On November 17, 2023, the International Court of Justice (ICJ) issued an Order in response to Armenia’s request for the indication of provisional measures in the case involving the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) (Armenia v. Azerbaijan).
Provisional or interim measures are requested in response to immediate concerns while the ICJ is still deciding a case between parties on its merits. These measures can be thought of as legal “first aid” – immediate interventions that the court can prescribe to address urgent issues while the broader legal battle unfolds. These measures serve as the judicial toolkit for the ICJ to deliver swift and effective justice in the face of rapidly evolving circumstances.
The ICJ typically indicates such measures when irreparable prejudice or consequences could be caused. “Irreparable” refers to a violation of rights which, due to their nature, would not be susceptible to reparation, restoration, or adequate compensation.
Let us consider a scenario involving a copyright dispute between two authors over a bestselling novel. While the case is in progress, the claimant, one of the authors, becomes concerned that the respondent might publish an unauthorized sequel, which could potentially devalue the original work. In response, the claimant seeks provisional measures by requesting the court to prohibit the respondent from publishing any sequel until the copyright dispute is resolved.
The urgency in this case comes from the imminent threat of the publication of the sequel. The “irreparable” harm refers to the potential loss of exclusivity and market impact that cannot be fully remedied by monetary compensation alone. The plausibility test involves assessing whether the claimant’s copyright is plausible under relevant intellectual property laws.
The link between the right sought (exclusive copyright) and the provisional measure (restriction on publishing the sequel) is clear. In cases where urgency, irreparable harm, and plausibility are taken into account, the court may opt to intervene with provisional measures to safeguard the integrity of the original work pending a final decision.
What Is CERD?
CERD mandates states that are party to the convention to actively work towards eradicating racial discrimination, fostering racial understanding, and prohibiting and prosecuting discriminatory acts. Article 1 defines racial discrimination and outlines a comprehensive range of civil, political, economic, social, and cultural human rights that should be universally protected without racial distinctions. Articles 2-7 establish substantive rights covered by the Convention. Article 22 establishes the ICJ’s jurisdiction over disputes regarding the interpretation or application of the Convention between parties that remain unsettled through negotiations. Adopted by the UN General Assembly on 21 December 1965, CERD entered into force on 4 January 1969. Armenia and Azerbaijan acceded to the Convention on 23 June 1993, and 16 August 1996, respectively.
History of the Proceedings
On September 16, 2021, Armenia filed a case against Azerbaijan alleging violations of CERD and requesting provisional measures. In its Order from December 7, 2021, the Court indicated four provisional measures against Azerbaijan, one against Armenia, and one against both Parties. On September 19, 2022, Armenia formally requested a modification of the Order. However, in an Order issued on October 12, 2022, the Court found that the circumstances cited by Armenia did not warrant a modification.
On December 28, 2022, Armenia sought a provisional measure from the Court, directing Azerbaijan to lift the blockade of the Lachin Corridor and ensure uninterrupted free movement. This request was granted by the Court on 22 February 2023.
On May 15, 2023, Armenia requested the Court to modify its February 22, 2023 Order. However, on July 6, the Court determined that the circumstances cited by Armenia did not justify a modification of its earlier decision.
On 28 September 2023, Armenia submitted its fifth Request for the indication of provisional measures. In this filing, Armenia alleged that on September 19, 2023, Azerbaijan launched a full-scale military assault targeting the 120,000 ethnic Armenians residing in Nagorno-Karabakh. The assault involved indiscriminate shelling of civilian settlements, resulting in the death and injury of hundreds of people, including civilians. Tens of thousands of ethnic Armenians were forcibly displaced from Nagorno-Karabakh to Armenia.
The Request can be summarized as follows:
- Azerbaijan must refrain from actions that breach its obligations under the Convention on the Elimination of All Forms of Racial Discrimination (CERD).
- Azerbaijan should avoid actions aimed at displacing ethnic Armenians from Nagorno-Karabakh, permit the safe return of those displaced, and allow those who wish to leave Nagorno-Karabakh to do so without hindrance.
