CONCURRING OPINION OF JUDGE SERGIO GARCIA-RAMIREZ ON THE ORDER
OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS FOR PROVISIONAL
MEASURES IN THE MATTER OF PUEBLO INDÍGENA DE KANKUAMO,
OF JULY 5, 2004
1.
In recent years, the jurisprudence of the Inter-American Court of Human
Rights, which carries on its own legacy and is enriched by it, has established
precedent in a number of important areas and in so doing has broadened the scope
of the protection of human rights in keeping with the values that the international
law on the subject upholds and always within the framework that the American
Convention provides. Provisional measures are one of the topics that the Court’s
jurisprudence has covered.
2.
Provisional measures serve the general requirements of a fair trial and the
objectives and needs characteristic of the system for the protection of human rights.
Their purpose, therefore, is twofold: a) a generic purpose, common to any legal
proceeding-and to the procedures in preparation for trial-, such as preserving the
subject matter of an action, taking of evidence proceedings, the presence of the
parties, and so forth; and b) a specific purpose posed by the particular needs of the
system for the protection of human rights and provided for in Article 63(2) of the
American Convention.
3.
In serving that more specific purpose, provisional measures preserve legally
protected interests from the threat of imminent danger. In cases of extreme gravity
and urgency, provisional measures are used when necessary to avoid irreparable
harm. On previous occasions, the Inter-American Court has examined the factors
that trigger provisional measures: gravity, urgency, an imminent threat of
irreparable harm. Apart from these determining factors, other questions relating to
provisional measures need to be examined such as: the evidence required, the
beneficiaries of these measures, the essence of these measures, the binding nature
of the Court’s orders for provisional measures, their duration, execution, oversight,
etc. On a number of occasions I have analyzed these questions, already addressed in
the case law of the Court.
4.
Clearly, one salient aspect of provisional measures ordered by the InterAmerican Court concerns the beneficiaries of those measures, an issue addressed in
the Concurring Opinion I have affixed to several orders issued during this session.
Traditionally, the Court held that beneficiaries were to be identified by name, so that
the measure ordered could be carried out. However, the Court observed that there
are situations of extreme gravity and urgency involving the possibility–or even
probability- that the compromised rights might suffer irreparable harm, and in which
the precise identity of the intended beneficiaries cannot be immediately established,
precisely because of the urgency that justifies the order for provisional measures.
Such cases involve a number of people exposed to the same grave threat.
5.
To delay action until those exposed to that threat of grave and irreparable
harm to legally protected interests –embodied in rights- can be individually identified
would be to run the risk that the harm would materialize before the Court could
intervene to prevent it, even though it had already established that the threat was
not only possible but also probable and imminent. Thus, a surmountable technicality
would prevent the Court from acting swiftly to fulfill its true mandate: to use the
shield of its jurisdictional power to protect threatened rights. It would be hard to