The article “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” by Naphtali Ukamwa explores the decision of the International Court of Justice (ICJ) regarding the preliminary objections raised by Armenia concerning the temporal scope of its jurisdiction under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). This decision was made on November 12, 2024, in the context of the entrenched territorial and ethnic disputes between Armenia and Azerbaijan.
The article sets the stage by providing a background on the ongoing conflict between Armenia and Azerbaijan over the Nagorno-Karabakh region, tracing hostilities back to 1994 and noting subsequent wars and violent encounters in 2020, 2022, and 2023. In 2021, Azerbaijan brought the case to the ICJ, charging Armenia with racial discrimination against Azerbaijanis in violation of the CERD. Both nations acceded to the CERD, with Armenia becoming a party in 1993 and Azerbaijan in 1996. Armenia raised three preliminary objections, but the article focuses on the objection related to the temporal jurisdiction of the ICJ, arguing that it should not have jurisdiction over claims dating before Azerbaijan’s accession to the CERD in 1996.
Compromissory Clauses and Non-Retroactivity of Treaties
The Role of Compromissory Clauses
The article scrutinizes the role of compromissory clauses, commonly included in treaties to grant the ICJ jurisdiction over disputes regarding the interpretation or application of the treaty. Generally, these clauses are straightforward, but issues arise when they do not expressly stipulate the temporal scope of ICJ jurisdiction. The ICJ needed to determine whether it could adjudicate claims predating a country’s accession to a treaty when the treaty itself is silent on the temporal scope. The article explains that if there is no express limitation on temporal jurisdiction, precedent suggests that the Court may still assume jurisdiction. However, this traditional permissive approach faced scrutiny in the present case due to the silence of the CERD on this point.
The ICJ’s methodological approach in the case involved adopting six guiding principles, namely consent, reciprocity, equality, and non-retroactivity, to ensure jurisdiction is founded on mutual party agreement. The absence of specific provisions for retroactive application within the CERD, coupled with obligations outlined in the Vienna Convention on the Law of Treaties (VCLT), compelled the Court to reaffirm that treaty obligations are not retroactive unless explicitly intended, thus excluding events preceding Azerbaijan’s accession.
The ICJ’s Methodology in the Case
In the present case, the ICJ adopted six principles to guide its decision:
- Consent: Jurisdiction must be based on the consent of parties.
- Reciprocity: Jurisdiction is only valid if mutual obligations are established.
- Equality: Equitable treatment of parties is essential.
- Non-Retroactivity: Treaties generally do not apply to actions that occurred before their establishment, barring specific provisions.
The ICJ ruled that its jurisdiction did not extend to events before 1996 when Azerbaijan acceded to the CERD. By adhering to Article 28 of the Vienna Convention on the Law of Treaties (VCLT), the court reaffirmed the principle that treaty obligations are not retroactive unless explicitly intended. This ruling hinged on the foundational legal principles of consent and reciprocity, where jurisdiction must be based on mutual agreement and equitable obligations, further underscoring the inadmissibility of retroactive claims under the CERD.
Reasoning Behind the ICJ’s Decision
Foundational International Law Principles
The Court’s rationale highlighted that between 1993 and 1996, Azerbaijan did not have a reciprocal or equitable relationship under the CERD with Armenia, as it was not a party to the treaty. Therefore, Armenia could not be held responsible for any alleged violations during that period under the CERD. Moreover, the decision underscored the importance of foundational international law principles, such as consent and equality among states, further justifying the non-retroactive application based on customary international law principles codified in the ILC’s Responsibility of States for Internationally Wrongful Acts.
This perspective was crucial in emphasizing the significance of mutual obligations and ensuring a balanced and fair treatment between states in holding them accountable for treaty obligations. Additionally, the ICJ’s ruling demonstrated adherence to Vienna Convention principles, anchored in the necessity for explicit intent for retroactive effect, highlighting the importance of clearly defined temporal scope within treaties to prevent ambiguous interpretations and jurisdictional overreach.
