DISSENTING OPINION OF JUDGE EDUARDO VIO GROSSI
REGARDING THE ORDER OF THE
INTER-AMERICAN COURT OF HUMAN RIGHTS
OF NOVEMBER 25, 2011, ON PROVISIONAL MEASURES,
MATTER OF MILLACURA LLAIPÉN REGARDING ARGENTINA.
The undersigned issues this opinion in dissent to the order indicated in the header
(hereinafter the Order) in light of the fact that, having already issued the "definitive
and inappealable ruling"1 that has effectively put an end to the case in which the
Inter-American Court of Human Rights (hereinafter the Court), while “hearing” it,2
adopted the provisional measures to which this Order refers. The Court’s jurisdiction
with regard to the provisional measures ha expired, and it now corresponds to the
Court only to "supervise" compliance with the ruling.3
According to this reasoning, and on finding that the measures must extend beyond
the ruling, what followed was to order in the judgment that the State was obligated
to guarantee "to the injured party the enjoyment of the right or liberty violated."4
Logically, this also implies an obligation to adopt the measures pertinent to "prevent
irreparable damage to persons"5 related with the case in question, a case which has
been resolved and therefore is no longer "before" the Court. In this way, the
measures would have been included in the aforementioned "definitive and
inappealable ruling," in which case they would not only share their obligatory nature
but in addition, compliance with them could have been monitored as part of
monitoring of compliance and not, consequently, as if the case had not been
definitively concluded or as if what was at issue were a separate and autonomous
proceeding.
The more detailed basis for this position, which argues that the Court’s strict respect
for the rules that govern it is a sine qua non requirement for safeguarding human
rights, is found both in the Dissenting Opinions on the same issue that the
undersigned issued on July 15, 2011, with regard to the Orders of the Court related
to "Provisional Measures with regard to the Republic of Colombia, case of Gutiérrez
Soler v. Colombia” of June 30, 2011; “Provisional Measures regarding the United
Mexican States, Case of Rosendo Cantú et al. v. Mexico” of July 1, 2011; and
“Provisional Measures regarding the Republic of Honduras, Case of Kawas Fernández
1
Article 67 of the American Convention on Human Rights.
2
Article 63(2), idem.
3
Article 69 of the Rules of Procedure of the Court. See the concurring opinions of the undersigned to orders on
Compliance with Judgments in the cases of Blanco Romero et al. v. Venezuela, Servellón Garcìa et al. v. Honduras and
Saramaka v. Suriname, of November of 2011.
4
Article 63(1) of the Convention.
5
Art. 63(2), idem.