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The Temporal Jurisdiction of International Tribunals by Gallus, Nick (4th May 2017)

3 Temporal Jurisdiction over Acts before the Acceptance of a Tribunal’s Jurisdiction

From: The Temporal Jurisdiction of International Tribunals

Nick Gallus

Subject(s):
Arbitrability — Time limitations (and jurisdiction) — International courts and tribunals, powers — International courts and tribunals, procedure — Arbitral agreements

(p. 19) Temporal Jurisdiction over Acts before the Acceptance of a Tribunal’s Jurisdiction

A.  Introduction

3.01  The previous chapter explained how tribunals have generally concluded that a state cannot breach an obligation through an act before it entered into force, unless the obligation indicates otherwise. It does not follow that a tribunal can always adjudicate on an alleged breach when the act occurred after the entry into force of the obligation.

3.02  When states create an international tribunal, they usually delineate its powers. Thus, the Rome Statute, which created the International Criminal Court in 2002 as the first permanent court to decide international crimes, limited the jurisdiction of the Court to ‘[t]‌he crime of genocide’, ‘[c]rimes against humanity’, ‘[w]ar crimes’, and ‘[t]he crime of aggression’.1

3.03  Further limits are often imposed by the declarations of states when they accept the jurisdiction of an existing tribunal. For instance, Greece’s declaration of 10 January 1994, which accepted the jurisdiction of the International Court of Justice (ICJ), ‘excludes from the competence of the Court any dispute relating to defensive military action taken by the Hellenic Republic for reasons of national defence’.

(p. 20) 3.04  Among the powers often delineated in the instrument that creates the tribunal or in the declaration accepting its jurisdiction is the tribunal’s temporal power.

3.05  Treaties often limit the tribunal’s competence to past acts. The 1794 Jay Treaty between the United States of America and Britain gave jurisdiction to a panel of ‘Commissioners’ to resolve disputes outstanding from the recently concluded War of Independence,2 and the Special Claims Convention of 1923 created the Special Claims Committee to resolve claims of American citizens arising from the Mexican Revolution between 1910 and 1920.3 More recently, the Nuremberg International Military Tribunal was created after the Second World War to try individuals from the European Axis accused of war crimes.4 Today, a number of international tribunals have jurisdiction solely to examine past events, including the Iran–US Claims Tribunal, created by the Algiers Declaration of 19 January 1981, which continues to resolve disputes arising from the 1979 Iranian Islamic Revolution and the US response;5 the tribunal created by the 2003 agreement between the United Nations and Cambodia to examine crimes of the Khmer Rouge committed between 17 April 1975 and 6 January 1979;6 and the Extraordinary African Chambers created in 2013 to address violations of international law that were committed in Chad between 1982 and 1990.7

(p. 21) 3.06  While some tribunals were created to look backwards, others were created for the opposite purpose. Some governments do not want to accept responsibility for the actions of previous governments, do not want to redress past breaches of international obligations, or just want to put aside the past and concentrate on governing for the future.

3.07  In these circumstances, states have limited tribunals’ jurisdiction over past acts when accepting their jurisdiction, as explored in section B of this chapter.

3.08  However, when accepting a tribunal’s jurisdiction, states have often not addressed the tribunal’s power over past acts. Section C addresses tribunals’ temporal jurisdiction in these circumstances.

B.  Treaties and Declarations that Limit a Tribunal’s Power over Prior Acts

1.  Generally

3.09  When creating an international tribunal, states have sometimes limited its power over past acts. Article 11(1) of the Rome Statute limits the jurisdiction of the International Criminal Court to ‘crimes committed after the entry into force of this Statute’8 and the Statute of the International Criminal Tribunal for Rwanda limited the tribunal’s powers to ‘violations committed … between 1 January 1994 and 31 December 1994 …’.9 Investment treaty tribunals have found that the treaties prevented them taking temporal jurisdiction over acts before the date that the investor acquired the appropriate nationality or acquired the investment.10

(p. 22) 3.10  Other states have imposed similar limits when accepting the jurisdiction of an existing tribunal. For example, several states limited the competence of the United Nations Human Rights Committee11 and the Inter-American Court of Human Rights12 to acts after the date of their declarations accepting that competence.

3.11  Various formulas have been employed. Some declarations are brief, such as Kazakhstan’s acceptance of the ‘competence of the Human Rights Committee to receive communications … concerning actions and omissions … following the entry into force of this Optional Protocol …’.13 Others are more detailed. Guatemala accepted the Committee’s powers ‘relating to acts, omissions, situations or events occurring after’ the Protocol’s entry into force.14

3.12  These limits have been applied by tribunals to refuse to hear cases. The United Nations Committee on the Elimination of Discrimination against Women declined to hear a communication submitted by Cristina Muñoz-Vargas y Sainz de Vicuña challenging her younger brother’s succession to their father’s nobility15 because the Optional Protocol that created the Committee states that it ‘shall declare a communication inadmissible where: … [t]‌he facts that are the subject of the communication occurred prior to the entry into force of the present Protocol for the State Party concerned unless those facts continued after that date’.16 In Alfonso Martin del Campo-Dodd v United Mexican States the (p. 23) Inter-American Court of Human Rights concluded that it had no temporal jurisdiction over a claim that Mexican police illegally arrested and tortured the victim on 30 May 1992 because Mexico limited its powers to ‘events or legal actions having occurred after the date of deposit of this declaration [in 1998]’.17 In Asociación de Aviadores de la República, Jaime Mata et al v Spain, the European Commission of Human Rights refused jurisdiction over complaints concerning the punishment of soldiers who fought for the republicans in the Spanish Civil War18 because Spain had limited its jurisdiction to ‘any act or decision occurring or any facts or events arising subsequently to’ 1 July 1981.19 Similarly, Croatia confined the power of the United Nations Human Rights Committee to ‘acts, omissions or events occurring after the date on which the [Optional] Protocol entered into force for the Republic of Croatia [12 October 1995]’,20 which obliged the Committee to declare inadmissible a claim in Vojnovic v Croatia over court proceedings before this date.21

2.  The Belgian formula

3.13  One of the most popular means of limiting jurisdiction over acts before the state’s acceptance of that jurisdiction is the ‘Belgian formula’. Belgium’s Declaration of 25 September 1925 ‘recognize[d]‌ as compulsory … the jurisdiction of the [Permanent] Court [of International Justice] … in any disputes arising after the ratification of the present declaration with regard to situations or facts subsequent to this ratification …’.22 What has become (p. 24) known as the ‘Belgian formula’23 or a ‘double exclusion clause’24 was quickly adopted by other nations and by 1931 it was used in most of the declarations that accepted the compulsory jurisdiction of the Permanent Court of International Justice (PCIJ) but contained a temporal limit.25 It has since been used by states to limit the jurisdiction of the ICJ.26

3.14  Several other states have adopted part of the Belgian formulation and only accepted a tribunal’s jurisdiction over disputes ‘with regard to’ or ‘relating to’27 acts after a particular time (that is, the states did not also require that the dispute arose after that time).28

3.15  The PCIJ and ICJ have considered the application of the Belgian formula on several occasions, beginning with Phosphates in Morocco. In that case, Italy challenged the monopolization by France of phosphate deposits in Morocco, a French protectorate at the time, as well as the decision by France to reject the claims of an Italian national for rights in such deposits, and France’s alleged obstruction of attempts to challenge the decision.

