Judging Time Under the Silence of a Compromissory Clause: A Reflection on Retroactivity of (Human Rights) Treaties and Jurisdiction Ratione Temporis in Azerbaijan v. Armenia

· January 8, 2025

[Naphtali Ukamwa, LLM, is a PhD researcher in public international law at Trinity College Dublin’s School of Law, funded by the Trinity Research Doctorate Award, and a Visiting Researcher at iCourts, Faculty of Law, University of Copenhagen (2025)]

OpinioJuris

Introduction

On 12 November 2024, the International Court of Justice (ICJ) decided on the preliminary objections raised by Armenia in the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) in Azerbaijan v. Armenia, one of the twin cases before the ICJ. The case concerns territorial and ethnic conflicts over Garabagh or Nagorno-Karabakh, including hostilities and wars in 1994, 2020, 2022 and 2023. Azerbaijan filed the present case in 2021, alleging that the discrimination of Armenia against Azerbaijanis based on ethnic or national origin violates the CERD. Armenia and Azerbaijan have been parties to the CERD since 1993 and 1996 respectively. Armenia raised three preliminary objections, and this post focuses on the objection to the temporal scope of the ICJ jurisdiction under Article 22 of the CERD. Armenia argues that the ICJ lacks authority over claims predating 1996 (critical date) when Azerbaijan acceded to the CERD, asserting that the obligation and responsibility of Armenia predating 1996 applied only to other state parties at the time. Azerbaijan claims that the obligation of Armenia under the CERD encompasses conduct predating 1996 and that the acts of Armenia are continuing and composite. The ICJ ruled that its jurisdiction ratione temporis does not cover pre-1996 acts. This post examines the ICJ methodology in determining the temporal scope of its jurisdiction under Article 22 of the CERD in light of the silence of the CERD on this issue.

Compromissory Clause, Non-retroactivity of the CERD and the Effects on Jurisdiction Ratione Temporis

Compromissory clauses are significant sources of the ICJ jurisdiction (Article 36 ICJ Statute), and they typically reference the ICJ disputes over the application or interpretation of treaties. Usually, the provisions of compromissory clauses are framed as a boilerplate. Examining these clauses under the traditional methods of treaty interpretation may be of little or no assistance. Questions about the existence or non-existence of a legal dispute between the parties are not essential. The issue can only be addressed based on the substantive provisions of the treaty (Armenia v. Azerbaijan). When a treaty or a compromissory clause stipulates its temporal scope, the position is clear, and there is no debate about the extent of the jurisdiction of the Court. However, controversies arise when the substantive treaty or its compromissory clause is silent on the temporal scope of the jurisdiction of the Court. An example of an explicit exclusion of jurisdiction exists in the Phosphates case. The PCIJ held that it has no jurisdiction mainly because the ‘French Declaration of acceptance of jurisdiction’ contains express limitations on ‘the date when the dispute arose and… the date of the relevant situations or facts’. The jurisprudence of international courts/tribunals and opinions of ‘highly qualified publicists’ demonstrate that when there is no express limitation on the temporal jurisdiction of the Court, the Court has jurisdiction over the dispute notwithstanding the occurrence of the facts, acts and situations prior to the entry into force of the relevant treaty under interpretation (Mavromatis; Bosnia and Herzegovina v. Yugoslavia; Higgins; Rosenne). This is a permissive approach.

The ICJ appears to formulate a relatively new method in the present case. Since Article 22 of CERD and the CERD itself are silent on the temporal scope of ICJ jurisdiction, the Court, at its discretion, adopted the relevant rule for establishing the jurisdiction of the Court based on consent, reciprocity and equality and the principle of non-retroactivity, of treaties codified in Article 28 of the VCLT. Thus, treaty provisions generally do not bind parties regarding acts, facts, or situations preceding the entry into force of the treaty unless otherwise intended or established. From 1993 to 1996, Azerbaijan did not have consensual relations with Armenia under CERD because Azerbaijan was not a party to the CERD at the time. Accordingly, Azerbaijan could not claim violations under the CERD for acts during that period, as reciprocity and equality would be compromised. Customary international law, codified in the International Law Commission (ILC) Responsibility of States for Internationally Wrongful Acts (Articles 13 and 42), establishes that obligations must exist during an alleged act. Although the ICJ new method departs from its previously permissive approach, it is more methodologically grounded in the foundational principles of international law than the permissive approach previously applied across IC/Ts. However, this new approach, though innovative, is very restrictive, with a possibility of excluding some pre-1996 situations necessary for establishing the responsibility of Armenia (Dissenting Opinion of Judge Tladi). The European Court of Human Rights and the UN Committee on Human Rights have been more liberal than the ICJ on this issue.

