The International Court of Justice’s recent judgment on preliminary objections in Azerbaijan v Armenia offers an important opportunity to examine the International Court of Justice’s approach to continuing and composite breaches in international law. The case, one of two parallel proceedings between Azerbaijan and Armenia based on alleged reciprocal breaches of the International Convention on the Elimination of All Forms of Racial Discrimination (“CERD”), arose in the context of the long-running conflict in the disputed region referred to as ‘Garabagh’ by Azerbaijan and ‘Nagorno-Karabakh’ by Armenia. Both cases touch on several important issues, including whether environmental harm can constitute racial discrimination. However, this post focuses on the judgment on the preliminary objections raised by Armenia and particularly, on Judge Tladi’s dissenting opinion which raises significant concerns about the Court’s treatment of continuing and composite breaches.
Armenia’s Challenge to the ICJ’s Temporal Jurisdiction
Armenia raised a preliminary objection challenging the ICJ’s temporal jurisdiction over Azerbaijan’s claims concerning acts that occurred between July 1993 (when Armenia became party to CERD) and September 1996 (when Azerbaijan became party). Understanding the framework established by Articles 13-15 of the International Law Commission’s Articles on State Responsibility (“ARSIWA”) is key to addressing this issue. Together, they provide the secondary rules governing the temporal aspects of state responsibility, including the distinction between instantaneous acts with continuing effects, continuing breaches, and composite breaches. The way the ICJ characterizes the nature of the alleged acts has significant implications for the scope of the court’s temporal jurisdiction over Azerbaijan’s claims and the subsequent treatment of the merits.
Principles Governing Temporal Aspects of State Responsibility
Article 13 ARSIWA reflects the intertemporal principle: a State must be bound by an obligation at the time of the wrongful act for the act to be a breach. This basic rule operates alongside Article 14, which makes a crucial distinction between instantaneous acts with continuing effects and continuing breaches. The former occurs at a specific moment even if effects persist, while the latter extends over the entire period the act continues. Article 15 then addresses composite breaches, consisting of a series of actions or omissions defined in aggregate as wrongful.
The Rainbow Warrior case provided important clarification of these principles. In this case, the tribunal emphasized that ‘a breach ceases to have a continuing character as soon as the violated rule ceases to be in force‘ [para 114]. This highlights the difference between ongoing effects of completed acts versus truly continuing breaches – a distinction that investment tribunals have further developed in practice.
In Société Générale v Dominican Republic, the arbitral tribunal clarified that ‘if it is merely the continuing effects of a one-time individual act that as such has ceased to exist, then the non-retroactivity principle fully applies […] but when both the existence of the wrongful act and its effects continue both before and after the critical date, then the non-retroactivity principle will not exclude the application of the obligations of the treaty to the acts and omissions that occur after its effective date‘ (emphasis added).
The principle of non-retroactivity of treaties is codified in Article 28 of Vienna Convention on the Law of Treaties (“VCLT”) , which provides that unless a different intention is established, a treaty’s provisions ‘do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party’. However, as the tribunal in Société Générale explained, where a wrongful act continues after the treaty’s entry into force, non-retroactivity does not render the treaty inapplicable to the facts occurred before the critical date.
These temporal principles are well established in international case law. In Phosphates in Morocco, Italy challenged French authorities’ 1925 decision to exclude Italian nationals from the Moroccan phosphates industry, arguing that this decision, together with subsequent acts, constituted a continuing breach. The Permanent Court of International Justice (“PCIJ”), however, rejected this characterization. The PCIJ emphasised the need to identify the ‘definitive act which would, by itself, directly involve international responsibility’. The PCIJ found that the 1925 decision was an instantaneous act, and that subsequent acts were merely effects stemming from that earlier conduct, not part of a continuing wrongful act. The PICJ then rejected to exercise its jurisdiction, which was limited to disputes after 1931.
