4
themselves13 because, on the one hand, it is not truly a human right, but rather an
obligation of the individual and, on the other, its eventual violation could prevent the
opportune and prompt achievement of the aforementioned practical effect, which is, let
me repeat, the re-establishment of respect for the human rights presumably violated by
the State concerned.
What said rule seeks, then, is, insofar as possible, to make recourse to the interAmerican jurisdiction unnecessary, by requiring that, in the first place, the respective
State is called on directly to comply, if it has not already done so, with the international
commitments that it has assumed in the area of human rights, and this, in less time
than would be taken to obtain the same effect by the intervention of the inter-American
System.
Certainly, the Convention includes the logical exceptions to the general rule of prior
exhaustion of domestic remedies. Thus, it indicates that it is not necessary to exhaust
these remedies previously if the domestic legislation of the state concerned does not
provide them; if access to them has been denied, or they have been exhausted or, lastly, if
there has been unwarranted delay in the decision regarding their exercise. In other words,
these exceptions can be argued in situations in which the said remedies are clearly
inexistent, ineffective, useless or unavailable.
Undoubtedly, the said exceptions provide the rule of prior exhaustion of domestic
remedies with the necessary flexibility in its application, by eliminating a strictly formal
meaning and scope, especially, although not exclusively, in those cases in which, in the
State concerned, the rule of law or the effective exercise of representative democracy is
absent, or human rights are generally and systematically violated, or periodic, free and
fair elections based on universal, secret suffrage are not held, or a multi-party system
and political parties are inexistent, or the public powers are not separate and
independent; in sum, when the provisions of the Inter-American Democratic Charter are
violated in the respective State.14
Nevertheless, it should be noted that this means that applying these exceptions as a
regular or general practice could lead to annulling the rule in question and,
consequently, to further delaying effective, prompt and final compliance by the State
concerned, especially if it is a democracy, with its international obligation to respect and
ensure respect for the human rights that have presumably been violated, which is the
object and purpose of the Convention.
In addition, attention should be called to the fact that the said rule entails conciliation,
compatibility or an adequate balance between the domestic jurisdiction, exclusive to the
respective State, and the inter-American human rights jurisdiction. From this
perspective, respecting these elements evidently constitutes, as regards the Court, an
expression of the impartiality and objectivity that should reign in its actions as an organ
responsible for imparting justice in the area of human rights.
Based on the foregoing, breaching or ignoring the rule of prior exhaustion of domestic
remedies would not only run counter to what was agreed on by the States Parties to the
Convention as established in it, but would also call into question the whole of the said
inter-American system, affecting the legal certainty that it provides and guarantees.
13
organs.
14
Both the Court’s Rules of Procedure and those of the Commission have been approved by the said
Adopted by the General Assembly of the Organization of American States by Resolution AG/RES 1
(XXVIII-E-1) at the first plenary session held on September 11, 2001, during its special session in Lima Peru.