MAMATKULOV AND ASKAROV v. TURKEY JUDGMENT –
JOINT PARTLY DISSENTING OPINION
55
on the international level. Firstly, States are entirely free to accept or to
refuse compulsory jurisdiction of international courts and, if they do accept
it, to limit its scope, for instance by not including rules on the binding
character of provisional measures. This is the case in the framework of the
arbitration procedure instituted by the Washington (World Bank)
Convention of 18 March 1965 on the Settlement of Investment Disputes
(Article 47). Secondly, one should not forget that for many years
international tribunals such as the Permanent Court of International Justice
(1920-39) and its successor, the ICJ, for most of its existence (1946 to
2001), confined themselves to indicating provisional measures without
specifying their binding character. Thirdly, Article 34 of the Convention
requires States “not to hinder in any way the effective exercise of [the right
to make individual applications]” (emphasis added). By not providing for
interim measures and, a fortiori, by not vesting them with binding force, the
right of individual application is “hindered” in no way; and to say the
contrary would stretch the interpretation of Article 34 to a point at which the
Court ceases to interpret and assumes legislative functions. That this is so is
shown by other instruments of dispute settlement: nowhere else have
jurisdiction and the right of application been linked to the issuance and the
binding force of interim measures. Thus, in LaGrand, the Hague Court
refrained from relying on Article 35 of its Statute – the approximate
equivalent of Article 34 of the European Convention on Human Rights – to
determine the nature of its interim measures. It interpreted Article 41 of its
Statute, finding that that provision would not meet its aim if the measures
indicated were optional. If the Convention of 1950 contained a provision
comparable to Article 41 of the Statute of the Hague Court, we would likely
have concluded, on the basis of that provision, that to “indicate” interim
measures must, as a matter of teleological interpretation, mean to “order” or
“prescribe” such measures. In the case of the Inter-American Court of
Human Rights, whose constituent instrument – not Rules of Procedure! –
contains a provision similar to Article 41 of the ICJ Statute, this is not even
an issue since Article 63 § 2 of the 1969 American Convention on Human
Rights enables the Court to order interim measures. The problem in the
present case is that there is no reasonable legal basis for drawing a similar
conclusion. Article 34 of the Convention cannot serve as such, which makes
it impossible to read the notion of binding interim measures into the text of
the Convention.
156. The travaux préparatoires of the Convention may be referred to by
virtue of Article 32 of the Vienna Convention of Treaties. The European
Court's judgment in Cruz Varas shows that, despite proposals to include in
the 1950 Convention a provision similar to Article 41 of the Statute of the
ICJ, this was not done (p. 34, § 95) – a circumstance which is certainly not
favourable
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