3
comply with the international obligations that derive from them. And the primary
guarantors of the protection of human rights are called on to be the domestic courts
and authorities. “In principle, the national administrators of justice are better placed to
know, assess and decide the presumed violations of human rights. The international
administrators of justice only intervene when the State has failed to comply with its
international obligations. Consequently, the principle of subsidiarity establishes an
adequate mechanism for defining the limits of the international jurisdiction and the
obligations of the national authorities.”8
10.
These implications of the principle of subsidiarity were emphasized in the case
of Acevedo Jaramillo et al. v. Peru, when the Court recalled that:
The State is the principal guarantor of human rights and, as a consequence, if a violation
of the said rights occurs, the State must resolve the issue under the domestic system and
redress the victim before resorting to international forums such as the inter-American
system for the protection of human rights; which derives from the ancillary nature of the
international system in relation to domestic systems for the protection of human rights.
Domestic courts and state organs have the duty to guarantee the implementation of the
American Convention at the domestic level.9
11.
That essential element of the international law of human rights is at the
conceptual basis of its essential interaction with domestic law and the conduct that the
different State institutions should have in this regard, taking into account the
obligations that, freely and in exercise of its sovereignty, the State has assumed under
an international treaty. And this applies in at least two spheres, each arising from two
fundamental provisions of the Convention: Article 1(1) and Article 2.10 Thus the States
play an essential role as members of the inter-American system of human rights. In
this regard, a crucial role corresponds to the national courts, as part of the State
apparatus.
12.
In this process of interaction, the Court is not placed above the State, but
rather fulfills its role in the sphere of litigation when a case is submitted to it after the
domestic jurisdiction has been exhausted. Today, the binding nature of the Court’s
judgments is not in question and, essentially, the States abide them. It is particularly
significant that domestic courts are increasingly using the Court’s jurisprudential
criteria, an international mechanism that today inspires the jurisdictional reasoning of
the most relevant courts of Latin America. In this way, the Court’s case law is
multiplied in hundreds and perhaps even thousands of national courts. For its part, the
inter-American Court is also nourished by the important case law of national courts.
The Court cannot place itself outside or above this institutional dynamic, or try to
rectify domestic decisions, except in the case of decisions that are contrary or opposed
to international standards in light of the American Convention.
13.
The subsidiary nature of the protection organs of the inter-American system for
the protection of human rights presumes that the domestic courts are able to establish
8
DEL TORO HUERTA, Mauricio Iván, “El principio de subsidiaridad en el derecho internacional de derechos
humanos con especial referencia al sistema interamericano” in La Corte Interamericana de Derechos Humanos a
veinticinco años de su funcionamiento, Becerra Ramírez, Manuel (coord.), UNAM, Mexico, 2007, p. 24, citing PASTOR
RIDRUEJO, José Antonio, “Le principe de subsidiarité dans la Convention européenne des droits de l´homme”,
Internationale Gemeinschaft und Menschenrechte, Festschrift für Georg Ress zum 70. Geburtstag am 21. January
2005, Carl Heymanns Verlag, 2005, pp. 1077-1083.
9
Acevedo Jaramillo et al. v. Peru. Interpretation of the judgment of preliminary objections, merits,
reparations and costs. Judgment of November 24, 2006. Series C No. 157, para. 66.
10
GARCÍA-SAYÁN, Diego, “Justicia interamericana y
Constitucional Latinoamericano, Diké, Medellín, 2008, p. 378.
tribunales
nacionales,”
in
Anuario
de
Derecho
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents