these provisional measures the Court has been able to ensure the protection of such
fundamental rights as life and integrity and personal freedom.
IV.
Importance of provisional measures during monitoring compliance
with judgments.
31.
Based on general international law, the Court has stated that, much like any
body with a jurisdictional function, it has the inherent power to determine the scope
of its competence (compétence de la compétence/Kompetenz-Kompetenz ). The
Court "cannot abdicate this prerogative, as it is a duty that the Convention imposes
upon the it, requiring it to exercise its functions in accordance with Article 62(3)
thereof."33 This provision states that "the jurisdiction of [t]he Court shall comprise all
cases concerning the interpretation and application of the provisions of this
Convention that are submitted to it, provided that the States Parties to the case
recognize or have recognized such jurisdiction [...]."
32.
In exercising its power to determine its own jurisdiction, the Court has
interpreted Article 63(2) of the American Convention in the sense that at any stage
of proceedings it may order provisional measures. This has enabled the Court to
enact such measures, whilst monitoring compliance, even if it has already ruled on
the merits, and the respective reparations have been ordered because the case
continues under the Court's consideration until the State fully complies with the
ruling.
33.
Provisional measures, in this sense, "have taken on [...] great importance in
the jurisprudence of the Inter-American Court, especially in the preventive aspect of
the international protection of human rights. Moreover, at the present day they
represent a preventative jurisdictional guarantee, and constitute one of the most
rewarding aspects of the international safeguarding work of the fundamental rights
of human beings."34
34.
Considering the provisional measures largely "determine the effectiveness of
the right to individual application at the international level,"35 which implies that the
33
Cf. Case of the Constitutional Court, supra note 17, paras. 31; Case of Hilaire. Preliminary
Objections. Judgment of September 1, 2001. Series C No. 80, paras. 80 and 81; Case of Benjamin et al.
Preliminary Objections. Judgment of September 1, 2001. Series C No. 81, para. 71 and 72; Case of
Constantine et al. Preliminary Objections. Judgment of September 1, 2001. Series C No. 82, para. 71 and
72; Case of Baena Ricardo et al v. Panama. Competence. Judgment of November 16, 2009. Series C No.
12, para. 70; Case of the Serrano Cruz Sisters v. El Salvador. Preliminary Objections. Judgment of
November 23, 2009. Series C No. 118, para. 74; Case of Radilla Pacheco v. Mexico. Preliminary
Objections, Merits, Reparations and Costs. Judgment of November 23, 2009. Series C No. 209, para. 14,
and Case of the Dos Erres Massacre v. Guatemala. Preliminary Objection, Merits, Reparations and Costs.
Judgment of November 24, 2009. Series C No. 211, para. 34.
34
Cançado Trindade, Antonio A., "Reflexiones sobre la evolución y estado actual de las medidas
provisionales de protección en el derecho internacional contemporáneo," preface to the first edition by
Cantor Rey, Ernesto and Rey Anaya, Ángela, supra note 27, p. XVII. XVII.
35
Cf. MacDonald, R. ST. J., “Interim measures in international law, with special reference to the
European System for the Protection of Human Rights,” in Zeitschrift für ausländisches öffentliches Recht
und Völkerrecht, no. 52, 1993, p. 703.
12
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