3.
That the Court has indicated that the provisional measures are two types:
one precautionary and the other protective.2 The precautionary type of measure is
linked within the framework of the international adversarial. In this sense, these
measures have as object and aim to preserve the rights in possible risk until the
controversy is resolved. Its object and aim is that of assuring the integrity and the
effectiveness of the merits decision, and, in this way, to avoid the rights in litigation
to be infringed, a situation that could make the merits innocuous or to invalidate its
effective application. The provisional measures let the State in point to fulfill the
final decision, and, in case, to proceed to the ordered reparations.3 In regards to
the protective type of the provisional measures, this Court has pointed out that
these are turned into a truly judicial guarantee of a preventive type because they
protect human rights, under the heading that they look to avoid irreparable
damages to the people.4
4.
That Article 63(2) of the Convention demands that it is mandatory for the
Court to rule provisional measures that three conditions must occur: i) “extreme
seriousness”; ii) “urgency”, y iii) that it tries to avoid irreparable damages to the
people.” These three conditions are coexistent and must be present in every
situation in which intervention of the Court is asked. In the same way, the three
described conditions must persist so that the Court maintains the ordered
protection. If one of them has ceased in effectiveness, the Court shall consider the
pertinence of continuing with the ordered protection.
5.
That if a State asks to rescind or to modify the ruled provisional measures, it
shall present enough evidence and argumentation that allows the Court to
comprehend that the risk or threat does not fulfill the requirements of extreme
seriousness and urgency to avoid irreparable damages anymore. Moreover, the
guardians of the beneficiaries who want the measures to continue shall present
evidence of the reasons for it.
6.
That in regards to it, the Court must take into account that, in conformity to
the Preamble of the American Convention, the international protection of nature is
“coadjutor or complementary to the one that offers the intern right of the American
States.” For that reason, in case that it is proved that the State in point has
developed effective mechanisms or actions of protection for the beneficiaries of the
provisional measures, the Court might decide to rescind from the provisional
measures, providing with the obligation of protection to the due responsible, this is,
the State. It is repeated that this is a decision by the Court and not by the State,
for it would be inadmissible to subordinate the mechanism planned in the American
Convention to restrictions that would make the function of the Court inoperative,
and; therefore, the protective system of human rights established in the
2
Cf. Case of Herrera Ulloa. Provisional Measures regarding Costa Rica. Order of the Court of
September 7, 2001, Considering fourth; Case López Álvarez et al.. Provisional Measures regarding
Honduras. Order of the Court of January 26, 2009, Considering third; and Matter Fernández Ortega et
al., supra note 1, Considering fifth.
3
Cf. Matter of the Capital El Rodeo I and El Rodeo II Judicial Confinement Center. Provisional
Measures regarding Venezuela. Order of the Court of February 8, 2008, considering seventh; Matter of
"El Nacional" and "Así es la Noticia" Newspapers. Provisional Measures regarding Venezuela. Order of the
Court of November 25, 2008, Considering 23; and Matter of Luis Uzcátegui. Provisional Measures
regarding Venezuela. Order of the Court of January 27, 2009, Considering nineteenth.
4
Cf. Matter of the Capital El Rodeo I and El Rodeo II Judicial Confinement Center, supra note 3,
Considering eighth; Case of Bámaca Velásquez, Provisional Measures regarding Guatemala. Order of the
Court of January 27, 2009, Considering 45; and Matter Fernández Ortega et al., supra note 1,
Considering fifth.