Strict adherence to the rule on prior exhaustion of domestic remedies is therefore not a mere
formality or a legal nicety; respect for this rule consolidates and bolsters the inter-American
system of human rights, because this is the way it guarantees the principles of legal certainty,
procedural balance, and complementarity that undergird the system. The Court’s judgments
must leave no room whatsoever or, in the worst case, as little as possible, for the perception
that they do not strictly, exclusively reflect the precepts of justice, even beyond the
understandable differences of opinion that the Court’s judgments may arouse, particularly by
those who are antagonistic to them.
Obviously, the Court’s case law is binding only on the State that has undertaken to comply
with the “judgment of the Court” in cases to which it is a party,50 and that for the other States
Parties to the Convention it is merely an auxiliary source of public international law, that is,
“an auxiliary means to determine the rules of law”51. This dissenting opinion is therefore
issued in the hope that it will contribute to a process of reflection on the rule of prior
exhaustion of domestic remedies and as a result, in the near future, the Court’s case law on
the subject would adopt the views elucidated herein.
It is also undeniable that this opinion, much like an earlier one, 52 takes into account that one
of the particular imperatives facing a court such as ours is that it acts with full awareness
that, as an autonomous, independent institution, it has no higher authority overseeing it. This
presupposes that, out of respect for the lofty mission it has been given, it must strictly honor
the limits of its role, and it must abide and develop in the sphere proper to a judicial body.
Unquestionably, proceeding in this way would be the best contribution the Court can make to
consolidating and developing the inter-American system of human rights, an indispensable
requirement if it is to properly safeguard these rights. The Commission’s task in this
Art. 68 of the Convention: “1.The States Parties to the Convention undertake to comply with the judgment of the
Court in any case to which they are parties. 2. That part of a judgment that stipulates compensatory damages may
be executed in the country concerned in accordance with domestic procedure governing the execution of judgments
against the state.”
50
Art. 38 of the Statute of the International Court of Justice: “1. The Court, whose function is to decide in accordance
with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general
or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence
of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to
the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of
the Court to decide a case ex aequo et bond, if the parties agree thereto.”
51
Art. 59 of the same Statute: “The decision of the Court has no binding force except between the parties and in
respect of that particular case”
Art. 68 of the Convention: “1.The States Parties to the Convention undertake to comply with the judgment of the
Court in any case to which they are parties. 2. That part of a judgment that stipulates compensatory damages may
be executed in the country concerned in accordance with domestic procedure governing the execution of judgments
against the state.”
Record of complaint filed with the Court on August 17, 2011 and dissenting opinion by Judge Eduardo Vio Grossi
judgment on merits, reparations and costs, Case of Barbani Duarte et al. v. Uruguay, October 13, 2011.
52
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