7
22.
A tribunal such as the Inter-American Court is empowered to establish the
international responsibility of the State in cases brought before it, without
considering a renvoi of the issue under its competence to domestic courts; this is its
own prerogative, and also its duty. And since the responsibility of the State under
domestic law is not necessarily identical with its responsibility under international
law, and the parties and the issue debated under international jurisdiction are not
necessarily the same as those under domestic venue,22
“The [Inter-American] Court cannot abdicate from such determination, not
even in the hypothesis that the decision of a national tribunal is entirely coincident with
its own as to the merits. Otherwise, this would lead to a total juridical relativism,
illustrated by the "endorsement" of a decision of a national tribunal when it is
considered in accordance with the Convention, or else the determination that it does not
generate, or ought not to generate, legal effects (...) when it is considered incompatible
with the American Convention.”23
23.
In addition to this, the conditions for admissibility of claims or petitions under
the American Convention refer to implementation of the responsibility, not to its
origin or emergence. The former conditions are procedural in nature, while the
establishment of the responsibility of the State is in the sphere of substantive or
material law. I do not see how one can relate said establishment with the “principle
of subsidiarity,” as it is called, which refers directly and specifically to the protection
mechanisms, at the national and international levels –the international ones being
considered “subsidiary” to the national ones.
24.
The subsidiarity mentioned above does not encompass material law, that is, it
cannot be invoked with respect to the substantive provisions pertaining to the
protected rights, nor regarding the content and scope of the respective obligations.
In my opinion, one cannot give said subsidiarity a dimension that it does not
effectively have, and never did.
Furthermore, viewing relations between the
international and national legal systems from the standpoint of the “principle of
subsidiarity” is essentially static. Therefore, it does not faithfully reflect the dynamics
and current state of evolution of the interaction between international law and the
domestic law of the States in the current sphere of protection, for the benefit of the
human beings protected.
25.
As I mentioned, in this regard, in my Concurring Opinion in the case of "The
Last Temptation of Christ" (2001), international law will be perfected and
strengthened when human conscience attains a degree of evolution such that it no
longer accepts the enactment of domestic laws (or administrative acts or court
decisions) that obstruct application of international provisions for protection
integrated with the provisions of domestic law (para. 10). And, long before my
aforementioned Opinion, in an essay published in Germany in 1977-1978, I argued
that, since human rights treaties entrust the national courts themselves with
protective functions in the application of the rule of domestic remedies, said
remedies are part of the international protection procedures; the purpose and effect
22
.
See, in this regard, I-A Ct of HR, Case of Las Palmeras versus Colombia , Judgment of
06.12.2001 (Merits), Series C, n. 90, Joint Separate Opinion of Judges A.A. Cançado Trindade and
M. Pacheco Gómez, pp. 43-45, paras. 2-3 and 5.
23
.
Ibid., Joint Separate Opinion of Judges A.A. Cançado Trindade and M. Pacheco Gómez, pp. 4445, para. 4.
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