The exhaustion of domestic remedies as a structural filter in international protection

By: Jorge Leyva

The requirement to exhaust domestic remedies is traditionally framed as a procedural precondition for accessing international protection mechanisms. Its stated function is subsidiarity: international bodies intervene only after national systems have had an opportunity to address the alleged violation. That rationale remains formally valid, but its uncritical application can produce effects that are incompatible with the protective purpose it is meant to serve.

The legal problem does not lie in the principle itself, but in the way it is operationalised. Domestic remedies are often assessed in abstract terms, based on their formal existence rather than on their practical capacity to provide effective relief. When remedies are structurally ineffective, excessively delayed or embedded in the same dynamics that produce the violation, requiring their exhaustion transforms subsidiarity into an obstacle rather than a filter.

From a legal perspective, effectiveness is not a theoretical attribute. A remedy is effective only if it is capable of addressing the substance of the complaint within a timeframe compatible with the nature of the harm. Where proceedings are predictably prolonged, where judicial bodies lack independence in politically sensitive cases or where interim protection is unavailable, the remedy fails to meet this standard regardless of its formal accessibility.

This issue becomes acute in contexts involving persecution, transnational repression or the misuse of criminal proceedings. In such cases, domestic processes may themselves constitute part of the pressure exerted on the individual. Requiring exhaustion under these conditions forces the applicant to remain exposed to ongoing harm while pursuing avenues that do not realistically alter their legal position. The requirement then operates as a mechanism of delay rather than of deference.

International jurisprudence has consistently recognised that exhaustion is not required where remedies are unavailable, ineffective or illusory. The difficulty lies in translating this principle into a functional assessment. Formal availability is often conflated with effectiveness, and the burden of proof is shifted onto the individual to demonstrate systemic failure, even where patterns of dysfunction are well documented.

The decisive element is causal. When insisting on exhaustion foreseeably prolongs exposure to harm or reinforces the effects of the contested state action, the requirement ceases to serve a legitimate procedural function. It becomes a source of additional injury attributable not only to the domestic system, but to the international mechanism that enforces it without contextual analysis.

The legal consequence is precise. Exhaustion of domestic remedies must operate as a safeguard of subsidiarity, not as a barrier to protection. Where domestic processes cannot reasonably be expected to provide timely and effective relief, international mechanisms are required to intervene without deferral. Treating exhaustion as an automatic prerequisite rather than as a functional assessment preserves procedural order at the expense of substantive protection, undermining the very rationale of international oversight.