Katayoun Formica Hosseinnejad
Between 14-15 October 2021, the International Court of Justice (ICJ) held its public hearings on the request for the indication of provisional measures submitted by Armenia in the case concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) (Armenia v. Azerbaijan). The week after, the Court held its public hearings on the request of Azerbaijan for indication of provisional measures but not in the same case, rather in a separate proceeding that Azerbaijan initiated against Armenia seven days after the filing of the first. As evident from their titles, both cases concern the alleged violation of CERD by the other State, particularly during the 2020 armed conflict in Nagorno-Karabakh. While the Court is still in deliberations for indication of provisional measures requested by the two States, this post aims to discuss a more general question about the future of these two proceedings. More specifically, it seeks to examine whether there will be any possibility of joinder of these two cases in light of the ICJ jurisprudence.
The Law and Practice of Joinder Before the Court
Joinder of proceedings, while rare, is not without precedent in the jurisprudence of the ICJ and its predecessor, the Permanent Court of International Justice (for example, see here). The ICJ, in its earlier years, without any explicit provision in its Statute or its Rules, joined the proceedings in two instances. The first one relates to the separate applications filed by Ethiopia and Liberia against South Africa in the South West Africa case. The Court, noting that the submissions set out in the applications and the memorials of the two applicants were mutatis mutandis identical, held that since both Ethiopia and Liberia were “in the same interest before the Court”, the proceedings should be joined (Order). The same consideration led the Court to join the proceedings in the cases concerning North Sea Continental Shelf, instituted by Germany against Denmark, on the one hand, and the Netherlands, on the other hand (here).
As a result of this practice, in the 1978 revision of the Rules, the power of the Court to join the proceedings was explicitly added as a new article in the Rules of the Court (Article 47). However, it took more than thirty years for the Court to rely on it for another instance of joinder. In 2013, the Court issued its landmark decision on the joinder of two separate cases brought before it by two States against each other, resembling the acts of Armenia and Azerbaijan.
On 18 November 2010, Costa Rica instituted the case concerning Certain Activities Carried Out by Nicaragua in the Border Area against Nicaragua as alleging the breaches of the principle of territorial integrity and the prohibition of the threat or use of force. Around one year later, Nicaragua filed its application against Costa Rica for violations of Nicaraguan sovereignty and major environmental damages to its territory in Construction of a Road in Costa Rica along the San Juan River. During the proceedings of the latter, Nicaragua requested the Court to join the proceedings in the two cases which Costa Rica opposed.
Costa Rica argued that the two cases were fundamentally different as they had different subject matters. Since each of the two cases had its own procedural timetable, Costa Rica contended further that the joinder of proceedings would lead to a delay in resolving the dispute over territorial sovereignty and would thus constitute a serious prejudice to it. Therefore, according to Costa Rica, the joinder would be neither timely nor equitable (para 9, here). Two main principles guided the Court in joining the proceedings: the principle of the sound administration of justice, as well as judicial economy. The Court did not elaborate on the content of these principles though it has relied on these principles in its jurisprudence. (For detailed enumeration of these, see the Separate Opinion of Judge Cançado Trindade). In deciding about the joinder, the Court, in light of considerations such as that the two cases involved the same parties, related to the same border area, and that both parties were invoking the violations of the same treaty, found that there would be significant advantages in joining the proceedings which would allow it “to address simultaneously the totality of the various interrelated and contested issues raised by the Parties, including any questions of fact or law that are common to the disputes presented”. (paras 13-18, here)
Possible Joinder in the Armenia and Azerbaijan Disputes
The above considerations can be said to exist in the applications of Armenia and Azerbaijan. Here, it must be mentioned that both States base the jurisdiction of the Court on Article 36 (1) of the Statute and Article 22 of CERD and rely on the same facts to argue that preconditions for seisin of the Court are met (for Armenia see here, and for Azerbaijan, see here ). Moreover, they have appointed the same ad hoc judges in both cases (see p. 11, here, and p. 13, here). Regarding the merits, both States pursue the same legal aim, which is to establish the legal responsibility of the other State for the violation of CERD. They are both relying on facts related to the same geographical area, Nagorno-Karabakh, and are arisen from its special status since the first armed conflict between the two countries in 1991, and as such form “part of the same factual complex”. This latter criterion, among others, is usually relied on by the Court in examining whether a counterclaim is directly connected to the subject matter of a dispute. (See, for example, para 34, here). While the joinder of proceedings has a different legal nature than the admissibility of counterclaims, their overall raison d’etre is similar. The Court, in one of its first most reasoned decisions on the admissibility of counterclaims in the case of Bosnian Genocide Convention, explains that the possibility of counterclaims exists essentially “to achieve a procedural economy whilst enabling the Court to have an overview of the respective claims of the parties and to decide them more consistently” (Order, para 30.) [emphasis added]
The only difference in Armenia-Azerbaijan disputes is that so far, none of the parties has requested the joinder, which can be simply explained by the fact that the proceedings are just initiated. This absence, however, should not bar the Court from considering such a joinder on its own initiative as Article 47 not only sets no such a precondition but also “leaves the Court a broad margin of discretion” (para 12, here). The will of the parties may be an important factor when the Court seeks to join proceedings of several applicants or several respondents. Without this, it is difficult to justify that the power of the Court can replace the will of States when they do not agree on being considered as having the same interest in a dispute. This can explain why in the Fisheries Jurisdiction cases (UK v. Iceland, and Germany v. Iceland), the majority of judges decided not to join the separate proceedings commenced by the UK and Germany against Iceland. This was despite their identical legal basis. The Court noted that “joinder would be contrary to the wishes of the two Applicants.” (para 8, here.) However, the power of the Court to join the proceedings that applicant and respondent raise against each other, to use the words of Judge Cançado Trindade, is inherent to the exercise of its judicial function (see above), and thus, cannot depend on the will of the parties.
Of course, it is too early to foresee the future of Armenia-Azerbaijan disputes. Nevertheless, ICJ jurisprudence indicates that through the joinder of proceedings, the Court will be in a better place to examine comprehensively the interrelated and contested legal and factual issues that are raised by Armenia and Azerbaijan on the violations of CERD and ensure the sound administration of justice.
Dr. Katayoun Formica Hosseinnejad is a doctoral fellow, Global Fellow Initiative at GCSP. She is also rapporteur at Oxford Reports on International Law (ORIL) on international human rights law. Prior to this, she was visiting lecturer of international law at Allameh Tabataba’i University in Iran. Her main interests are general International law, treaty interpretation, human rights law, humanitarian law and challenges of new technologies. She has gained her PhD at the Graduate Institute of International and Development Studies. From 2005 to 2013, she has worked for the mission of the International Committee of the Red Cross in Iran as the head of communication and cooperation department. Twitter: @katayoonhnejad