8
It is evident how necessary is to count on procedural rules and to have those rules
expressly and positively embodied, in order to establish the procedural cases and the
consequences that a State may hypothetically face: Untimely presentation of arguments
related to international public law; express waiver of the right to invoke the nonexhaustion of domestic remedies; procedural opportunity and phase in which the
objection of non-exhaustion of domestic remedies must be raised; possibility that the
Commission eliminates this phase; obligation for the State invoking such objection to
indicate the remedies that remain to exhaust, as well as to prove the effectiveness of such
remedies.
There is no set of rules, in this sense, currently within the Inter-American system and in
my opinion; they are rules of vital importance for the processing of those cases of a global
nature, that the Commission as well as the Court, must hear, respectively; therefore, for
what the law ought to be, the State Parties must approve a regulatory text, in the
Protocol to the amendment of the procedural part of the American Convention on Human
Rights or simply, amend article 62 of the American Convention to regulate this aspect.
That shall lead to the improvement of the Inter-American system for the Protection of
Human Rights and shall ensure legal certainty and stability for the parties in the
proceeding.
I insist, to accept that international courts may declare the untimeliness or express or
implied waiver of the right to invoke objections that imply the analysis of rules of
international public law, such as the example of exhaustion of domestic remedies, would
cause a clear inequality between the parties who are settling their issues at the domestic
level and those who, by not doing it, have direct access to international courts; resulting,
maybe, in excessive work of the Ministry of Foreign Affairs, the procedural risk implied in
bringing a case to the jurisdiction of an international court or considering, maybe, that the
objection of exhaustion of domestic remedies has never been admitted by the Court due
to, certainly, the lack of clarity with which this issue is embodied in the set of rules
previously mentioned. This, coupled with an increase in the number of cases, would make
of this Court, instead of a subsidiary tribunal, a main tribunal, and the problems that this
implies.
It would seem that the case-by-case and particular solution of one or several
international cases could generate a clear unbalance in domestic set of rules and
a clear inequality among nations.
To my understanding, if a question of admissibility was decided before the Commission,
that same question should be analyzed, once again, by the Court considering the judicial
functions of this last body as opposed to the first one. This function is in line with the full
jurisdiction the Court exercises over the decisions made by the Commission13.
This inherent power of exercising the jurisdiction in toto has been upheld by this Court in
previous cases14 pointing out that the American Convention is drafted in broad terms
which indicate that the Court exercises full jurisdiction over all the issues related to a
13
See Case of Tibi, Judgment of September 7, 2004. Series C Nº 114, para. 144; Case of Herrera Ulloa.
Judgment of July 2, 2004. Series C No. 107, para. 79 and Case of Juan Humberto Sánchez. Judgment of June 7,
2003. Series C No. 99, para. 65.
14
See Case of the “Street Children” (Villagrán Morales et al). Preliminary Objections. Judgment of September
11, 1997, Serie C No. 32, para. 17 and 19. This judgment ratifies the criteria exposed in the judgment of the
case of Velásquez Rodríguez, Preliminary Objections. Judgment of June 26, 1987.
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