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.
From the Inter-American Court’s perspective, the only definitive aspect is its own determination of
whether the respondent State’s administrative acts and practices, domestic laws, and decisions of
domestic courts are compatible with the American Convention. No one questions the principle of the
subsidiary nature of the international jurisdiction, which relates specifically to the mechanisms of
protection; nor should it be forgotten that, at the substantive level, in the domain of protection, the
2
Cesti Hurtado v. Peru. Preliminary objections. Judgment of January 26, 1999. Series C, No. 49, para. 47.
2
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