14
MAMATKULOV AND ASKAROV v. TURKEY JUDGMENT
48. In its judgment of 27 June 2001 in LaGrand (Germany v. the United
States of America), it noted:
“102. ... The context in which Article 41 has to be seen within the Statute is to
prevent the Court from being hampered in the exercise of its functions because the
respective rights of the parties to a dispute before the Court are not preserved. It
follows from the object and purpose of the Statute, as well as from the terms of
Article 41 when read in their context, that the power to indicate provisional measures
entails that such measures should be binding, inasmuch as the power in question is
based on the necessity, when the circumstances call for it, to safeguard, and to avoid
prejudice to, the rights of the parties as determined by the final judgment of the Court.
The contention that provisional measures indicated under Article 41 might not be
binding would be contrary to the object and purpose of that Article.
103. A related reason which points to the binding character of orders made under
Article 41 and to which the Court attaches importance, is the existence of a principle
which has already been recognised by the Permanent Court of International Justice
when it spoke of 'the principle universally accepted by international tribunals and
likewise laid down in many conventions ... to the effect that the parties to a case must
abstain from any measure capable of exercising a prejudicial effect in regard to the
execution of the decision to be given, and, in general, not allow any step of any kind to
be taken which might aggravate or extend the dispute' (Electricity Company of Sofia
and Bulgaria, Order of 5 December 1939 ...).”
This approach was subsequently confirmed in the court's judgment of
31 March 2004 in Avena and other Mexican nationals (Mexico v. the United
States of America).
D. The Inter-American system of human rights protection
1. The Inter-American Commission on Human Rights
49. Rule 25 of the Rules of Procedure of the Inter-American
Commission on Human Rights provides:
“1. In serious and urgent cases, and whenever necessary according to the
information available, the Commission may, on its own initiative or at the request of a
party, request that the State concerned adopt precautionary measures to prevent
irreparable harm to persons.
2. If the Commission is not in session, the President, or, in his or her absence, one
of the Vice-Presidents, shall consult with the other members, through the Executive
Secretariat, on the application of the provision in the previous paragraph. If it is not
possible to consult within a reasonable period of time under the circumstances, the
President or, where appropriate, one of the Vice-Presidents shall take the decision on
behalf of the Commission and shall so inform its members.
3. The Commission may request information from the interested parties on any
matter related to the adoption and observance of the precautionary measures.
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