5
positions adopted on the matter by the Inter-American Commission on Human Rights
and by the representatives of the victims in the instant case of the Gómez Paquiyauri
Brothers versus Peru (2003).
16.
It is, therefore, appropriate to insist in the instant case on the specific point
made before. As I underlined in my Concurring Opinion in the case of "The Last
Temptation of Christ" (2001), with respect to Chile,
“(…) in the present context of the international protection of human rights, fundamentally distinct from that of discretionary diplomatic protection at inter-State
15
level,
- the rule of domestic remedies is endowed with a procedural rather than
substantive nature. It thus conditions the implementation (mise-en-oeuvre) of the
responsibility of the State (as a requisite of admissibility of an international petition or
complaint), but not the birth of such responsibility.
This is the thesis which I have been constantly sustaining for more than twenty
years (...).16 (...)I have always maintained that the birth and the implementation of the
international responsibility of the State correspond to two distinct moments; in the
present context of the international protection of human rights, the requisite of prior
exhaustion of remedies of domestic law conditions the implementation, but not the birth,
of that responsibility, which is conformed as from the occurrence of an internationally
wrongful act (or omission)(...)” (paras. 33-34).
17.
And, in two of my conclusions17 in that Concurring Opinion, which I wish to
reiterate here, I argued precisely, in brief, that
- “(...) the international responsibility of a State Party to a human rights treaty
arises at the moment of the occurrence of an international wrongful act - or omission (tempus commisi delicti), imputable to that State, in violation of the treaty at issue;
- (...) in the context of the international protection of human rights, the rule of
exhaustion of remedies of domestic law is endowed with a procedural rather than
substantive nature (as a condition of admissibility of a petition or complaint to be
resolved in limine litis), thus conditioning the implementation but not the birth of the
international responsibility of a State Party to a human rights treaty” (para 40).
18.
The representative of the alleged victims and their next of kin (Mónica Feria
Tinta) has argued quite rightly in a similar vein before the Court in the instant case
of the Gómez Paquiyauri Brothers, both in her written pleadings on April 17, 2002
(pp. 13-14, para. 25), and in her oral pleadings at the seat of the Court on May 7,
15
The basic differences in the context require that application of the rule of domestic remedies, in
the sphere of international protection of human rights, pay special attention to the human person’s need
for protection. Said rule is far from being an unchangeable or sacred principle of international law, and
nothing hinders its application with greater or lesser rigor in different contexts. After all, domestic
remedies are a part of the international system for protection of human rights, itself, with an emphasis on
the component of reparation (redress) rather than on the mechanical process of exhaustion (of said
remedies). The rule of domestic remedies attests to the interaction between international law and
domestic law in the current context of protection. We are here before a law of protection, endowed with
its own specificity, geared primarily toward the victims, toward the rights of the human beings and not of
the States. The generally accepted principles of international law (which the formulation of the rule of
domestic remedies refers to in human rights treaties such as the American Convention), in addition to
evolving differently in the various contexts where they are applied, necessarily undergo a certain degree
of adjustment or adaptation when they are included in human rights treaties, due to the special nature of
the object and purpose of said treaties and to the widely acknowledged specificity of the international
protection of human rights. A.A. Cançado Trindade, The Application of the Rule of Exhaustion of Local
Remedies in International Law, Cambridge, University Press, 1983, pp. 1-443, esp. 6-56. 279-287, 290322, and 410-412.
16
17
.
A.A. Cançado Trindade, "The Birth of State Responsibility...", op. cit. supra n. (10), pp. 157-188.
The first and the seventh.
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