7
damage to people are met. Thus, provisional measures are transformed in a true
jurisdictional guarantee of a preventive nature.5
5.
The stipulation established in Article 63(2) of the Convention grants
obligatory nature to the adoption, by the State, of the provisional measures ordered
this Tribunal, since the basic legal principle on State responsibility, supported
international jurisprudence, has indicated that the States must comply with
conventional obligations in good faith (pacta sunt servanda).6
*
*
an
by
by
its
*
6.
The present request for provisional measures is not related to a case brought
before the Court, but instead it was originated on a request for precautionary
measures filed before the Inter-American Commission. The Court does not have
information regarding if the facts brought before the Tribunal are part of a contentious
proceeding before the Inter-American System or if a petition was filed before the
Inter-American Commission regarding the merits related to this request.
7.
On previous opportunities, this Court interpreted that the phrase “matters that
have not yet been submitted before it” included in Article 63(2) in fine of the American
Convention assumes that there is at least a possibility that the matter that leads to the
request of provisional measures may be submitted to the Court in its contentious
competence. In order for there to be said minimum possibility the proceeding
established in Articles 44 and 46 through 48 of the American Convention must have
been started before the Commission.7
8.
From the information provided by the Commission it can be concluded that
Rocío, Nitza, and José, who are cousins, have been missing since December 29, 2009,
and, despite the fact that their next of kin informed of the facts to different state
authorities and the Commission ordered precautionary measures on March 4, 2010,
(supra Having Seen paragraphs 2(a), (b), and (e)), the actions adopted by the State
have not offered positive results regarding the specific information addressed to
determining their whereabouts and their current situation. The information provided by
the Commission indicates that there are reasonable grounds to suspect that state
agents illegally deprived them of their freedom on the night of December 29, 2009.
9.
Article 63(2) of the Convention demands that in order for the Court to be able
to issue provisional measures three conditions must concur: i) “extreme gravity”; ii)
5
Cf. Case of the Newspaper “La Nación”. Provisional Measures regarding Costa Rica. Order of the
Inter-American Court of Human Rights of September 7, 2001, Considering Clause number four; Case of
Caballero Delgado and Santana. Provisional Measures regarding Colombia. Order of the Inter-American
Court of Human Rights of February 3, 2010, Considering clause number four; Case of Rosendo Cantú et al.
Provisional Measures regarding Mexico. Order of the Inter-American Court of Human Rights of February 2,
2010, Considering clause number five; and Matter of Natera Balboa. Provisional Measures regarding
Venezuela. Order of the Inter-American Court of Human Rights of February 1, 2010, Considering clause
number seven.
6
Cf. Matter of James et al. Provisional Measures regarding Trinidad and Tobago. Order of the InterAmerican Court of Human Rights of June 14, 1998, Considering clause number six; Matter of Ramírez
Hinostroza et al. Provisional Measures regarding Peru. Order of the Inter-American Court of Human Rights of
February 3, 2010, Considering clause number five; Case of Rosendo Cantú et al., supra note 5, Considering
clause number six; and Matter of Guerrero Larez. Provisional Measures regarding Venezuela. Order of the
Inter-American Court of Human Rights of November 17, 2009, Considering clause number five.
7
Cf. Matter of García Uribe et al. Request for Provisional Measures regarding Mexico. Order of the
Inter-American Court of Human Rights of February 2, 2006, Considering Clauses number three and four;
Matter of Natera Balboa, supra note 5, Considering Clause number six; and Matter of Guerrero Larez, supra
note 6, Considering Clause number seven.