Ratione Temporis in Armenia v Azerbaijan and Azerbaijan v Armenia
On 12 November 2024, the International Court of Justice (ICJ) delivered its judgements on preliminary objections concerning the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) in the cases of Armenia v Azerbaijan and Azerbaijan v Armenia. CERD forms the jurisdictional basis for these cases, which engage in the reciprocal accusation of ethnic cleansing, racism and the alleged activities of laying landmines, inflicting detrimental impact on the environment and natural resources by Armenia. These judgements have attracted public opinion on different grounds, from the composite and continuous breaches of international law to how environmental harm may constitute racial discrimination (see here, here, here and here).
Of particular concern is whether the ICJ has jurisdiction ratione temporis for the alleged acts that occurred between 23 July 1993 (the date Armenia became a state party of CERD) and 15 September 1996 (the date CERD entered into force in Azerbaijan). Interestingly, the parties did not dispute claims relating to alleged acts that occurred before 23 July 1993 although both are the successors of the former Union of Soviet Socialist Republics (USSR), for which CERD entered into force on 6 March 1969. Therefore, this post delves into the intricate and multifaceted issue of succession of the multilateral treaties of the former USSR.
Tabula rasa versus Continuity
Huseynov considers the successors of the USSR behaved as independent states and chose the principle of tabula rasa (‘clean slate’), which implies that the treaties of its predecessor do not bind a new state (see, in another context, Dumberry). In other words, a new state is free to accede to the treaties of predecessor states without any obligations or restrictions. As Beato explains, this principleis applied to a newly independent state that was “dependent” upon a predecessor state due to protectorate, colonial, trust or mandate status before gaining independence.
Contrary to the tabula rasa principle, the continuity theory provides for the constant character of the international legal status of separating successor states. The successor state does not depend on the predecessor state before the separation, and the control is apportioned among them (see as discussed in Beato). Dumberry and Turp emphasise this theory better maintains the stability of rights and obligations originating from multilateral treaties. According to Article 34(1)(a) of the Vienna Convention on the Succession of States in Respect of Treaties, “[w]hen a part or parts of the territory of a State separate to form one or more States, whether or not the predecessor State continues to exist”, “any treaty in force at the date of the succession of States in respect of the entire territory of the predecessor State continues in force in respect of each successor State so formed”.
The Committee on the Elimination of Racial Discrimination takes a similar view to the continuity theory when the predecessor state is a party to CERD. In General Recommendation XII, the Committee “[e]ncourages successor States that have not yet done so to confirm to the Secretary‑General … that they continue to be bound by obligations under that Convention”. In other words, the continuation of obligations does not cease, and when the state confirms being bound by the Convention, the treaty continues to apply from the time of succession. The Committee “[i]nvites successor States that have not yet done so to accede to [CERD] if predecessor States were not parties to it”. As seen, CERD prioritises the continuity theory by encouraging successor states “to confirm” the continuity of the obligations of CERD rather than inviting them to accede to the Convention.
Similarly, Kamminga regards that obligations arising from a human rights treaty (such as CERD) undertaken by the predecessor state continue to apply to the successor states. This is because individuals residing within the successor state should not be deprived of the protection of rights they would be entitled by the treaty simply because the responsibility for the territory they live in has been transferred to another state. Moreover, disregarding the continuity of obligations creates an accountability gap when violations occur between the moment of independence and the entering into force of the treaty for the successor state. Similarly, legal advisors for the Council of Europe regarded that the successor states of the USSR should declare the succession of the multilateral treaties to avoid the legal vacuum. In this regard, considering the relevant legal heritage of the USSR paves the way for analysing the succession of CERD for Armenia and Azerbaijan.
The Soviet Legal Heritage of the Succession of the Multilateral Treaties
The USSR’s Succession Law of 3 April 1990, provides that “[t]he seceding republic must observe … human rights and freedoms enshrined in international treaties to which the USSR is a party … Multilateral and bilateral treaties concluded by the USSR and in force at the time of a Union republic’s secession from the USSR continue to apply to the seceding republic unless an agreement is reached to the contrary”. As seen, this Soviet legislation provides a similar principle to Article 34 of the Vienna Convention.
The same approach was taken in the Minsk Agreement of 8 December 1991, which formalised the fall of the USSR. Article 12 of the Agreement prescribes that “[t]he High Contracting Parties undertake to discharge the international obligations incumbent on them under treaties and agreements entered into by the former [USSR]”. Azerbaijan and Armenia expressed their consent bearing a party to this Agreement by signing the Protocol on 21 December 1991. According to the Protocol, the Agreement enters into force for Armenia and Azerbaijan from its ratification on 18 February 1992 and 24 September 1993, respectively. Thus, the Minsk Agreement is significant in the conduct of states concerning the succession of treaties during the initial period of the breakdown of the USSR.