- Azerbaijan is required to withdraw all military and law enforcement personnel from civilian establishments in Nagorno-Karabakh occupied as a result of its attack on September 19, 2023.
- Azerbaijan is required to facilitate unrestricted access for the United Nations and its specialized agencies to reach ethnic Armenians in Nagorno-Karabakh.
- Azerbaijan must facilitate Red Cross humanitarian aid to Nagorno-Karabakh.
- Azerbaijan must restore public utilities in Nagorno-Karabakh and avoid future disruptions.
- Azerbaijan must avoid punitive actions against Nagorno-Karabakh’s political and military representatives.
- Azerbaijan must refrain from altering or destroying monuments commemorating the Armenian genocide or any other Armenian cultural artifact or site.
- Azerbaijan must recognize and uphold civil registers, identity documents, and property titles established by Nagorno-Karabakh authorities.
- Azerbaijan must submit regular reports to the Court on measures taken to comply with the order.
Azerbaijan asked the Court to dismiss Armenia’s Request in its entirety (para. 22).
In establishing the foundation for the application of provisional measures, the Court noted that under Article 76(1) of the Rules of Court, a decision on provisional measures can be modified if the Court determines that there has been a change in the situation warranting such a modification (para. 27).
Armenia’s first Request addressed the treatment of protected individuals and Azerbaijan’s alleged incitement of racial hatred. The third Request pertained to the blockade of the Lachin Corridor. The current Request alleges forced displacement of Armenians from Nagorno-Karabakh following Azerbaijan’s attack (para. 14), prompting the Court to review it due to these new circumstances (para. 29).
On November 17, the Court indicated that Azerbaijan must:
- (i) Ensure that persons who have left Nagorno-Karabakh after 19 September 2023 and who wish to return to Nagorno-Karabakh are able to do so in a safe, unimpeded, and expeditious manner; (ii) ensure that persons who remained in Nagorno-Karabakh after 19 September 2023 and who wish to depart are able to do so in a safe, unimpeded and expeditious manner; (iii) ensure that persons who remained in Nagorno-Karabakh after 19 September 2023 or returned to Nagorno‑Karabakh and who wish to stay are free from the use of force or intimidation that may cause them to flee.
- (i) Protect and preserve registration, identity, and private property documents and records concerning those who left, wish to return, and who remained in Nagorno-Karabakh after 19 September 2023; and (ii) have due regard to such documents and records in its administrative and legislative practices.
- Report to the Court on the steps taken to give effect to the provisional measures indicated and to the undertakings made by the Agent of the Republic of Azerbaijan, on behalf of his Government, at the public hearing that took place on the afternoon of 12 October 2023, within eight weeks.
Plausible Rights and Linked Measures
The Court can only indicate provisional measures to preserve rights that are at least plausible. Therefore, Armenia had to demonstrate (i) the plausibility of its claims, and (ii) a connection between the requested provisional measures and the CERD. States can invoke CERD protection only when the alleged acts fall within the definition of racial discrimination under Article 1 of the Convention.
Regarding Armenia’s claim of forced displacement, the Court found it plausible under CERD that individuals have the right not to be compelled to flee their homes solely because they are Armenians, as well as their right to safely return (para. 41). These rights were identified within the scope of Articles 2 and 5 of CERD (para. 40)
The Court determined that there was a link between certain rights claimed by Armenia and specific measures requested by Armenia. These measures included instructing Azerbaijan to prevent the displacement of remaining individuals of Armenian national or ethnic origin from Nagorno-Karabakh. Additionally, the measures involved issues related to civil registers, identity documents, property titles, and registers (paras 45-46).
Irreparable Prejudice and Urgency
The Court then examined whether the rights asserted by Armenia faced irreparable prejudice and whether there was a real and imminent risk of such prejudice occurring pending the Court’s final decision.
Without mincing words, the Court underscored that Azerbaijan’s operation on 19 September 2023, occurred against the backdrop of the enduring vulnerability and social precariousness faced by the population of Nagorno-Karabakh. It referred back to the provisional measure in February 2023, reflecting the dire conditions in the blockaded Artsakh (para. 54).
