Ratione Temporis in Armenia v Azerbaijan and Azerbaijan v Armenia
On 12 November 2024, the Worldwide Court docket of Justice (ICJ) delivered its judgements on preliminary objections in regards to the Software of the Worldwide Conference on the Elimination of All Types of Racial Discrimination (CERD) within the instances of Armenia v Azerbaijan and Azerbaijan v Armenia. CERD varieties the jurisdictional foundation for these instances, which interact within the reciprocal accusation of ethnic cleaning, racism and the alleged actions of laying landmines, inflicting detrimental influence on the setting and pure sources by Armenia. These judgements have attracted public opinion on totally different grounds, from the composite and steady breaches of worldwide legislation to how environmental hurt might represent racial discrimination (see right here, right here, right here and right here).
Of explicit concern is whether or not the ICJ has jurisdiction ratione temporis for the alleged acts that occurred between 23 July 1993 (the date Armenia grew to become a state get together of CERD) and 15 September 1996 (the date CERD entered into power in Azerbaijan). Apparently, the events didn’t dispute claims regarding alleged acts that occurred earlier than 23 July 1993 though each are the successors of the previous Union of Soviet Socialist Republics (USSR), for which CERD entered into power on 6 March 1969. Due to this fact, this publish delves into the intricate and multifaceted subject of succession of the multilateral treaties of the previous USSR.
Tabula rasa versus Continuity
Huseynov considers the successors of the USSR behaved as impartial states and selected the precept of tabula rasa (‘clear slate’), which suggests that the treaties of its predecessor don’t bind a brand new state (see, in one other context, Dumberry). In different phrases, a brand new state is free to accede to the treaties of predecessor states with none obligations or restrictions. As Beato explains, this principleis utilized to a newly impartial state that was “dependent” upon a predecessor state as a result of protectorate, colonial, belief or mandate standing earlier than gaining independence.
Opposite to the tabula rasa precept, the continuity idea supplies for the fixed character of the worldwide authorized standing of separating successor states. The successor state doesn’t rely on the predecessor state earlier than the separation, and the management is apportioned amongst them (see as mentioned in Beato). Dumberry and Turp emphasise this idea higher maintains the soundness of rights and obligations originating from multilateral treaties. In response to Article 34(1)(a) of the Vienna Conference on the Succession of States in Respect of Treaties, “[w]hen an element or elements of the territory of a State separate to kind a number of States, whether or not or not the predecessor State continues to exist”, “any treaty in power on the date of the succession of States in respect of the complete territory of the predecessor State continues in power in respect of every successor State so shaped”.
The Committee on the Elimination of Racial Discrimination takes an identical view to the continuity idea when the predecessor state is a celebration to CERD. In Basic Advice XII, the Committee “[e]ncourages successor States that haven’t but carried out so to verify to the Secretary‑Basic … that they proceed to be sure by obligations underneath that Conference”. In different phrases, the continuation of obligations doesn’t stop, and when the state confirms being sure by the Conference, the treaty continues to use from the time of succession. The Committee “[i]nvites successor States that haven’t but carried out so to accede to [CERD] if predecessor States weren’t events to it”. As seen, CERD prioritises the continuity idea by encouraging successor states “to verify” the continuity of the obligations of CERD somewhat than inviting them to accede to the Conference.
Equally, Kamminga regards that obligations arising from a human rights treaty (equivalent to CERD) undertaken by the predecessor state proceed to use to the successor states. It’s because people residing inside the successor state shouldn’t be disadvantaged of the safety of rights they might be entitled by the treaty just because the duty for the territory they stay in has been transferred to a different state. Furthermore, disregarding the continuity of obligations creates an accountability hole when violations happen between the second of independence and the getting into into power of the treaty for the successor state. Equally, authorized advisors for the Council of Europe regarded that the successor states of the USSR ought to declare the succession of the multilateral treaties to keep away from the authorized vacuum. On this regard, contemplating the related authorized heritage of the USSR paves the best way for analysing the succession of CERD for Armenia and Azerbaijan.
The Soviet Authorized Heritage of the Succession of the Multilateral Treaties
The USSR’s Succession Regulation of three April 1990, supplies that “[t]he seceding republic should observe … human rights and freedoms enshrined in worldwide treaties to which the USSR is a celebration … Multilateral and bilateral treaties concluded by the USSR and in power on the time of a Union republic’s secession from the USSR proceed to use to the seceding republic until an settlement is reached on the contrary”. As seen, this Soviet laws supplies an identical precept to Article 34 of the Vienna Conference.
The identical method was taken within the Minsk Settlement of 8 December 1991, which formalised the autumn of the USSR. Article 12 of the Settlement prescribes that “[t]he Excessive Contracting Events undertake to discharge the worldwide obligations incumbent on them underneath treaties and agreements entered into by the previous [USSR]”. Azerbaijan and Armenia expressed their consent bearing a celebration to this Settlement by signing the Protocol on 21 December 1991. In response to the Protocol, the Settlement enters into power for Armenia and Azerbaijan from its ratification on 18 February 1992 and 24 September 1993, respectively. Thus, the Minsk Settlement is important within the conduct of states in regards to the succession of treaties in the course of the preliminary interval of the breakdown of the USSR.
