order it to. Its useful effect is thus for the State to move as quickly as possible to restore
respect for human rights, and this is why the rule can also be seen to exist in benefit of the
victim of a human rights violation.17
All this points to the conclusion, then, that the rule was written into the Convention as an
essential component of the entire inter-American system for the promotion and protection of
human rights, because, as seen in paragraph two of the preamble, “international protection
[...takes...] the form of a convention reinforcing or complementing the protection provided
by the domestic law of the American states”.18
The international legal structure is still essentially grounded in the principle of sovereignty,
which in the case of the inter-American system is enshrined in Articles 1(1) 19 and 3(b)20 of
the Charter of the Organization of American States. Therefore, pursuant to the public law
principle that only what the law expressly authorizes can be done, the provisions of the
Convention that call for restrictions on State sovereignty should be interpreted and applied in
this same spirit.
The rule on prior exhaustion of domestic remedies, in this sense, is also an expression of the
exercise of State sovereignty and the need to give the State the preferential opportunity to
proceed correctly in matters of alleged human rights violations. This takes on even greater
importance in today’s climate, when all the States Parties to the Convention are governed by
the system of the democratic rule of law, that is, they all uphold democracy. 21
The conclusion from all this is that the requirement given in Article 46(1)(a) of the Convention,
cited above, must have been met already, before the petition can be brought to the
Commission.
17
Hereinafter the victim.
Paragraph 2 of the preamble to the Convention: “Recognizing that the essential rights of man are not derived from
one's being a national of a certain state, but are based upon attributes of the human personality, and that they
therefore justify international protection in the form of a convention reinforcing or complementing the protection
provided by the domestic law of the American states.”
18
Article 8(1) of the Convention is perhaps the clearest in expressing the subsidiary nature of the inter-American
system of human rights: “Everyone has the right to simple and prompt recourse, or any other effective recourse, to
a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the
constitution or laws of the state concerned or by this Convention, even though such violation may have been
committed by persons acting in the course of their official duties.”
“The American States establish by this Charter the international organization that they have developed to achieve
an order of peace and justice, to promote their solidarity, to strengthen their collaboration, and to defend their
sovereignty, their territorial integrity, and their independence. Within the United Nations, the Organization of
American States is a regional agency.”
19
“The American States reaffirm the following principles: …b) International order consists essentially of respect for
the personality, sovereignty, and independence of States, and the faithful fulfillment of obligations derived from
treaties and other sources of international law;
20
Inter-American Democratic Charter adopted by resolution of the twenty-eighth special session of the General
Assembly of the Organization of American States, September 11, 2001.
21
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