8
there are 11 other child beneficiaries who are protected by the provisional measures
required by the Court in its Order of November 26, 2010. When the Inter-American
Commission requested the expansion of the measures to include those children in 2010,
it did not request that their names be kept confidential; consequently, their names were
made public in the said Order of November 26, 2010. In this regard, the Court concurs
with the decision made by its President, and considers it desirable not to disclose the
names of these 11 child beneficiaries in this Order, based on the Commission’s current
request and to require the latter and the representatives to advise the Court of their
views on this issue for the purposes of any subsequent orders.
8.
In its Order of November 26, 2010, the Court monitored the implementation of
the present provisional measures in favor of the beneficiaries at that time. In the present
Order, the Court will analyze exclusively the request to expand the provisional measures
in the following order: (i) with regard to the beneficiaries’ next of kin and (ii) with regard
to the representatives of the beneficiaries. It will also consider the representatives’
request for a hearing (infra considering paragraphs 26 to 28).
9.
The present request to expand the provisional measures is not related to any
contentious case currently before the Court, but rather originated from a request for
precautionary measures lodged with the Inter-American Commission. The Court has no
information to show whether the facts currently before it form part of contentious
proceedings before the inter-American system, or whether a petition concerning the
merits has been filed before the Inter-American Commission that relates to this request.
10.
On previous occasions, the Court has interpreted the phrase “matters not yet
submitted to it,” contained in Article 63(2) of the Convention, to mean that there is at
least a possibility that the matter underlying the request for provisional measures may
be submitted to the Court’s contentious jurisdiction. For this minimal possibility to exist,
the procedure set forth in Articles 44 and 46 to 48 of the Convention must have been
initiated before the Commission.7
11.
The Court has considered it necessary to clarify that, given the protective nature
of provisional measures (supra fifth considering paragraph), exceptionally, it may order
them even when a contentious case has not been filed before the inter-American
system, in situations that, prima facie, may have a serious and urgent effect on human
rights.8 To this end, it is necessary to assess the problem at issue, the effectiveness of
the State’s actions regarding the situation, and the degree of vulnerability of the persons
for whom the measures are requested should they not be adopted. Therefore, the InterAmerican Commission must present sufficient justification in relation to the said criteria,
and the State must not have demonstrated clearly and sufficiently the effectiveness of
any measures it has taken at the domestic level.9
12.
Article 63(2) of the Convention requires that, for the Court to order provisional
measures, three conditions must be present: (i) “extreme gravity”; (ii) “urgency,” and
7
Cf. Matter of García Uribe et al. Provisional measures with regard to Mexico. Order of the InterAmerican Court of February 2, 2006, third and fourth considering paragraphs; Matter of Alvarado Reyes et al.
Provisional measures with regard to Mexico. Order of the Inter-American Court of November 26, 2010, thirtyfirst considering paragraph, and Matter of José Luis Galdámez Álvarez et al. Provisional measures with regard
to Honduras. Order of the Inter-American Court of February 22, 2011, ninth considering paragraph.
8
Cf. Matter of the Capital Detention Center El Rodeo I and El Rodeo II. Provisional measures with
regard to Venezuela. Order of the Inter-American Court of February 8, 2008, ninth considering paragraph;
Matter of María Lourdes Afiuni. Provisional measures with regard to Venezuela. Order of the President of the
Inter-American Court of December 10, 2010, seventh considering paragraph, and Matter of the Socioeducational Detention Unit. Provisional measures with regard to Brazil. Order of the Inter-American Court of
February 25, 2011, sixth considering paragraph.
9
Cf. Matter of the Capital Detention Center El Rodeo I and El Rodeo II, supra note 8, ninth considering
paragraph; Matter of María Lourdes Afiuni, supra note 8, seventh considering paragraph, and Matter of the
Socio-educational Detention Unit, supra note 8, sixth considering paragraph.