39. - Finally, it is not admissible to allude to the practice of the Court, regarding the
repeated ordering of provisional measures after delivering the judgment on merits in
the respective contentious case, to argue that, thereby, the act is legitimate
specifically because it was accepted by States who did not protest against it and
effectively complied with the provisions of such measures. And such a reference would
not be worthy of consideration because the attitude of the States concerned would not
be an unequivocal demonstration of their will or intention to accept or agree that the
aforementioned practice is a new rule that arises in the absence of treaty addressing
the matter and, consequently, it imposes a new obligation upon them, but rather
would also be an expression that, on the subject, it says nothing and, simply, having
previously and conventionally committed to it, complies with a court order. Therefore,
such compliance does not create a new obligation for the State, but rather the State
responds to the provisions of a conventional rule.
40.- The estoppel rule or doctrine of one’s own acts or of preclusion would not be
admissible regarding the State Party in the proceeding, since with its indicated actions,
it had no intention of creating, through the relevant procedural act contemplated in the
Convention, a new international legal rule or a new international legal obligation.
41. - Furthermore, one should also note that the State ruling has been, with respect to
such measures, individual and not for the whole or the majority of States Parties to the
Convention, so that it in this case the “authentic interpretation” may not be applied, in
other words, considered as a “subsequent practice in the application of the treaty
which establishes the agreement of the parties regarding its interpretation.”49
Conclusion
42. - In short, with the delivery of the judgment on merits, reparations and costs in
proceedings, a preclusion takes effect regarding the Court’s authority to order
provisional measures in relation to the contentious case in question, since, following
this, it can only amend the obvious mistakes, clerical errors and calculation errors,
interpret it and then monitor compliance, and report annually to the political body —
the OAS General Assembly, in the event of non-compliance.
43. - The ruling does not mean, however, that the object and purpose pursued by the
provisional measures ordered during the proceeding are legally unprotected, but
precisely the opposite, since it imposes upon the State concerned the specific
obligation to ensure “the injured party the enjoyment of the right or freedom that was
violated,” particularly in “cases of extreme gravity and urgency, and when it is
necessary to avoid irreparable damage to persons.” In this sense, then, it is a question
of not diminishing but rather strengthening and even enhancing the effects of the
judgment on merits, and thereby protecting human rights, ordering the
reestablishment of those that have been violated.
44. - However, the judgment on merits in a contentious case does not imply, as stated
by the Court regarding the lifting of provisional measures, that “the State is relieved of
its treaty obligations to protect under the Convention”50, since its general and
49
Article 31(3)(b) of the Vienna Convention on the Law of Treaties.
50
Matter A.J. et al. Provisional Measures regarding Haiti, Order of February 22, 2011, Considering
paragraph 16: “Lastly, the Court reiterates that Article 1(1) of the Convention establishes the general
obligation of the States Parties to respect the rights and freedoms recognized therein and to ensure to all
11
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