7
35.
According to the assertions of the Government, the preliminary objections that the Court
must consider are the following:
a)
lack of a formal declaration of admissibility by the Commission;
b)
failure to attempt a friendly settlement;
c)
failure to carry out an on-site investigation;
d)
lack of a prior hearing;
e)
improper application of Articles 50 and 51 of the Convention, and
f)
non-exhaustion of domestic legal remedies.
36.
In order to resolve these issues, the Court must first address various problems concerning
the interpretation and application of the procedural norms set forth in the Convention. In doing
so, the Court first points out that failure to observe certain formalities is not necessary relevant
when dealing on the international plane. What is essential is that the conditions necessarily for
the preservation of the procedural rights of the parties not be diminished or unbalanced and that
the objectives of the different procedures be met. In this regard, it is worth noting that, in one of
its first rulings, the Hague Court stated that:
The Court, whose jurisdiction is international, is not bound to attach to matters of
form the same degree of importance which they might possess in municipal law
(Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A,
No. 2, p. 34; see also, Aegean Sea Continental Shelf, Judgment, I.C.J. Reports
1978, para. 42).
37
This Court must then determine whether the essential points implicit in the procedural
norms contained in the Convention have been observed. In order to do so, the Court must
examine whether the right of defense of the State objecting to admissibility has been prejudiced
during the procedural part of the case, or whether the State has been prevented from exercising
any other rights accorded it under the Convention in the proceedings before the Commission. The
Court must, likewise, verify whether the essential procedural guidelines of the protection system
set forth in the Convention have been followed. Within these general criteria, the Court shall
examine the procedural issues submitted to it, in order to determine whether the procedures
followed in the instant case contain flaws that would demand refusal in limine to examine the
merits of the case.
VII
38.
At the hearing, the Government argued that the Commission, by not formally recognizing
the admissibility of the case, had failed to comply with a requirement demanded by the
Convention as a prerequisite to taking up a case.
39.
At the same hearing, the Commission asserted that once a petition has been accepted in
principle and the procedure is underway, a formal declaration of admissibility is no longer