parties to better implement the measures that are effective to ensure the rights of the
Kankuamo Indigenous Community, as well as to implement the commitments previously
made by the State’s authorities". Afterwards, the Commission indicated that “[it was]
informed that, since the last public hearing […] the State and the representatives of the
beneficiaries only met once” and it expressed its "concern about the fact that the State
has not given adequate participation to the beneficiaries in the implementation of the
measures".
27.
In this regard, the Court notes that there is inconsistent information from the
representatives and the State regarding different attempts made by both sides to meet
and verify the situation of the implementation of these provisional measures.
Nonetheless, according to information provided by both sides, the number of meetings
held since the last Order issued by the Tribunal in this matter (supra Having Seen clause
1) has been minimal. The Court urges the representatives and the State to continue
making efforts to address the situation and the needs of the members of the Kankuamo
Indigenous Community, regardless of the existence of provisional measures.
E.
Enforcement of provisional measures
28.
The Court recalls that the principle of prima facie assessment of a case and the
application of assumptions in cases when protection is required has led the Court to order
provisional measures on many occasions. Notwithstanding the foregoing, the need to
maintain the protective measures calls for a more strict evaluation by the Court of the
existence of the situation that gave rise to those measures13. If a State requests the
rescission or modification of the provisional measures so ordered, the State must present
sufficient evidence and argument that would allow the Tribunal assessing that the risk or
threat is no longer of extreme gravity and urgency to avoid irreparable damage. In turn,
the burden of proof and argument of the beneficiaries and of the Commission will be
greater as the time goes by and there are no new facts committed by the entity that
gave rise to the provisional measures.
29.
In addition, the Court must take into account that, according to the Preamble of
the American Convention, the international protection in the form of a convention
"reinforces or complements the protection provided by the domestic law of the American
States". Therefore, should there be evidence that the State in question has developed
effective mechanisms or acts of protection for the beneficiaries of the provisional
measures, the Tribunal would be able to decide whether to rescind the provisional
measures, delegating the obligation to protect the primary responsible, that is, the
State14. Should the provisional measures be rescinded by the Court for this reason, the
State would have the obligation, according to the duty to guarantee human rights, to
maintain the protective measures it has adopted, which were considered by the Tribunal
to be effective, as long as the circumstances call for them.
30.
The Tribunal emphasizes that it has issued three orders in this matter (supra
Having Seen clause 1) and that it has held, on three occasions, public hearings to verify
the implementation of these provisional measures. Approximately seven years have
passed since provisional measures have been adopted. These measures have
13
Matter of Mendoza Prisons Provisional Measures Regarding Argentina. Order of the Inter-American
Court of Human Rights of November 26, 2010, Considering Clause thirty-nine. Case of the Mapiripán Massacre.
Provisional Measures regarding Colombia. Order of the Inter-American Court of Human Rights, of March 1,
2011; Considering clause twenty-two.
14
Matter of the Mendoza Prisons, supra note 13; considering clause forty.
13