56
MAMATKULOV AND ASKAROV v. TURKEY JUDGMENT –
JOINT PARTLY DISSENTING OPINION
to reading a power to issue binding provisional measures into the
Convention.
157. Another element to be examined, also discussed in Cruz Varas, is
the subsequent practice of the Contracting Parties mentioned as an element
of interpretation in the Vienna Convention on the Law of Treaties.
Article 31 § 3 (b) of that convention refers to “any subsequent practice in
the application of the treaty which establishes the agreement of the Parties
regarding its interpretation”. This practice was equally considered in Cruz
Varas. After describing early unsuccessful attempts of the Convention
institutions at adopting recommendations in the matter (pp. 34-35, § 96), the
Court found that the prevailing – but not complete – compliance with
provisional measures was inspired by the desire of States Parties to
cooperate. There was, in other words, no evidence that that practice, as is
required by the Vienna Convention, “established the agreement of the
Parties regarding its interpretation”. That the contrary is true is first shown
by the fact that, at its extraordinary meeting in early 1994, the Committee of
Experts for the Improvement of Procedures for the Protection of Human
Rights (DH-PR) received reform proposals from the European Commission
of Human Rights on 31 January 1994 (docs. DH-PR(94)2 and DHPR(94)4). Both the Commission and the Court considered that the new
Court should have the power to issue interim measures with legally binding
effect and that this should be provided for in the Convention. The Court's
proposal was similar to Article 63 § 2 of the 1969 American Convention on
Human Rights. The Commission's preference was for the interim-measure
rules of the Commission's (Rule 36) and the Court's (Rule 36) Rules of
Procedure to be included in the text of the Convention. The Swiss
delegation also submitted a proposal with a view to including an Article in
the Convention on provisional measures to the effect that “the Court may ...
prescribe any necessary interim measures” (doc. DH-PR(93)20,
22 November 1993).
158. All three proposals, if accepted, would have made it possible to
argue (as with Article 41 of the ICJ's Statute) that the Court's interim
measures must be regarded as mandatory. All three proposals were,
however, rejected by the government experts. Later on, the Committee on
Migration, Refugees and Demography suggested that interim measures
indicated pursuant to Rule 36 of the Court's Rules of Procedure be made
obligatory for member States (Draft Report, AS/PR(1997)2 revised,
19 February 1997). The Committee of Ministers declined to include a
provision on interim measures in the Convention. This can only mean that
the widespread acceptance of the practice in question rests on courtesy,
cooperation and convenience, but not on an agreed interpretation. Nor has
the Committee of Ministers seen fit to suggest the introduction of a
provision on binding provisional measures in Draft Protocol No. 14. Again
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