Citing UN reports, the Court noted that over 100,000 Armenians were forced to leave their homes. The Court emphasized that subjecting Armenians remaining in Nagorno-Karabakh to suffering, difficulty, distress, or threats to their life and health can significantly impede their right to equal treatment under the law and their freedom to move and reside within a country’s borders (para. 142). Also, a situation can cause irreparable prejudice when individuals experience temporary or potentially long-lasting separation from their families and undergo emotional distress. This can also apply when students are prevented from pursuing their studies (para. 69).
Taking into account the available evidence, the Court concluded that the rights of Armenians as well as Armenia as a state, are under imminent risk of irreparable prejudice (para. 58 and 59).
Having established the necessary requirements for provisional measures, the Court also took into account certain commitments made by Azerbaijan during the public hearing on 12 October, before deciding on the corresponding measures (para. 61). Azerbaijan committed to:
– Ensure the security of residents in Nagorno-Karabakh, irrespective of nationality or ethnic origin, addressing their safety and humanitarian needs.
– Ensure the right to a safe and prompt return for residents choosing to do so and ensure the safe and unimpeded departure for those wishing to leave Nagorno-Karabakh.
– Protect the property of individuals who have left Nagorno-Karabakh.
– Facilitate the access and activities of the ICRC and allow inspections by the United Nations in the region.
– Protect and refrain from altering and damaging the cultural monuments, artifacts, and sites.
– Protect and refrain from destroying registration, identity, and private property documents and records.
Through these formal undertakings, Azerbaijan voluntarily adopted certain measures from Armenia’s extensive list, choosing the ones it found acceptable and anticipating that the Court might indicate them anyway. The Court clarified that such unilateral declarations are legally binding on states, emphasizing that Azerbaijan’s undertakings create legal obligations for the country.
It is important to note that Azerbaijan’s undertakings are not equivalent to ICJ orders. Nevertheless, they do impose binding international obligations on Azerbaijan. If Azerbaijan fails to comply with its commitments, Armenia has the option to request the Court to specify explicit measures with the same effect.
Azerbaijan only partially addressed the measures requested by Armenia. Although these commitments mitigated the imminent risk of irreparable prejudice resulting from the operation in Nagorno-Karabakh, they did not eliminate the risk entirely (paras 64-65). As a result, the Court proceeded to formalize its provisional measures.
The Court’s Two-Tier Filtering Process
The Court reviewed Armenia’s list of requested measures through a two-tier filtering process. Initially, it considered Azerbaijan’s official undertakings and assurances made during the hearing, which stated that detentions were not based on ethnic or national origin. Subsequently, the Court excluded measures that did not qualify as discrimination as defined in Article 1 of CERD. For instance, Armenia’s request for the withdrawal of Azerbaijani military and law enforcement from civilian establishments hardly constitutes an act of discrimination under Article 1 of CERD.
Ultimately, the Court, relying on Article 75, paragraph 2, of the Rules of Court, indicated three comprehensive measures, from the ten initially requested by Armenia (paras 69 and 74).
However, in reality, the Court ruled on more than three measures requested by Armenia. Azerbaijan’s undertakings, which include (i) facilitating UN and ICRC operations, (ii) respecting cultural sites, and (iii) restoring gas and power – all derived from Armenia’s request list – can be considered as “derivative” measures upheld by the Court.
The Legal Effect of Provisional Measures
Given Azerbaijan’s blatant and persistent disregard for the ICJ’s earlier provisional measure to lift the blockade of the Lachin corridor, it is crucial to emphasize that Article 94(1) of the UN Charter mandates member states to comply with the Court’s decisions in any case to which they are a party. This principle was established in the LeGrand case, and duly complied with by the United States in a subsequent Avena and Other Mexican Nationals case (p. 141).
