9
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 InterAmerican 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 Commission.13
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 case. This Tribunal is competent, therefore, to decide whether
there has been a violation of any of the rights and liberties enshrined in the
American Convention and to protect, by means of the appropriate measures, the
consequences that derive from said situation; however, it is also competent to try
the prerequisites on which the possibility to hear a case is based and to verify the
13
Cf. 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
Cf. 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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