9 invoking such objection to indicate the remedies that remain to exhaust, as well as to prove the effectiveness of such remedies. There is no set of rules, in this sense, currently within the Inter-American system and in my opinion; they are rules of vital importance for the processing of those cases of a global nature, that the Commission as well as the Court, must hear, respectively; therefore, for what the law ought to be, the State Parties must approve a regulatory text, in the Protocol to the amendment of the procedural part of the American Convention on Human Rights or simply, amend Article 62 of the American Convention to regulate this aspect. That shall lead to the improvement of the InterAmerican system for the Protection of Human Rights and shall ensure legal certainty and stability for the parties in the proceeding. I insist, to accept that international courts may declare the untimeliness or express or implied waiver of the right to invoke objections that imply the analysis of rules of international public law, such as the example of exhaustion of domestic remedies, would cause a clear inequality between the parties who are settling their issues at the domestic level and those who, by not doing it, have direct access to international courts; resulting, maybe, in excessive work of the Ministry of Foreign Affairs, the procedural risk implied in bringing a case to the jurisdiction of an international court or considering, maybe, that the objection of exhaustion of domestic remedies has never been admitted by the Court due to, certainly, the lack of clarity with which this issue is embodied in the set of rules previously mentioned. This, coupled with an increase in the number of cases, would make of this Court, instead of a subsidiary tribunal, a main tribunal, and the problems that this implies. It would seem that the case-by-case and particular solution of one or several international cases could generate a clear unbalance in domestic set of rules and a clear inequality among nations. To my understanding, if a question of admissibility was decided before the Commission, that same question should be analyzed, once again, by the Court considering the judicial functions of this last body as opposed to the first one. This function is in line with the full jurisdiction the Court exercises over the decisions made by the Commission.13 This inherent power of exercising the jurisdiction in toto has been upheld by this Court in previous cases14 pointing out that the American Convention is drafted in broad terms which indicate that the Court exercises full jurisdiction over all the issues related to a case. This Tribunal is competent, therefore, to decide whether there has been a violation of any of the rights and liberties enshrined in the American Convention and to protect, by means of the appropriate measures, the consequences that derive from said situation; however, it is also competent to try the prerequisites on which the possibility to hear a case is based and to verify the 13 Cf. Case of Tibi, Judgment of September 7, 2004. Series C Nº 114, para. 144; Case of Herrera Ulloa. Judgment of July 2, 2004. Series C No. 107, para. 79 and Case of Juan Humberto Sánchez. Judgment of June 7, 2003. Series C No. 99, para. 65. 14 Cf. Case of the “Street Children” (Villagrán Morales et al.). Preliminary Objections. Judgment of September 11, 1997, Serie C No. 32, para. 17 and 19. This judgment ratifies the criteria exposed in the judgment of the case of Velásquez Rodríguez, Preliminary Objections. Judgment of June 26, 1987.

Select target paragraph3

Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents