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."
In this sense, it is thus a question, not of undermining but rather strengthening and
even enhancing the effect of the judgment on merits, understanding also, and
specifically included within the effects, that concerned with "cases of extreme
gravity and urgency and when it is necessary to avoid irreparable damage to
persons" addressed by the case in question.
However, the judgment on the merits in a contentious case does not imply, as
stated by the Court regarding the lifting of provisional measures, that "the State is
relieved of its treaty obligations to protect,"44 since the general and permanent
obligation remains regarding "respecting the rights and freedoms recognized (in the
Convention), and to ensure the free and full exercise to all persons subject to its
jurisdiction."45
And, indeed, all this is no obstacle for the Court to order provisional measures for
the same people for whom they were issued in the resolved case, both if it wishes
or if required in a new case before it, as well as if, in a case not yet submitted to it,
the Commission, in exercising its "principal role of promoting the observance and
defense of human rights,"46 reasonably requests it.
Eduardo Vio Grossi
Judge
44
Matter of A.J. et al. Provisional Measures regarding Haiti, Order of February 22, 2011,
Considering Clause 16: "Finally, the Court reiterates that Article 1(1) of the Convention establishes the
general obligations of States Parties regarding the rights and freedoms recognized therein and to ensure
the free and full exercise to all persons subject to its jurisdiction, in all circumstances. Meanwhile,
provisional measures are exceptional and are complementary to this general obligation of States. In this
sense, the lifting of provisional measures, by the Tribunal, does not imply that "the State is relieved of
its treaty obligations to protect."
45
Art. 1(1) of the Convention.
46
Art. 41 of the Convention.
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