DISSENTING OPINION OF JUDGE EDUARDO VIO GROSSI
PROVISIONAL MEASURES REGARDING COLOMBIA
CASE OF GUTIÉRREZ SOLER
The present dissenting opinion concerns the aforementioned order, in view of the
fact that by issuing the judgment on merits in proceedings, a preclusion took effect
regarding the authority of the Inter-American Court of Human Rights, hereinafter
"the Court," to enact new provisional measures in the case, having ceased,
furthermore, the previously ordered measures, however, its object and effects were
undertaken in the aforementioned judgment.
Introduction
The conventional rule applicable in the present case is Article 63(2) of the American
Convention on Human Rights, hereinafter "the Convention," which states:
"[i]n cases of extreme gravity and urgency, and when necessary to avoid irreparable
damage to persons, the Court shall adopt such provisional measures as it deems
pertinent in matters it has under consideration. With respect to a case not yet
submitted to the Court, it may act at the request of the Commission."
Considering jurisprudence is the "subsidiary means for the determination of rules of
law,"1 it is thus the responsibility of the Court to define the meaning and scope of
the provisions provided for in the above treaty rule, i.e., to interpret it "in good
faith in accordance with the ordinary meaning to be given to the terms of the treaty
in their context and in the light of its object and purpose,"2 and, therefore, seeking
the will of the States that created it, all considering, furthermore, that the greatest
guarantee of protection that the Court should grant in accordance with its role in
delivering justice in human rights is the unconditional respect for the rules that
govern it.
I. - Provisional measures and a contentious case.
In this perspective, it states that the cited rule must be understood in the sense
that the Court can only order provisional measures in matters it has under its
consideration or regarding issues for which the Inter-American Commission on
Human Rights, hereinafter "the Commission," requested such measures, even if
they have not been brought before the Court. In other words, in the first
eventuality, as part of the contentious cases proceedings, and, in the second,
concerning matters likely to become contentious cases.
Basically, it affirms that these measures are ordered under the contentious
jurisdiction of the Court.3 It should also be noted, for this purpose, that, within the
1
Article 38(1)(d) of the Statute of the International Court of Justice.
2
Article 31(1) of the 1969 Vienna Convention on the Law of Treaties.
3
The Court has contentious jurisdiction and non-contentious or advisory jurisdiction. The former
is set forth in Articles 61, 62 and 63 of the Convention. The latter is provided for in Article 64 thereof. As