54 MAMATKULOV AND ASKAROV v. TURKEY JUDGMENT – JOINT PARTLY DISSENTING OPINION possibility come to the fore after the ICJ's recent rulings. It remains to be seen, however, whether, independently of these two factors, the canons of interpretation contained in Articles 31 and 32 of the Vienna Convention on the Law of Treaties support the conclusions drawn by the Court in the present judgment. In this connection, the following rules on interpretation of the 1969 Vienna Convention may be considered: the text of the treaty; teleological interpretation; the subsequent practice of the Contracting Parties; the preparatory work; and relevant rules of international law. 153. As already pointed out, the text of the Convention is silent on interim measures and their binding force. The only basis for such measures can be found in Article 26 (d) of the Convention authorising the plenary Court to enact Rules of Procedure. The Court has done exactly that and has inserted Rule 39 in its Rules of Procedure. It is obvious that it was allowed to do that, given that the Rule in question did not contravene the Convention by imposing on States Parties obligations not provided for by it. It is also obvious that the Parties, when drawing up the Convention, had no intention whatsoever of asserting a duty to comply with interim measures indicated by the Court on the sole strength of the Rules of Procedure it would enact; nor did they have any intention of doing so later on, as is shown by the absence of any mention of interim measures and of their binding nature in the Additional Protocols and by the non-acceptance of proposals to introduce in a protocol a provision on the binding character of interim measures (see paragraph 18 below). 154. The teleological method of interpretation (“object and purpose” of the treaty), applied by the Court under the “living instrument” doctrine, is heavily relied on in the judgment, but we see little reason to do so. In Cruz Varas, that method had not even been expressly mentioned. Moreover, regarding the nature of interim measures, nothing much has changed between the time when that judgment was adopted and now: binding interim measures were as desirable then as they are today, yet they cannot be justified without an enabling provision in the Convention, the Court's constitutive instrument. Furthermore, Cruz Varas was confirmed, regarding measures issued by the Court itself, in the Čonka decision, only three months before the LaGrand judgment of the ICJ. 155. It has been contended that the right of individual application established in Article 34 of the Convention makes little sense without a power conferred on the Court to issue binding interim measures and that, accordingly, to meet the object and purpose of that Article, it is indispensable to accept the mandatory character of such measures. It has in fact been said that, domestically as well as internationally, a right of application without the possibility of attracting binding interim measures is not an effective right at all. This may be so on the domestic level, where the principle of compulsory jurisdiction of the courts prevails. It is certainly not

Select target paragraph3

Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents