requirement or rule contained therein has been duly and properly met, that is, from
proceeding with a case even if domestic remedies have not yet been exhausted.
It is in this same spirit that Article 46(2) of the Convention explicitly lists the only cases in
which the rule of prior exhaustion of domestic remedies does not apply, that is, the exceptions
to the rule—cases in which there is no due process of law by which claimants could avail
themselves of domestic remedies, access has proven impossible, or there is excessive delay
in resolving them. The article offers no other exceptions than these, so there is no merit in
invoking or even wielding an objection not provided for in the text; if there were, this could
strip the general rule set forth in Article 46(1)(a) of the Convention of any meaning or useful
effect, and worse yet, leave application up to the discretion or even arbitrariness of the
Commission.
And now, a second general comment will examine the Court’s view on the article transcribed
above, expressed as follows: “the Court recalls that the rule on prior exhaustion of domestic
remedies was conceived in the interest of the State, relieving it of the need to face
international proceedings for actions ascribed to it before resolving the dispute using its own
processes.”13
Thus, the intent of this rule is to extend to the State the possibility of restoring immediately
the effective exercise and respect for human rights that have been infringed, which is the
object and purpose of the Convention, 14 so as to bring about the ultimate goal as quickly as
possible, thus obviating the need for intervention by the inter-American jurisdiction.15
The rule matters because, in those situations in which the State has failed to meet its acquired
commitments to respect and guarantee the free and full exercise of human rights, there is an
avenue to seek intervention by international jurisdictional remedies that, if the case is
admissible, will order it to comply with the international obligations it has violated, provide
guarantees that it will do so no more, and redress all the consequences of the violations.16
This rule is also therefore a mechanism that encourages the State to meet its human rights
obligations without waiting for the inter-American system to go through a process and then
13
Para. 48 of the judgment.
Art. 1(1) of the Convention: “The States Parties to this Convention undertake to respect the rights and freedoms
recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights
and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion,
national or social origin, economic status, birth, or any other social condition.”
14
Art. 33 of the Convention: “The following organs shall have competence with respect to matters relating to the
fulfillment of the commitments made by the States Parties to this Convention: a. the Inter-American Commission on
Human Rights, referred to as "The Commission;" and b. the Inter-American Court of Human Rights, referred to as
"The Court."
15
Art. 63(1) of the Convention: “If the Court finds that there has been a violation of a right or freedom protected by
this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that
was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the
breach of such right or freedom be remedied and that fair compensation be paid to the injured party.”
16
4
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos