merits, a preclusion operates regarding its power to order new provisional measures in
the case, once those already ordered have ceased, it being understood, nevertheless,
that their purpose and effects are assumed by the Judgment.
I. - Provisional measures
9. - And this in consideration, first of all, of the conventional rule applicable in this
case, namely is Article 63(2) of the American Convention on Human Rights, hereinafter
“the Convention”, which states:
“[i]n cases of extreme gravity and urgency, and when necessary to avoid
irreparable damage to persons, the Court shall adopt such provisional measures as
it deems pertinent in matters it has under consideration. With respect to a case
not yet submitted to the Court, it may act at the request of the Commission.”
10.- Considering that case law is the “subsidiary means for the determination of rules
of law,”6 it is therefore the Court’s responsibility to define the meaning and scope of
the provisions contained in the above conventional rule, i.e. to interpret it “in good
faith in accordance with the ordinary meaning to be given to the terms of the treaty in
their context and in the light of its object and purpose”7 and, therefore, seeking the
will of the States that created it, which also have the power to amend it 8, all this
considering also that the maximum guarantee of protection that the Court should grant
in fulfillment of its role in delivering justice in matters of human rights, is the
unconditional respect for the rules that govern it.
11.- Thus, in that perspective, the argument is that the aforesaid rule must be
understood to mean that the Court can only order provisional measures in matters that
are under its consideration or regarding those on which the Inter-American
Commission on Human Rights, hereinafter “the Commission”, has requested them,
even if they have not been brought before the Court. In other words, in the first
eventuality, as part of the proceedings in contentious cases and, in the second,
regarding matters likely to become contentious cases.
12. - Basically, it affirms that these measures are ordered under the contentious
jurisdiction of the Court.9 It also should be recalled, for this purpose, that within the
Rosendo Cantu et al. v. Mexico,” July 1, 2011 and the “Provisional Measures regarding the Republic of
Honduras, Case of Kawas Fernandez v. Honduras”, of July 5, 2011, and also in the brief of the Record of
Complaint which, related to the same Orders, submitted before the Court on August 17, 2011. And it has
been made present in the Individual Concurring Opinion regarding the Order for “Provisional Measures
regarding the Republic of Colombia, Case of the 19 Tradesmen V. Colombia, of June 26, 2012; Concurring
Opinion, Case Torres Millacura et al. V. Argentina, Judgment of August 26, 2011, Merits, Reparations and
Costs; Concurring Opinion Case of Barrios Family v. Venezuela, Judgment of November 24, 2011, Merits,
Reparations and Costs; Dissenting Opinion, Order for Provisional Measures in the Matter Millacura Lllaipen
regarding Argentina, of November 25, 2011; and Concurring Opinion with Order concerning “Provisional
Measures regarding the United Mexican States, Case of Fernández Ortega et al.”, of February 20, 2012.
6
Article 38(1)(d) of the Statute of the International Court of Justice.
7
Article 31(1) of the Vienna Convention on the Law on Treaties.
8
Article 76(1) of the Convention and Arts 39 to 41 Vienna Convention.
9
The Court has contentious jurisdiction and non-contentious or advisory jurisdiction. The former is
set forth in Articles 61, 62 and 63 of the Convention and the latter in Article 64 thereof. This is likewise
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