10
to —or inflicted upon— the prisoners over the years.29 Not surprisingly, today we are
looking for a “new understanding" of the purposes and boundaries of criminal law.30
24.
Moreover, also in this context of prevention of irreparable damage to the
human being, the central importance of the human person, though victimized, is
affirmed.31 I have addressed this specific issue in my two Separate Concurring
Opinions in the recent Matter of Eloísa Barrios et al. regarding Venezuela (orders of
June 25, 2005 and September 22, 2005), with a view to building up a theory of what I
call the autonomous legal framework of provisional measures of protection. In effect,
these give rise per se to obligations for the States, and are distinguished from the
obligations arising out of the respective Judgments on the merits (and reparations,
where applicable) of the respective cases. This means that provisional measures of
protection constitute an autonomous legal remedy; they actually have their own legal
framework, which in turn, reveals the importance of the preventive dimension of the
international protection of human rights.
25.
So much so that, under the American Convention (Article 63(2)), a State’s
international liability may arise from failure to comply with Provisional Measures of
Protection ordered by the Court, even if the respective merits of the case are not
pending before the Court (but rather before the Inter-American Commission on Human
Rights). This confirms my thesis, that Provisional Measures of Protection, in light of
their conventional force, are autonomous, and thus have their own legal framework,
and failure to comply with them results in liability of the State. It has legal
consequences, in addition to underscoring the central role of the victim (of such noncompliance), notwithstanding the consideration and decision of the specific case at
issue upon its merits. This, in turn, reveals the great significance of the preventive
dimension of the international protection of human rights, in its broad sense (supra).
26.
In addition to the conventional basis provided by Article 63(2) of the American
Convention, provisional measures are further reinforced by the general obligation of
the States Parties, under Article 1(1) thereof, to respect and to ensure respect for the
protected rights, without discrimination, of all persons under their respective
jurisdiction. As stated elsewhere, there is a long way to go in order to strengthen the
autonomous legal framework (as I envision it) of the Court’s provisional measures, for
the benefit of protected persons and to ensure the States’ due and timely compliance
with the measures ordered by the Court.
27.
As I pointed out in my two Concurring Opinions cited above, in the Orders of
this Court of June 9, 2005 (paras. 10–11 of my Opinion) and of September 22, 2005
(para. 9 of my Opinion) in the Matter of Eloisa Barrios et al., and which I am obliged to
repeat herein, provisional measures of protection, the development of which under the
American Convention to date has been a true victory of Law, are, however, in my
opinion, still very much in their infancy, at an early stage of evolution, and they will
29
.
Cf., e.g., inter alia, R. Wright, Breve historia del progreso – ¿Hemos aprendido por fin las lecciones
del pasado? (A Short History of Progress: Have We Learnt At Last the Lessons of the Past?), Barcelona, Ed.
Urano, 2006, p. 88.
30
.
Cf., e.g., reflections in C. Barros Leal, Prisão: Crepúsculo de uma Era (Prison: Twilight of an Era),
Belo Horizonte, Del Rey Publishing, 1998, pp. 31-220.
31
.
Cf. A.A. Cançado Trindade, El Acceso Directo del Individuo a los Tribunales Internacionales de
Derechos Humanos (Direct Access of Individuals to International Human Rights Courts), Bilbao, Universidad
de Deusto, 2001, pp. 9-104.
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