11
IX
SECOND PRELIMINARY OBJECTION:
LACK OF COMPETENCE OF THE COMMISSION
34.
As its second preliminary objection, Colombia alleged the lack of competence
of the Commission to apply international humanitarian law and other international
treaties. In this respect, the State indicated that the American Convention limits the
competence ratione materiae to the rights embodied in the Convention and does not
extend it to those embodied in any other convention. It added that the Court has
never determined the faculty of the Court or the Commission to hear matters outside
the attributions of competence set out in the Convention and, to this end, it invoked
Advisory Opinion OC-1 and Article 33 of the Convention. The fact that States
members of the Organization of American States must observe the Geneva
Conventions in good faith and adapt their domestic legislation to comply with those
instruments does not give the Commission competence to infer State responsibility
based on them.
At the public hearing, the State indicated that it agreed that the Convention should
be interpreted in harmony with other treaties, but it did not accept that the common
Article 3 could be applied as a norm infringed by Colombia in an individual case. In
view of their place in the text of the Convention, neither Article 25 nor Articles 27.1
or 29.b may be considered to be norms that attribute competence; they are norms
that establish rights and the last one is a norm of interpretation.
As may be inferred from international law and practice, the preliminary objections
filed in limine litis by the defendant have the following purposes essentially: to
contest the admissibility of the defendant’s petitions or to restrict or deny, partially
or totally, the competence of the international jurisdictional organ.
Although the Inter-American Commission has broad faculties as an organ for the
promotion and protection of human rights, it can clearly be inferred from the
American Convention that the procedure initiated in contentious cases before the
Commission, which culminates in an application before the Court, should refer
specifically to rights protected by that Convention (cf. Articles 33, 44, 48.1 and 48).
Cases in which another Convention, ratified by the State, confers competence on the
Inter-American Court or Commission to hear violations of the rights protected by
that Convention are excepted from this rule; these include, for example, the InterAmerican Convention on Forced Disappearance of Persons3.
Therefore, the Court decides to admit the second preliminary objected filed by the
State.
X
FOURTH PRELIMINARY OBJECTION:
FAILURE TO EXHAUST DOMESTIC REMEDIES
3.
In the Paniagua Morales et al. Case. Judgment of March 8, 1998. Series C No. 37, para. 136 and
the Villagrán Morales et al. Case. Judgment of November 12, 1999. Series C No. 63, para. 252, the Court
declared that the Inter-American Convention to Prevent and Punish Torture had been violated; this
attributes competence to the Inter-American Commission on Human Rights.