open a case but defer its treatment of admissibility until the debate and decision on the
merits..”64
79.
In this regard, it should be indicated that the said article does not establish that the
remedies of the domestic jurisdiction necessarily should have been exhausted to be able to
adopt the decision on admissibility because that decision may be not to admit the petition,
precisely because it has not exhausted those remedies.
80.
It should also be emphasized that neither does this article establish that it should be
at the time the decision on admissibility is taken that the domestic remedies should be
exhausted, even though they had not been previously; it merely establishes that, “[o]nce it
has considered the positions of the parties, the Commission shall make a decision on the
admissibility of the matter.” This article makes no specific reference because it is not the
moment at which the requirement of the prior exhaustion of domestic remedies should have
been met, but rather the moment when a decision must be adopted on the admissibility of
the petition as “lodged.”
V.
CONSEQUENCES
81.
The first consequence derived from the position adopted by Commission and endorsed
by the Court – that it suffices that the requirement of the prior exhaustion of domestic
remedies has been met when the Commission rules on the admissibility of the petition – is
that the same case may be processed simultaneously by the domestic jurisdiction and the
international jurisdiction, which would evidently render the rule of the prior exhaustion of
domestic remedies pointless and also its basis – that the inter-American jurisdiction
complements and reinforces the domestic jurisdiction. Furthermore, if this should occur, the
former would rather substitute for the latter or, at least, could be used as an element of
pressure with regard to this, thus becoming an instrument that could affect the necessary
independence of the international jurisdiction which, without doubt, was not what the
Convention was seeking.
82.
In addition, in this hypothesis, it could constitute a perverse incentive to lodge petitions
with the Commission even when the said requirement had not been met in the expectation
that it could be complied with prior to the Commission ruling on admissibility, which could not
have been foreseen or desired by the Convention.
83.
Furthermore, it should be noted that adhering to the criteria that this requirement is
determined by the instant at which the Commission rules on the admissibility of the petition
would result in situations of evident injustice or arbitrariness insofar as the moment to comply
with the said requirement would depend, not on the victim or the petitioner or on a rule valid
for all, but on the Commission’s decision when ruling on the admissibility or inadmissibility of
a petition which it frequently takes years to adopt, so that the decision could be perceived to
be arbitrary.
84.
Moreover, it is also necessary to consider that, by diverging from the position outlined
above, the rules of interpretation established by the Vienna Convention are not being applied.
Indeed, it is clear that this would also occur in relation to the text of the Convention and the
context of its terms concerning the exhaustion of domestic remedies, which would then be
out of place. This would also occur with regard to the criteria regarding good faith and the
object and purpose of the treaty. First, because the States evidently intended the rule on the
exhaustion of domestic remedies to be met before the submission of the relevant petition
64
Art. 36(1), (2) and (3).
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