58
MAMATKULOV AND ASKAROV v. TURKEY JUDGMENT –
JOINT PARTLY DISSENTING OPINION
level. In other words, the principle cannot be transposed to the business of
international courts.
162. There must, however, be a customary rule allowing international
courts and tribunals, even in the absence of a treaty provision, to enact
Rules of Procedure, a rule which may include the power to formulate
interim measures. But that rule cannot be taken to include the power to
prescribe such measures.
6. Conclusion
163. It follows from all the above that the compulsory nature of interim
measures “indicated” by this Court cannot be derived from the rules of
general international law, nor from Articles 34 (right of individual
application) or 26 (d) (right of the Court to enact rules of procedure) of the
Convention, as interpreted in the light of the Vienna Convention on the Law
of Treaties of 23 May 1969. The same conclusion results from the practice
of the European Court of Human Rights itself, including its initial attitude in
the instant case (see paragraph 24 of the present judgment).
164. Our basic conclusion is, therefore, that the matter examined here is
one of legislation rather than of judicial action. As neither the constitutive
instrument of this Court nor general international law allows for holding
that interim measures must be complied with by States, the Court cannot
decide the contrary and, thereby, impose a new obligation on States Parties.
To conclude that this Court is empowered, de lege lata, to issue binding
provisional measures is ultra vires. Such a power may appear desirable; but
it is up to the Contracting Parties to supply it.
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