Azerbaijan v Armenia: Reciprocity and the temporal scope of jurisdictional clauses in erga omnes partes proceedings?
On November 12, 2024, the International Court of Justice (ICJ) released it judgment on preliminary objections in the Azerbaijan v Armenia. As the parallel case of Armenia v Azerbaijan, it invokes alleged violations of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) and is based on the compromissory clause in Art 22 CERD. Although lodged following the Second Nagorno-Karabakh War between the two parties, Azerbaijan alleges violations dating back to the 1990s (the First Nagorno-Karabakh War). In that context, the Court had to examine the limits of its temporal scope of jurisdiction in the context of obligations erga omnes partes. More specifically, Armenia contended that the Court lacked jurisdiction over conduct during a period when Armenia already was a party to CERD, but Azerbaijan was not (between 23 July 1993 and 15 September 1996). Thus, it revolved around whether Azerbaijan could (at least in parallel (see below) on an erga omnes partes basis) demand compliance with treaty obligations to which it was itself not yet bound. The Court upheld this (first) preliminary objection, basing itself on ‘the principles of reciprocity and equality of States’. In doing so, it infused the doctrine of erga omnes partes with bilateralist structures.
Presumption of temporal flexibility for jurisdictional clauses
While treaty law is generally governed by a presumption of non-retroactivity (Article 28 VCLT), there is some debate on whether – and to what extent – this also extends to jurisdictional clauses (Higgins), especially compromissory clauses (Shaw, Rosenne’s Law and Practice of the International Court: 1920-2015 (2016) Vol 2, Ch 9). Despite some variations, international adjudicative bodies in principle agree that in absence of specific temporal limitations, there is a presumption of temporal flexibility of the jurisdictional title. Thus, jurisdiction ‘in principle, extends to disputes already existing at the time when […] jurisdiction is accepted’ (Declaration of Judge Charlesworth in Azerbaij
‘Yugoslavia, […] asserted as a subsidiary argument that, even though the Court might have jurisdiction on the basis of the Convention, it could only deal with events subsequent to the different dates on which the Convention might have become applicable as between the Parties. In this regard, the Court will confine itself to the observation that the Genocide Convention – and in particular Article IX – does not contain any clause the object or effect of which is to limit in such manner the scope of its jurisdiction ratione temporis, and nor did the Parties themselves make any reservation to that end […]. The Court thus finds that it has jurisdiction in this case to give effect to the Genocide Convention with regard to the relevant facts which have occurred since the beginning of the conflict which took place in Bosnia and Herzegovina.’ (para 34)
That said, this temporal flexibility of jurisdictional clauses does not reverse the presumption of non-retroactivity of substantive obligations. As the Court emphasized in Croatian Genocide, ‘the temporal scope of Article IX is necessarily linked to the temporal scope of the other provisions of the Genocide Convention’ (para 93; cf Azerbaijan v Armenia, para 45). Thus, substantive obligations are governed by a strict presumption of non-retroactivity, while jurisdictional clauses are not. The former may have impacts on the latter: insofar as an international court has to determine the scope of its (material) jurisdiction, it must consider the interplay between applicable substantive obligations and the reach of the jurisdictional title. However, jurisdictional clauses as such may be more flexible.
Erga omnes partes invocation and (procedural) reciprocity?
Recent years have seen an influx of erga omnes partes litigation at the ICJ, i.e. proceedings brought by one state party on behalf of a ‘common interest’ of all states parties to ensure that erga omnes partes obligations enshrined in a multilateral treaty are observed. However, prior to Azerbaijan v Armenia, the Court never explicitly addressed the temporal reach of its jurisdiction in the context of erga omnes partes obligations. In Obligation to Prosecute or Extradite, Senegal (respondent) had ratified the Convention against Tortureearlier than Belgium. After confirming Belgium’s standing on an erga omnes partes basis, the Court turned to the temporal scope of the obligations. It found that Senegal’s substantive ‘obligation to prosecute […] under the Convention applies only to facts having occurred after its entry into force for the State concerned’ (para 100), which was the 26 June 1987 – and thus related to the period in which Belgium was not yet a treaty party. The Court then considered that ‘Belgium has been entitled, with effect from 25 July 1999, the date when it became party to the Convention, to request the Court to rule on Senegal’s compliance with its obligation’ (para 104). The Court notably did not indicate that Belgium’s entitlement to invoke violations of obligations erga omnes partes was contingent on the fact that it was concurrently bound by the same treaty obligations (see, however, Azerbaijan v Armenia, para 46, slightly reformulating this). Nevertheless, Belgium in essence pleaded – and the Court ultimately held – that Senegal’s failure to comply with its obligation constituted a ‘continuing wrongful act’ (para 121).
