furthermore, it should keep in mind that if an application included that principle with
regard to the latter, it would be referring to the fact that the rule that regulates them
should be interpreted in view of its object and purpose, which is to avoid the irreparable
damage that a person involved in a contentious case could suffer, during the proceeding
before the Court.
Finally, it is not admissible to allude to the practice of the Court regarding the repeated
declarations of provisional measures after pronouncing 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 State 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 it moreover would 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. The estoppel rule or the doctrine of one's own acts or
the preclusion would not be admissible regarding the State Party to proceedings, since
with its indicated act, it had no intention of creating, through the relevant proceeding
provided for in the Convention, a new international legal rule or a new international legal
obligation.
Furthermore, one should also note that the State ruling has been, with respect to such
measures, individual and not from the whole or the majority of States Parties to the
Convention such that in the case the "authentic interpretation" may not be applied, i.e.,
deem that it is a subsequent practice in the application of the treaty which establishes
the agreement of the parties regarding its interpretation."43
Conclusion.
In short, upon issuance of the judgment on merits, reparations and costs in proceedings,
a preclusion takes effect regarding the power of the Court to order provisional measures
in relation to the contentious case in question, since, following this, one 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 case of non-compliance.
The judgment does not mean, however, that the object and purpose pursued by the
provisional measures issued 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 his 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."
Court to maintain the protection so ordered. If a condition ceases to be effective, the Court shall assess the
need to continue the protection so ordered."
43
Art. 31(1)(b) of the 1969 Vienna Convention on the Law of Treaties.
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