CONCURRING OPINION OF JUDGES DIEGO GARCÍA-SAYÁN, LEONARDO A.
FRANCO, MANUEL VENTURA ROBLES, MARGARETTE MAY MACAULAY AND
RHADYS ABREU BLONDET
PROVISIONAL MEASURES REGARDING THE UNITED MEXICAN STATES
CASE OF ROSENDO CANTÚ ET AL.
1.
The authority to order provisional measures "to prevent irreparable damage
to persons" in cases of "extreme seriousness and urgency" is one of the core
competencies of the Inter-American Court of Human Rights (hereinafter "the InterAmerican Court," "the Court" or "the Tribunal"). As set forth in Article 63(2) of the
American Convention on Human Rights (hereinafter "the American Convention" or
"the Convention") and, based on said provision and through its constant
jurisprudence, the Court has issued provisional measures ever since the beginning of
its jurisdictional activities and it has had a significant impact on human rights
protection. At present, this is one of the principal activities of the Court, which is
exercised and implemented by the Court in accordance with the provisions of the
aforementioned Article 63(2), the whole of the Convention and the norms and
principles of international law. The constant exercise of this jurisprudence by the
Court has made it possible "to avoid irreparable damage" to thousands of people
whose lives or physical integrity were in danger.
2.
The Convention stipulates that the Court may order provisional measures "in
matters brought before [the Court]." The constant jurisprudence of the Court, and
the subsequent internal rules of the Court, have interpreted this provision in the
sense that it may order such measures "at any stage of proceedings," which has
included, and includes, the monitoring compliance with judgment phase of a
contentious case. This jurisdiction has never been questioned by a State, let alone by
a Judge of the Court. Although the right of a judge to think and vote differently to
other judges is incontrovertible —as is the presentation of a dissenting opinion—,
questioning the competence of the Court not only lacks any sort of merit and
precedent in this case, but it is also very serious since it affects and weakens the
Tribunal. And it does so in a highly sensitive area, such as that concerning, none
other than, "irreparable damages," which many people could suffer if it were not for
the provisional measures ordered by the Court in exercising its jurisdictional powers.
In this case, moreover, it cannot be overlooked that the Judge who presents the
dissenting opinion has voted in favor of no less than five orders for provisional
measures in the monitoring compliance with the judgment phase. In all of these
orders, the maintenance of the provisional measures was requested for all or some
of the beneficiaries.