American Convention on Human Rights Articles 46(1)(A) and 46(2)(C): Achilles Heel or Trojan Horse?

Abstract

American Convention on Human Rights (Convention) Articles 46(1) and 46(2) seek compromise yet appear to create ambiguity. In fact, Article 46(1) requires a complainant to exhaust domestic remedies and file their petition to the Inter-American Commission on Human Rights (IACHR or Commission) within six months of a final domestic judgment. Conversely, Article 46(2) provides three exceptions to 46(1) when the exhaustion of domestic remedies is not viable. A superficial comparison of these provisions may find them unworkable, arbitrary, and creating legal uncertainty in practice. However, recent implementation of these provisions within the Inter-American system is remarkably consistent. This paper describes (I) Articles 46(1) and 46(2); (II) highlights the implementation of these provisions within Inter-American jurisprudence through both a quantitative and qualitative analysis; and finally (III) attempts to identify best practices. This paper seeks to establish that, while many States attempt to utilize the exhaustion of domestic remedies as an Achilles Heel to the Inter-American human rights regime, recent jurisprudence within the system illustrates that this potentially fatal flaw is mitigated through the exemption found within Article 46(2).