2
5.
The provision of Article 63(2) in fine of the American Convention (cit. supra) pertains
to the moment of the submission to the Court of the request for provisional measures: the
Court "may act at the request of the Commission". At this moment of the Commission's
request, the case ought to be pending before the Commission itself, so that it can lodge
that request with the Court. But once set in motion the Court's jurisdiction, this latter
becomes intangible: it is not - it cannot be - affected in any way by the subsequent conduct
or action by the parties (in contentious matter), or of the requesting State or organ (in
advisory matter), or of the Commission as the organ requesting provisional measures of
protection.
6.
Nothing in Article 63(2) of the American Convention authorizes to condition the
consideration of the subject by the Court to the proceedings (trámite) of the same case
before the Commission. An interpretation to the contrary would lead to the juridically
unsustainable situation of conditioning the competence (power to continue considering a
given matter) already established of the Court to determine and supervise provisional
measures of protection to the subsequent conduct or action of the organ requesting such
measures. Of that action one cannot extract juridical consequences to the detriment of the
intangibility of the jurisdiction of the Court.
7.
In sum, as from the moment that the matter is submitted to the consideration of the
Court, it falls under its jurisdiction, and it remains thereunder, irrespectively of the course of
proceedings of the case under the Commission. The fact that the proceedings before this
latter reach the end, in no way affects the jurisdiction of the Court. As I have pointed out in
my Concurring Opinion in the Advisory Opinion of the Court on the Reports of the InterAmerican Commission on Human Rights (OC-15, of 14.11.1997), the Court is, in any
circumstances, master of its jurisdiction; the Court, as every organ endowed with
jurisdictional competences, has the inherent power to determine the extent of its own
competence (Kompetenz-Kompetenz / compétence de la compétence) (paragraphs 5 and
7), - either in advisory matter, or in contentious matter, or else in relation to provisional
maesures of protection.
8.
The Court cannot abdicate from this prerrogative, which moreover is a duty which
the American Convention imposes upon it, to exercise its functions under Articles 62(3) and
64 of the Convention. Its jurisdiction cannot be at the mercy of facts other that its own
actions. It is initially as guardian and master of its own jurisdiction (jurisdictio, jus dicere,
the power to declare the Law) that on the Court, as the supreme organ of supervision of the
American Convention, is conferred the role of establishing the juridical bases for the
construction of an inter-American ordre public of observance and safeguard of human
rights.
2. Substantive Level.
9.
At this point, I move from the jurisdictional to the substantive level of the subject
under examination. The fact that the State has requested the lifting of the order of the
Court in relation to Mr. Anthony Briggs (in view of the end of the proceedings of the case
before the Commission), and the fact that, until now, it has not executed any of the
condemned persons, seems to disclose a recognition of the binding character of the
provisional measures ordered by the Court. A basic feature, characteristic of such