precedent where the Court, during the monitoring of compliance with the respective
judgment, decided to maintain the measures ordered prior to ruling on the merits.
However, in 2002, the Court, for the first time, ordered provisional measures following
issuance of the judgment on merits and reparations. In the years that followed, this
competence has continued to be exercised without it being questioned by any State, let
alone a Judge of the Court. In the 2002 decision, the Court made specific reference to its
jurisdiction to grant provisional measures at this stage by stating the following:
The purpose of provisional measures, in International Human Rights Law, is to effectively
protect fundamental rights, inasmuch as they seek to avoid irreparable damage to persons. Said
measures can also be applied during the stage in which compliance with the judgment is
overseen; in the instant case it is probable that irreparable damage will occur [preventing]
faithful and full compliance with the judgment on merits and reparations in the case of the
Mayagna Community, [thus the] adoption of said measures is in order.32
30.
Thus, the Court has ordered provisional measures in 26 cases during the
monitoring compliance with judgments stage, which has protected the rights of
approximately 2,500 people. It should be emphasized that through the adoption of these
provisional measures the Court has been able to ensure the protection of such
fundamental rights as life and integrity and personal freedom.
IV.
Importance of provisional measures during monitoring compliance
with judgments.
31.
Based on general international law, the Court has stated that, much like any body
with a jurisdictional function, it has the inherent power to determine the scope of its
competence (compétence de la compétence/Kompetenz-Kompetenz ). The Court "cannot
abdicate this prerogative, as it is a duty that the Convention imposes upon the it,
requiring it to exercise its functions in accordance with Article 62(3) thereof."33 This
provision states that "the jurisdiction of [t]he Court shall comprise all cases concerning
the interpretation and application of the provisions of this Convention that are submitted
to it, provided that the States Parties to the case recognize or have recognized such
jurisdiction [...]."
32.
In exercising its power to determine its own jurisdiction, the Court has interpreted
Article 63(2) of the American Convention in the sense that at any stage of proceedings it
may order provisional measures. This has enabled the Court to enact such measures,
whilst monitoring compliance, even if it has already ruled on the merits, and the
respective reparations have been ordered because the case continues under the Court's
consideration until the State fully complies with the ruling.
Court also continued the provisional measures ordered prior to the judgment on reparations issued in the case.
Cf. Order of the Inter-American Court of Human Rights of February 3, 2001, operative paragraph two.
32
Case of the Mayagna (Sumo) Awas Tingni Community, supra note 24, Considering Clause nine. See
also Case of Bámaca Velásquez. Provisional Measures regarding Guatemala. Order of the Inter-American Court
of Human Rights of February 21, 2003, Considering Clause ten.
33
Cf. Case of the Constitutional Court, supra note 17, paras. 31; Case of Hilaire. Preliminary Objections.
Judgment of September 1, 2001. Series C No. 80, paras. 80 and 81; Case of Benjamin et al. Preliminary
Objections. Judgment of September 1, 2001. Series C No. 81, para. 71 and 72; Case of Constantine et al.
Preliminary Objections. Judgment of September 1, 2001. Series C No. 82, para. 71 and 72; Case of Baena
Ricardo et al v. Panama. Competence. Judgment of November 16, 2009. Series C No. 12, para. 70; Case of the
Serrano Cruz Sisters v. El Salvador. Preliminary Objections. Judgment of November 23, 2009. Series C No.
118, para. 74; Case of Radilla Pacheco v. Mexico. Preliminary Objections, Merits, Reparations and Costs.
Judgment of November 23, 2009. Series C No. 209, para. 14, and Case of the Dos Erres Massacre v.
Guatemala. Preliminary Objection, Merits, Reparations and Costs. Judgment of November 24, 2009. Series C
No. 211, para. 34.
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