It’s not an accident that the Almaty Declaration of 21 December 1991 incorporates an identical provision of treaty succession with a minor distinction: “The State Events of the Commonwealth assure accomplishment of the worldwide obligations following from contracts and agreements of the previous USSR in accordance with the constitutional processes”. The enigmatic phrase of “constitutional course of” doesn’t make clear the intention of states. Comparability of the Almaty Declaration with the Memorandum of Understanding Regarding Authorized Succession Regarding the Agreements of the Former USSR that are of Mutual Curiosity of 6 July 1992 signifies that states events to the Almaty Declaration didn’t intend to comply with the tabula rasa precept. The Memorandum said that “[t]he subject of participation in [all multilateral international] agreements [of the former USSR] is resolved in accordance with the rules and guidelines of worldwide legislation in every state of the Commonwealth independently, relying on the specifics of every case, nature and contents of this or that settlement”. Thus, the Memorandum recognised the liberty of alternative between the tabula rasa and continuity. On this regard, if Armenia or Azerbaijan had chosen the continuity precept by declaring succession, not by accession, the tabula rasa would have continued from 6 July 1992. In different phrases, the continuity precept wouldn’t have ceased on 6 July 1992.
State Apply
Though Armenia and Azerbaijan acceded to CERD, ICCPR, ICESCR and Genocide Conference, state observe in regards to the succession of treaties of the previous USSR states just isn’t uniform. For instance, Armenia, like Kazakhstan, Georgia, and Tajikistan joined the Conference for the Safety of Cultural Property within the Occasion of Armed Battle by succession. Equally, Kazakhstan, Kyrgyzstan, Turkmenistan, and Tajikistan expressed their consent to be sure by succession to the First, Second, Third, and Fourth Geneva Conventions and First and Second further protocols to those conventions.
Equally, different states’ responses to the succession of the USSR treaties have been combined. It’s because some states most well-liked the continuity precept, some have been undecided, and Austria utilized tabula rasa (though it had modified its place to continuity idea in regards to the Ukraine’s succession). For instance, Belgium, Germany, Finland, and the Netherlands thought of that the obligations and rights of the treaties to which the previous USSR was a celebration handed robotically to the respective successor states. Likewise, the USA “persistently assert[s]” the identical opinion. On this regard, Azerbaijan and Armenia (like Georgia, Kazakhstan, Kyrgyzstan and Uzbekistan) behaved because the successors of the previous USSR in regards to the treaties concluded between Germany and the previous USSR by exchanging notes and bilateral declarations.
As seen, there is no such thing as a clear sample in regards to the succession of the USSR’s treaties among the many successor states. As mentioned by Beato, successor states of the USSR (apart from the Baltic states) weren’t considered newly impartial states after they separated from the Soviet Union as a result of they weren’t dependent states within the Federal Unit for his or her worldwide relations. It’s because the Soviet Structure of 1978 conceptualised the USSR as “the voluntary affiliation of equal Soviet Socialist Republics” and recognised the appropriate of secession from the USSR. In different phrases, “[a] [u]nion [r]epublic is a sovereign … state” and its territory “will not be altered with out its consent”. Nonetheless, virtually, the member states weren’t equal and didn’t take part meaningfully in worldwide relations, which have been underneath the auspices of the Communist Get together. Due to this fact, it might be an overgeneralised and inaccurate conclusion that the previous USSR’s successors shall selected the tabula rasa precept or continuity idea.
Conclusion
In mild of the above, two decisive dates must be distinguished concerning the succession associated to the breakdown of the USSR: the date of the dissolution of the USSR – 8 December 1991, and the adoption of the Memorandum on 6 July 1992. The Minsk Settlement, Almaty Declaration and the Regulation on Succession regard that the treaties and agreements to which the USSR was a celebration stay in power in relation to the successor states of the USSR. On this regard, the provisions of Article 34(1)(a) of the Vienna Conference are utilized to the alleged acts dedicated between 8 December 1991 and 6 July 1992. Nonetheless, when a successor state expresses its consent to be sure to CERD after 6 July 1992, tabula rasa shall be utilized from the date of accession to the treaty until the state doesn’t choose continuity precept.
It’s because the Memorandum of 6 July 1992 recognised freedom of alternative in regards to the succession of treaties. The devices adopted earlier than the Memorandum crystallised the precept of continuity. Which means that within the interval between the date of dissolution of the USSR (9 December 1991) and the date of the Memorandum of 6 July 1992, the successor state couldn’t invoke the precept of tabula rasa. As a result of successor states conferred their consent earlier than the Memorandum, the obligations of the USSR continued for them.
Nonetheless, the Memorandum established a authorized hole upfront by declaring freedom of alternative. If a successor state signifies its consent to be sure to a treaty by the continuity precept, the obligations of CERD have continued since 6 July 1992. However, when a successor state prefers the precept of tabula rasa, as Armenia and Azerbaijan did, treaty obligations had ceased between 6 July 1992 and the date of accession to CERD.
Thus, the succession of the CERD regarding Azerbaijan and Armenia is intriguing and double-barrelled: on the one hand, the continuity precept applies to the occasions that occurred between the date of dissolution of the USSR and 6 July 1992; then again, the precept of tabula rasa entered into power on the date of accession as a result of on 6 July 1992 successor states have been entitled to pick their alternative between tabula rasa and continuity. Thus, when Armenia and Azerbaijan acceded to the CERD on 23 June 1993 and 15 August 1996, respectively, the obligations of the CERD have been restored for them.
The evaluation reveals that the succession of CERD regarding Armenia and Azerbaijan wants additional elaboration in mild of the Minsk Settlement, Almaty Declaration, and Memorandum of 1992. Within the instances of Armenia v Azerbaijan and Azerbaijan v Armenia, the ICJ’s jurisdiction ratione temporis must be analysed from the attitude of succession of treaties sure by the USSR.
Tabriz Musayev is Head of the Secretariat of the Anti-Corruption Fee of the Republic of Azerbaijan. He holds an LLM in worldwide Regulation (Edinburgh) and an LLM in Legal Regulation and Process (Baku) and is a Chevening alumnus.
