and before the defendant State, they are represented by the Inter-American
Commission on Human Rights.18 Consequently, this is the scenario in which the States
have sovereignly consented to partially limit their sovereignty by recognizing the
existence of human rights guaranteed by international law. However, it is also true that
they have not abdicated their internal, domestic and exclusive competence to regulate
those rights in their Constitutions under the heading of fundamental rights, and they
have even reserved to themselves the primary responsibility for hearing and settling
any disputes that arise with regard to them, especially based on the principle of the
complementarity and collaboration of the international jurisdiction in relation to the
domestic jurisdiction19 and the establishment of the requirement of prior exhaustion of
domestic remedies.20
9. Ultimately, cases do not involve merely a relationship between the State that has
presumably violated human rights and the presumed victim, but concern interAmerican public order; in other words, these are matters that affect the overall
interests of international society and this is why the individual is recognized to be a
subject of international law to some extent and, despite its limited scope, this has
constituted one of the major advances or changes in international law during the second
half of the twentieth century.
10. And perhaps it is a good thing that the individual’s status of subject of international law
is only partial because, otherwise, the relationship between the State that has
presumably violated human rights and the presumed victim would be totally
asymmetric, unbalanced, unequal, to the detriment of the latter, because he would not
have the political weight or support that the other States can provide, either through
the Commission21 or because the corresponding judgment is complied with.22
11. That said, the Court must evidently deliver judgment pursuant to the law expressed,
as regards the Court, in the Convention and, consequently, in international human
rights law which the latter forms part of. This includes the respective procedural norms
that, especially in the area of human rights, are as essential as the substantive norms
because respect for them permits the latter to be truly effective. Thus, the form is
indissolubly linked to the content. And, to a great extent, the procedural norms, at
times considered mere formalities and, consequently susceptible to being disregarded
in order to give preference to the substantive norms, condition the applicability of the
latter. If this fact is not considered, it could have a devastating effect for the exercise
of human rights.
12. Therefore, the Court must respect the principle of public law that it is only possible to
do what the norm expressly authorizes; therefore, when something is not regulated,
18
Art. 35: “ The Commission shall represent all the member countries of the Organization of American States.”
Art. 61(1): “Only the States Parties and the Commission shall have the right to submit a case to the
Court.” Hereinafter, the Commission.
19
Preamble, para. 3.
Art. 46: “1. Admission by the Commission of a petition or communication lodged in accordance with
Articles 44 or 45 shall be subject to the following requirements: (a) that the remedies under domestic law
have been pursued and exhausted in accordance with generally recognized principles of international law;
20
21
22
Supra, footnote 18.
Art. 65: “To each regular session of the General Assembly of the Organization of American States the Court shall submit, for the
Assembly's consideration, a report on its work during the previous year. It shall specify, in particular, the cases in which a state has
not complied with its judgments, making any pertinent recommendations.”