The Worldwide Courtroom of Justice’s latest judgment on preliminary objections in Azerbaijan v Armenia provides an necessary alternative to look at the Worldwide Courtroom of Justice’s method to persevering with and composite breaches in worldwide regulation. The case, one in all two parallel proceedings between Azerbaijan and Armenia primarily based on alleged reciprocal breaches of the Worldwide Conference on the Elimination of All Types of Racial Discrimination (“CERD”), arose within the context of the long-running battle within the disputed area known as ‘Garabagh’ by Azerbaijan and ‘Nagorno-Karabakh’ by Armenia. Each instances contact on a number of necessary points, together with whether or not environmental hurt can represent racial discrimination. Nevertheless, this put up focuses on the judgment on the preliminary objections raised by Armenia and notably, on Choose Tladi’s dissenting opinion which raises important issues in regards to the Courtroom’s remedy of constant and composite breaches.
Armenia’s Problem to the ICJ’s Temporal Jurisdiction
Armenia raised a preliminary objection difficult the ICJ’s temporal jurisdiction over Azerbaijan’s claims regarding acts that occurred between July 1993 (when Armenia grew to become social gathering to CERD) and September 1996 (when Azerbaijan grew to become social gathering). Understanding the framework established by Articles 13-15 of the Worldwide Regulation Fee’s Articles on State Accountability (“ARSIWA”) is essential to addressing this subject. Collectively, they supply the secondary guidelines governing the temporal points of state duty, together with the excellence between instantaneous acts with persevering with results, persevering with breaches, and composite breaches. The way in which the ICJ characterizes the character of the alleged acts has important implications for the scope of the court docket’s temporal jurisdiction over Azerbaijan’s claims and the following remedy of the deserves.
Ideas Governing Temporal Points of State Accountability
Article 13 ARSIWA displays the intertemporal precept: a State have to be sure by an obligation on the time of the wrongful act for the act to be a breach. This fundamental rule operates alongside Article 14, which makes a vital distinction between instantaneous acts with persevering with results and persevering with breaches. The previous happens at a selected second even when results persist, whereas the latter extends over your complete interval the act continues. Article 15 then addresses composite breaches, consisting of a collection of actions or omissions outlined in mixture as wrongful.
The Rainbow Warrior case offered necessary clarification of those ideas. On this case, the tribunal emphasised that ‘a breach ceases to have a seamless character as quickly because the violated rule ceases to be in power‘ [para 114]. This highlights the distinction between ongoing results of accomplished acts versus actually persevering with breaches – a distinction that funding tribunals have additional developed in follow.
In Société Générale v Dominican Republic, the arbitral tribunal clarified that ‘whether it is merely the persevering with results of a one-time particular person act that as such has ceased to exist, then the non-retroactivity precept absolutely applies […] however when each the existence of the wrongful act and its results proceed each earlier than and after the important date, then the non-retroactivity precept won’t exclude the applying of the obligations of the treaty to the acts and omissions that happen after its efficient date‘ (emphasis added).
The precept of non-retroactivity of treaties is codified in Article 28 of Vienna Conference on the Regulation of Treaties (“VCLT”) , which supplies that until a distinct intention is established, a treaty’s provisions ‘don’t bind a celebration in relation to any act or truth which occurred or any state of affairs which ceased to exist earlier than the date of the entry into power of the treaty with respect to that social gathering’. Nevertheless, because the tribunal in Société Générale defined, the place a wrongful act continues after the treaty’s entry into power, non-retroactivity doesn’t render the treaty inapplicable to the details occurred earlier than the important date.
These temporal ideas are nicely established in worldwide case regulation. In Phosphates in Morocco, Italy challenged French authorities’ 1925 resolution to exclude Italian nationals from the Moroccan phosphates business, arguing that this resolution, along with subsequent acts, constituted a seamless breach. The Everlasting Courtroom of Worldwide Justice (“PCIJ”), nonetheless, rejected this characterization. The PCIJ emphasised the necessity to determine the ‘definitive act which might, by itself, immediately contain worldwide duty’. The PCIJ discovered that the 1925 resolution was an instantaneous act, and that subsequent acts have been merely results stemming from that earlier conduct, not a part of a seamless wrongful act. The PICJ then rejected to train its jurisdiction, which was restricted to disputes after 1931.
