continue to be between States Parties to the Convention and, in the Court and before the
defendant State, they are represented by the Inter-American Commission on Human Rights.18
Consequently, this is the scenario in which the States have sovereignly consented to partially
limit their sovereignty by recognizing the existence of human rights guaranteed by
international law. However, it is also true that they have not abdicated their internal, domestic
and exclusive competence to regulate those rights in their Constitutions under the heading of
fundamental rights, and they have even reserved to themselves the primary responsibility for
hearing and settling any disputes that arise with regard to them, especially based on the
principle of the complementarity and collaboration of the international jurisdiction in relation
to the domestic jurisdiction19 and the establishment of the requirement of prior exhaustion of
domestic remedies.20
9.
Ultimately, cases do not involve merely a relationship between the State that has
presumably violated human rights and the presumed victim, but concern inter-American public
order; in other words, these are matters that affect the overall interests of international society
and this is why the individual is recognized to be a subject of international law to some extent
and, despite its limited scope, this has constituted one of the major advances or changes in
international law during the second half of the twentieth century.
10.
And perhaps it is a good thing that the individual’s status of subject of international
law is only partial because, otherwise, the relationship between the State that has presumably
violated human rights and the presumed victim would be totally asymmetric, unbalanced,
unequal, to the detriment of the latter, because he would not have the political weight or
support that the other States can provide, either through the Commission21 or because the
corresponding judgment is complied with.22
11.
That said, the Court must evidently deliver judgment pursuant to the law expressed,
as regards the Court, in the Convention and, consequently, in international human rights law
which the latter forms part of. This includes the respective procedural norms that, especially
in the area of human rights, are as essential as the substantive norms because respect for
them permits the latter to be truly effective. Thus, the form is indissolubly linked to the
content. And, to a great extent, the procedural norms, at times considered mere formalities
and, consequently susceptible to being disregarded in order to give preference to the
substantive norms, condition the applicability of the latter. If this fact is not considered, it
could have a devastating effect for the exercise of human rights.
12.
Therefore, the Court must respect the principle of public law that it is only possible to
do what the norm expressly authorizes; therefore, when something is not regulated, the
Art. 35: “ The Commission shall represent all the member countries of the Organization of American States.”
Art. 61(1): “Only the States Parties and the Commission shall have the right to submit a case to the Court.”
Hereinafter, the Commission.
18
19
Preamble, para. 3.
Art. 46: “1. Admission by the Commission of a petition or communication lodged in accordance with Articles 44 or
45 shall be subject to the following requirements: (a) that the remedies under domestic law have been pursued and
exhausted in accordance with generally recognized principles of international law;
20
21
Supra, footnote 18.
Art. 65: “To each regular session of the General Assembly of the Organization of American States the Court shall
submit, for the Assembly's consideration, a report on its work during the previous year. It shall specify, in particular,
the cases in which a state has not complied with its judgments, making any pertinent recommendations.”
22
4