in 2002, the Court, for the first time, ordered provisional measures following issuance of the
judgment on merits and reparations. In the years that followed, this competence has
continued to be exercised without it being questioned by any State, let alone a Judge of the
Court. In the 2002 decision, the Court made specific reference to its jurisdiction to grant
provisional measures at this stage by stating the following:
The purpose of provisional measures, in International Human Rights Law, is to effectively protect
fundamental rights, inasmuch as they seek to avoid irreparable damage to persons. Said measures
can also be applied during the stage in which compliance with the judgment is overseen; in the
instant case it is probable that irreparable damage will occur [preventing] faithful and full
compliance with the judgment on merits and reparations in the case of the Mayagna Community,
[thus the] adoption of said measures is in order.32
30.
Thus, the Court has ordered provisional measures in 26 cases during the monitoring
compliance with judgments stage, which has protected the rights of approximately 2,500
people. It should be emphasized that through the adoption of these provisional measures
the Court has been able to ensure the protection of such fundamental rights as life and
integrity and personal freedom.
IV.
Importance of provisional measures during monitoring compliance with
judgments.
31.
Based on general international law, the Court has stated that, much like any body
with a jurisdictional function, it has the inherent power to determine the scope of its
competence (compétence de la compétence/Kompetenz-Kompetenz ). The Court "cannot
abdicate this prerogative, as it is a duty that the Convention imposes upon the it, requiring
it to exercise its functions in accordance with Article 62(3) thereof." 33 This provision states
that "the jurisdiction of [t]he Court shall comprise all cases concerning the interpretation
and application of the provisions of this Convention that are submitted to it, provided that
the States Parties to the case recognize or have recognized such jurisdiction [...]."
32.
In exercising its power to determine its own jurisdiction, the Court has interpreted
Article 63(2) of the American Convention in the sense that at any stage of proceedings it
may order provisional measures. This has enabled the Court to enact such measures, whilst
monitoring compliance, even if it has already ruled on the merits, and the respective
32
Case of the Mayagna (Sumo) Awas Tingni Community, supra note 24, Considering Clause nine. See also
Case of Bámaca Velásquez. Provisional Measures regarding Guatemala. Order of the Inter-American Court of
Human Rights of February 21, 2003, Considering Clause ten.
33
Cf. Case of the Constitutional Court, supra note 17, paras. 31; Case of Hilaire. Preliminary Objections.
Judgment of September 1, 2001. Series C No. 80, paras. 80 and 81; Case of Benjamin et al. Preliminary
Objections. Judgment of September 1, 2001. Series C No. 81, para. 71 and 72; Case of Constantine et al.
Preliminary Objections. Judgment of September 1, 2001. Series C No. 82, para. 71 and 72; Case of Baena Ricardo
et al v. Panama. Competence. Judgment of November 16, 2009. Series C No. 12, para. 70; Case of the Serrano
Cruz Sisters v. El Salvador. Preliminary Objections. Judgment of November 23, 2009. Series C No. 118, para. 74;
Case of Radilla Pacheco v. Mexico. Preliminary Objections, Merits, Reparations and Costs. Judgment of November
23, 2009. Series C No. 209, para. 14, and Case of the Dos Erres Massacre v. Guatemala. Preliminary Objection,
Merits, Reparations and Costs. Judgment of November 24, 2009. Series C No. 211, para. 34.
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