Implications of the ICJ’s Approach
The ICJ’s decision outlines a restrictive methodology compared to previous precedents that adopted a more permissive stance toward retroactivity. This new approach prioritizes foundational legal principles and emphasizes the protection of global normative orders. Yet, the restrictive method could exclude crucial situations predating the treaty relevant for establishing responsibility for ongoing or composite acts spanning the treaty’s effective date. By opting for a stringent adherence to non-retroactivity, the ICJ aimed to preserve the integrity of consent-based jurisdiction and uphold the rule of law in international relations, ensuring that states are only held accountable under treaties they have explicitly agreed to.
Nevertheless, this methodology could also pose challenges in accountability and justice in scenarios involving prolonged conflicts or systemic abuses that began before treaty accession but continue into the treaty period. The balance between legal consistency and addressing historical grievances remains a critical aspect of the ICJ’s interpretative responsibility, acknowledging the potential limitations of a restrictive temporal scope in addressing comprehensive historical contexts.
Dissenting Opinions and Contrasting Views
Judge Tladi’s Dissent
The article also references the dissenting opinion of Judge Tladi, who contended that the ICJ’s restrictive approach might overlook significant pre-1996 events necessary to contextualize Armenia’s actions fully. The European Court of Human Rights (ECHR) and the UN Human Rights Committee have historically taken a more liberal stance regarding the temporal scope of human rights treaties, occasionally applying them retroactively. Judge Tladi argued that a comprehensive understanding of the conflict requires examining pre-accession events to inform ongoing legal responsibilities and possible violations within the treaty period.
Tladi’s perspective suggests a broader interpretative mandate for treaties like the CERD, advocating for a more inclusive approach that accounts for historical contexts and the continuity of human rights abuses. This viewpoint contrasts with the ICJ’s restrictive stance by emphasizing the importance of retroactive consideration to ensure comprehensive justice and acknowledge the full spectrum of violations, thereby addressing systemic historical injustices and enhancing accountability mechanisms.
The Nature and Object of Treaties
A core aspect of the discussion revolves around the CERD’s nature, which remains broadly untested regarding its interpretation as necessitating retroactive application. The article points out the ICJ’s stance that the erga omnes or jus cogens nature of a treaty does not inherently mandate retroactive application when determining jurisdiction. This approach contrasts with the permissive approach observed in some past cases where the treaty’s special object justified its application to pre-existing legal situations. The ICJ’s insistence on explicit intent for retroactive effect underscores a cautious and principled methodology aimed at upholding sovereign consent and ensuring clear demarcation of legal obligations.
This approach reaffirms the need for precision and clarity in treaty construction, emphasizing that the protection and application of international legal norms hinge on well-defined jurisdictional parameters. The balance between legal principles and the pursuit of accountability remains pivotal, with differing judicial interpretations reflecting ongoing debates on how best to address the temporal scope of human rights treaties and the inherent complexities in adjudicating historical grievances.
Conclusion
The article emphasizes the ongoing uncertainty in the International Court of Justice (ICJ) and the international legal community about the temporal scope of jurisdiction. It highlights the importance of maintaining foundational norms like consent, reciprocity, equality, and responsibility, suggesting that these principles should take precedence even at the cost of a restrictive approach. This approach can place a significant burden on the applicant to prove the temporal jurisdiction under a silent compromissory clause. The article delves into the complexities of balancing legal principles with the need to address historical injustices within international law.
Furthermore, it advises treaty drafters to explicitly address the temporal scope of jurisdiction in compromissory clauses to avoid ambiguities and potential political backlash. The article concludes by stressing the importance of preserving international normative orders and prioritizing the foundational principles crucial to the ICJ’s rulings. This restrictive approach provides a predictable method for establishing jurisdiction in the absence of explicit treaty provisions.
In summary, the article offers an in-depth analysis of the ICJ’s approach to determining its temporal jurisdiction under silent compromissory clauses. It explores the tensions between traditional permissive and restrictive methods in international law, emphasizing core legal principles while acknowledging the complexities and varied interpretations by different international bodies. The ICJ’s decision in Azerbaijan v. Armenia exemplifies a cautious but principled stance, adhering to a restrictive approach that aligns with the core values embedded in international legal norms.