It is not an accident that the Almaty Declaration of 21 December 1991 contains a similar provision of treaty succession with a minor difference: “The State Parties of the Commonwealth guarantee accomplishment of the international obligations following from contracts and agreements of the former USSR according to the constitutional processes”. The enigmatic phrase of “constitutional process” does not shed light on the intention of states. Comparison of the Almaty Declaration with the Memorandum of Understanding Concerning Legal Succession Concerning the Agreements of the Former USSR which are of Mutual Interest of 6 July 1992 indicates that states parties to the Almaty Declaration did not intend to follow the tabula rasa principle. The Memorandum stated that “[t]he issue of participation in [all multilateral international] agreements [of the former USSR] is resolved according to the principles and rules of international law in each state of the Commonwealth independently, depending on the specifics of each case, nature and contents of this or that agreement”. Thus, the Memorandum recognised the freedom of choice between the tabula rasa and continuity. In this regard, if Armenia or Azerbaijan had chosen the continuity principle by declaring succession, not by accession, the tabula rasa would have continued from 6 July 1992. In other words, the continuity principle would not have ceased on 6 July 1992.
State Practice
Although Armenia and Azerbaijan acceded to CERD, ICCPR, ICESCR and Genocide Convention, state practice concerning the succession of treaties of the former USSR states is not uniform. For example, Armenia, like Kazakhstan, Georgia, and Tajikistan joined the Convention for the Protection of Cultural Property in the Event of Armed Conflict by succession. Similarly, Kazakhstan, Kyrgyzstan, Turkmenistan, and Tajikistan expressed their consent to be bound by succession to the First, Second, Third, and Fourth Geneva Conventions and First and Second additional protocols to these conventions.
Similarly, other states’ responses to the succession of the USSR treaties have been mixed. This is because some states preferred the continuity principle, some were undecided, and Austria applied tabula rasa (although it had changed its position to continuity theory concerning the Ukraine’s succession). For example, Belgium, Germany, Finland, and the Netherlands considered that the obligations and rights of the treaties to which the former USSR was a party passed automatically to the respective successor states. Likewise, the United States “consistently assert[s]” the same opinion. In this regard, Azerbaijan and Armenia (like Georgia, Kazakhstan, Kyrgyzstan and Uzbekistan) behaved as the successors of the former USSR concerning the treaties concluded between Germany and the former USSR by exchanging notes and bilateral declarations.
As seen, there is no clear pattern concerning the succession of the USSR’s treaties among the successor states. As discussed by Beato, successor states of the USSR (other than the Baltic states) were not regarded as newly independent states when they separated from the Soviet Union because they were not dependent states in the Federal Unit for their international relations. This is because the Soviet Constitution of 1978 conceptualised the USSR as “the voluntary association of equal Soviet Socialist Republics” and recognised the right of secession from the USSR. In other words, “[a] [u]nion [r]epublic is a sovereign … state” and its territory “may not be altered without its consent”. However, practically, the member states were not equal and did not participate meaningfully in international relations, which were under the auspices of the Communist Party. Therefore, it would be an overgeneralised and inaccurate conclusion that the former USSR’s successors shall chose the tabula rasa principle or continuity theory.
Conclusion
In light of the above, two decisive dates should be distinguished regarding the succession related 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 Agreement, Almaty Declaration and the Law on Succession regard that the treaties and agreements to which the USSR was a party remain in force in relation to the successor states of the USSR. In this regard, the provisions of Article 34(1)(a) of the Vienna Convention are applied to the alleged acts committed between 8 December 1991 and 6 July 1992. However, when a successor state expresses its consent to be bound to CERD after 6 July 1992, tabula rasa shall be applied from the date of accession to the treaty unless the state does not select continuity principle.
This is because the Memorandum of 6 July 1992 recognised freedom of choice concerning the succession of treaties. The instruments adopted before the Memorandum crystallised the principle of continuity. This means that in the period between the date of dissolution of the USSR (9 December 1991) and the date of the Memorandum of 6 July 1992, the successor state could not invoke the principle of tabula rasa. Because successor states conferred their consent before the Memorandum, the obligations of the USSR continued for them.
However, the Memorandum established a legal gap in advance by declaring freedom of choice. If a successor state indicates its consent to be bound to a treaty through the continuity principle, the obligations of CERD have continued since 6 July 1992. On the other hand, when a successor state prefers the principle 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 concerning Azerbaijan and Armenia is intriguing and double-barrelled: on the one hand, the continuity principle applies to the events that occurred between the date of dissolution of the USSR and 6 July 1992; on the other hand, the principle of tabula rasa entered into force on the date of accession because on 6 July 1992 successor states were entitled to select their choice 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 were restored for them.
The analysis shows that the succession of CERD concerning Armenia and Azerbaijan needs further elaboration in light of the Minsk Agreement, Almaty Declaration, and Memorandum of 1992. In the cases of Armenia v Azerbaijan and Azerbaijan v Armenia, the ICJ’s jurisdiction ratione temporis should be analysed from the perspective of succession of treaties bound by the USSR.
Tabriz Musayev is Head of the Secretariat of the Anti-Corruption Commission of the Republic of Azerbaijan. He holds an LLM in international Law (Edinburgh) and an LLM in Criminal Law and Procedure (Baku) and is a Chevening alumnus.