5
measures of protection of each one of them, whenever are met the two requisites of
the "extreme gravity and urgency" and of the prevention of "irreparable damage to
persons", set forth in Article 63(2) of the Convention.
15.
As to the protected rights, I understand that the extreme gravity of the
problem of uprootedness brings about the extension of the application of the
provisional measures not only to the rights to life and to personal integrity (Articles 4
and 5 of the American Convention) but also to the rights to personal liberty, to the
special protection of the children in the family, and to circulation and residence
(Articles 7, 19 and 22 of the Convention), as in the present case of the Haitians and
Dominicans of Haitian Origin in the Dominican Republic. This is the first time in its
history that the Court proceeds in this way, in my view correctly, aware of the
necessity to develop, by its evolutive case-law, new means of protection inspired in
the reality of the intensity of human suffering itself.
16.
The present Resolution of the Court reveals, furthermore, that the concept of
project of life, recently dealt with in the exercise of its contentious function
pertaining both to the merits ("Street Children" case, Judgment of 19.11.1999) and
to reparations (Loayza Tamayo case, Judgment of 27.11.1998), marks likewise
presence at the level of provisional measures of protection, as ensued from the facts
alleged by the Delegations of both the Dominican Republic and the Inter-American
Commission, as well as by the two witnesses presented by this latter, in the public
hearing before the Court of 08 August 2000.
17.
One ought to bear always in mind the evolution of the provisional measures of
protection, which have their historical roots in the precautionary process (proceso
cautelar) at the level of the internal legal order, originally conceived to safeguard the
effectiveness of the jurisdictional function itself. Gradually the autonomy of the
precautionary action (acción cautelar)14 was affirmed, having reached the
international level in the arbitral and judicial practice. The rationale of the provisional
measures did not change substantially with this transposition to the level of Public
International Law, in which they continued to seek the preservation of the rights
claimed by the parties and the integrity of the decision as to the merits of the case.
The change of the object of such measures only took place with the impact of the
emergencie of the International Law of Human Rights15.
18.
With their transposition from the ambit of the traditional inter-State
contentieux to that of the International Law of Human Rights, the provisional
measures began to beyond, in the matter of protection, revealing a scope without
precedents, in moving on to protect the sustantive rights themselves of the human
beings, to the extent that they seek to avoid irreparable damages to the human
person as subject of the International Law of Human Rights. The human being is
taken as such, irrespective of the colectivity which he belongs to. This gradual
evolution concerning provisional measures of protection is nowadays consolidated,
and the Inter-American Court of Human Rights has surely contributed to that more
than any other contemporary international tribunal.
14
.
Mainly due to the contribution of the Italian procedural law doctrine of the first half of the XXth
century, in particular the well-known works by G. Chiovenda (Istituzioni di Diritto Processuale Civile,
1936), P. Calamandrei (Introduzione allo Studio Sistematico dei Provvedimenti Cautelare, 1936), and F.
Carnelutti (Diritto e Processo, 1958).
15
.
Such as I seek to demonstrate in my Preface to volume II of the Compendium of Provisional
Measures (June 1996 - June 2000) of the Inter-American Court of Human Rights (pp. VII-XVIII).