3.16  France argued that there was no jurisdiction because its declaration had limited the Permanent Court’s authority to ‘any disputes which may arise (p. 25) after the ratification of the present declaration with regard to situations or facts subsequent to such ratification …’.29 France accepted that the dispute arose after ratification but argued the dispute was with regard to situations or facts that occurred before, namely the legislation creating the monopoly or the rejection of the claim for rights in the deposits.

3.17  A majority of the Permanent Court agreed, observing that: ‘the only situations or facts falling under the compulsory jurisdiction are those which are subsequent to the ratification and with regard to which the dispute arose, that is to say, those which must be considered as being the source of the dispute’.30 The PCIJ did not draw this conclusion from a close analysis of the text of the Belgian formula but simply noted that:

… it is necessary always to bear in mind the will of the State which only accepted the compulsory jurisdiction within specified limits, and consequently only intended to submit to that jurisdiction disputes having actually arisen from situations or facts subsequent to its acceptance. But it would be impossible to admit the existence of such a relationship between a dispute and subsequent factors which either presume the existence or are merely the confirmation or development of earlier situations or facts constituting the real causes of the dispute.31

3.18  Applying the ‘source’ test, the majority of the Court held that the monopolization ‘cannot be considered separately from the legislation of which it is the result’32 and that even though France’s alleged obstruction of attempts to challenge the decision denying the Italians’ rights had occurred after ratification it ‘cannot be separated’ from the earlier challenged government decision.33

3.19  This decision was controversial. Judge Cheng Tien-Hsi rejected the majority’s interpretation of the declaration, stating that:

[i]‌t must be remembered that the material words of the French declaration are ‘situations or facts subsequent to this ratification,’ which does not mean quite the same (p. 26) thing as ‘situations or facts created after the ratification.’ Consequently a situation or fact existing after the crucial date is no less a situation or fact subsequent, although it may have existed also before that date.34

3.20  This dissenting view was endorsed by Shabtai Rosenne35 and by Roberto Ago as Special Rapporteur to the International Law Commission project on State Responsibility:

[I]‌t is by no means certain that the terms of the French declaration justify the interpretation given by the majority of the Court. Those terms merely limited the acceptance of the jurisdiction to disputes concerning situations or facts subsequent to the date of that acceptance. In our view, the term ‘subsequent’ to a given date applies to any situation or fact which exists as a situation or fact after the date in question and not only a situation or fact which only began to exist subsequent to that date.36

3.21  Nevertheless, the interpretation of the Belgian formula in Phosphates in Morocco has since been used by the PCIJ in Electricity Company of Sofia and Bulgaria 37 and by the ICJ in Right of Passage (Portugal v India).38

3.22  It has not been used by every international tribunal when interpreting wording similar to the Belgian formula.

3.23  Turkish troops invaded Cyprus in 1974 and many Greek Cypriots either fled from the occupied part of the island or were forced to leave. Turkey prevented many of those Greek Cypriots, including Ms Titina Loizidou, from (p. 27) returning. In 1989, Ms Loizidou alleged before the European Commission of Human Rights that Turkey’s actions breached its obligation in Article 1 of the First Protocol to the European Convention on Human Rights (ECHR) to respect property rights. The Commission rejected the allegation39 but the case was referred to the European Court of Human Rights (ECtHR) by Cyprus. Turkey objected that the Court had no jurisdiction since it only accepted that jurisdiction on 22 January 1990 and then only over ‘matters raised in respect of facts, including judgments which are based on such facts which have occurred subsequent to the date of deposit of the present Declaration’.

3.24  The applicant acknowledged that Turkey’s annexation of Northern Cyprus had occurred before Turkey accepted the authority of the Court but claimed Turkey had breached the Convention since that date by continuing to prevent her from returning to her home. Turkey responded that Ms Loizidou’s property rights had been definitively and instantaneously expropriated well before 1990 and ‘the deprivation of property of which the applicant complains is the direct result of [this] instantaneous act …’.40

3.25  A minority of the Court agreed with Turkey on the grounds that the denial of access was merely the effect of the earlier closure of the border, which occurred before Turkey accepted the Court’s jurisdiction. Judge Bernhardt (with whom Judge Lopes Rocha agreed) held:

If a person is kept in prison before and after the critical date, if concrete property is illegally occupied before and after that date … there can be no doubt that it falls within the Court’s jurisdiction to examine facts and circumstances which have occurred after the date in question. The essential fact in such cases is the actual behaviour of State organs which is incompatible with the commitments under the European Convention on Human Rights. The factual and legal situation is in my view different when certain historical events have given rise to a situation such as the closing of a border with automatic consequences in a great number of cases. In the present case, the decisive events date back to the year 1974 … the closing of the borderline in 1974 is in my view the material fact …41

3.26  Thus, for the dissenting judges, the Court had no jurisdiction because the ‘essential’ or ‘material’ ‘fact’ and the ‘decisive events’ occurred before Turkey accepted the Court’s jurisdiction, and the subsequent acts were simply ‘automatic consequences’ of acts before. The dissenting judges did not use the (p. 28) exact test on which the PCIJ and ICJ had relied when applying the Belgian formula—they did not refer to the ‘source’ or ‘real cause’ of the dispute. Nonetheless, their search for the ‘essential’ or ‘material’ ‘fact’ and the ‘decisive events’ is similar to that conducted by the World Court.

3.27  However, a majority of the Court sided with Ms Loizidou.42 It concluded that the government installed by Turkey in Northern Cyprus had not been internationally recognized and therefore was not capable of extinguishing Ms Loizidou’s property rights. Accordingly, the applicant still had rights protected by the Convention in 1990 when Turkey accepted the Court’s jurisdiction and Turkey continued to interfere with those rights after that date by preventing her from returning to her property. The majority did not conclude that Turkey’s declaration required them to base their decision on the ‘source’ or ‘real cause’ of the dispute, or the ‘decisive events’.

3.28  The ECtHR also did not apply the ‘source’ or ‘real cause’ test when again confronted with wording similar to the Belgian formula a decade later.

3.29  In May 1993, Gregor Silih went to a hospital in Slovenia complaining of nausea and itching skin. He was examined and given two drugs. Probably because he was allergic to one or both of these drugs, his condition deteriorated, he fell into a coma, and he died several days later.

3.30  Gregor’s parents then unsuccessfully pursued criminal and civil proceedings against the doctor who was responsible for giving the drugs to their son and the hospital in which he was treated. They then turned to the ECtHR, alleging that Slovenia breached Article 2 of the ECHR (‘Everyone’s right to life shall be protected by law. No one shall be deprived of his life …’) because the criminal and civil proceedings they had instituted did not allow for the prompt and effective establishment of responsibility for their son’s death.

3.31  The ECtHR accepted that it had temporal jurisdiction, even though the applicants’ son died before the Convention had entered into force for Slovenia, and even though Slovenia’s declaration of June 1994 accepted the jurisdiction of the ECtHR only ‘in all matters … relating to facts occurring after the Convention and its Protocols have come into force in respect of the Republic of Slovenia’.

