13
Nevertheless, if this extreme conclusion was reached, all the States Parties to the Convention
that have accepted the Court’s jurisdiction could eventually be taken before the Court because
they were underdeveloped or developing countries – in other words, because they had not fully
achieved integral development or any of its facets, which is plainly very far from what the States
Parties were intending when they signed the Convention or, at least, from the logic implicit in this
instrument, especially owing to the way in which the said Chapter VII was drafted.
Lastly, as a supplementary comment to the thesis upheld in this opinion, it should be recalled
that, in other judgments of the Court, a similar result to the one sought in this case was achieved
applying only the provisions of the Convention concerning rights that it recognizes, such as those
that protect the right to personal integrity, to property or to judicial guarantees and judicial
protection, without needing to resort to the said Article 26.59
III. OTHER ARGUMENTS INCLUDED IN THE JUDGMENT
To reinforce the thesis set out in this text, it would appear useful to refer, although in a
supplementary manner, to certain assertions in the judgment, and I will now do this.
1. The assertion concerning “the interdependence and indivisibility of civil and political rights and
economic, social and cultural rights,” so that “they should all be understood integrally as human
rights, without any specific hierarchy, and be enforceable in all cases before the competent
authorities,”60 does not mean that the violation of both types of rights can be invoked before the
Court. I could agree with what is indicated in the judgment to the extent that it is understood
that, although the enjoyment of all human rights, including the economic, social and cultural
rights should be respected and that, consequently, they are all enforceable before the competent
authorities, this does not signify that the latter, always and in every circumstance, can be claimed
before the domestic courts and, eventually, before the Court. Indeed, and as indicated, I am not
disputing that the presumed violations of any human right can and even should be claimed before
the competent domestic courts.61 However, what this opinion asserts is that only some of the
The most recent example, Case of I.V. v. Bolivia. Preliminary objections, merits, reparations and costs. Judgment
of November 30, 2016. Series C No. 329, paras. 154, 155 and ff.
59
60
Para. 141.
Preamble, second para: “Recognizing that the essential rights of man are not derived from one's being a national
of a certain state, but are based upon attributes of the human personality, and that they therefore justify international
protection in the form of a convention reinforcing or complementing the protection provided by the domestic law of the
American states.”
61
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;
b) that the petition or communication is lodged within a period of six months from the date on which the party alleging violation
of his rights was notified of the final judgment;
c) that the subject of the petition or communication is not pending in another international proceeding for settlement; and
d) that, in the case of Article 44, the petition contains the name, nationality, profession, domicile, and signature of the person
or persons or of the legal representative of the entity lodging the petition.
2.
The provisions of paragraphs 1.a and 1.b of this article shall not be applicable when:
a) the domestic legislation of the state concerned does not afford due process of law for the protection of the right or rights
that have allegedly been violated;
b) the party alleging violation of his rights has been denied access to the remedies under domestic law or has been prevented
from exhausting them; or
c) there has been unwarranted delay in rendering a final judgment under the aforementioned remedies.
Art. 61: 1. Only the States Parties and the Commission shall have the right to submit a case to the Court.
2. In order for the Court to hear a case, it is necessary that the procedures set forth in Articles 48 and 50 shall have
been completed.”