This classic authority highlights the distinction between a wrongful act and its effects. While these effects may manifest as later acts, they cannot be framed as independent breaches to evade temporal limitations unless they are distinct from the principal act. However, the fact that subsequent acts exist within this framework does not mean that the entire series of acts should be treated as a single ongoing breach, which would also serve to bypass temporal restrictions. The reasoning aligns with the approach taken by investment tribunals, which focus on identifying whether a breach has a continuing character or is merely a completed act with ongoing effects. The PCIJ’s analysis in Phosphates in Morocco thus reflects the same fundamental distinctions drawn in cases like Société Générale, where tribunals distinguish between continuing breaches and completed acts with ongoing consequences.
Applying the Principles to Azerbaijan v Armenia
With these principles in mind, the majority of the Court and Judge Tladi differed regarding the temporal characterisation of the facts of the case. In paragraph 62 of its judgment, the Court addressed how it would treat the alleged continuing or composite wrongful acts that began before Azerbaijan became party to CERD in September 1996. The Court stated that Armenia’s responsibility would be engaged for actions or omissions occurring after that date, while facts from before could be taken into consideration when examining subsequent conduct within its jurisdiction. The majority justified this approach by emphasizing that the relevant obligations under CERD only came into force between the parties on 15 September 1996. Consequently, the Court found that it lacked jurisdiction ratione temporis over alleged acts that occurred before this date [para 63]. However, the majority distinguished between jurisdiction over the prior acts themselves and the ability to consider those prior facts when assessing subsequent conduct.
The significance of this approach lies in how it relates to the fundamental structure of the law of State responsibility. As Judge Tladi explains in his dissenting opinion, a State is responsible not for individual ‘actions and omissions’ but for ‘breaches of international obligations’ – wrongful acts that may comprise multiple actions or omissions over time [para 31]. By suggesting that only post-critical date conduct falls within its jurisdiction while earlier conduct merely provides context, the Court appears to depart from the established framework. For composite breaches, the court’s or tribunal’s jurisdiction should extend to the aggregate of acts and omissions constituting the breach, regardless of whether some occurred before the critical date when the treaty conferring jurisdiction entered into force between the parties.
The Court’s formulation raises questions about what it means to take pre-critical date conduct into consideration. As Judge Tladi observes, the concept of ‘taking into consideration’ has an established meaning in treaty interpretation under Article 31(3) of the VCLT but requires further clarification in the context of State responsibility [para 29]. Treating continuing breaches similarly to completed acts where prior facts provide mere context appears to alter the distinction between continuing and completed breaches established in ARSIWA.
When examining patterns of conduct that develop over time, the distinction between continuing breaches and mere effects becomes particularly relevant. In Rainbow Warrior, the tribunal explained that while a continuing breach may cease if the conduct ends or no longer constitutes a breach this differs from artificially dividing an ongoing breach into temporal components [pp 264-266]. In the recent ICJ Judgment, this artificial division is one of the possible readings of paragraph 62, as explained by Judge Tladi [paras 32-33].
The judgment thus leaves open several questions about the application of Articles 14 and 15 ARSIWA to situations involving systematic or ongoing breaches. Judge Tladi’s effusiveness signals the potential complications of adopting an inadequate application of these principles: ‘The Court cannot, if it accepts that the individual actions and/or omissions constitute a continuing breach, decide to disaggregate the individual actions and/or omissions into those that occurred before the critical date and those that occurred after the critical date, holding that the latter fall within its jurisdiction and the former not. No! It has to treat the actions and/or omissions constituting the breach as a singular act’ (emphasis added).
This is especially true for claims involving grave breaches like genocide, where acts occurring after the critical date might not meet threshold for genocide if assessed separately from the broader pattern of conduct. As well, the gravity of the breach and its continuation over an extended period directly impact the determination of reparation, as is found in Rainbow Warrior. Future cases will need to clarify how to assess temporal jurisdiction over continuing and composite breaches while maintaining the fundamental principles of State responsibility established in Articles 14 and 15 of ARSIWA.
Cristian De Fazio LLB (UBA), LLM (LSE) is working in international arbitration at Arnold&Porter and previously worked for the National Directorate of International Affairs and Disputes of the Argentina’s Treasury Attorney’s Office.