3.32  The Grand Chamber of the European Court noted that the ICJ ‘in cases raising an issue as to ratione temporis jurisdiction has focused on the source or real cause of the dispute’43 but then did not apply this test. Instead, it applied a test specific to Article 2 of the European Convention (discussed in Chapter 5 below).44 This led academic Eirik to state that: ‘there has been a serious (p. 29) disconnect between the test of the European Court and the test applied by the International Court’.45

3.  The reverse Belgian formula

3.33  Rather than conferring jurisdiction solely over disputes ‘with regard to’ or ‘relating to’ future acts, other treaty provisions exclude jurisdiction over disputes ‘with regard to’ or ‘relating to’ past acts. Some provisions do this by reversing the Belgian formulation and excluding both disputes that arose before a particular date and disputes that arose after if they are ‘with regard to’ or ‘relating to’ past acts. Some of the state declarations that currently accept the compulsory jurisdiction of the ICJ use such a formulation.46 Other provisions simply exclude disputes ‘with regard to’ or ‘relating to’ acts before a particular date. Article 27(a) of the European Convention for the Peaceful Settlement of Disputes is an example, stating that: ‘[t]‌he provisions of this Convention shall not apply to: (a) disputes relating to facts or situations prior to the entry into force of this Convention as between the parties to the dispute’.47

3.34  The reverse Belgian formula does not necessarily have the same effect as that of the Belgian. For example, if a dispute is ‘relating to’ both an act before and an act after a particular date (such as a dispute over a continuing act that straddles this date)48 a provision that conferred jurisdiction only over disputes ‘relating to’ acts after a particular date might confer authority but one that excluded jurisdiction over disputes ‘relating to’ prior acts might not.

3.35  Nevertheless, the ICJ has applied the same ‘source/real cause’ test, which it applied to the Belgian formula as described above, to reverse Belgian formulas, (p. 30) as illustrated by the dispute between Liechtenstein and Germany concerning confiscated property.

3.36  In June 1945 at the end of the Second World War, the Czechoslovak government of President Edvard Beneš passed Decree No 12 of the ‘Beneš decrees’ on the ‘confiscation and accelerated allocation of agricultural property of German and Hungarian persons and of those having committed treason and acted as enemies of the Czech and Slovak people’. Czechoslovakia applied the Decree not only to German and Hungarian nationals but also to those they regarded as of German or Hungarian origin or ethnicity, including nationals of Liechtenstein. Accordingly, in 1946 Czechoslovakia relied on Decree No 12 to confiscate property on its territory of Liechtenstein’s Prince Franz Joseph II, including the painting ‘A Roman Lime Quarry’ by the Dutch seventeenth century artist Pieter van Laer.

3.37  In 1991, when a Czech Republic museum lent the painting to a museum in Cologne, the son of Franz Joseph II, Prince Hans-Adam II, sued before German courts for its return. The German courts ruled that the claim was inadmissible under the 1955 Convention on the Settlement of Matters Arising out of the War and the Occupation, which stated that Germany ‘shall in the future raise no objections against the measures which have been, or will be, carried out with regard to German external assets or other property, seized for the purpose of reparation or restitution …’ and that ‘[n]‌o claim or action shall be admissible against persons who shall have acquired or transferred title to property on the basis of’ such measures.

3.38  Germany’s refusal to return the painting was challenged at the ICJ by Liechtenstein, which invoked the European Convention for the Peaceful Settlement of Disputes to establish the Court’s jurisdiction. Germany responded that the Court was prevented from taking jurisdiction by Article 27(a) of the Convention, quoted above, because the dispute was ‘relating to facts or situations prior to the entry into force of’ the Convention. Germany noted that the Convention entered into force between it and Liechtenstein on 18 February 1980 and argued that the source or real cause of the dispute was the 1945 Decree and the 1955 Settlement Convention.

3.39  A majority of the Court agreed. It stated that: ‘[t]‌he text of Article 27(a) of the European Convention for the Peaceful Settlement of Disputes … does not differ in substance from the temporal jurisdiction limitations dealt with in [Phosphates in Morocco, Electricity Company in Sofia and Bulgaria and Right of Passage]’.49 Accordingly, ‘in so far as [the Court] has to determine the facts (p. 31) or situations to which this dispute relates, the … test of finding the source or real cause of the dispute is equally applicable to this case’.50

3.40  The majority concluded that the Court had no temporal jurisdiction because the source or real cause of the dispute was the 1955 Settlement Convention, which was enacted well before 1980, the date from which Germany had accepted the Court’s jurisdiction.51 The majority noted that since the Convention and before 1980 German courts had consistently refused to hear claims for the return of property taken as reparation for the war.

3.41  Judges Kooijmans, Elaraby, Owada, and Berman dissented on the grounds that the source or real cause of the dispute was the German decision in 1995 to apply the Settlement Convention to neutral property, here that of Liechtenstein. Judge Kooijmans said that the majority’s conclusion that: ‘German courts have consistently held that the Settlement Convention deprived them of jurisdiction to address the legality of any confiscation of property treated as German property by the confiscating State … fails to appreciate properly the true subject-matter of the dispute: the Court’s observation does not constitute evidence of already existing case law with regard to seized or confiscated neutral property, nor of an unaltered position of Germany in this regard’.52 For Judge Kooijmans, ‘the pivotal issue is not that the German courts in the Pieter van Laer Painting case confirmed the previous case law, but that they applied it—for the first time—to neutral assets, and thus introduced a new element’.53

C.  Treaties and Declarations that Do Not Address a Tribunal’s Power over Prior Acts

3.42  The previous sections described the various formulas used by states to limit temporal jurisdiction over past acts, as well as the tests applied by tribunals (p. 32) when applying those formulas. But many states have not addressed the temporal powers of a tribunal they were creating or whose powers they were accepting. For example, Costa Rica simply accepted the competence of the ICJ over ‘all legal disputes …’54 and the Ecuador–US investment treaty contains the consent of the parties for tribunals to resolve ‘any investment dispute’.55

3.43  Often, states have not specified the jurisdiction of a tribunal over past acts because there was no need to do so. Parties to NAFTA did not have to clarify whether or not tribunals created under the investment chapter have jurisdiction to hear challenges to past acts because that chapter gives the tribunals jurisdiction only to hear claims that certain obligations of that agreement have been breached.56 Since the tribunals were not given power to consider breaches of obligations that existed before the agreement entered into force there was no reason to clarify whether or not the tribunal had temporal power over such claims.57

3.44  In contrast, other international tribunals have been given the power to hear a claim that a state has breached an existing obligation (but not expressly told if they have competence over prior acts alleged to breach that existing obligation). For example, certain international tribunals have been given jurisdiction over claims for breach of customary international law obligations and many states were bound by the obligations in the ECHR before they accepted the authority of the ECtHR. Under such circumstances, tribunals have considered their power over acts that occurred after the obligation entered into force but before (p. 33) the acceptance of their jurisdiction. Some tribunals have accepted jurisdiction whereas others have not.

3.45  In Mavrommatis Palestine Concessions, Greece claimed before the PCIJ that Great Britain breached its obligations under its mandate to govern Palestine by refusing to recognize concessions granted to Mr Mavrommatis. Great Britain failed to convince the Court that it had no jurisdiction because the obligation allegedly breached had not yet entered into force, as explained above in Chapter 2. Great Britain also argued that the Court had no competence because the 1922 mandate, on which Greece relied to establish that competence, had not yet entered into force at the time of the challenged act.