This basic authority highlights the excellence between a wrongful act and its results. Whereas these results might manifest as later acts, they can’t be framed as impartial breaches to evade temporal limitations until they’re distinct from the principal act. Nevertheless, the truth that subsequent acts exist inside this framework doesn’t imply that your complete collection of acts needs to be handled as a single ongoing breach, which might additionally serve to bypass temporal restrictions. The reasoning aligns with the method taken by funding tribunals, which deal with figuring out whether or not a breach has a seamless character or is merely a accomplished act with ongoing results. The PCIJ’s evaluation in Phosphates in Morocco thus displays the identical basic distinctions drawn in instances like Société Générale, the place tribunals distinguish between persevering with breaches and accomplished acts with ongoing penalties.
Making use of the Ideas to Azerbaijan v Armenia
With these ideas in thoughts, the vast majority of the Courtroom and Choose Tladi differed concerning the temporal characterisation of the details of the case. In paragraph 62 of its judgment, the Courtroom addressed how it might deal with the alleged persevering with or composite wrongful acts that started earlier than Azerbaijan grew to become social gathering to CERD in September 1996. The Courtroom said that Armenia’s duty could be engaged for actions or omissions occurring after that date, whereas details from earlier than may very well be considered when inspecting subsequent conduct inside its jurisdiction. The bulk justified this method by emphasizing that the related obligations below CERD solely got here into power between the events on 15 September 1996. Consequently, the Courtroom discovered that it lacked jurisdiction ratione temporis over alleged acts that occurred earlier than this date [para 63]. Nevertheless, the bulk distinguished between jurisdiction over the prior acts themselves and the power to think about these prior details when assessing subsequent conduct.
The importance of this method lies in the way it pertains to the basic construction of the regulation of State duty. As Choose Tladi explains in his dissenting opinion, a State is accountable not for particular person ‘actions and omissions’ however for ‘breaches of worldwide obligations’ – wrongful acts which will comprise a number of actions or omissions over time [para 31]. By suggesting that solely post-critical date conduct falls inside its jurisdiction whereas earlier conduct merely supplies context, the Courtroom seems to depart from the established framework. For composite breaches, the court docket’s or tribunal’s jurisdiction ought to lengthen to the combination of acts and omissions constituting the breach, no matter whether or not some occurred earlier than the important date when the treaty conferring jurisdiction entered into power between the events.
The Courtroom’s formulation raises questions on what it means to take pre-critical date conduct into consideration. As Choose Tladi observes, the idea of ‘taking into account’ has a longtime which means in treaty interpretation below Article 31(3) of the VCLT however requires additional clarification within the context of State duty [para 29]. Treating persevering with breaches equally to accomplished acts the place prior details present mere context seems to change the excellence between persevering with and accomplished breaches established in ARSIWA.
When inspecting patterns of conduct that develop over time, the excellence between persevering with breaches and mere results turns into notably related. In Rainbow Warrior, the tribunal defined that whereas a seamless breach might stop if the conduct ends or not constitutes a breach this differs from artificially dividing an ongoing breach into temporal parts [pp 264-266]. Within the latest ICJ Judgment, this synthetic division is among the attainable readings of paragraph 62, as defined by Choose Tladi [paras 32-33].
The judgment thus leaves open a number of questions in regards to the software of Articles 14 and 15 ARSIWA to conditions involving systematic or ongoing breaches. Choose Tladi’s effusiveness indicators the potential issues of adopting an insufficient software of those ideas: ‘The Courtroom can’t, if it accepts that the person actions and/or omissions represent a seamless breach, determine to disaggregate the person actions and/or omissions into those who occurred earlier than the important date and those who occurred after the important date, holding that the latter fall inside its jurisdiction and the previous not. No! It has to deal with the actions and/or omissions constituting the breach as a singular act’ (emphasis added).
That is very true for claims involving grave breaches like genocide, the place acts occurring after the important date may not meet threshold for genocide if assessed individually from the broader sample of conduct. As nicely, the gravity of the breach and its continuation over an prolonged interval immediately influence the willpower of reparation, as is present in Rainbow Warrior. Future instances might want to make clear learn how to assess temporal jurisdiction over persevering with and composite breaches whereas sustaining the basic ideas of State duty established in Articles 14 and 15 of ARSIWA.
Cristian De Fazio LLB (UBA), LLM (LSE) is working in worldwide arbitration at Arnold&Porter and beforehand labored for the Nationwide Directorate of Worldwide Affairs and Disputes of the Argentina’s Treasury Legal professional’s Workplace.
