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8.
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. The broad scope of this general 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.
9.
I have the feeling that, despite everything this Court has done in favor of the
evolution of the Provisional Measures of Protection - and, I insist, more than any other
contemporary international court- there is still a long way to go. It is necessary to
preserve the already considerable legacy of said measures under the American
Convention. It is necessary to conceptually strengthen their legal framework, for the
benefit of the protected persons and of the victims of non-compliance (notwithstanding
the merits of the respective cases). This becomes even more imperative where - as is
the case in the Matter of the Peace Community of San José de Apartadó regarding
Colombia- there are repeated acts of harassment and aggression (and even death
threats), which reveal a growing pattern of intimidation and violence, against persons
that were already under the protection of provisional measures ordered by this Court.
This is absolutely imperative in a world that has become dehumanized and devoid of
values.
10.
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 their evolution, and they
will grow and strengthen even more as the universal juridical conscience awakens
towards their complete conceptual refinement. International Human Rights Law has
transformed the conception itself of these measures4 - from precautionary to
protective-, thus revealing the current historical process of humanization of Public
International Law5 also in this particular field, however, this process is still in progress.
11.
It is necessary to proceed resolutely in this direction. It is imperative, in these
days, that the next step be the development of their legal framework, and, within such
framework, of the legal consequences of non-compliance with or violation of Provisional
Measures of Protection, provided with autonomy. In my view, the victims occupy, both
.
A.A. Cançado Trindade, “Address by the President of the Inter-American Court of Human Rights”,
in Compendium of Provisional Measures (June 2001-July 2003), Volume No. 4, Series E, San José de Costa
Rica, Inter-American Court of Human Rights, 2003, pp. V-XXII.
4
.
Cf. A.A. Cançado Trindade, "La Humanización del Derecho Internacional y los Límites de la Razón
de Estado" (The Humanization of Internacional Law and the Limits of the Reason of the State), 40 Revista
da Faculdade de Direito da Universidade Federal de Minas Gerais - Belo Horizonte/Brazil (2001) pp. 11-23.
5