3.46  Article 26 of the mandate stated:

The Mandatory agrees that, if any dispute whatever should arise between the Mandatory and another Member of the League of Nations relating to the interpretation or the application of the provisions of the Mandate, such dispute … shall be submitted to the Permanent Court of International Justice …

3.47  In a frequently quoted passage, the Permanent Court held that this Article gave it jurisdiction over actions that occurred before the mandate entered into force:

The Court is of opinion that, in cases of doubt, jurisdiction based on an international agreement embraces all disputes referred to it after its establishment. In the present case, this interpretation appears to be indicated by the terms of Article 26 itself where it is laid down that ‘any dispute whatsoever … which may arise’ shall be submitted to the Court. The reservation made in many arbitration treaties regarding disputes arising out of events previous to the conclusion of the treaty seems to prove the necessity for an explicit limitation of jurisdiction and, consequently, the correctness of the rule of interpretation enunciated above. The fact of a dispute having arisen at a given moment between two States is a sufficient basis for determining whether, as regard tests of time, jurisdiction exists …58

3.48  Commentators have relied on this passage to conclude that an instrument that gives the ICJ jurisdiction over ‘disputes’ without qualification confers power over events occurring before the date of the instrument.59 Others have (p. 34) gone further and applied the same conclusion to all international tribunals. The International Law Commission referred to the decision in Mavrommatis before it stated:

The word ‘disputes’ according to its natural meaning is apt to cover any dispute which exists between the parties after the coming into force of the treaty. It matters not either that the dispute concerns events which took place prior to that date or that the dispute itself arose prior to it; for the parties have agreed to submit to arbitration or judicial settlement all of their existing disputes without qualification.60

3.49  The ICJ has never directly addressed the accuracy of this statement or the validity of the PCIJ’s decision in Mavrommatis. It may have indirectly addressed the issue in Ambatielos and in Application of the Convention on the Prevention and Punishment of the Crime of Genocide.

3.50  In Ambatielos, Greece alleged that the United Kingdom breached its international obligations by failing to supply ships ordered by Mr Ambatielos. To establish the Court’s jurisdiction, Greece invoked Article 29 of the 1926 Treaty of Commerce and Navigation between Greece and the United Kingdom, which conferred jurisdiction over ‘any dispute that may arise between them as to the proper interpretation or application of any of the provisions of the present Treaty …’.61

3.51  The United Kingdom objected that Greece was complaining about events that occurred in 1922–3, before the 1926 treaty came into force.62 The Court (p. 35) accepted the United Kingdom’s argument and declined jurisdiction, noting in particular that the dispute resolution provision in the treaty did not apply to acts that occurred before the treaty entered into force.63

3.52  The investment treaty tribunal in Paushok v Mongolia relied on Ambatielos when deciding that it had no jurisdiction over an act that occurred before the treaty entered into force.64

3.53  The ICJ may have again addressed the issue, albeit with a different result, in the dispute between Bosnia-Herzegovina and Yugoslavia over the application of the Convention on the Prevention and Punishment of the Crime of Genocide,65 discussed above in Chapter 2. Yugoslavia challenged the Court’s ability to consider actions before the Convention entered into force between the countries, even though Article IX of the Convention, through which Yugoslavia accepted the Court’s jurisdiction, did not contain an express temporal limitation.66 The Court held that the Article gave it temporal power over the claim, stating ‘the Court will confine itself to the observation that the Genocide Convention—and in particular Article IX—does not contain any clause the object or effect of which is to limit in such manner the scope of its jurisdiction ratione temporis …’.67

3.54  Unlike the ICJ, the European Commission and Court of Human Rights have directly considered if they have jurisdiction over past acts where the declaration accepting their authority was silent on the issue. They consistently accepted that they have. In X v France the Commission stated that:

[u]‌nlike States which have availed themselves of this possibility, the French declaration contains no definition of the scope of the right of individual petition as regards the past. In the absence of an express limitation in the French declaration, the Commission considers consequently that it is competent ratione temporis to deal (p. 36) with the complaints drawn up by the applicant, as the events in question occurred after the date on which France ratified the Convention [on Human Rights] …68

3.55  Similarly, in Bezzina Wettinger and Others v Malta the ECtHR stated that: ‘in the absence of an express limitation, a declaration accepting the jurisdiction of the [Court] is retrospective and, accordingly, the Court is competent to examine facts dating back to the time that the [European] Convention [on Human Rights] entered into force for the country’.69

3.56  Decisions of the African Court on Human and Peoples’ Rights are consistent with the European jurisprudence. In Urban Mkandawire v Malawi the applicant argued that Malawi breached the African Charter on Human and Peoples’ Rights through the termination of his employment as a French lecturer at the University of Malawi in 1999. Malawi objected that the Court had no temporal jurisdiction because it only accepted the authority of the Court in 2008.70

3.57  A majority of the Court did not address the temporal effect of the 2008 declaration directly but rejected Malawi’s objection, holding that: ‘… the Charter came into operation on 21 October 1986 and the Respondent ratified the Charter in 1989. It is the view of the Court, therefore, that at the time of the alleged violation of the Applicant’s rights in 1999, the Charter was already binding on the Respondent; the latter was under the duty to protect the Applicant’s rights alleged to have been violated’.71

(p. 37) 3.58  These decisions of the European Commission and Court of Human Rights and the African Court on Human and Peoples’ Rights differ from those of the United Nations Human Rights Committee, the Inter-American Commission of Human Rights, and the Inter-American Court, which have consistently refused jurisdiction over events prior to the state’s declaration accepting that jurisdiction even when it contained no express temporal limitation.72

3.59  The decision in MIT v Spain is an example of the United Nations Human Rights Committee’s approach to this issue. The applicant, a political activist, alleged he was tortured by Spanish police after his arrest on 19 March 1984 and that the torture breached Spain’s obligations under the International Covenant on Civil and Political Rights. Although the Covenant entered into force for Spain on 27 April 1977,73 Spain did not accept the Optional Protocol to the Covenant, and hence the jurisdiction of the Human Rights Committee, until 25 April 1985. Neither the wording in the Optional Protocol74 nor that in Spain’s declaration75 limits the temporal powers of the Committee. Nevertheless, the Committee held that it could not hear the claim, stating that: ‘the Optional Protocol cannot be applied retroactively and … the Committee is precluded ratione temporis from examining acts said to have occurred in March 1984 …’.76

3.60  Several countries supported this view when signing up to the Optional Protocol. Slovenia stated that it ‘interprets … the Protocol as giving the Committee the competence to receive and consider communications from individuals … who claim to be victims of a violation by the Republic of any of the rights set forth in the Covenant which results either from acts (p. 38) or omissions, developments or events occurring after the date on which the Protocol entered into force for the Republic of Slovenia …’.77

3.61  Paraguay expressed a similar view when accepting the competence of the Inter-American Court of Human Rights78 and the Court has agreed, as illustrated by the decision in Yean and Bosico Children v Dominican Republic. In that case the applicants complained that the Dominican Republic refused to issue them birth certificates because their fathers were illegal Haitian migrants. Even though the Dominican Republic’s declaration that accepted the jurisdiction of the Court does not contain express temporal limits,79 it argued that the Court had no competence because the request for birth certificates was denied on 5 March 1997, two years before the country accepted the jurisdiction of the Court on 25 March 1999. The Court accepted this argument and stated that the ‘principle of nonretroactivity … establishes that the Court cannot exercise its contentious jurisdiction to apply the Convention and declare that its norms have been violated when the alleged facts or conduct of the defendant State that could involve international responsibility preceded acceptance of the Court’s jurisdiction’.80

3.62  Jurisprudence under investment treaties has been mixed. In Paushok, the tribunal was faced with a broad dispute resolution provision in the Mongolia–Russia bilateral investment treaty (BIT), which gave the tribunal jurisdiction over ‘[d]‌isputes between one of the Contracting Parties and an investor of the other Contracting Party, arising in connection with the realization of investments’. The decision is not clear but the tribunal seemed to accept that this provision gave it power over certain disputes concerning a breach of (p. 39) customary international law.81 However, the tribunal did not accept that the provision gave it jurisdiction over claims for breach of customary international law through an act which occurred before the treaty entered into force:

Such an interpretation appears to the Tribunal to be far beyond what could have been the intention of the Contracting States when they entered into the Treaty. Article 28 of the Vienna Convention … referring to the intention of the contracting parties makes no distinction between the provisions of a treaty dealing with substantive rights and those dealing with procedural rights.82

3.63  This interpretation was implicitly rejected by the Nordzucker v Poland tribunal. The tribunal accepted a provision in a 2005 treaty gave it power over acts occurring before that date83 because: ‘[t]‌he immediate application of a jurisdictional Treaty clause, also to pre-existing breaches, does not constitute a retro-active application of that clause, but is a correct application of article 28 of the Vienna Convention, it being understood that the fact to which the jurisdictional provision relates and which must occur after the Treaty or its jurisdictional clause becomes effective, is the filing of the claim’.84

D.  Summary

3.64  When delineating the powers of a tribunal that they have created or whose jurisdiction they have accepted, states have frequently limited the temporal power of that tribunal, most often to subsequent acts. These limits have been applied by tribunals to refuse jurisdiction. For example, the PCIJ and the ICJ have consistently applied the ‘Belgian formula’ to refuse to hear (p. 40) disputes whose ‘source’ or ‘real cause’ was an act before the formula was adopted.

3.65  Many states have not expressly addressed the temporal jurisdiction of tribunals they have created or whose jurisdiction they have accepted and have left it to the tribunals to resolve the ambiguity. The resulting jurisprudence has not been uniform.

3.66  Decisions of different kinds of tribunal have been inconsistent but so too have decisions of similar tribunals. The ECtHR has accepted jurisdiction in these circumstances but the Inter-American Court of Human Rights has not. Investment treaty jurisprudence is split.

3.67  According to some, even the jurisprudence of the PCIJ is irreconcilable. The Paushok investment treaty tribunal interpreted the Permanent Court in Ambatielos as refusing jurisdiction because the challenged act occurred before the acceptance of that jurisdiction, even though in Mavrommatis the Court famously accepted jurisdiction in such circumstances.

Footnotes:

1  Rome Statute of the International Criminal Court (opened for signature 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3 (Rome Statute of the ICC) art 5(1).

2  Treaty of Amity, Commerce, and Navigation, between His Britannic Majesty and the United States of America, by Their President, with the advice and consent of Their Senate (signed 19 November 1794, entered into force 29 February 1796) (Jay Treaty) art VIII. See also Treaty between Her Majesty and the United States of America, for the Amicable Settlement of all Causes of Difference between the two Countries (Treaty of Washington) (United Kingdom–United States of America) (signed 8 May 1871, entered into force 17 June 1871), which created a tribunal to hear the ‘Alabama claims’ concerning British support for the confederate army during the recently concluded US civil war.

3  Special Claims Convention for the Settlement of Claims of American Citizens Arising from Revolutionary Acts in Mexico from 20 November 1910 to 31 May 1920 (adopted 10 September 1923, entered into force 19 February 1924) art I.

4  Agreement by the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional Government of the French Republic, and the Government of the Union of Soviet Socialist Republics for the prosecution and punishment of the major war criminals of the European Axis (adopted 8 August 1945, entered into force 8 August 1945) 82 UNTS 279 (Nuremburg Charter) art 6.

5  Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran (adopted 19 January 1981) art II(1).

6  Agreement between the United Nations and the Royal Government of Cambodia concerning the Prosecution under Cambodian law of Crimes Committed during the Period of Democratic Kampuchea (adopted 6 June 2003, entered into force 29 April 2005) 2329 UNTS 117 arts 1, 5(3), 6(3).

7  Accord entre le Gouvernement de la République du Senegal et L’Union Africaine sur la Création de Chambres Africaines Extraordinaires au sein des Juridictions Sénégalaises (adopted 12 August 2012) art 3.

8  Rome Statute of the ICC (n 1) art 11(1). Article 11(2) adds: ‘[i]‌f a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3’. See also Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (adopted 6 October 1999, entered into force 22 December 2000) 2131 UNTS 83 arts 1, 4(2)(e).

9  UNSC Res 955 (8 November 1994) Statute of the International Criminal Tribunal for Rwanda UN Doc S/RES/955 art 1.

10  Pac Rim Cayman LLC v Republic of El Salvador, ICSID Case No ARB/09/12, Decision on the Respondent’s Jurisdictional Objections (1 June 2012) [3.34]; Vito G Gallo v Canada, UNCITRAL, PCA Case No 55798 (15 September 2011) [325]; Société Générale v Dominican Republic, LCIA Case No UN 7927, Award on Preliminary Objections to Jurisdiction (19 September 2008) [107]; Phoenix Action Ltd v Czech Republic, ICSID Case No ARB/06/5, Award (15 April 2009) [67]; Limited Liability Company AMTO v Ukraine, SCC Arbitration No 080/2005 (26 March 2008) [26], [48]; GEA Group Aktiengesellschaft v Ukraine, ICSID Case No ARB/08/16, Award (31 March 2011) [170]; ST-AD GmbH v Republic of Bulgaria, Award on Jurisdiction (18 July 2013) [300]; Cervin Investissements SA and Rhone Investissements AS v Costa Rica, ICSID Case No ARB/13/2, Decision on Jurisdiction (15 December 2014) [276]; Renée Rose Levy and Gremcitel SA v Peru, ICSID Case No ARB/11/17, Award (9 January 2015) [146]; Mesa Power Group LLC v Government of Canada, PCA Case No 2012-17, Award (24 March 2016) [327].

11  The following states have made declarations accepting the competence of the United Nations Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights while limiting the committee’s temporal jurisdiction to acts after the date listed in their declaration: Chile (27 May 1992) 1675 UNTS 559; Croatia (12 October 1995) 1890 UNTS 516; El Salvador (6 June 1995) 1870 UNTS 454; France (17 February 1984) 1349 UNTS 358; Guatemala (28 November 2000) 2127 UNTS 51; Kazakhstan (30 June 2009) 2600 UNTS 119; Malta (13 September 1990) 1578 UNTS 521; Union of Soviet Socialist Republics (1 October 1991) 1651 UNTS 563; Slovenia (16 July 1993, entered into force 16 October 1993) 1727 UNTS 288; Sri Lanka (3 October 1997 3 January 1998); and Turkey (24 November 2006 24 February 2007) 2398 UNTS 359.

12  The following states have made declarations accepting the competence of the Inter-American Court of Human Rights under the American Convention on Human Rights while limiting the court’s temporal jurisdiction to acts after the date listed in their declaration: Chile (24 August 1989) 1761 UNTS 310; Mexico (24 March 1981) 1257 UNTS 490; Nicaragua (12 February 1991) 1761 UNTS 314; and Paraguay (24 August 1989) 1761 UNTS 310.

13  Emphasis added.

14  Emphasis added.

15  Cristina Muñoz-Vargas y Sainz de Vicuña v Spain, CEDAW, Comm No 7/2005 (9 August 2007).

16  Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (adopted 6 October 1999, entered into force 22 December 2000) 2132 UNTS 83 art 4(2)(e).