There is obviously no centralized authority above states to enforce international law and the orders of the ICJ. Enforcement primarily rests with individual states, with the Security Council playing a crucial role in this regard. The effectiveness of actions taken after a judgment is typically determined not through additional judicial review, but by immediate political measures. Article 94(2) of the UN Charter states that if a Party fails to fulfill its obligations under a Court judgment, the other Party can seek assistance from the Security Council.
Under Article 11 of its Internal Judicial Practice, the Court holds the authority to oversee adherence to its orders. When the Court issues a provisional measure, it establishes an ad hoc committee comprising three judges elected by the ICJ. The committee evaluates information provided by the parties involved regarding compliance with the measure and periodically reports to the Court.
If Azerbaijan fails to comply, Armenia can bring the matter to the UN Security Council, which has the discretion to propose or decide on measures to ensure the implementation of the judgment or choose not to intervene. However, the Security Council has never exercised its powers under Article 94, even in cases of blatant non-compliance.
It is crucial to emphasize that provisional measures do not predetermine the final judgment on the merits. The Court retains the authority to reach any decision during the final judgment, and it may even determine that it lacks jurisdiction over the case. Therefore, it is important to understand that the dynamics of provisional measures should not be confused with the concurrent assessment of the merits of the case.
Decoding the Measures
Adjudication at the sovereign level, especially in provisional measures, is typically not a zero-sum game. Instead, it involves seeking potential legal, political, or combined benefits embedded within the subtleties of the Court’s statements.
The current order adopts a stronger position towards Azerbaijan, displaying a more direct characterization of the situation. This shift in tone can be attributed to Azerbaijan’s conduct following the ICJ’s order to lift the blockade of Artsakh, as well as the unprecedented gravity of the factual background in the region.
Indeed, the rights asserted by Armenia and the requested provisional measures arise from Azerbaijan’s continuous violations of CERD. There is a clear link between the blockade and the ethnic cleansing of Armenians from Artsakh. The humanitarian crisis is what the ICJ sought to alleviate, if not prevent, through previous provisional measures, including the one issued on February 22.
The ICJ explicitly acknowledged the involuntary nature of the exodus of over 100,000 Armenians, countering Azerbaijan’s contrary claims (Azerbaijan argued that it was the Armenian Prime Minister’s mention of a perceived risk of ethnic cleansing, two days after Azerbaijan’s operation, that triggered the exodus of Armenians (para. 52)).
In its order dated December 7, 2021, the Court rejected Armenia’s request for Azerbaijan to report on the implementation of provisional measures (para. 95). This time it explicitly directed Azerbaijan to submit such a report within eight weeks. This is noteworthy in the context of the customary good faith presumption that states comply with their commitments. Although the Court reiterated this principle, the specific directive for report submissions signals a nuanced or “mitigated” approach regarding Azerbaijan (para. 62). Judge Yusuf acknowledged this in his dissent (para. 13).
Provisional measures against Azerbaijan garnered overwhelming support with thirteen in favor and only two against. Judge Abdulqawi Ahmed Yusuf, who has frequently supported Azerbaijan (para. 98, para 67, para. 74), and Judge ad hoc Abdul Gadire Koroma, voted against and amended their respective dissenting opinions (Yusuf, Koroma). Koroma was appointed by Azerbaijan under Article 31, paragraphs 2 and 3 of the Statute of the Court.
In his dissent, Judge Yusuf argues that:
- Azerbaijan’s commitments eliminate the risk of irreparable prejudice and urgency.
- Azerbaijan’s undertakings are sufficient to address the need for measures.
- The measures overlap with Azerbaijan’s undertakings and are unnecessary.
- The reporting requirement runs against the principle of good faith.
- Armenia’s request became moot in the wake of Azerbaijan’s commitment.
However, he overlooks the nuanced approach taken by the majority. In fact, the majority considered Armenia’s request in light of Azerbaijan’s formal commitments (para. 61). The Court indicated the provisional measures only after identifying specific issues that these commitments were insufficient to address. This demonstrates the Court’s exercise of discretion under Article 75 of the Rules of Court.
