Nor would it be appropriate to invoke the principle pro homine, at least in the way
it is enshrined in the Convention,41 to justify the adoption of provisional measures
after the issuance of the judgment on merits, since, although this principle refers to
"rights" of the persons recognized therein, such measures are conceived as a power
of the Court42 and, furthermore, it should keep in mind that if an application
included that principle with regard to the latter, it would be referring to the fact that
the rule that regulates them should be interpreted in view of its object and purpose,
which is to avoid the irreparable damage that a person involved in a contentious
case could suffer, during the proceeding before the Court.
Finally, it is not admissible to allude to the practice of the Court regarding the
repeated declarations of provisional measures after pronouncing the judgment on
merits in the respective contentious case to argue that, thereby, the act is
legitimate, specifically because it was accepted by States who did not protest
against it and effectively complied with the provisions of such measures. And such
a reference would not be worthy of consideration because the attitude of the State
concerned would not be an unequivocal demonstration of their will or intention to
accept or agree that the aforementioned practice is a new rule that arises in the
absence of treaty addressing the matter and, consequently, it imposes a new
obligation upon them, but rather it moreover would be an expression that, on the
subject, it says nothing and, simply, having previously and conventionally
committed to it, complies with a court order. Therefore, such compliance does not
create a new obligation for the State, but rather the State responds to the
provisions of a conventional rule. The estoppel rule or the doctrine of one's own
acts or the preclusion would not be admissible regarding the State Party to
proceedings, since with its indicated act, it had no intention of creating, through the
relevant proceeding provided for in the Convention, a new international legal rule or
a new international legal obligation.
Furthermore, one should also note that the State ruling has been, with respect to
such measures, individual and not from the whole or the majority of States Parties
to the Convention such that in the case the "authentic interpretation" may not be
applied, i.e., deem that it is a subsequent practice in the application of the treaty
which establishes the agreement of the parties regarding its interpretation."43
Conclusion.
supervise compliance with its decisions is to be found in Articles " 33, 62(1), 62(3) and 65 of the
Convention.
41
Art. 29 of the Convention.
42
Cf. Matter of certain Venezuelan Prisons. Provisional Measures regarding Venezuela. Order of
the Court of July 6, 2011, Considering Clause 4. " Article 63(2) of the Convention requires that for the
Court to order provisional measures three conditions must be present: i) 'extreme gravity' ii)' urgency ',
and iii) the intention to' avoid irreparable damage to person.' These three conditions are coexistent and
must be present in any situation where the intervention of the Court is requested. Similarly, the three
conditions must persist for the Court to maintain the protection so ordered. If a condition ceases to be
effective, the Court shall assess the need to continue the protection so ordered."
43
Art. 31(1)(b) of the 1969 Vienna Convention on the Law of Treaties.
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