17  Alfonso Martin del Campo-Dodd v United Mexican States (Preliminary Objections) IACtHR (Series C) No 113 (3 September 2004) [78]. Note also that the Inter-American Court of Human Rights has accepted that states can waive the temporal limitation included in their Declaration accepting the Court’s jurisdiction: Case of the Massacres of El Mozote and Nearby Places v El Salvador (Judgment) IACtHR (Series C) No 252 (25 October 2012) [30].

18  Asociación de Aviadores de la República, Jaime Mata et al v Spain, App no 10733/84 (11 March 1985) [2]‌.

19  Declaration from the Minister for Foreign Affairs of Spain (11 June 1981).

20  Declaration by Croatia accepting the competence of the United Nations Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights (12 October 1995) 1890 UNTS 516.

21  Dusan Vojnovic, Dragica Vojnovic and Milan Vojnovic v Croatia, CCPR, Comm No 1510/2006 (30 March 2009) [7.6].

22  Belgium created this formula to prevent the PCIJ from taking jurisdiction over its dispute with the Netherlands concerning the Wielingen channel. Minister of Foreign Affairs Vandervelde explained that: ‘[t]‌his reservation was dictated by the anxiety to avoid disputes belonging to times long past from being revived under the new jurisdiction and to avoid the accepted obligation from causing unforeseen applications which probably would have no practical consequences but which would be harmful to the good relations between Belgium and the other nations’. Frans De Pauw, ‘The So-called “Belgian” Reservation to Acceptances of Compulsory Jurisdiction of the World Court’ in Neri Sybesma-Knol (ed), The Compulsory Jurisdiction of the International Court of Justice: A Turning Point? (Vrije Universiteit 1991) 51 at 56.

23  See eg Herbert W Briggs, ‘Reservations to the Acceptance of Compulsory Jurisdiction of the International Court of Justice’ in Collected Courses of the Hague Academy of International (Volume 93, Brill 1958) 281.

24  See eg Empresas Lucchetti SA and Lucchetti Peru SA v Republic of Peru, ICSID Case No ARB/03/4, Decision on Annulment (5 September 2007) [95].

25  Permanent Court of International Justice, Collection of Texts Governing the Jurisdiction of the Court (4th edn, 31 January 1932). See eg the declaration of Australia (8 August 1930): ‘[a]‌ll disputes arising after the ratification of the present declaration with regard to situations or facts subsequent to the said ratification …’.

26  See Japan’s declaration of 9 July 2007; Kenya’s declaration of 19 April 1965; the declaration of the Marshall Islands of 24 April 2013; Mexico’s declaration of 28 October 1947; Slovakia’s declaration of 28 May 2004; and Sudan’s declaration of 2 January 1958.

27  Note the statement of the ICJ in Case Concerning Certain Property (Liechtenstein v Germany) (Decision on Preliminary Objections) [2005] ICJ Rep 6 [43] (Liechtenstein v Germany): ‘No consequence can be drawn from the use of the expressions “with regard to” or “relating to” which have been employed indifferently in the various texts in question’.

28  For instance, Romania’s declaration of 8 October 1930 accepting the compulsory jurisdiction of the PCIJ: ‘[p]‌our les différends juridiques dérivant de situations ou faits postérieurs à la ratification …’; Bulgaria’s declaration of 24 June 1992: ‘[a]ll legal disputes arising out of facts and situations subsequent to or continuing to exist after the entry into force of the present Declaration …’; Finland’s declaration of 25 June 1958 accepting the compulsory jurisdiction of the ICJ: ‘[d]isputes arising in regard to situations or facts subsequent to 25 June 1958’; and Croatia’s declaration of 5 November 1997 which, ‘recognise[d] as compulsory ipso facto and without special agreement the jurisdiction of the European Court of Human Rights in all matters arising from or based on facts occurring after the present declaration comes into force, and which concern the application and interpretation of the said Convention’.

29  Emphasis added.

30  Phosphates in Morocco (Italy v France) (Preliminary Objections) PCIJ Rep Series A/B No 74, 23 (Phosphates in Morocco), emphasis added.

31  Ibid 24.

32  Ibid 25–6. The Permanent Court went on to say: ‘In those dahirs [decrees] are to be sought the essential facts constituting the alleged monopolization and, consequently, the facts which really gave rise to the dispute regarding this monopolization. But these dahirs are “facts” which, by reason of their date, fall outside the Court’s jurisdiction’.

33  Ibid 27–9: ‘[t]‌he complaint of a denial of justice cannot be separated from the criticism which the Italian Government directs against the decision of the Department of Mines of January 8th, 1925, for the Court could not regard the denial of justice as established unless it had first satisfied itself as to the existence of the rights of the private citizens alleged to have been refused judicial protection. But the Court could not reach such a conclusion without calling in question the decision of Department of Mines of 1925. It follows that an examination of the justice of this complaint could not be undertaken without extending the Court’s jurisdiction to a fact which, by reason of its date, is not subject thereto’.

34  Phosphates in Morocco (n 30) 38. See also the dissenting opinion of Judge van Eysinga, Phosphates in Morocco (Italy v France) (Dissenting Opinion by Jonkheer van Eysinga) PCIJ Rep Series A/B No 74, 35: ‘[a]‌ dispute “which arises with regard to situations subsequent to a given date” is something different from a dispute the causal facts of which are subsequent to that date, or from a dispute which arises from a situation subsequent to that date’.

35  Shabtai Rosenne, The Time Factor in the Jurisdiction of the International Court of Justice (A W Sijthoff 1960) 4: ‘It may be thought that, taken in the abstract (which should not be done), this dictum is too wide, especially in the refusal of the Court to regard a continuing situation as bringing the dispute within the jurisdiction’.

36  ILC, ‘Seventh Report on State Responsibility, by Mr. Roberto Ago, Special Rapporteur—the internationally wrongful act of the State, source of international responsibility’ (1978) UN Doc A/CN.4/307 [31].

37  Electricity Company of Sofia and Bulgaria (Belgium v Bulgaria) (Preliminary Objections) PCIJ Rep Series A/B No 77: ‘[t]‌he only situations or facts which must be taken into account from the standpoint of the compulsory jurisdiction accepted in the terms of the Belgian declaration are those which must be considered as being the source of the dispute’.

38  Case Concerning Right of Passage over Indian Territory (Portugal v India) (Merits) [1960] ICJ Rep 35: ‘The dispute relates both to the existence of a right of passage to go into the enclaved territories and to India’s failure to comply with obligations which, according to Portugal, were binding upon it in this connection. It was from all this that the dispute referred to the Court arose; it is with regard to all of this that the dispute exists. This whole, whatever may have been the earlier origin of one of its parts, came into existence only after 5 February 1930. The time-condition to which acceptance of the jurisdiction of the Court was made subject by the Declaration of India is therefore complied with’.

39  Loizidou v Turkey, Commission Report, App no 15318/89 (8 July 1993) [101].

40  Loizidou v Turkey, Preliminary Objections, App no 15318/89 (23 March 1995) [99]; Loizidou v Turkey, Merits, App no 15318/89 (18 December 1996) [35].

41  Loizidou v Turkey, Dissenting Opinion of Judges Bernhardt and Lopes Rocha, App no 15318/89 (18 December 1996).

42  Loizidou v Turkey, Merits, App no 15318/89 (18 December 1996) [63].

43  Silih v Slovenia, App no 71463/01 (9 April 2009) [109].

44  Ibid [159].

45  Eirik Bjorge, ‘Right for the Wrong Reasons: Silih v Slovenia and Jurisdiction Ratione Temporis in the European Court of Human Rights’ (2013) 83(1) British Yearbook of International Law 134.

