respect and enforce the rights enshrined therein but, in addition, on many occasions, it can
do so only through its courts of justice.
For this reason, as the Court has pointed out, “the rule of prior exhaustion of domestic
remedies was conceived in the interests of the State, because it seeks to exempt it from
responding before an international organ for acts it is accused of before it has had the
opportunity to remedy them by its own means.” Therefore, this rule is also a mechanism
to encourage the State to comply with its human rights obligations without waiting for the
inter-American system to order it to do so as a result of litigation. It also enables the State
to re-establish, as soon as possible, the effective exercise of and respect for the human
rights that have been violated, which is the object and purpose of the Convention and,
consequently, should happen as soon as is practicable, making the intervention of the interAmerican jurisdiction unnecessary.
The rule of prior exhaustion of domestic remedies means that in situations in which it has
been alleged in the domestic jurisdiction that the State has not complied with its
commitments to respect and ensure the free and full exercise of human rights, it is possible
to seek the intervention of the international jurisdictional body so that, if appropriate, it
may order the State to comply with the international obligations it has violated, guarantee
that it will not violate them again, and make reparation for all the consequences of such
violations.
2.
Holder of the obligation.
The effet utile or practical effect of this rule is that the State re-establishes, as soon as
possible, respect for the human rights that have been violated, which is the object and
purpose of the Convention. For this reason, said rule is not only established primarily for
the benefit of the victim of a human rights violation, but, in addition, it is he/she or the
petitioner who must comply with it.
The aforementioned Article 46 is categorical in this regard. For the pertinent petition or
communication to be admitted, the remedies under domestic law must have been
exhausted and, evidently, it is up to the alleged victim, his or her representative or the
petitioner to do so. Clearly, it would not be logical or reasonable to make the admissibility
of a petition or communication for a violation of human rights dependent on whether the
State against which it is directed has exhausted domestic remedies against its own
consistent action, precisely for having violated human rights. In such an absurd hypothesis,
it would never be possible to resort to the international body.
The above seems evident and if it is mentioned, it is merely to emphasize that, without a
shadow of a doubt, the reference that the Court’s jurisprudence has made to the fact that
the rule in question “was conceived in the interests of the State” does not mean that it
Art. 33 “The following organs shall have competence with respect to matters relating to the fulfillment of the
commitments made by the States Parties to this Convention:
a) the Inter-American Commission on Human Rights, referred to as “The Commission”; and
b) the Inter-American Court of Human Rights, referred to as "The Court.”
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