And this relates to the international juridical structure that, fundamentally, is still based
on the principle of sovereignty, which, in the case of the inter-American system, is
embodied in Articles 1(1)20 and 3(b)21 of the Charter of the Organization of American
States. Consequently, and in keeping with the principle of public law that one can only
do what the law expressly authorizes, the provisions of the Convention that establish
restrictions to State sovereignty must be interpreted and applied taking this reality into
account.
Thus, the rule of prior exhaustion of domestic remedies is also an expression of the
exercise of State sovereignty and of the need to give the State the preferential
opportunity to take action with regard to the presumed human rights violations.
Moreover, this has acquired greater relevance nowadays, when all the States Parties to
the Convention abide by the democratic rule of law; that is, they endorse democracy.22
Consequently, based on the foregoing it can be inferred that compliance with the
requirement establish in Article 46(1)(a) of the Convention, transcribed above, must
take place before the petition is lodged before the Commission.
B. The petition
The first comment that should be made concerning the petition initiating the procedure
before the Commission that may conclude before the Court is that compliance with the
rule of prior exhaustion of domestic remedies is, essentially, an obligation of the
presumed victim or the petitioner. It is the latter who must comply with the
requirement of prior exhaustion of domestic remedies; in other words, to be able to
allege a violation before the inter-American jurisdictional body,23 the petitioner must
previously do so before the corresponding domestic jurisdictional bodies. Otherwise,
this would evidently prevent the prompt and timely achievement of the abovementioned practical effects. Thus, rather than a benefit granted to the State, this rule is
a requirement or obligation that must be met by the presumed victim or the petitioner.
This is why Article 28(h) of the Rules of Procedure of the Commission in force at the
time the petition was lodged24 (hereinafter “the Commission’s Rules of Procedure”)
rights recognized by the constitution or laws of the State concerned or by this Convention, even though such
violation may have been committed by persons acting in the course of their official duties.”
20
“The American States establish by this Charter the international organization that they have developed
to achieve an order of peace and justice, to promote their solidarity, to strengthen their collaboration, and to
defend their sovereignty, their territorial integrity, and their independence. Within the United Nations, the
Organization of American States is a regional agency.”
21
“The American States reaffirm the following principles: […] b) International order consists essentially of
respect for the personality, sovereignty, and independence of States, and the faithful fulfillment of obligations
derived from treaties and other sources of international law.”
22
The Inter-American Democratic Charter adopted at the twenty-eighth special session of the General
Assembly of the Organization of American States by a resolution dated September 11, 2001.
23
Article 44 of the Convention: “[a]ny person or group of persons, or any nongovernmental entity legally
recognized in one or more member states of the Organization, may lodge petitions with the Commission
containing denunciations or complaints of violation of this Convention by a State Party.”.
Article 61(1) of the Convention: “[o]nly the States Parties and the Commission shall have the right to
submit a case to the Court.”
24
Approved by the Commission at its 109th special session held from December 4 to 8, 2000, and
amended at its 116th regular period of sessions held from October 7 to 25, 2002, at its 118 th regular period of
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