4
essentially preventative nature, which effectively protect fundamental rights —most
of the times, ineluctable rights, such as the right to life— to the extent that they
seek to avoid the occurrence of irreparable damage to human beings as subjects of
International Law on Human Rights and contemporary Public International Law.
10.
This means that —and this is the basic point on which I would like to lay the
emphasis in this Separate Opinion, as I have also done in my other Opinions in this
sense— despite the merits of the respective cases, the notion of victim also emerges
within the new context of Provisional Measures of Protection. There is no setting this
topic aside —a topic which raises both my concern and unease. Furthermore, the
notion of victims as the central focus has been also affirmed in this present context
of prevention of irreparable damage to human beings.
11.
Provisional Measures of Protection create conventional obligations for the
States involved, which differ from the obligations arising out of the Judgment on the
merits of the cases, respectively. Some obligations effectively originate in Provisional
Measures of Protection per se. They are entirely different from the obligations, if any,
created by Judgments on the merits (and, eventually, by reparations) of the cases
under review. This means that Provisional Measures of Protection amount to a legal
mechanism that, in turn, reveal the utmost relevance of the preventive dimension of
international protection of human rights.
12.
This is so much so that, under the American Convention (Article 63(2)), the
international responsibility of any State may be triggered by breach of Provisional
Measures of Protection ordered by the Court, without the need for the case on the
merits to have been submitted to the Court (but rather, to the Inter-American
Commission on Human Rights). This reinforces my view —which I will advance in this
Concurrent Opinion, if I may— that Provisional Measures of Protection, endowed with
autonomy, are governed by their own legal rules; their breach triggers the
responsibility of any such State —with legal consequences— and identifies the
central role of the victim (of said breach), notwithstanding the examination and
determination of the concrete case upon its merits.
13.
In addition to the conventional basis of Article 63(2) of the American
Convention, Provisional Measures under said convention are reinforced by the
general duty of the States Party, pursuant to Article 1(1) of the Convention, to
respect and ensure the respect, without discrimination, of protected rights, in favor
of all the persons subject to their respective jurisdictions.15 I have the feeling that, in
spite of all the Court had done in favor of the evolution of Provisional Measures of
Protection —more than any other contemporary international court, I may insist—
there is still a long way to go. The already considerable legacy of said measures
under the American Convention must be saved.
14.
The legal rules governing said measures has to be strengthened conceptually,
for the benefit of all the persons protected and of the victims of their breaches
15
.
The ample scope of this general duty of guarantee —which also embraces provisional measures
of protection— has been analyzed in my recent Separate Votes (paras. 15-21) in the Judgment of the
Court in the Case of the Girls Yean and Bosico v. the Dominican Republic (September 8, 2005), Separate
Opinion (paras. 2.7 and 17-29) in the Judgment of the Case of the Mapiripán Massacre v. Colombia
(September 15, 2005), and Separate Opinion (paras. 2-13), in Judgment of the Case of Pueblo Bello
Massacre v. Colombia (January 31, 2006). The referenced Article 1(1) sets out the conventional basis for
the erga omnes obligations of the parties to the Convention.
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