The rule of prior exhaustion of domestic remedies is provided for in Article 46 of the
Convention in the following terms:
“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;
b) that the petition or communication is lodged within a period of six months
from the date on which the party alleging violation of his rights was notified of
the final judgment;
c) that the subject of the petition or communication is not pending in another
international proceeding for settlement; and
d) that, in the case of Article 44, the petition contains the name, nationality,
profession, domicile, and signature of the person or persons or of the legal
representative of the entity lodging the petition.
2. The provisions of paragraphs 1.a and 1.b of this article shall not be applicable
when:
a) the domestic legislation of the state concerned does not afford due process
of law for the protection of the right or rights that have allegedly been violated;
b) the party alleging violation of his rights has been denied access to the
remedies under domestic law or has been prevented from exhausting them; or
c) there has been unwarranted delay in rendering a final judgment under the
aforementioned remedies.”
Article 47(a) and (b) add that:
“The Commission shall consider inadmissible any petition or communication
submitted under Articles 44 or 45 if:
a) any of the requirements indicated in Article 46 has not been met;
b) that the petition or communication is lodged within a period of six months
from the date on which the party alleging violation of his rights was notified
of the final judgment;
1. Ancillary or complementary nature of the rule
As a first observation, it should be noted that the aforementioned rule corresponds to the
third paragraph of the Preamble of the Convention, which refers to “international protection
in the form of a convention reinforcing or complementing the protection provided by the
domestic law of the American states.”
This means that the inter-American jurisdiction does not substitute or replace the domestic
jurisdiction, but merely supports or complements it. In other words, it contributes or helps
the latter to reestablish, as soon as possible, the effectiveness of the human rights that are
alleged to have been violated. In this regard, it should not be forgotten that the State is
bound by the Convention 15 and, therefore, not only has the international obligation to
15
Arts. of the Convention: 1(1) “The States Parties to this Convention undertake to respect the rights and
freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of
those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political
or other opinion, national or social origin, economic status, birth, or any other social condition.”
4
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents