pursued and exhausted in accordance with generally recognized principles of
international law.” This rule compliments Article 61(2) of the same agreement,
which explicitly states as a condition for action, that “[i]n order for the Court to
hear a case, it is necessary that the procedures set forth in Articles 48 and 50 [be]
completed” (referring to the procedure before the Inter-American Commission on
Human Rights).
10.
The Inter-American Court does not have the jurisdiction to become a “new
and last resort” to settle the original disputes of the parties in a domestic
proceeding. The Inter-American Court clearly understands that it cannot be
otherwise. The lucid reflections of an outstanding Inter-American judge are
relevant regarding this issue: 8
The
Inter-American
Court,
which
is
responsible
for
conducting
“conventionality control” based on the comparison between the action carried
out and the provisions of the American Convention, cannot and should not
seek –indeed, it has never done so- to become a new and last resort to hear
a dispute which originated in the domestic jurisdiction. The idea that the
Inter-American Court constitutes a third or fourth instance, and potentially a
jurisdiction of last resort, arises from a popular conception whose reasons are
understandable, but does it not apply to the Court’s jurisdiction, to the legal
dispute brought before it, the parties to the respective proceedings and to
the nature of international proceedings for the protection of human rights.
(Underlining added)
11.
From the foregoing, it is clear that the Inter-American Court shall have
jurisdiction, in certain cases, to review the actions of domestic judges, including the
proper exercise of “conventionality control”, provided that the analysis is based on
an examination of the compatibility of domestic measures with the American
Convention on Human Rights, with its additional Protocols, and with its
conventional jurisprudence; this, without turning the Inter-American Court into a
“court of appeals” or court of “fourth instance,” because its actions are limited to
the analysis of certain violations of the international commitments made by the
respondent State in each particular case, and not of each and every one of the
actions of domestic judicial bodies, which obviously in this latter case would mean
substituting the domestic jurisdiction, violating the very essence of the reinforcing
and complementary nature of the international courts.
12.
On the contrary, the Inter-American Court has jurisdiction to hear “matters
related to the compliance with the commitments made by State Parties”; 9 the main
purpose of the Inter-American Court’s is precisely “the application and
interpretation of the American Convention on Human Rights,” 10 from which it also
derives its jurisdiction to analyze the proper exercise of “conventionality control” by
a domestic judge when there are violations of the Pact of San Jose. This analysis
shall necessarily be undertaken by the conventional judge when deciding on the
“merits” of the matter and not as a “preliminary objection,” this being the moment
when domestic actions are subjected to an “examination of conventionality” in light
of the American Convention, along with their interpretation by the Inter-American
Court.
8
Para. 3 of the Concurring Opinion of Judge Sergio García Ramírez in relation to the Judgment in
the Case of Vargas Areco v. Paraguay. Merits, Reparations and Costs, of September 26, 2006. Series C
No. 155.
9
Article 33 of the American Convention on Human Rights.
10
Article 1 of the Statute of the Inter-American Court of Human Rights.
4
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