4
which the Court intervention is requested. Likewise, the three above described
conditions must persist in Order for the Court to maintain the ordered protection. In
the event one of them had ceased to exist, the Court shall assess the pertinence of
continuing with the enforcement of the ordered protection.
5.
That should a State request the rescission or the alteration of the ordered
provisional measures, it shall present sufficient evidence and arguments so as to
allow the Court to assess that the risk or threat no longer complies with the
requirements of extreme gravity and urgency to avoid irreparable damage. Likewise,
the representatives wishing for the continuance of the measures shall have to submit
evidence of the reasons for it.6
6.
That on that respect, the Court must take into account that the Preamble of
the American Convention, states that the protection of essential rights justifies
“international protection in the form of a convention reinforcing or complementing
the protection provided by the domestic law of the American states.” Therefore,
should it be verified that the interested State has developed efficient protection
mechanisms or actions for the beneficiaries of the provisional measures, the Court
could decide to withdraw the provisional measures, thus discharging the pertinent
responsible party, that is, the State itself, of the obligation to protect. Again, this
Order is to be rendered by the Court, and not by the State, as it would be
inadmissible to subordinate the mechanism provided for in the American Convention
to restrictions that turn the Court function inoperative, and therefore, the protective
system of human rights enshrined in the Convention.7 Should the Court rescind the
provisional measures on those grounds, the State, by virtue of its duty to protect
human rights, shall maintain the provisional measures it may have adopted and that
the Court considered efficient, for the time the circumstances so require.8
7.
That when ordering the protection measures the Court or whomever presides
it does not initially request evidence of the facts, which prima facie seem to comply
with the requirements of Article 63 of the Convention. On the contrary, the
maintenance of the protection measures calls for an evaluation by the Court -based
on evidence-, of the persistence of the situation of extreme gravity and urgency to
avoid irreparable damage,9 which gave rise to the measures.10
*
*
*
6
Cf. Case of Carpio Nicolle et al., supra note 3, Considering clause 18, and Case of ECAP.
Provisional Measures regarding Guatemala. Order of the Court of July 8, 2009, Considering clause 5.
7
Cf. Matter of Luis Uzcátegui. Provisional Measures regarding Venezuela. Order of the Court of
February 20, 2003, thirteenth considering clause; Case of Raxcacó Reyes et al. Provisional Measures.
Order of the Inter-American Court of Human Rights of February 2, 2007, Considering clause 12, and Case
of ECAP, supra note 6, Considering 6.
8
Cf. Case of Carpio Nicolle et al., supra note 3, Considering clause 21, and Case of ECAP, supra
note 6, Considering clause 6.
9
Cf. Matter of Pueblo Indígena Kankuamo, supra note 2, Considering clause 7, Case of Mack Chang
et al. Provisional Measures regarding Guatemala. Order of the Court of January 26, 2009, Considering
clause 32, and Case of Carpio Nicolle et al., supra note 3, Considering clause 15.
10
Cf. Case of Carpio Nicolle et al., supra note 3, Considering clause 15, Matter of Lilliana Ortega et al.
Provisional Measures regarding Venezuela. Order of the Court of July 9, 2009, Considering clause 33, and
Matter of A.J. et al., Provisional Measures regarding Haiti. Order of the Court of September 21, 2009,
Considering clause 18.