3
Judgments on the merits (and, eventually, by reparations) of the cases under review. This
means that Provisional Measures of Protection amount to a legal mechanism that, in turn,
reveal the utmost relevance of the preventive dimension of international protection of
human rights.
This is so much so that, under the American Convention (Article 63(2)), the
international responsibility of any State may be triggered by breach of Provisional
Measures of Protection ordered by the Court, without the need for the case on the merits
to have been submitted to the Court (but rather, to the Inter-American Commission on
Human Rights. This reinforces my view —which I will advance in this Concurring Opinion, if
I may— that Provisional Measures of Protection, endowed with autonomy, are governed by
their own legal rules; their breach triggers the responsibility of any such State —with legal
consequences— and identifies the central role of the victim (of said breach),
notwithstanding the examination and determination of the concrete case upon its merits.
In addition to the conventional basis of Article 63(2) of the American Convention,
Provisional Measures under said convention are reinforced by the general duty of the
States Party, pursuant to Article 1(1) of the Convention, to respect and ensure the respect,
without discrimination, of protected rights, in favor of all the persons subject to their
respective jurisdictions.15 I have the feeling that, in spite of all the Court had done in favor
of the evolution of Provisional Measures of Protection —more than any other contemporary
international court, I may insist— there is still a long way to go. The already considerable
legacy of said measures under the American Convention must be saved.
The legal rules governing said measures has to be strengthened conceptually, for
the benefit of all the persons protected and of the victims of their breaches (regardless of
the merits of the case, as may be). This is even more so required in repeated cases of (…)
which reveal a growing pattern of intimidation and violence. This is urgently required in
this dehumanized world empty of values we live in.” (Paras. 10-14)
III.
The Interrelation of the General Protection Obligations Contained
in Articles 1(1) and 2 of the American Convention
6.
In this Order in the matter of the Penitentiary in Araraquara, the Court
specifically mentioned the constructive and cooperative spirit shown by the parties in
relation to the proceedings during the public hearing held the day before yesterday
(September 28, 2005) before the Court. Later, the Court asserted once again its
position regarding the interrelation between the general obligations -erga omnes in
nature- to respect and to ensure respect for the rights enshrined in the American
Convention and to harmonize domestic law with the international norms of protection
of the American Convention, as set forth in Articles 1(1) and 2 thereof (Considering
clause No. 18).
7.
In fact, since my early years in this Court, I have consistently pointed out the
interrelation of the general obligations contained in Articles 1(1) and 2 of the American
Convention, for instance, in my Dissenting Opinion (paras. 2-11) in the Case of El
Amparo versus Venezuela, Judgment on reparations of September 14, 1996. In
another Dissenting Opinion in the same Case of El Amparo (Order of April 16, 1997 on
Interpretation of the Judgment), I also asserted the objective or “strict” liability of the
State for failure to comply with its legislative obligations under the American
Convention to harmonize its domestic law with the obligations undertaken under the
Convention (paras. 12-14 and 21-26). A few days ago, four days to be precise, I took
up this issue again in my Separate Opinion (paras. 24-25) in the Case of Almonacid15
.
The broad scope of this general protection obligation, which also encompasses the provisional
measures of protection, is analyzed in my recent Separate Opinion (paras. 15-21) in the Judgment of the
Court in the Case of the girls Jean and Bosico v. República Dominicana (September 8, 2005), Separate
Opinion (paras. 2-7 and 17-29) in the Judgment of the Court in the Case of the "Mapiripán Massacre" v.
Colombia (September 15, 2005), and Separate Opinion (paras. 2-13) in the Case of the Pueblo Bello
Massacre v. Colombia (January 31, 2006). The aforesaid Article 1(1) also provides the conventional basis for
the obligations erga omnes partes under the Convention.
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