synonymous. However, the States themselves have reiterated this in the Statute of the
Court24 and it is even contemplated in the Rules of Procedure, approved by the Court. 25
19. - Additionally, it should be emphasized that Article 27 of the Rules of Procedure of
the Court, which is found in Title II "Procedure," states that, "[a]t any stage of the
proceedings" the Court may order provisional measures, which leaves no doubt as to
how this legislative body interpreted the provisions of Article 63(2) of the Convention,
namely that such measures take place within a contentious case proceeding that the
Court is hearing or ruling upon.
20.- This is reinforced by everything that the Court itself has stated in relation to the
second possibility of ordering provisional measures contemplated in Article 63(2) of the
Convention, namely, in “a case not yet submitted to its consideration”:
“[o]n previous occasions, the Court has interpreted that the phrase ‘matters not
yet submitted to it', contained in Article 63(2) of the Convention, supposes that
there is at least a possibility that the matter behind the request for provisional
measures may be brought before the Court in its contentious jurisdiction. For this
small possibility to exist, the procedure set forth in Articles 44 and 46 to 48 of
the American Convention must have been initiated before the Commission.”26
21.- This case-law therefore implies that in order for the Court to order provisional
measures with respect to “matters not yet brought before it”, there must be, on the
one hand, a possibility that these may become contentious cases and, on the other,
that the Commission, "even when there is strictly still no contentious case before the
inter-American System,”27, may make the corresponding request.
22.- The Court’s affirmations clearly establish, then, that the general rule is that
provisional measures are in order in contentious cases, i.e., on which it rules, and only
exceptionally and where requested by the Commission, on matters that are likely to
become contentious cases.
23.- And it could not be otherwise, given that if it were not so, the procedure for such
measures would be completely different, separate, and unrelated to the contentious
case, in the context of which they are requested and ordered, which, evidently, is quite
24
Approved through Order N° 448 adopted by the General Assembly of the OAS in its Ninth Period of
Sessions, held in La Paz, Bolivia, October 1979.
25
2009.
Approved by the Court at its Eighty-fifth Ordinary Period of Sessions held on November 16 to 28
26
Cf. Matter of Garcia Uribe et al. Request for Provisional Measures regarding Mexico. Order of the
Court of February 2, 2006, Considering paragraphs 3 and 4; Matter José Luis Galdamez Alvarez et al.
Provisional Measures regarding Honduras. Order of the Court of February 22, 2011, Considering paragraph
9, and Matter Alvarado Reyes et al. Provisional Measures regarding the United Mexican States. Order of the
Court of May 15, 2011, Considering paragraph 10.
27
Cf. Matter of Alvarado Reyes et al. Provisional Measures regarding the United Mexican States, supra
note 20, Considering paragraph 11: “The Court has considered it necessary to clarify that, given the
protective nature of provisional measures […], exceptionally, it may order them even when a contentious
case has not been filed before the Inter-American System, in situations that, prima facie, may have a
serious and urgent effect on human rights. To this end, it is necessary to assess the problem at issue, the
effectiveness of the State’s actions regarding the situation, and the degree of vulnerability of the persons for
whom the measures are requested should they not be adopted. Therefore, the Inter-American Commission
must present sufficient justification in relation to the said criteria, and the State must not have
demonstrated clearly and sufficiently the effectiveness of any measures it has taken at the domestic level.”
6
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