2.
Article 63(2) of the American Convention establishes that “[i]n cases of extreme
gravity and urgency, and when necessary to avoid irreparable damage to persons, the Court
shall adopt such provisional measures as it deems pertinent in matters it has under
consideration. With respect to a case not yet submitted to the Court, it may act at the
request of the Commission.” This provision is, in turn, regulated by Article 27 of the Court’s
Rules of Procedure, because a basic principle of State responsibility, supported by
international case law, requires the States to comply with their international treaty
obligations in good faith (pacta sunt servanda).1
3.
Under international human rights law, provisional measures are not merely preventive,
in that they preserve a juridical situation, but rather they are essentially protective, since they
protect human rights, inasmuch as they seek to avoid irreparable damage to persons.2 Thus,
Article 63(2) of the Convention requires that three conditions must be met concurrently for
the Court to order provisional measures: (a) “extreme gravity”; (b) “urgency,” and (c) the
need “to avoid irreparable damage to persons.” These three conditions must be present in
any situation in which the Court’s intervention is requested, and must persist for the Court
to maintain the protection ordered. If one of these conditions is no longer valid, the Court
must assess the pertinence of continuing the protection ordered.3
4.
Based on its jurisdiction, in the context of provisional measures the Court must only
consider those arguments that are strictly and directly related to the extreme gravity,
urgency and need to prevent irreparable damage to persons. Thus, in order to decide
whether to maintain provisional measures in effect the Court must analyze whether the
situation that led to their adoption persists, or whether new equally grave and urgent
circumstances require maintaining them. Any other matter may only be submitted to the
consideration of the Court through the corresponding contentious cases.4
a)
Implementation of the provisional measures
5.
Regarding the implementation of the provisional measures, the State informed the
Court, among other aspects, that:
a)
On December 2, 2011 a meeting was
held to monitor the provisional measures, during which a proposal was made to the
beneficiary to substitute the police escorts assigned to him by officials of the
“COBRAS special unit […] who [were] better trained, which would increase the
protection service for the beneficiary and his direct family.” In addition, the State
agreed to monitor the protection measures every two months, or whenever the
1
Cf. Matter of James et al. Provisional measures with regard to Trinidad and Tobago. Order of the InterAmerican Court of Human Rights of June 14, 1998, sixth considering paragraph, and Matter of Haitians and
Dominicans of Haitian Origin in the Dominican Republic. Provisional measures with regard to Dominican Republic.
Order of the Inter-American Court of Human Rights of September 7, 2012, second and third considering paragraph.
2
Case of the “La Nación” Newspaper. Provisional measures with regard to Costa Rica. Order of the InterAmerican Court of Human Rights of September 7, 2001, fourth considering paragraph, and Matter of Haitians and
Dominicans of Haitian Origin in the Dominican Republic, supra note 1, fifth considering paragraph.
3
Cf. Case of Carpio Nicolle. Provisional measures with regard to Guatemala. Order of the Inter-American
Court of Human Rights of July 6, 2009, fourteenth considering paragraph, and Matter of Haitians and Dominicans of
Haitian Origin in the Dominican Republic, supra note 1, sixth considering paragraph.
4
Cf. Matter of James et al. Provisional measures with regard to Trinidad and Tobago. Order of the InterAmerican Court of Human Rights of August 29, 1998, sixth considering paragraph, and matter of the Andean
Region Penitentiary Center. Provisional measures with regard to Venezuela. Order of the Inter-American Court of
Human Rights of September 6, 2012, fifth considering paragraph.
2