case, before the declaration of admissibility, and the provisions of this article evidently do not
allow this.
G. Presentation and admissibility of the petition
42.
Lastly, it should be noted that the said articles of the Convention do not indicate that
the said requirements must be met when the Commission rules on the admissibility of the
petition or communication. Rather, it can be argued that they make a distinction between two
moments: one, at which the petition is “lodged” and another at which it is “admitted.” This is
also supported by the provisions of Article 48(1)(a) and in paragraphs (b) and (c) of the same
article.51
43.
These provisions establish that, once the petition or communication has been “lodged”
before the Commission, the admissibility procedure begins during which it is necessary to
decide whether or not, when it was “lodged,” it complied with the requirements stipulated in
the said Article 46. If the decision is affirmative, the said petition should be declared
“admissible,” and if the decision is negative, it should be declared “inadmissible.” It should be
underscored that the said article of the Convention does not establish that it is sufficient that,
when the Commission rules on its admissibility, the petition has met those requirements. It
merely indicates that, for the “petition lodged” to be admitted, the remedies of the domestic
jurisdiction should have been pursued and exhausted. Consequently, it is with regard to the
petition or communication “lodged” that the Commission should rule on whether, at that
instant and not later, it met the requirement of the prior exhaustion of the domestic remedies
or that it has been argued that this was not possible.
H. Supplementary means of interpretation
44.
Regarding the supplementary means of interpretation, it should be indicated that,
based on the background material for the Convention, there is no record of the legal doctrine
that inspired the provisions of its Article 46(1)(a), in particular the phrase “that the remedies
under domestic law have been pursued and exhausted in accordance with generally recognized
principles of international law.”
“1. When the Commission receives a petition or communication alleging violation of any of the rights protected by this
Convention, it shall proceed as follows:
a. If it considers the petition or communication admissible, it shall request information from the government of the state
indicated as being responsible for the alleged violations and shall furnish that government a transcript of the pertinent
portions of the petition or communication. This information shall be submitted within a reasonable period to be
determined by the Commission in accordance with the circumstances of each case.
b. After the information has been received, or after the period established has elapsed and the information has not been
received, the Commission shall ascertain whether the grounds for the petition or communication still exist. If they do
not, the Commission shall order the record to be closed.
c. The Commission may also declare the petition or communication inadmissible or out of order on the basis of
information or evidence subsequently received.
d. If the record has not been closed, the Commission shall, with the knowledge of the parties, examine the matter set
forth in the petition or communication in order to verify the facts. If necessary and advisable, the Commission shall carry
out an investigation, for the effective conduct of which it shall request, and the states concerned shall furnish to it, all
necessary facilities.
e. The Commission may request the states concerned to furnish any pertinent information and, if so requested, shall
hear oral statements or receive written statements from the parties concerned.
f. The Commission shall place itself at the disposal of the parties concerned with a view to reaching a friendly settlement
of the matter on the basis of respect for the human rights recognized in this Convention.
2. However, in serious and urgent cases, only the presentation of a petition or communication that fulfills all the formal
requirements of admissibility shall be necessary in order for the Commission to conduct an investigation with the prior
consent of the state in whose territory a violation has allegedly been committed.
51
12