46  Declaration of Spain (29 October 1990) 1581 UNTS 167: ‘Spain accepts as compulsory … the jurisdiction of the [ICJ] … in legal disputes not included among the following situations and exceptions: … (d) Disputes arising prior to the date on which this Declaration was deposited with the Secretary-General of the United Nations or relating to events or situations which occurred prior to that date, even if such events or situations may continue to occur or to have effects thereafter’. Declaration of Poland (25 March 1996) 1918 UNTS 41: ‘[i]‌n all legal disputes other than: (a) disputes prior to 25 September 1990 or disputes arisen out of facts or situations prior to the same date’. Declaration of Portugal (25 February 2005): ‘[i]n all legal disputes other than: … (iii) any dispute, unless it refers to territorial titles or rights or to sovereign rights or jurisdiction, arising before 26 April 1974 or concerning situations or facts prior to that date’.

47  See also Convenio entre el Gobierno de la Republica del Peru y el Gobierno de la Republica del Ecuador sobre la Promocion y Protección Recíproca de Inversiones (signed 7 April 1999, entered into force 9 December 1999) Agreement between the Government of the Republic of Peru and the Government of the Republic of Ecuador on the Promotion and Reciprocal Protection of Investments art 11(2): ‘[t]‌his agreement shall not apply to disputes relating to facts and acts that took place prior to its entry into force …’.

48  See Chapter 5 for a discussion of continuing acts.

49  Liechtenstein v Germany (n 27) [43]. Note that neither Liechtenstein nor Germany argued that the test was substantially different: Case Concerning Certain Property (Liechtenstein v Germany), Preliminary Objections of the Federal Republic of Germany (27 June 2002); Case Concerning Certain Property (Liechtenstein v Germany), Observations of the Principality of Liechtenstein (15 November 2002).

50  Ibid [46].

51  Ibid [49]–[52].

52  Case Concerning Certain Property (Liechtenstein v Germany) (Dissenting Opinion of Judge Kooijmans) [2005] ICJ Rep 6 [11].

53  Ibid [13]. There was less dissent when the ICJ again considered art 27(a) of the European Convention for the Peaceful Settlement of Disputes in addressing Italy’s counterclaim, Jurisdictional Immunities of the State (Germany v Italy, Greece intervening) (Judgment) [2012] ICJ Rep 2012. Italy argued that Germany had breached its obligations by failing properly to compensate certain Italian victims of Nazi actions during the Second World War. Italy attempted to ground the Court’s jurisdiction to hear the counterclaim on the European Convention for the Peaceful Settlement of Disputes but Germany responded that Article 27(a) of the Convention prevented the Court from taking temporal jurisdiction. A strong majority agreed with Germany and held at paragraphs 26–9 that the real cause of the dispute was a 1947 treaty under which Italy was compensated and agreed to waive further claims against Germany arising from its conduct during the Second World War.

54  Declaration of Minister of Foreign Affairs of Costa Rica (5 February 1973).

55  Treaty between the United States of America and the Republic of Ecuador concerning the Encouragement and Reciprocal Protection of Investment (signed 27 August 1993, entered into force 11 May 1997) art VI(4).

56  North American Free Trade Agreement (Canada–Mexico–United States) (adopted 17 December 1992, entered into force 1 January 1994) art 1116(1).

57  See further, Marvin Roy Feldman Karpa v Mexico, ICSID Case No ARB(AF)/99/1, Interim Decision on Preliminary Jurisdictional Issues (6 December 2000) [61]–[62]; Railroad Development Corporation v Republic of Guatemala, ICSID Case No ARB/07/23, Second Decision on Objections to Jurisdiction (18 May 2010) [116]; ILC, ‘Third Report on the law of treaties, by Sir Humphrey Waldock, Special Rapporteur’ (Vol II, 1964) UN Doc A/CN.4/167, 11 (Waldock, ‘Third Report 1964 Vol II’): ‘[w]‌hen a jurisdictional clause is found not in a treaty of arbitration or judicial settlement but attached to the substantive clauses of a treaty as a means of securing their due application, the non-retroactivity principle does operate indirectly to limit ratione temporis the application of the jurisdictional clause. The reason is that the “disputes” with which the clause is concerned are ex hypothesi limited to “disputes” regarding the interpretation and application of the substantive provisions of the treaty which, as has been seen, do not normally extend to matters occurring before the treaty came into force. In short, the disputes clause will only cover pre-treaty occurrences in exceptional cases … where the parties have expressly or by clear implication indicated their intention that the substantive provisions of the treaty are to have retroactive effects’.

58  The Mavrommatis Palestine Concession (United Kingdom v Greece) (Judgment, Objection to the Jurisdiction of the Court) PCIJ Rep Series A No 2, 35.

59  Adrian Chua and Rohan Hardcastle, ‘Retroactive Application of Treaties Revisited: Bosnia-Herzegovina v Yugoslavia’ (1997) 44 Netherlands International Law Journal 414, 419; Hersch Lauterpacht, ‘The British Reservation to the Optional Clause’ (1930) 10 Economica 137, 243–44; Shabtai Rosenne, The Time Factor in the Jurisdiction of the International Court of Justice (n 35) 55; Stanimir Alexandrov, Reservations in Unilateral Declarations Accepting the Compulsory Jurisdiction of the International Court of Justice (Martinus Nijhoff Publishers 1995) 40; see Bjorge, ‘Right for the Wrong Reasons’ (n 45); Chittharanjan Amerasinghe, Jurisdiction of Specific International Tribunals (Martinus Nijhoff Publishers 2009) 76; Rosalyn Higgins, ‘Time and the Law: International Perspectives on an Old Problem’ (1997) 46 International and Comparative Law Quarterly 501, 502 (Higgins, ‘Time and the Law’).

60  ILC, ‘Reports of the International Law Commission on the second part of its seventeenth session and on its eighteenth session’ (3 January–28 January 1966) UN Doc A/6309/Rev.1, 212. See also Waldock, ‘Third Report 1964 Vol II’ (n 57) 11; Joost Pauwelyn, ‘The Concept of a “Continuing Violation” of an International Obligation: Selected Problems’ (1995) 66 British Yearbook of International Law 415, 436; Denise Bindschedler-Robert, ‘De la Rétroactivité en Droit International Public’ in Recueil D’Études de Droit International en Hommage à Paul Guggenheim (Imprimerie de la Tribune de Genève 1968) 192; Sébastien Manciaux, ‘Jurisdiction Ratione Temporis and Existence of a Dispute: Some Remarks about ICSID Recent Case Law’ (2006) International Business Law Journal 789 [13]; Michael Waibel, ‘Investment Arbitration: Jurisdiction and Admissibility’ University of Cambridge Legal Studies Research Paper Series Paper No 9/2014 (2014) 49; Stanimir Alexandrov, ‘The “Baby Boom” of Treaty-based Arbitrations and the Jurisdiction of ICSID Tribunals: Shareholders as “Investors” and Jurisdiction Ratione Temporis’ (2005) 4 The Law and Practice of International Courts and Tribunals 19, 50; Sadie Blanchard, ‘State Consent, Temporal Jurisdiction, and the Importation of Continuing Circumstances Analysis into International Investment Arbitration’ (2011) 10(3) Washington University Global Studies Law Review 419, 429; Pierre-François Laval, ‘La Compétence Ratione Temporis des Jurisdictions Internationales’, Doctoral Thesis at Université Montesquieu Bordeaux IV (28 September 2011) [267].

