HASSAN v. THE UNITED KINGDOM – JUDGMENT
51
was under an obligation to the United Nations Security Council to place the
applicant in internment and that, because of Article 103 of the United
Nations Charter, this obligation had to take primacy over the United
Kingdom’s obligations under the Convention. It was the Government’s case
that an obligation to intern the applicant arose from the text of United
Nations Security Council Resolution 1546 and annexed letters and also
because the Resolution had the effect of maintaining the obligations placed
on occupying powers under international humanitarian law, in particular
Article 43 of the Hague Regulations (see Al-Jedda, cited above, § 107). The
Court found that no such obligation arose. It was only before the
Commission, in Cyprus v. Turkey, nos. 6780/74 and 6950/75, Report of the
Commission of 10 July 1976, volume 1, that a question arose similar to that
in the present case, namely whether it was compatible with the obligations
under Article 5 of the Convention to detain a person under the Third and
Fourth Geneva Conventions in the absence of a valid derogation under
Article 15 of the Convention. In its report, the Commission refused to
examine possible violations of Article 5 with regard to detainees accorded
prisoner of war status, and took account of the fact that both Cyprus and
Turkey were parties to the Third Geneva Convention (see § 313 of the
Report). The Court has not, until now, had the opportunity to review the
approach of the Commission and to determine such a question itself.
100. The starting point for the Court’s examination must be its constant
practice of interpreting the Convention in the light of the rules set out in the
Vienna Convention on the Law of Treaties of 23 May 1969 (see Golder
v. the United Kingdom, judgment of 21 February 1975, Series A no. 18,
§ 29, and many subsequent cases). Article 31 of the Vienna Convention,
which contains the “general rule of interpretation” (see paragraph 34
above), provides in paragraph 3 that there shall be taken into account,
together with the context, (a) any subsequent agreement between the parties
regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes
the agreement of the parties regarding its interpretation; and (c) any relevant
rules of international law applicable in the relations between the parties.
101. There has been no subsequent agreement between the High
Contracting Parties as to the interpretation of Article 5 in situations of
international armed conflict. However, in respect of the criterion set out in
Article 31 § 3(b) of the Vienna Convention (see paragraph 34 above), the
Court has previously stated that a consistent practice on the part of the High
Contracting Parties, subsequent to their ratification of the Convention, could
be taken as establishing their agreement not only as regards interpretation
but even to modify the text of the Convention (see, mutatis mutandis,
Soering v. the United Kingdom, 7 July 1989, §§ 102-103, Series A no. 161
and Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, § 120,
ECHR 2010). The practice of the High Contracting Parties is not to derogate
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