MAMATKULOV AND ASKAROV v. TURKEY JUDGMENT – JOINT PARTLY DISSENTING OPINION 51 143. Having made these initial observations, we now turn to the specific issue motivating our dissent: the Court's conclusion that failure to abide by interim measures “indicated” by the Court amounts to a violation of Article 34 of the Convention. We shall deal with this issue by examining successively: (i) the Court's case-law; (ii) the case-law of the International Court of Justice (ICJ); (iii) the European Convention on Human Rights in the light of the canons of treaty interpretation; and (iv) the relevant rules of general international law. 2. The Court's case-law 144. The Court's position in the matter is summed up in Cruz Varas and Others v. Sweden (judgment of 20 March 1991, Series A no. 201). In that case, the applicants had argued that, while the Convention contained no specific rules on interim measures indicated by the European Commission of Human Rights (whose Rule of Procedure 36 contained a text similar to Rule of Procedure 39 of the present Court), it was necessary to attribute binding force to such measures in order fully to secure the right to present individual applications guaranteed by Article 25 § 1 [now Article 34] of the Convention. The Court replied that “[i]n the absence of a provision in the Convention for interim measures an indication given under Rule 36 cannot be considered to give rise to a binding obligation on Contracting Parties” (p. 35, § 98), that “[i]t would strain the language of Article 25 [now Article 34] to infer from the words 'undertake not to hinder in any way the effective exercise of this right' an obligation to comply with a Commission indication under Rule 36 [current Rule 39 of the Rules of Court]” (pp. 35-36, § 99), and that “the power to order binding interim measures cannot be inferred from either Article 25 in fine, or from other sources” (p. 36, § 102). This was so, added the Court, even though there had been, in practice, “almost total compliance with such indications” (p. 36, § 100; see also, on this point, paragraphs 7 and 18 below). This “subsequent practice” “could be taken as establishing the agreement of Contracting States regarding the interpretation of a Convention provision [reference is being made here to the Court's Soering judgment and to Article 31 (3) (b) of the Vienna Convention on the Law of Treaties of 23 May 1969] but not to create new rights and obligations which were not included in the Convention at the outset [reference to the Johnston and Others judgment of 18 December 1986, Series A no. 112, pp.24-25, § 53]” (emphasis added). “[T]he practice of complying with Rule 36 indications”, concluded the Court, “cannot have been based on a belief that these indications gave rise to a binding obligation ... It was rather a matter of good-faith cooperation with the Commission in cases where this was considered reasonable and practicable”, in other words a matter of expediency and comity.