8 allege either, the lack of exhaustion of such remedies, 11 coming to the conclusion, in this way, that said preliminary objection was not raised but until the adoption of the Report on Admissibility by the Commission by means of a brief submitted during the stage of merits, substantiated before the Commission; therefore, the majority of the judges concluded that the State did not raise this objection at the appropriate procedural moment. It is impossible to agree either on the procedural moment to raise the objection, though it seems this is an alternative criteria established in previous decisions 12, inasmuch as that would mean to accept that an State’s agent may change, before the Commission or the Court, the terms under which the State (whichever state it is) accepted to become a member state to the American Convention on Human Rights. We understand that if the goal was to establish a preclusive opportunity to raise this objection, the text of the American Convention should expressly establish so. Nothing of the foregoing means that the purpose of the decision of the majority opinion regarding the preclusion effect of the terms was not understood, but that such terms should be expressly established. It is evident how necessary is to count on procedural rules and to have those rules expressly and positively embodied, in order to establish the procedural cases and the consequences that a State may hypothetically face: Untimely presentation of arguments related to international public law; express waiver of the right to invoke the non-exhaustion of domestic remedies; procedural opportunity and phase in which the objection of non-exhaustion of domestic remedies must be raised; possibility that the Commission eliminates this phase; obligation for the State 11 The other reason to desestimate this preliminary objection is represented by the estimation the Court makes that the preliminary analysis on the effectiveness of the investigations on the facts presented in this case will implicate an evaluation on the acting of the State in relation to its obligation to guarantee the acknowledged rights in the American Convention, which violation is alleged, in particular through serious and effective investigations, matter that should be analyzed deeply in the controversy for which it considered pertinent to accumulate the exception requested by the State, and examine the arguments of the parties, when determining if the State is responsible for the violation of the Articles of the Convention allegedly violated. 12 Cases: A) Respondent State may expressly or impliedly waive the right to invoke this rule (Case of Castillo Páez, Preliminary Objections. Judgment of January 30, 1996. Series C No. 24, para. 40; Case of Loayza Tamayo; Preliminary Objections. Judgment of January 31, 1996. Series C No. 25, para. 40). B) the objection asserting non-exhaustion of domestic remedies, to be timely, must be made at an early stage of the proceedings or as has been established in subsequent judgments, the objection, to be timely, must be raised at the stage of admissibility of the case before the Commission, that is, before any consideration as to the merits; otherwise, the express waive of the right to invoke it shall be presumed by the party having the right to it (Case of Castillo Páez, Preliminary Objections. Ibid. page. 40; Case of Loayza Tamayo; Preliminary Objections. Ibid., para. 40; Case of Loayza Tamayo; Preliminary Objections. Judgment of September 4, 1998. Series C No. 41, para. 56). Case of Kimel, supra note 26, para. 49; Case of Herrera Ulloa, supra note 27, para. 81; Case of the Mayagna (Sumo) Awas Tingni Community. Preliminary Objections, supra note 29, para. 53. c) the State claiming non-exhaustion has an obligation to prove that domestic remedies remain to be exhausted and that they are effective (Case of Castillo Paéz, Preliminary Objections. Ibid. para. 40; Case of Loayza Tamayo; Preliminary Objections. Ibid., para. 40; Case of Cantoral Benavidez; Preliminary Objections. Judgment of September 3, 1998. Series C No. 40, para. 31; Case of Durand and Ugarte, Preliminary Objections. Judgment of May 28, 1999. Series C No. 50, para. 33). This criterion has been recently ratified in the following matters: Case of the Saramaka People V. Surinam. Preliminary Objections, Merits, Reparations and Legal Costs. Judgment of November 28, 2007. Series C No. 172, para. 43 and Case of Salvador Chiriboga V. Ecuador. Preliminary Objection and Merits. Judgment of May 6, 2008. Series C No. 179, para. 40.