4
4.
In the instant matter there is a petition in process, that was already admitted, for
which the report on merits is still pending (infra Considering 16). Therefore, it is convenient
to perform an analysis of the two dimensions (protective and precautionary) of the
provisional measures. The Court calls to mind that for the protective character, as well as
for the precautionary character, the three requirements established in Article 63(2) of the
Convention must be met in order to grant the provisional measures requested, namely: i)
“extreme gravity;” ii) “urgency;” and iii) an attempt to “avoid irreparable damages to
persons.” These three conditions are coexistent and must be present in every situation in
which the Court’s intervention is requested.4
1.
Factual background of the request
5.
The alleged facts on which the Commission based its request for provisional
measures, in general, are:
a.
“in May 2007 the National Environmental Authority (Autoridad Nacional del
Ambiente, hereinafter “ANAM”) approved a 20-year concession” within the “Bosque
Protector Palo Seco” (Palo Seco Protection Forest) to the company AES-Changuinola,
for the construction of a series of hydroelectric dams along the Teribe-Changuinola
River.” The first of the series of dams whose construction was authorized was named
“Chan-75;” it is under construction since January 2008, and it will flood the place
where the “four communities” are established, which “are comprised of 1500 to 2000
people.” “In addition, members of neighboring communities such as Nance de Riscó,
Valle de Riscó, Guayacán and Bajo la Esperanza, with an approximate population of
4000 people, would be ‘affect[ed].”
b.
“if the provisional measures are not granted,” the project “will be completed
during the next year.” The Commission highlighted that “by then the four Ngöbe
communities,” the beneficiaries, “will have been displaced and relocated in new
settlements, which is an element of extreme gravity and urgency.” The Commission
emphasized that “provisional measures” constitute an “essential measure to preserve
the existence of the four communities;”
c.
“the Ngöbe of [these] communities […] hold that the lands affected by the dam
are part of their ancestral territory[, where] since time immemorial they hunt and
fish.” They added that since 1959 they have settlements in the area [and that] in spite
of having performed a series of steps before the State, it has not given them the title
to those lands.” The Commission claimed that there were several irregularities in the
Environmental Impact Assessment, and that “the State granted the concession to
build the dam without consulting with the indigenous communities [allegedly]
affected;”
d.
in November 2007, “the Ngöbe had pacifically [opposed] to the project” but
“were repressed by the police.” In addition, “several houses were knocked down with
the support of the police;”
of May 26, 2010, Considering four, and Matter of Belfort Istúriz et al. Provisional Measures regarding Venezuela.
Order of the Inter-American Court of Human Rights of April 15, 2010, Considering six.
4
Cf. Case of Carpio Nicolle et al. Provisional Measures regarding Guatemala. Order of the Court of July 6,
2009, Considering fourteen; Matter of Alvarado Reyes et al. Provisional Measures regarding Mexico. Order of the
Inter-American Court of Human Rights of May 26, 2010, Considering nine, Matter of Belfort Isturiz et al. Provisional
Measures regarding Venezuela. Order of the Inter-American Court of Human Rights of April 15, 2010, Considering
seven.