MAMATKULOV AND ASKAROV v. TURKEY JUDGMENT –
JOINT PARTLY DISSENTING OPINION
57
this must have been so because there was no agreement on making such
measures compulsory and not because the Committee thought it superfluous
to do anything on the assumption that provisional measures were binding.
159. In the present case, the Court itself considered its interim measures
to be optional. This is evident from the wording of Rule 39, which uses the
words “indicate” and “should be adopted”, as well as from the text of the
letter of 18 March 1999 addressed to Turkey, the respondent State, which
reads:
“La Présidente de la première section a décidé aujourd'hui d'indiquer à votre
Gouvernement, en application de l'article 39 du Règlement de la Cour, qu'il était
souhaitable, dans l'intérêt des parties et du bon déroulement de la procédure devant la
Cour, de ne pas extrader le requérant vers la République ouzbèke avant la réunion de
la chambre compétente, qui se tiendra le 23 mars 1999.”1
160. What, finally, about the “relevant rules of international law
applicable in the relations between the Parties”, relied on by the Chamber
on the basis of Article 31 § 3 (c) of the Vienna Convention on the Law of
Treaties? It is true that many treaties constitutive of international courts and
tribunals do authorise the “indication” of provisional measures, that being
the term used in most of them. The meaning attributed to it by the ICJ in the
recent LaGrand case will undoubtedly have a considerable impact on the
interpretation of these treaties; but it cannot have such an impact on the
present Court as long as the latter's constitutive instrument – the European
Convention – contains no authorisation to “indicate” interim measures at all.
5. The relevant rules of international law
161. There remains the question of whether the Court may, on the basis
of a rule of general international law or a general principle of law
recognised by civilised nations: (i) indicate provisional measures; and (ii)
order such measures. If that were the case, the Court could justify the
enactment of mandatory interim measures by such a rule or principle even
in the absence of any enabling treaty provision. Regarding general
principles of law recognised by civilised nations, there may well be a
widespread rule on obligatory interim measures on the domestic level, based
on the rule of compulsory jurisdiction applicable on that level. By contrast,
as pointed out earlier (see paragraph 16 above), that rule does not prevail on
the international level, which is why it cannot be applied as such on that
1. Translation: “The President of the First Section has decided to indicate to your
government, on the basis of Rule 39 of the Rules of Court, that it is desirable, in the
interest of the parties and of the smooth progress of the proceedings before the Court, not to
extradite the applicant to the Republic of Uzbekistan prior to the meeting of the competent
Chamber, which will take place on 23 March 1999.”
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