6
auxiliary source of international public law, i.e., an “auxiliary means for the determination of the
rules of law.” 23
This means, on the one hand, that the Court’s jurisprudence is not an autonomous source of
international law, i.e., it must necessarily refer to the relevant conventional norms in order to
apply and interpret them and, therefore, it is not sufficient on its own to resolve a dispute. On
the other hand, it is obviously not immutable, and thus it can be changed by the Court itself,
even when it is constant or sufficiently consolidated, especially in consideration of the
peculiarities of the case in question and the progressive development of international law.
II.
CONVENTIONAL RULE CONCERNING THE PRIOR EXHAUSTION OF DOMESTIC
REMEDIES
In the first part of this opinion, I will reiterate and complement, with certain modifications, some
general comments made above 24 on the rule in question and the procedure that should be
followed in this regard; in other words, with regard to the petition, its study and initial processing
by the Commission, the State's response to the petition, its admissibility and the ruling that
corresponds to the Court. To conclude, I will address the consequences of considering the rule
of prior exhaustion of domestic remedies as a requirement of admissibility rather than of the
petition. All of which leads me to consider that this rule must be complied with by the petitioner
prior to the petition or else the petition must indicate that it is inadmissible.
A. General observations
Article 46 of the Convention establishes the rule of prior exhaustion of domestic remedies by
stating that:
“1. Admission by the Commission of a petition or communication lodged in accordance with
Articles 44 or 45 shall be subject to the following requirements:
a) that the remedies under domestic law have been pursued and exhausted in accordance
with generally recognized principles of international law;
b) that the petition or communication is lodged within a period of six months from the date
on which the party alleging violation of his rights was notified of the final judgment;
c) that the subject of the petition or communication is not pending in another international
proceeding for settlement; and
d) that, in the case of Article 44, the petition contains the name, nationality, profession,
domicile, and signature of the person or persons or of the legal representative of the entity
lodging the petition.
23
Art. 38 of the same Statute: “1. The Court, whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting
states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of
the various nations, as subsidiary means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree
thereto.”
24
See footnote Nº 9.
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