In Azerbaijan v Armenia, the Court was concerned with a similar diverging period of entry into force. While Armenia admitted that CERD obligations were of an erga omnes partes character, it argued that the CERD’s inter partes obligations – including its compromissory clause – only entered into force as between the parties once both states were bound by the obligations. It thereby sought to firmly attach the substantive and procedural aspects to one another. The Court’s majority noted at the outset that the ‘critical date’ for Azerbaijan’s entitlement to invoke Armenia’s responsibility was dependent on two questions:
‘first, whether the principle of non-retroactivity of treaties has an effect on the Court’s jurisdiction under Article 22 of CERD; and second, whether the erga omnes partes character of certain obligations under CERD may affect the temporal scope of the Court’s jurisdiction under CERD’ (para 41).
In its further elaboration, it then in principle agreed with Armenia:
‘[A]lthough Article 22 of CERD contains no express indication on the temporal scope of its application, the conferral of jurisdiction on the Court by the States parties under this provision is governed by the relevant rules on jurisdiction, namely the principle of consent and the principles of reciprocity and equality of States. Any exception to these principles cannot be admitted unless expressly provided[.] […] Procedurally, if Azerbaijan were permitted to make claims against Armenia for the latter’s alleged acts that occurred during that period while Armenia could not exercise that right against Azerbaijan for Azerbaijan’s conduct during the same period because of its non-party status, there would be no reciprocity and equality between the Parties. Substantively, during the relevant period, Armenia, as a State party, owed its obligations under CERD to all other States parties, but not to States which were not parties to that Convention.’ (paras 50-51)
While the Court had already previously stipulated that the nature of obligations does not compensate for the lack of consent (see, e.g., Armed Activities (DRC v Rwanda), para 64), the reference to principles of reciprocity and equality (procedurally and substantivel
The road not taken: The Court’s narrow reading of Azerbaijan’s submissions
The issues with the Court’s findings stem from its approach to somewhat unnecessarily incorporate considerations that would properly relate to the admissibility of claims into the question of its jurisdiction. It infuses the jurisdictional clause of a multilateral treaty with a requirement of temporal reciprocity which – in the context of a human rights treaty – should not exist on the substantive level. Insofar as Azerbaijan’s claims may be framed as a question of erga omnes partes standing, that requirement in addition is conceptually at odds with the notion of such treaties enshrining a collective interest.
In light of this, the only reasonable interpretation of the Court’s emphasis on reciprocity and equality arises from the fact that Azerbaijan first and foremost based itself on the rights of an individually injured states under Article 42 ARSIWA and – at least for the Court’s majority – only on a subsidiary basis acted on an erga omnes partes basis. Charlesworth
‘could either assume that Azerbaijan […] would maintain its claims as a State not individually injured by Armenia’s breaches prior to 15 September 1996, or it could dismiss Azerbaijan’s claims as inadmissible for the period prior to that date. Bearing in mind that the Court should not substitute itself for the parties and formulate new submissions, I voted in favour of the Court’s conclusion’ (para 28).
It is also noteworthy that in Obligation to Prosecute or Extradite (differences not withstanding), the Court interpreted Belgium’s ‘double basis’ of standing (specially affected states and erga omnes partes) to the benefit of the broader erga omnes partes standing. In fact Belgium had not raised the erga omnes partes argument until questioned by Judge Cançado Trindade at the provisional measures stage (paras 104ff). There are limits to the Court’s ability to reinterpret the causa petendi (the invoked legal basis) stemming from procedural fairness (Forlati, 115; Simma in Armed Activities (DRC v Congo) paras 196ff). While Azerbaijan’s written observations and oral argument (paras 17-25) admittedly remain slightly convoluted, Armenia did not dispute that Azerbaijan was also arguing on an erga omnes partes basis and in fact addressed this aspect quite extensively. However, in the wake of a slew of cases on an erga omnes partes basis, the Court might be showing the first signs of gatekeeping.