61  Treaty of Commerce and Navigation between Greece and the United Kingdom (signed 16 July 1926, entered into force 10 December 1926) art 29.

62  Ambatielos Case (Greece v United Kingdom) (Preliminary Objections) (1 July 1952) [1952] ICJ Rep 28 40.

63  Ibid 40, 46.

64  Sergei Paushok, CJSC Golden East Company and CJSC Vostokneftegaz Company v Mongolia, UNCITRAL, Award on Jurisdiction and Liability (28 April 2011) [465]. Note that the dispute resolution provision in the 1926 Treaty of Commerce and Navigation considered by the Court only gave the ICJ jurisdiction over: ‘any dispute … as to the proper interpretation or application of any of the provisions of the present Treaty …’. Therefore, the treaty did not give the Court jurisdiction over international obligations in force before 1926. As a result, the decision may simply rest on the principle that a tribunal has no jurisdiction over a claim for a breach of an obligation through an act that occurred before the obligation entered into force. On this point see Bindschedler-Robert, ‘De la Rétroactivité en Droit International Public’ (n 60) 193.

65  Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v Yugoslavia) [1996] ICJ 595 (Bosnia-Herzegovina v Yugoslavia).

66  Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277 art IX.

67  Bosnia-Herzegovina v Yugoslavia (n 65) [34]. For discussion of this aspect of the Court’s decision see Chua and Hardcastle, ‘Retroactive Application of Treaties Revisited’ (n 59) 414. See also Higgins, ‘Time and the Law’ (n 59) 506, stating that, in the decision, the Court ‘applied the principle of jurisdictional retroactivity’.

68  X v France, App no 9587/81 (13 December 1982) [7]‌–[8]. On this point see Clare Ovey and Robin White, The European Convention on Human Rights (4th edn, Oxford University Press 2006) 22.

69  Bezzina Wettinger and Others v Malta, App no 15091/06 (8 April 2008) [54].

70  Malawi’s Declaration stated that it: ‘[a]‌ccepts the competence of the Court to receive cases under Article 5(3) of the Protocol’. Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (adopted 9 June 1998) art 5(3): ‘The Court may entitle relevant Non Governmental Organizations (NGOs) with observer status before the Commission, and individuals to institute cases directly before it, in accordance with article 34(6) of this Protocol’. African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 217 art 3(1): ‘[t]he jurisdiction of the Court shall extend to all cases and disputes submitted to it concerning the interpretation and application of the Charter, this Protocol and any other relevant Human Rights instrument ratified by the States concerned’.

71  Urban Mkandawire v Republic of Malawi, African Court on Human and Peoples’ Rights, App no 003/2011 (21 June 2013) [32]. See also Tanganyika Law Society and The Legal and Human Rights Centre v United Republic of Tanzania, African Court on Human and Peoples’ Rights, App no 009/2011 (14 June 2013); and Reverend Christopher Mtikila v United Republic of Tanzania, African Court on Human and Peoples’ Rights, App no 011/2011 (14 June 2013) [84]. But note the dissenting opinion of Judges Gerard Niyungeko and El Hadji Guisse in Urban Mkandawire v Republic of Malawi at paragraph 7 and the separate opinion of Judge Gerard Niyungeko at paragraphs 11–17. See also the separate opinion of Vice-President Fatsah Ouguergouz in Tanganyika Law Society and The Legal and Human Rights Centre v United Republic of Tanzania and Reverend Christopher Mtikila v United Republic of Tanzania at paragraph 21.

72  See generally Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (3rd edn, Oxford University Press 2013) 58. See also Higgins, ‘Time and the Law’ (n 59) 513, noting that the stance of the Committee might have been affected by the absence of a provision in the Covenant or the Optional Protocol limiting the period within which an action might be brought.

73  Ratification by Spain of International Covenant on Civil and Political Rights (27 April 1977) 1039 UNTS 453.

74  Optional Protocol to the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 302 art 1.

75  Declaration by Spain under art 41 of the Covenant recognizing the competence of the Human Rights Committee (25 January 1985) 1389 UNTS 355. This declaration can be contrasted with Declaration by Chile under art 41 of the Covenant recognizing the competence of the Human Rights Committee (27 May 1992) 1675 UNTS 559.

76  MIT v Spain, CCPR, Comm No 310/1988 (11 April 1991) [5.2]. See also AIE v Libya, CCPR, Comm No 457/1991 (15 November 1991) [4.2]; AS and LS v Australia, CCPR, Comm No 490/1992 (30 March 1993) [4.2]; TP v Hungary, CCPR, Comm No 496/1992 (1 April 1993) [4.2]; KLB-W v Australia, CCPR, Comm No 499/1992 (30 March 1993) [4.2]; and the decision of the Committee Against Torture in Gerasimov v Kazakhstan, CAT, Comm No 433/2010 (24 May 2012) [11.2]. See also criticism of the Human Rights Committee decisions in Tom Zwart, The Admissibility of Human Rights Petitions (Martinus Nijhoff Publishers 1994) 136–8; and see Pauwelyn, ‘The Concept of a “Continuing Violation” of an International Obligation’ (n 60) 415, 439.

77  See also the declarations of France and Malta, which are similarly worded.

78  Declaration by Paraguay accepting the competence of the Inter-American Court of Human Rights under the American Convention on Human Rights (24 August 1989). See also Declaration by Mexico accepting the competence of the Inter-American Court of Human Rights under the American Convention on Human Rights (24 August 1989).

79  Declaration by the Dominican Republic accepting the competence of the Inter-American Court of Human Rights under the American Convention on Human Rights (24 August 1989).

80  Girls Yean and Bosico v Dominican Republic, Preliminary Objections, IACtHR (Series C) No 130 (8 September 2005) [104]–[105]. See also the decisions of the Inter-American Commission on Human Rights in Nicaragua v Costa Rica, Judgment, Report, IACHR No 11/07 (8 March 2007) [220]; and Heliodoro Portugal v Panama, Preliminary Objections, IACtHR (Series C) No 186 (2008) [24]. See also Jo Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Rights (2nd edn, Cambridge University Press 2013) 138.

81  Sergei Paushok, CJSC Golden East Company and CJSC Vostokneftegaz Company v Mongolia, UNCITRAL, Award on Jurisdiction and Liability (28 April 2011) [468].

82  Ibid. See also ABCI Investments NV v Republic of Tunisia, ICSID Case No ARB/04/12, Decision on Jurisdiction (18 February 2011) [169]–[171]; and Chevron Corporation (USA) and Texaco Petroleum Company (USA) v Republic of Ecuador, UNCITRAL, PCA Case No 34877, Interim Award (1 December 2008) [172]–[176].

83  Nordzucker AG v Republic of Poland, UNCITRAL, Partial Award on Jurisdiction (10 December 2008).

84  Ibid [109]. See also Ping An Life Insurance Company of China, Limited and Ping An Insurance (Group) Company of China Limited v Kingdom of Belgium, ICSID Case No ARB/12/29, Award (30 April 2015) [218]; and Jan de Nul NV and Dredging International NV v Arab Republic of Egypt, ICSID Case No ARB/04/13, Award (6 November 2008). See also Tradax Hellas S A v Republic of Albania, ICSID Case No ARB/94/2, Decision on Jurisdiction (29 April 1999), where the tribunal reached a similar conclusion, albeit when applying the domestic investment law of Albania, rather than an investment treaty.