2
A State Party may, upon depositing its instrument of ratification or adherence to this
Convention, or at any subsequent time, declare that it recognizes as binding, ipso facto, and
not requiring special agreement, the jurisdiction of the Court on all matters relating to the
interpretation or application of this Convention.
All these texts, which define the subsidiary nature of the inter-American
system, indicate that there is a before (one or several domestic proceedings) and an
after (an international proceeding before the Inter-American Commission and another
before the Inter-American Court), each with its own procedures and limitations. And,
consequently, that none of them should invade the criteria or stages of the others,
since they all have their own nature based on the purpose that each one fulfills. Hence,
the criterion or the procedure to determine a reparation or amount in the domestic
jurisdiction is one element, among others, that legitimates whether a case is submitted
to the Court or to seek a friendly settlement, but never a criterion for deciding an
aspect of a case that has been submitted to the Court’s jurisdiction, as set out in
Article 62(1) of the Convention. The nature of the Court’s jurisdiction is unique and
indivisible and, consequently, the amount or amounts of a reparation are decided by
the Court in keeping with its own procedures, criteria and practice and not those of the
domestic jurisdiction, however reasonable the amount established or appropriate the
procedure used, as occurred with the Colombian Council of State in this case. An
appropriate action by a domestic organ does not constitute a sufficient reason for the
Court, in exercise of its compulsory competence or jurisdiction, to adopt parts of the
domestic proceedings.
The issue of the uniqueness and indivisibility of the Court’s jurisdiction was discussed
by Judges Antônio A. Cançado Trindade and Máximo Pacheco Gómez in their joint
separate opinion in Las Palmeras v. Colombia, in which they expressly stated that:
In our understanding, it is essential that the Inter-American Court itself determines the
international responsibility of the State under the American Convention, without any need to
refer to decisions of domestic courts. Moreover, in the present case, the State adopted a
positive attitude in the proceedings before this international Court, taking the initiative of
acknowledging its international responsibility under Article 4 of the American Convention […].
The responsibility of the State under domestic law does not necessarily coincide with its
responsibility under international law. In the instant case, the two judgments of the
Administrative Law Chamber of the Council of State constituted a positive step, by declaring,
respectively, the patrimonial responsibility of the State […] and the administrative
responsibility of the State […]. Nevertheless, in light of the American Convention, we do not
consider that the decision of the domestic administrative jurisdiction was sufficient or, above
all, definitive.
In principle, res judicata under domestic law is not binding on an international tribunal such as
the Inter-American Court. The latter must determine motu propio the responsibility of the
State Party for violating the American Convention, an international treaty. The Court cannot
abdicate from making this determination, even if the decision of a domestic court is entirely in
agreement with its own as regards the merits. Otherwise, the result would be total juridical
relativism, illustrated by the "endorsement" of a decision of a domestic court when this is
considered in accordance with the Convention, or the determination that it does not or should
not generate legal effects […] when it is considered incompatible with the American
Convention.
It may be recalled, [… that] the Inter-American Court found that “within the international
jurisdiction, the parties and the matter in dispute are, by definition, different from those within
the domestic jurisdiction,”2 because the substantive aspect of the dispute before the Court is
whether the respondent State has violated the international obligations it assumed on
becoming a party to the Convention.
2
Cesti Hurtado v. Peru. Preliminary objections. Judgment of January 26, 1999. Series C, No. 49, para. 47.
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