Consequently, the principle of subsidiarity establishes an adequate mechanism for defining
the limits of the international jurisdiction and the obligations of the national authorities.” 8
10.
These implications of the principle of subsidiarity were emphasized in the case of
Acevedo Jaramillo et al. v. Peru, when the Court recalled that:
The State is the principal guarantor of human rights and, as a consequence, if a violation of the
said rights occurs, the State must resolve the issue under the domestic system and redress the
victim before resorting to international forums such as the inter-American system for the
protection of human rights; which derives from the ancillary nature of the international system in
relation to domestic systems for the protection of human rights. Domestic courts and state
organs have the duty to guarantee the implementation of the American Convention at the
domestic level. 9
11.
That essential element of the international law of human rights is at the conceptual
basis of its essential interaction with domestic law and the conduct that the different State
institutions should have in this regard, taking into account the obligations that, freely and in
exercise of its sovereignty, the State has assumed under an international treaty. And this
applies in at least two spheres, each arising from two fundamental provisions of the
Convention: Article 1(1) and Article 2. 10 Thus the States play an essential role as members
of the inter-American system of human rights. In this regard, a crucial role corresponds to
the national courts, as part of the State apparatus.
12.
In this process of interaction, the Court is not placed above the State, but rather
fulfills its role in the sphere of litigation when a case is submitted to it after the domestic
jurisdiction has been exhausted. Today, the binding nature of the Court’s judgments is not
in question and, essentially, the States abide them. It is particularly significant that
domestic courts are increasingly using the Court’s jurisprudential criteria, an international
mechanism that today inspires the jurisdictional reasoning of the most relevant courts of
Latin America. In this way, the Court’s case law is multiplied in hundreds and perhaps even
thousands of national courts. For its part, the inter-American Court is also nourished by the
important case law of national courts. The Court cannot place itself outside or above this
institutional dynamic, or try to rectify domestic decisions, except in the case of decisions
that are contrary or opposed to international standards in light of the American Convention.
13.
The subsidiary nature of the protection organs of the inter-American system for the
protection of human rights presumes that the domestic courts are able to establish and
apply criteria to repair a violation. This allows the domestic organs and institutions to
enhance their ability to use procedures and criteria that accord with international standards
concerning human rights. Evidently, the States “do not enjoy unlimited discretionary
authority and it will correspond to the organs of the inter-American system, within the
framework of their respective competences, to exercise subsidiary and complementary
control.” 11
8
DEL TORO HUERTA, Mauricio Iván, “El principio de subsidiaridad en el derecho internacional de derechos humanos
con especial referencia al sistema interamericano” in La Corte Interamericana de Derechos Humanos a veinticinco años de
su funcionamiento, Becerra Ramírez, Manuel (coord.), UNAM, Mexico, 2007, p. 24, citing PASTOR RIDRUEJO, José Antonio,
“Le principe de subsidiarité dans la Convention européenne des droits de l´homme”, Internationale Gemeinschaft und
Menschenrechte, Festschrift für Georg Ress zum 70. Geburtstag am 21. January 2005, Carl Heymanns Verlag, 2005, pp.
1077-1083.
9
Acevedo Jaramillo et al. v. Peru. Interpretation of the judgment of preliminary objections, merits, reparations and
costs. Judgment of November 24, 2006. Series C No. 157, para. 66.
10
GARCÍA-SAYÁN, Diego, “Justicia interamericana y tribunales nacionales,” in Anuario de Derecho Constitucional
Latinoamericano, Diké, Medellín, 2008, p. 378.
11
para. 47.
Cf. Zambrano Vélez et al. v. Ecuador. Merits, reparations and costs. Judgment of July 4, 2007. Series C No. 166,
3
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