measures, synonyms, but also the States themselves in the Statute of the Court 18
and the latter even stated it in its Rules of Procedures, which it also approved.19
Additionally, it must be emphasized that in Article 27 of the Rules of Procedure of
the Court, found, as stated, in Title II "Procedure," it states that, "[a]t any stage of
the proceedings" the Court may order provisional measures, which leaves no doubt
as to how this legislative body interpreted the provisions of Article 63(2) of the
Convention, namely that such measures take place within a contentious case
proceeding that the Court is hearing or ruling upon.
The above is strengthened by what the Court itself expressed regarding the second
possibility to adopt provisional measures in accordance with Article 63(2) of the
Convention, i.e., in "matters yet to be brought before it”:
"[o]n previous occasions, the Court interpreted that the phrase 'matters not yet
submitted to it', contained in Article 63(2) of the Convention, supposes that there is at
least a possibility that the matter behind the request for provisional measures may be
brought before the Court in its contentious jurisdiction. For this small possibility to
exist, the procedure set forth in Articles 44 and 46 to 48 of the American Convention
must have been initiated before the Commission." 20
This jurisprudence therefore implies that in order for the Court to order provisional
measures with respect to "matters not yet brought before it" is necessary, on the
one hand, that there is a possibility that they may become contentious cases and,
on the other, that the Commission, "even when there is strictly still no contentious
case before the inter-American System," 21makes the corresponding request.
The Court’s affirmations clearly set forth that the general rule is that the provisional
measures proceed in contentious cases, i.e., in which it rules, and only
exceptionally and where requested by the Commission, on matters that are likely to
become contentious cases.
18
Approved by Resolution N° 448, passed by the OAS General Assembly during its ninth session,
held in La Paz, Bolivia, October 1979.
19
Passed by the Court during the LXXXV Ordinary Period of Sessions, held from November 16 to
28, 2009.
20
Cf. Matter of García Uribe et al. Provisional Measures regarding Mexico. Order of the Court of
February 2, 2006, Considering Clause three and four; Matter of José Luis Álvarez Galdámez et al.
Provisional Measures regarding Honduras. Order of the Court of February 22, 2011, Considering Clause
nine, and Matter of Alvarado Reyes et al. Provisional Measures regarding the United Mexican States
Order of the Court of May 15, 2011, Considering Clause 10.
21
Cf. Matter of Alvarado Reyes et al. Provisional Measures regarding the United Mexican States,
supra note 20, Considering Clause 11: "The Court has deemed it necessary to clarify that, given the
protective nature of provisional measures [...], exceptionally, it is possible order them, even if strictly
speaking there is no contentious case before the inter-American system, in situations that, prima facie,
could result in a serious and urgent affectation of human rights. To do so, an assessment of the
following should be carried out: the problem raised, the effectiveness of State actions in light of the
situation, and the lack of protection the beneficiaries of the measures would face if they were not
adopted. To achieve this it is necessary that the Commission present sufficient grounds to meet the
above criteria and that the State fails to clearly and sufficiently demonstrate the effectiveness of certain
measures adopted within the internal jurisdiction ."
4