The history and legal framework of precautionary measures

With more than three decades of history in the Inter-American Human Rights System, the precautionary measures mechanism has served as an effective tool for protecting the fundamental rights of the inhabitants of the States that fall under the jurisdiction of the Inter-American Commission. The power of the IACHR to request the adoption of urgent actions or to issue precautionary measures reflects common practice in international human rights law. In the particular context of the region, this mechanism has operated as an effective instrument for protecting and preventing possible serious and irreparable harm to individuals or groups of people who find themselves in situations of imminent risk.

In this way, the Commission has been fulfilling its mandate to "promote the observance and defense of human rights" in the terms of Article 106 of the Charter of the Organization of American States and to assist States in complying with their inescapable and permanent duty to protection. This provision stems from the IACHR's function of ensuring compliance with the commitments assumed by OAS Member States, established in Article 18 of the Statute of the Commission and Article 41 of the American Convention. Likewise, it rests on the general obligation that States have to respect and guarantee human rights (Article 1 of the American Convention), to adopt the legislative or other measures necessary to make human rights effective (Article 2), and to comply in good faith with the obligations contracted under the Convention and the Charter of the OAS. In many cases, States themselves have indicated that precautionary measures have been a very important protection mechanism to guarantee the effective enforcement of human rights in extremely serious and urgent situations.

The precautionary measures mechanism is frequently invoked in international law, existing as a function of the principle courts and treaty bodies in order to not make their decisions and the protection they exercise abstract. Since its creation, the Commission has requested States to urgently adopt protection measures to prevent harm to the life or personal integrity of the beneficiary. As part of the historical development of the precautionary measures mechanism, the IACHR's 1980 Rules of Procedure formalized a procedure for this mechanism. Article 26 of these Rules established that precautionary measures could be adopted "[i]n urgent cases when it is necessary to avoid irreparable harm to persons." The inclusion of the mechanism in the IACHR's Rules of Procedure and its progressive procedural development through practice respond to the historical pattern of construction of protection mechanisms proper to the Inter-American System. The precautionary measures mechanism has remained in the Commission's Rules of Procedure for more than 35 years. The latest regulatory reform came into effect on August 1, 2013.

The OAS General Assembly, in recognition of the essential value of the work carried out by the Inter-American Commission on Human Rights, has encouraged Member States to follow up on the Commission's recommendations and precautionary measures. Likewise, when adopting the Inter-American Convention on Forced Disappearance during the General Assembly in 1994, the Member States recognized the effectiveness of the precautionary measures mechanism to analyze allegations of forced disappearances. The precautionary measures mechanism stands out for its effectiveness and for its recognition by beneficiaries, OAS Member States, the users of the Inter-American System, and the human rights community as a whole.