10
measures relates to the context of international litigations. In this regard, the object and
purpose of these measures is to preserve the rights potentially at risk until the dispute is
settled, and to guarantee the integrity and effectiveness of the decision on merits, so as to
prevent the violation of the rights in litigation, a situation which could make the final
decision ineffective or impair its practical effects. Thus, provisional measures allow the
State concerned to comply with the final decision and, if appropriate, to make the
reparation ordered.32 As regards the protective nature, the Court has indicated that,
provided that the basic requirements are met, provisional measures become a real
jurisdictional guarantee of a preventive nature, because they protect human rights insofar
as they seek to prevent irreparable damage to persons.33
6.
The three conditions that Article 63(2) of the Convention requires for the Court to be
able to grant provisional measures must be present in any situation in which they are
requested.34 Based on its competence, in the context of provisional measures the Court
may only consider those arguments directly related to the extreme gravity, urgency, and
need to prevent irreparable damage to persons. Any other fact or argument may only be
examined and decided during consideration of the merits of a contentious case.35
7.
Regarding the requirement of “gravity,” for purposes of the adoption of provisional
measures, the Convention requires it to be “extreme”; in other words, at its highest or most
intense level. The “urgent” nature implies that the risk or threat involved must be
imminent, which also supposes that the response to remedy it must be immediate. Finally,
with regard to the damage, there must be reasonable probability that it will be caused, and
it must not involve legal rights or property that can be repaired.36
8.
The Court observes that, from the information provided by the Commission and not
opposed by the State with regard to the facts and background of this matter (supra having
seen paragraph 2), it can be inferred that:
a) The O-A family has currently and since November 10, 2009, provisional custody of
the child L.M., aged one year and ten months, under a ruling by the Third Children and
Adolescents Court of First Instance;
32
Cf. Matter of Belfort Istúriz et al. Provisional measures with regard to Venezuela, Order of the InterAmerican Court of Human Rights of April 15, 2010, sixth considering paragraph; Matter of Wong Ho Wing.
Provisional measures with regard to Peru. Order of the Inter-American Court of Human Rights of May 28, 2010,
tenth considering paragraph; Matter of the Capital Judicial Detention Center El Rodeo I and El Rodeo II.
Provisional measures with regard to Venezuela, Order of the Inter-American Court of Human Rights of February 8,
2008, seventh considering paragraph; Matter of the "El Nacional" and "Así es la Noticia" Newspapers. Provisional
measures with regard to Venezuela, Order of the Inter-American Court of Human Rights of November 25, 2008,
twenty-third considering paragraph, and Matter of Luis Uzcátegui. Provisional measures with regard to Venezuela,
Order of the Inter-American Court of Human Rights of January 27, 2009, nineteenth considering paragraph.
33
Cf. Matter of Luis Uzcátegui, supra note 32, twentieth considering paragraph; Matter of the Capital
Judicial Detention Center El Rodeo I and El Rodeo II, supra note 32, eighth considering paragraph; Matter of the
"El Nacional" and "Así es la Noticia" Newspapers, supra note 31, twenty-fourth considering paragraph.
34
Cf. Case of Carpio Nicolle et al. Provisional measures with regard to Guatemala. Order of the InterAmerican Court of Human Rights of July 6, 2009, fourteenth considering paragraph; Matter of the Aragua
Detention Center "Tocorón Prison," supra note 31, eighth considering paragraph, and Matter of Alvarado Reyes et
al., supra note 31, thirty-seventh considering paragraph.
35
Cf. Matter of James et al. Provisional measures with regard to Trinidad and Tobago. Order of the InterAmerican Court of Human Rights of August 29, 1998, sixth considering paragraph; Matter of Guerrero Larez,
Provisional measures with regard to Venezuela, Order of the Inter-American Court of Human Rights of November
17, 2009, sixteenth considering paragraph, and Case of Rosendo Cantú et al., Provisional measures with regard to
Mexico, Order of the Inter-American Court of Human Rights of February 2, 2010, fifteenth considering paragraph.
36
Cf. Matter of the Monagas Detention Center (“La Pica”); Capital Region Penitentiary Center Yare I and
Yare II (Yare Prison); Occidental Region Penitentiary Center (Uribana Prison); Capital Detention Center El Rodeo I
and El Rodeo II. Provisional measures with regard to Venezuela. Order of the Court of November 24, 2009, third
considering paragraph; Matter of Belfort Istúriz et al. supra note 31, eighth considering paragraph.