11
49.
In this regard, Nicaragua declared that it had repeatedly raised the objection
that domestic remedies had not been exhausted before the Commission, “since the
very beginning” of the proceeding before the Commission,
specifically, in its reply to the memorandum of understanding presented by the
petitioners within the framework of the friendly settlement and, in repeated briefs while
the case was being processed, including those of November 5, December 4 and 19,
1997, February 14 and March 2, 1998. Further still, this position was manifested by
Government representatives in hearings held at the seat of the Commission on March 4,
1997, and subsequently, in October the same year.
Thus, Nicaragua stated that these communications demonstrated that, at no time,
had it renounced, either tacitly or expressly, its right to assert this objection.
50.
On this aspect, the Commission indicated that, according to the principle of
estoppel, the State was impeded from alleging the objection of failure to exhaust
domestic resources, because after a long process of meetings with the Commission
and the Community “it [was] the first time in the history of the case that the State
[had] presented the argument that domestic remedies had not been exhausted due
to a procedural error by the victims”. Furthermore, it indicated that “[s]ubsequent
communications from the State arguing failure to exhaust domestic remedies did not
reach the Commission until November 1997, and did not refer to the Community’s
first application for amparo, but rather to the second application and to applications
for amparo filed by other parties opposed to granting the concession to SOLCARSA.”
It added that the State could not file an objection that domestic remedies had not
been exhausted after it had taken part in the friendly settlement procedure during
two years.
51.
In addition, the Inter-American Commission stated that, even if the State
might have avoided the tacit waiver due to silence, its reply to the Commission’s
Report No. 27/98 of May 7, 1998, did not pose any objection, but rather was
dedicated to responding to the Commission’s recommendations, thereby
acknowledging its responsibility. In this way, the Commission concluded that the
State’s conduct constituted a waiver of any objection that domestic remedies had not
been exhausted, which it might have alleged previously.
*
*
*
52.
Article 46.1a of the Convention establishes that, in order for a petition or
communication presented to the Inter-American Commission pursuant to Articles 44
or 45 of the Convention to be admissible, it is necessary that the remedies under
domestic law have been pursued and exhausted. The Court considers it necessary to
emphasize that, with regard to the matter referred to in the objection filed by the
State, it has established criteria that should be taken into consideration in this case.
53.
Indeed, of the generally recognized principles of international law referred to
in the rule on exhaustion of domestic remedies, the foremost is that the State
defendant may expressly or tacitly waive invocation of this rule (Castillo Páez Case,
Preliminary Objections. Judgment of January 30, 1996. Series C No. 24, para. 40;
Loayza Tamayo Case, Preliminary Objections. Judgment of January 31, 1996. Series
C No. 25, para. 40). Secondly, in order to be timely, the objection that domestic
remedies have not been exhausted should be raised during the first stages of the
proceeding or, to the contrary, it will be presumed that the interested State has