12
Preliminary Objections in the cases of Loayza Tamayo and Castillo Páez34, pertaining to
Peru, that, if the respondent State failed to invoke the objection of non-exhaustion in
the proceedings of admissibility before the IACHR, it is precluded from raising it
subsequently before the Court (estoppel). In this way, the Court modified the earlier
criterion - in my view inadequate - followed originally by it on this point, in the cases of
Velásquez Rodríguez, Godínez Cruz and Fairén Garbi and Solís Corrales35 (1987),
concerning Honduras.
33.
And thirdly, in any way, in the present context of the international protection of
human rights, - fundamentally distinct from that of discretionary diplomatic protection
at inter-State level36, - the rule of domestic remedies is endowed with a procedural
rather than substantive nature. It thus conditions the implementation (mise-en-oeuvre)
of the responsibility of the State (as a requisite of admissibility of an international
petition or complaint), but not the birth of such responsibility.
34.
This is the thesis which I have been constantly sustaining for more than twenty
years, as from the publication of my essay on "The Birth of State Responsibility and the
Nature of the Local Remedies Rule", in 1978 in Geneva37. Ever since, I have always
maintained that the birth and the implementation of the international responsibility of
the State correspond to two distinct moments; in the present context of the
international protection of human rights, the requisite of prior exhaustion of remedies
of domestic law conditions the implementation, but not the birth, of that responsibility,
which is conformed as from the occurrence of an internationally wrongful act (or
omission) (which may have its source, e.g., in a legal provision of domestic law, or in
an administrative act, or else in a judicial decision).
35.
Last by not least, I would like to refer briefly to the declaration of one of the
experts proposed by the IACHR: in singling out the good faith of the initiative of the
project of constitutional reform pending in the State of Chile, Dr. José Zalaquett Daher
pondered judiciously that "the most important reform in this case would be that which
(...), by means of a Chilean legislative act, (...) were to remind imperatively the
Judiciary" that "there exists the full incorporation de jure and that it ought to apply"
directly the international norms of human rights protection at domestic law level38. This
34
IACtHR, Series C, ns. 25 and 24, respectively.
35
IACtHR, Judgments on Preliminary Objections, Series C, ns. 1, 3 and 2, respectively.
.
.
36
.
The basic differences of context require that the local remedies rule, in the ambit of the
international safeguard of human rights, is applied with special attention to the needs of protection of the
human being. The rule referred to is far from having the dimension of an immutable or sacrosanct principle
of international law, and nothing impedes that it is applied with greater or lesser rigour in distinct contexts.
Ultimately, local remedies form an integral part of the very system of international human rights protection,
the emphasis falling on the element of redress rather than on the process of exhaustion (of those remedies).
The local remedies rule bears witness of the interaction between international law and domestic law in the
present context of protection. We are here before a droit de protection, endowed with a specificity of its own,
fundamentally oriented towards the victims, towards the rights of human beings rather than of States.
Generally recognized rules of international law (which the formulation of the local remedies rule in human
rights treaties such as the American Convention refers to), besides following an evolution of their own in the
distinct contexts in which they apply, necessarily suffer, when inserted into human rights treaties, a certain
degree of adjustment or adaptation, dictated by the special character of the object and purpose of those
treaties and by the widely recognized specificity of the international protection of human rights. A.A. Cançado
Trindade, The Application of the Rule of Exhaustion of Local Remedies in International Law, Cambridge,
University Press, 1983, pp. 1-443, esp. pp. 6-56, 279-287, 290-322 and 410-412.
37
.
A.A. Cançado Trindade, "The Birth of State Responsibility and the Nature of the Local Remedies
Rule", 56 Revue de Droit international de sciences diplomatiques et politiques - Sottile (1978) pp. 157-188.