3
measures, of an increasingly greater use in the case-law of the Inter-American Court, lies
precisely on its eminently preventive dimension.
10.
Its constitutive elements of the "extreme gravity and urgency", and the prevention
of "irreparable damage to persons" - present and persistent to date in the present matter
(James and Others case) - transform the provisional measures of protection into a true
jurisdictional guarantee of preventive character. The attention to such elements, and to the
juridical nature of those measures of protection, leads me to dissent from the doctrinal
trend which beholds in the provisional measures ordered by the Inter-American Court at the
request of the Commission measures of an exceptional order, to be restrictively interpreted
by virtue of their innovating character.
11.
Such doctrinal trend, static and conservative, shifts the attention from the very
essence and the rationale of the provisional measures of protection, from its juridical
nature, into considerations of a purely juridico-formal order, with an instinctive attachment
to the travaux préparatoires of Article 63(2) of the American Convention. The Vienna
Conventions on the Law of Treaties (of 1969 and 1986) themselves see it fit to warn, in
Article 32, that only when the interpretation of a treaty in accordance with the general rule
of Article 31 (infra) leaves the meaning "ambiguous or obscure", or leads to a manifestly
unreasonable result, would it be fit to resort to the use of supplementary means of
interpretation, such as the recourse to the preparatory work of the treaty at issue. It so
occurs that the travaux préparatoires themselves of Article 63(2) of the American
Convention are obscure and very little clarifying (cf. OEA, Conferencia Especializada
Interamericana sobre Derechos Humanos - Actas y Documentos [07-22.11.1969], doc.
OEA/Ser.K/XVI/1.2, of 1978, pp. 361, 457 and 497), in no way justifying an unduly
restrictive interpretation of the provisional measures of protection ordered by the InterAmerican Court.
12.
In fact, the constitutive elements of the general rule of interpretation of treaties
(formulated in Article 31(1) of the two Vienna Conventions on the Law of Treaties, of 1969
and 1986), - namely, the good faith, the text, the context, and the object and purpose of
the treaty, - are jointly set forth in a same formulation, precisely to indicate the unity of the
process of interpretation. Underlying that general rule of interpretation is found the principle
ut res magis valeat quam pereat, widely supported by the international case-law, and which
corresponds to the so-called effet utile (sometimes referred to as principle of efectiveness),
by virtue of which one is to secure to the conventional provisions their proper effects in the
domestic law of the States Parties.
13.
In the inter-State contentieux, the power of a tribunal like the International Court of
Justice to indicate provisional measures of protection in a pending case aims at preserving
the respective rights of the parties, avoiding an irreparable damage to the rights under
litigation in a judicial process. This has been pointed out by the Hague Court, for example,
in the Fisheries Jurisdiction case (United Kingdom versus Iceland, ICJ Reports [1972] p. 16,
par. 21, and p. 34, par. 22), in the case of Hostages (U.S. Diplomatic and Consular Staff) in
Tehran (United States versus Iran, ICJ Reports [1979] p. 19, par. 36), and, more recently,
in the case of the Application of the Convention against Genocide (Bosnia Herzegovina
versus Yugoslavia [Servia and Montenegro], ICJ Reports [1993] p. 19, par. 34, and p. 342,
par. 35). Underlying this reasoning one finds the search for balance between the interests
of the litigant parties (complainant and respondent States), as a reflection of the
importance traditionally attributed to the role of reciprocity in international law in general.