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
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