The approach of the Court is that its jurisdiction (or absence of it) arises from either an express pronouncement or action of state parties to the CERD conclusively establishing it. The intention of the parties is enshrined in the CERD, which does not in any way ‘appear to’ impose a limitation on the temporal scope of the ICJ jurisdiction. Conversely, the CERD does not also expressly state its retroactive application. Additionally, from the nature of the CERD, it could not be inferred that a different intention is otherwise established in favour of non-retroactivity (Article 28 VCLT). For this purpose, it is submitted that the ICJ had to resort to determining its jurisdiction by its default rules on jurisdiction, in which case consent to the jurisdiction by Armenia does not exist for pre-1996 acts. One important principle of law that may follow from this decision is that where the compromissory clause or the treaty where such a clause is found is silent on the temporal scope of the ICJ jurisdiction, the Court will resort to its default method of establishing jurisdiction based on consent, reciprocity and equality in which the Court will not apply the treaty retroactively unless the party seeking retroactive application can establish it. This restrictive approach places on the applicant a heavy burden of establishing the scope of the ICJ temporal jurisdiction under a compromissory clause since the substantive treaty is silent.

The nature of a treaty may form its ‘special object’, which may justify its retroactive application as reflected in the exceptions to non-retroactivity in Article 28 of the VCLT ( Ambatielos and Dopagne). The Mavrommatis case establishes that ‘an essential characteristic’ of Protocol XII to the Treaty of Lausanne of 1923 was that ‘its effects extend to legal situations dating from a time previous to its existence’. However, whether the CERD is a treaty with a special object necessitating its retroactive application remains largely untested and understudied. In considering the nature of the CERD, the Court held that the erga omnes or jus cogen nature of a treaty is not a basis for establishing its jurisdiction. This pronouncement of the ICJ in Azerbaijan v. Armenia is tenable only because the ICJ, in the present case, applies its default rule for establishing its jurisdiction, and, thus, it is logical to follow its default rule that the nature of the treaty does not affect how its jurisdiction is established. In its application of the default rule, the Court’s emphasis on consent, reciprocity and equality is based mainly on a contractarian approach to the legal nature of the CERD. A contractarian approach is a more specific and predictable means of establishing the ICJ jurisdiction than jus cogen, which is a politically controversial issue before international courts. The Court hints (or so it appears) at the prospect of applying the CERD and its temporal jurisdiction retroactively to pre-1996 acts of Armenia. However, the Court concluded that Azerbaijan has not provided sufficient evidence to support these alleged composite and ongoing acts and that these issues are better addressed at the merit phase, provided the case has reached this phase.

Conclusion

Therefore, it follows that there is still confusion across international courts/tribunals, particularly the ICJ, on determining the scope of their jurisdiction ratione temporis when the compromissory clause or the treaty where it is found is silent. In such situations, establishing the jurisdiction of the Court remains a landmine of legal norms, requiring the Court to proceed with restrictions since the need to protect the coherence of foundational norms of international law (consent, reciprocity, equality and responsibility) is at stake. Thus, preserving the traditional core of these international normative orders is of utmost priority to the Court. For these reasons, a restrictive approach, which resorts to the default rule of establishing the Court jurisdiction of the Court, is tentatively helpful in determining the scope of temporal jurisdiction when the compromissory clause or the treaty where the clause is enshrined is silent. This restrictive approach places on the applicant a heavy burden of establishing the scope of the ICJ temporal jurisdiction under a compromissory clause where the substantive treaty is silent on the scope of jurisdiction. It is also suggested that treaty drafters should take more seriously the necessity to move away from the ‘boilerplate’ framing of compromissory clauses (notwithstanding the political backlash(es) that may accompany such efforts).