2
Tobago (2000-2002). This requires a reaction from Law in order to protect the
vulnerable and defenseless.
4.
In the cases cited above, there has been, therefore, a clear failure to comply
with the Provisional Measures of Protection ordered by the Court, which are more than
precautionary; they are truly protective. Notwithstanding the merits of the aforesaid
cases (the alleged or reported original violations of the American Convention), there
has been a violation of protective measures, essentially preventive in nature, which
effectively safeguard fundamental rights, - almost always irrevocable rights, such as
the right to life -, insofar as the seek to prevent irreparable damage to the human
being as subject of International Human Rights Law and contemporary Public
International Law.
5.
This means - and this is the fundamental point that I would like to emphasize in
this Concurring Opinion, as I have consistently done in past Opinions-, that,
notwithstanding the merits of the respective cases, the concept of victim also emerges
in the new context of the Provisional Measures of Protection. There is no escaping this
point, which puzzles and concerns me. Moreover, also in this context of prevention of
irreparable damage to the human being, the central importance of the human person,
though victimized, is affirmed.3
6.
Provisional Measures of Protection impose obligations on the States, which are
different from the obligations resulting from the Judgments rendered on the respective
merits of the cases. There are actually obligations that result from Provisional
Measures of Protection per se. They are completely different from the obligations that
may be imposed by a Judgment on the merits (and reparations, if applicable) of the
cas d'espèce. This means that Provisional Measures of Protection constitute an
autonomous legal remedy; they actually have their own legal framework, which in
turn, reveals the importance of the preventive dimension of the international
protection of human rights.
7.
So much so that, under the American Convention (Article 63(2)), the
international liability of a State may arise from failure to comply with Provisional
Measures of Protection ordered by the Court, even if the respective merits of the case
are not pending before the Court (but rather before the Inter-American Commission on
Human Rights). This confirms my thesis, which I set myself to advance in this
Concurring Opinion, that Provisional Measures of Protection, in light of their autonomy,
have their own legal framework, and failure to comply with them results in liability of
the State. It has legal consequences, in addition to underscoring the central role of the
victim (of such non-compliance), notwithstanding the consideration and decision of the
specific case at issue upon its merits.
.
Cf. A.A. Cançado Trindade, El Acceso Directo del Individuo a los Tribunales Internacionales de
Derechos Humanos (Direct Access of Individuals to International Human Rights Courts), Bilbao, Universidad
de Deusto, 2001, pp. 9-104.
3