38. The State affirms that the oil concession is a State decision governed by the constitutional
principle of public domain over natural resources of the subsoil, and that the contract legally
entered into with the CGC constitutes an act doctrinally known as an act of administrative
concession through which the State authorizes private parties to carry out certain activities
that, in principle, are under its purview. The State explains that the oil concession contract is
an act of administrative concession set forth in an administrative contract.
39. The State argues that should an act of this nature cause or potentially cause harm to a
private individual, such as, for example, environmental harm, Ecuadorian legislation provides
for another type of legal action that is adequate and effective as required by the InterAmerican Court, through its administrative disputes jurisdiction, in other words, the
administrative disputes subjective remedy or remedy of full jurisdiction. Articles 1 and 3 of the
administrative disputes jurisdiction statute states as follows:
Article 1. The administrative disputes remedy may be lodged by natural or juridical
persons against regulations, acts, or resolutions by public administration or by semipublic juridical persons acting on behalf of the State that violate a right or direct interest
of the complainant.
Article 3. The administrative disputes remedy has two categories: full or subjective
jurisdiction, and objective or annulment.
The full or subjective jurisdiction remedy protects a subjective right of the plaintiff that
allegedly has been denied, disregarded, or totally or partially unrecognized by the
administrative acts in question.
The annulment for objective reasons or for abuse of authority addresses compliance with
an objective legal standard of an administrative character and may be brought by
someone with a direct interest in appealing the action and asking the Court to declare the
nullity of the act challenged based on legal irregularities.
40. Therefore, the State says that, by filing an amparo suit, it is not possible, under any
circumstances, to declare the illegality of the oil concession granted to the CGC, although this
could be attempted by way of a subjective or full jurisdiction remedy before the competent
court.
41. The State asserts that another effective remedy within the administrative disputes process
is the remedy of appeal (cassation) that the petitioner may file to challenge a judgment by
district administrative disputes courts. It adds that this remedy might be adequate in the
understanding of ‘’adequate’’ set forth by the Inter-American Court, in other words, that the
function of these remedies in the domestic law system must be suitable for addressing the
infringement of a legal right.10 In cases where judges or courts have erred in iudicando or in
procedendo, the State affirms that this is the adequate remedy to address the infringement of
the legal right.
42. In light of the foregoing, the State believes that the existence of effective domestic
remedies to resolve the petitioners’ legal situation has been demonstrated, and it invokes the
following position of the Inter-American Court: if a State “which alleges non-exhaustion proves
the existence of specific domestic remedies that should have been utilized, the opposing party
has the burden of showing that those remedies were exhausted or that the case comes within
the exceptions of Article 46(2)”.11 It is therefore incumbent upon the petitioner to demonstrate
to the Commission that it has exhausted all domestic remedies.
10 Inter-American Court of Human Rights, Case of Velásquez Rodríguez. Judgment of July 29, 1988. Ser. C Nº 4. Para.
64.
11 Inter-American Court of Human Rights, Case of Velásquez Rodríguez. Judgment of July 29, 1998. Ser. C Nº 4. Para.
60.
8