreseen in the Constitution and complying thereby with the competences pertaining thereto.

Since performing the acts of this office is temporary and circumstantial, it is only proper to provide continuity and completion to the acts, decisions or regulations that have been in process at the Executive Power, which performance is not to be hindered by the absence of the President of the Republic or by expecting the President’s return. The state workings and the presidential functions can not be stalled.

5.- Kindly respond, what was the nature of the participation of President Alejandro Toledo and the Former Ministry of Foreign Affairs Mr. Diego García Sayán.

The approval process of the Supreme Decree for the commitment of Peru to the Multilateral Agreement about Open Skies responded to State policies started by the Executive Power by the end of the government period of President Paniagua and concluded by the first part of the government period of President Toledo. The President of the Republic Alejandro Toledo and the Chancellor García Sayán participated in the Summit of APEC in China and in the process of communicating the Commitment of Peru to said Multilateral Agreement disclosed in such Forum. They both undersigned the instrument formalizing this Commitment as well.

6.- Who projected D.S. 081-2001-RE and do you know the officers of the Ministry of Foreign Affairs and the Ministry of Transport and Communications that participated in the elaboration of the documents?

As I have previously pointed out, I can only assume that the elaboration and development of the DS took place in the Ministry of Foreign Affairs, as was proved during the constitutional accusation procedure started against yours truly and Dr. Solari, from the reports issued by that Ministry.  As I have also pointed out, I have no idea who the officers at the Chancellery were by the time the task was done.

7.- Kindly respond, what were the motives behind the constitutional accusation against you?

My participation in signing the DS N° 081-2001.RE was purely circumstantial because I was at the time in charge of the Presidential Office; it was then that I learned about the wording and contents of the DS and I had no participation or previous intervention in the elaboration process. Obviously, as the Ministry of Industry, Tourism and Integration i had general knowledge about the Multilateral Agreement of Open Skies and its global meaning, but I did not participate in the process or the meetings for the elaboration of the regulations instrument for the Commitment to the Agreement, they simply did not correspond to the Ministry Portfolio I was in charge of.

From the beginning I said that the constitutional accusation started against me by some congressmen in October 2003 had no juridical fundament at all. It was deemed the same way by the reports on the part of outstanding lawyers and by the manifestation I made before the Sub-commission of Constitutional Accusations. It was also confirmed, eventually, after over two and a half years of investigation, the Permanent Commission of the Congress that on June 13, 2006, ratified the findings of the Sub-commission and declared it inadmissible.

In all the acts that originated this accusation I did not act against any constitutional or penal regulation, or in bad faith. I limited myself to act in compliance with the functions I had been assigned, always supported by the technical and juridical back up provided by the reports of the Chancellery. Just as has been shown by the documents produced by the same congressmen making the accusation, since the end of the Transition Government the Ministry of Transport and Communications and the Ministry of Foreign Affairs had been evaluating and working on the Commitment to the Multilateral Agreement of Open Skies, task that continued in the hand of the same sectors during the government of President Alejandro Toledo. Thus, the Commitment takes place only three months alter this government period had started, taking advantage of the President and the Chancellor attending the important Summit of APEC en China.

When the Commitment to the Agreement was carried out, Peru was looking to consolidate its position and relationships with the countries of the Asia-Pacific basin, quite an important sector for the current commercial and economic international relationships. Even though Chile had also signed the Agreement, when Peru committed Chile still had not ratified this Agreement, and this took place quite some time later. This new situation was fully evaluated in due time by the Chancellery, taking into account the disadvantageous traits this Agreement may acquire from Chile joining it. We must keep in mind that the relationship between Peru y Chile, as to international air transport, used to be and are still regulated by a bilateral agreement. The statement of the congressmen making the accusation that the intention behind the Multilateral Agreement of Open Skies was to try and benefit Chile in detriment of the national interests, had no sound basis, just as the process of holding me liable for some alleged constitutional, penal or moral fault because of the signature of the Supreme Decree.

Therefore, I am responding your every question, I take this opportunity to remind you of my special esteem and personal consideration, which I would like you to make extensive to al the members of your Workgroup.

Sincerely,

Raúl Diez Canseco Terry