- Arbitrability — Time limitations (and jurisdiction) — Arbitral agreements
1.01 The period of an international tribunal’s temporal jurisdiction (jurisdiction ratione temporis) is, generally, the span of time during which an act must have occurred before the tribunal may consider if the act breached an international obligation. Together with subject matter jurisdiction, personal jurisdiction, and territorial jurisdiction, the temporal jurisdiction of an international tribunal delineates its powers.
1.02 Decisions on a tribunal’s temporal ambit have decided the outcome of cases arising from some of the most notorious acts of the twentieth century. The European Court of Human Rights (ECtHR) has consistently decided that actions during the Second World War are outside the Court’s temporal limits. In Ernewein v Germany the Court ruled that the German Army’s forced conscription of French men during the Second World War could not breach the European Convention on Human Rights (ECHR) because the Convention did not enter into force for Germany until 3 September 1953.1 Similarly, the International Criminal Tribunal for Rwanda was unable to consider the allegations against some of those accused of inciting the 1994 genocide because the tribunal’s temporal jurisdiction was confined to the events of that year and many of the inflammatory speeches that led to the genocide were delivered earlier.2
1.03 In contrast, the ECtHR found that Turkey breached the ECHR by continuing to prevent Mrs Titina Loizidou from returning to her land in North Cyprus following Turkey’s 1974 invasion, even though Turkey did not accept the Court’s jurisdiction until 1990. Similarly, the Inter-American Court of Human Rights has accepted jurisdiction over applications concerning ‘forced disappearances’ even when these occurred before the American Convention on Human Rights entered into force. In Goiburú and Others v Paraguay the respondent did not even attempt to challenge the Court’s jurisdiction over (p. 2) actions related to the disappearance of political activist Dr Agustín Goiburú Giménez more than a decade before the Convention entered into force for Paraguay.3
1.04 Decisions such as Loizidou and Goiburú inspire claims that states have breached an international obligation through actions that started long before the state accepted that obligation or agreed to the jurisdiction of an international tribunal. Victims seize on the creation of new obligations and new tribunals as their opportunity to obtain justice for the death of a loved one or compensation for the loss of property.4
1.05 The issues are no less important for states who respond that these claims undermine their sovereign right to limit the temporal ambit of an international tribunal that they chose to create or undermine their ability to put the past behind them and concentrate on governing for the future.
1.06 Despite its importance, the temporal jurisdiction of international tribunals is not well understood. No work has comprehensively addressed the different limits on a tribunal’s temporal jurisdiction and how these limits interact.5 Perhaps as a result, tribunals have sometimes confused different aspects of their temporal jurisdiction and refused to hear cases that they should have heard or agreed to hear cases that they should not.
1.07 The first aim of this book is to reduce confusion by clarifying the different limits on the temporal jurisdiction of international tribunals6 and the important distinctions between those limits.
1.08 Its second aim is to determine the extent to which tribunals created under different treaties have exercised their discretion over temporal jurisdiction in common ways. Since many issues critical for a tribunal’s temporal jurisdiction (p. 3) are not addressed by the three sources of international law (treaty, customary international law, and general principles of domestic law) listed in Article 38(1) of the statute of the International Court of Justice, tribunals have large discretion. When exercising that discretion, tribunals have often sought to ensure consistency by referring to their own previous decisions, as well as to the decisions of other tribunals.7 This book will review these decisions8 in order to identify common principles that help define the temporal jurisdiction of tribunals to decide breaches of international law.
1.09 The book proceeds as follows. The next three chapters address the main limits on the temporal jurisdiction of international tribunals over acts9 before a particular time, specifically limits on acts before:
1.10 The effect of acts outside these limits is addressed in the three chapters that follow. Chapter 5 examines the effect of acts that began before the limits identified above but continued within. Chapters 6 and 7 examine the effect of acts before these limits on the tribunal’s temporal jurisdiction over a separate, (p. 4) later act and on the tribunal’s decision whether or not that latter act breached an obligation.
1.12 Chapter 9 presents conclusions.
4 Note the Dissenting Opinion of Judge Cançado Trindade when arguing in 2010 that the International Court of Justice (ICJ) had jurisdiction to consider German liability for the failure to compensate Italian victims of Nazi Germany during the Second World War, Jurisdictional Immunities of the State (Germany v Italy, Greece intervening) (Order of 6 July 2010, Dissenting Opinion of Judge Cançado Trindade)  ICJ Rep 2012  (Germany v Italy): ‘The weight of grave injustice does not dissipate nor lighten with the passing of time; instead, it becomes heavier and more unbearable. To live well within time, one has to reckon, and abide by, the imperatives of justice. Great injustices, atrocities, grave violations of human rights and international humanitarian law, do not fade away.’
5 But for an academic review in French of the temporal jurisdiction of international tribunals see Pierre-François Laval, ‘La Compétence Ratione Temporis des Jurisdictions Internationales’, Doctoral Thesis at Université Montesquieu, Bordeaux IV (28 September 2011).
6 For ease of reference, this book includes within the term ‘international tribunal’ the United Nations committees that apply international law to determine their temporal jurisdiction, in particular the Human Rights Committee, the Committee on the Rights of Persons with Disabilities, the Committee on the Elimination of Discrimination Against Women, and the Committee Against Torture, as well as the European Committee of Social Rights, even though these committees are not tribunals under some definitions of that term.
7 See eg Victor Pey Casado and the President Allende Foundation v Chile, ICSID Case No ARB/98/2, Award (8 May 2008) ; João Canuto De Oliveira v Brazil, Report, IACtHR No 24/98 (7 April 1998) ; Andres Aylwin Azocar and Others v Chile, Report, IACHR No 95/98 (9 December 1998) ; Šilih v Slovenia, App no 71463/01 (9 April 1997) –, ; Blečić v Croatia, App no 59532/00 (8 March 2006) –; Dissenting Opinion of Judge Cançado Trindade in Germany v Italy (n 4) –; The Prosecutor v Chea Nuon and Samphan Khieu (Trial Judgment) ECCC-2007-002/01 (7 August 2014); Zitha and Zitha v Mozambique, African Commission on Human and Peoples’ Rights, Comm No 361/08 (1 April 2011) –; Attorney General of the Republic of Kenya v Independent Medical Legal Unit (Appeal Judgment) East African Court of Justice, Appeal No 1/2011 (12 March 2012) 15.
8 The book reviews decisions of the Permanent Court of International Justice, the International Court of Justice, the International Criminal Court, the East African Court of Justice, the European Court of Human Rights, the European Commission of Human Rights, the Inter-American Court of Human Rights, the Inter-American Commission on Human Rights, the African Court on Human and Peoples’ Rights, the African Commission on Human and Peoples’ Rights, the Appellate Body of the World Trade Organization, and the panel decisions reviewed by the Appellate Body, the International Criminal Tribunal of Rwanda, the Extraordinary Chambers in the Courts of Cambodia, the Iran–US Claims Tribunal, the Mixed Claims Commissions, the European Court of Justice, and tribunals created under international investment treaties. The book also draws from decisions of the United Nations committees that apply international law to determine their temporal jurisdiction, in particular the Human Rights Committee, the Committee on the Rights of Persons with Disabilities, the Committee on the Elimination of Discrimination Against Women, and the Committee Against Torture, as well as the European Committee of Social Rights.