Essentially, Judge Yusuf contends that Azerbaijan’s subjective commitments neutralize the objective risk of irreparable prejudice and urgency. This coupled with his over-reliance on the presumption of good faith downplays the Court’s role in scrutinizing the adequacy of the commitments in relation to the potential harm and urgency identified in the case. It implies that once a Party makes a formal commitment, it is up to the state to determine how, when, and to what extent it will address the rights asserted by the other Party.
Finally, Judge Yusuf argues the rights to be preserved are not those of individuals or populations, but of the states that are parties to a dispute before the Court (para. 2). This argument loses its ground as the Court underscores the interdependence of protecting individual rights under Articles 2 and 5 of CERD, the obligations of state parties, and their right to seek enforcement (para. 38). The interconnectedness implies a potential for irreparable harm to the rights advocated by the Applicant (para. 45).
In his dissenting opinion, Judge Koroma contends that:
- In light of Azerbaijan’s detailed commitments, there was no room or purpose for additional measures.
- The indicated measures should have aimed at facilitating the prospect of achieving peace and stability in the region.
- The Court should have focused on ensuring compliance with Azerbaijan’s binding commitments rather than introducing new measures.
- The Court should not doubt Azerbaijan’s compliance with its commitments, especially considering that Nagorno-Karabakh is now indisputably recognized as Azerbaijan’s sovereign territory.
- No evidence of violation of rights under CERD was presented.
The first point was addressed within the framework of Judge Yusuf’s dissent.
Regarding the next point, it is difficult to understand why securing the rights of individuals and addressing Armenia’s rights immediately after Azerbaijan’s military operation would contradict this important goal.
While Judge Koroma’s emphasis on a compliance-oriented approach is commendable, it raises concerns given Azerbaijan’s non-compliance with previous measures. This necessary emphasis does not eliminate the risk of irreparable prejudice and urgency behind the provisional measures.
In his dissent, Koroma argues that the Court indicated measures because Azerbaijan’s undertakings did not correspond in all respects to the measures requested by Armenia (paras 10-11). However, this was not the Court’s rationale behind its Order. Theoretically, Azerbaijan’s undertakings could have covered or even exceeded all the issues raised by Armenia but still left the Court unconvinced that the imminent risk of irreparable prejudice no longer existed.
Furthermore, Koroma’s focus on Azerbaijan’s restoration of its sovereignty appears questionable. The presumption itself carries a risk of non-compliance. Azerbaijan’s triumph in Nagorno-Karabakh does not automatically eliminate the possibility of irreparable prejudice to CERD rights. Instead, it places a responsibility on Azerbaijan to ensure compliance.
While Judge Koroma raises concerns about the absence of evidence regarding rights violations, provisional measures are not about reacting to past incidents (para. 12). Their primary purpose is to address imminent risks and ensure the protection of rights. The determination of the necessity for indicating provisional measures is context-dependent, and the Court must consider the specific circumstances at hand rather than relying solely on precedent established in different contexts. (para. 8) Both dissenting opinions appear to downplay the factual context that the majority considered when indicating the measures.
Making the Most of the Measures
The language used in the order suggests that the ICJ recognized Azerbaijan’s full control over Nagorno-Karabakh only after the exodus of Armenians (para. 56). These statements hold significant implications for Armenia’s potential future actions before the ICJ and other forums, such as the International Criminal Court (ICC).
Another crucial facet of these proceedings is Armenia’s meticulous and unwavering legal representation. A robust legal strategy demands, among other things, consistency in pursuing avenues that demonstrate a certain degree of effectiveness. Armenia’s persistent and timely requests for provisional measures from the ICJ are truly commendable.
Given that the right to return and other substantive rights of Armenians in Nagorno-Karabakh have been affirmed through the Court’s provisional orders, there is room for further improvement in legal planning. This strategic approach is geared toward enforcing the existing obligations of Azerbaijan and ensuring prompt responses to potential developments.
Armenia has yet to take action within the purview of the International Criminal Court (ICC). The egregious violations of International Humanitarian Law on Armenian soil by Azerbaijani military personnel provide grounds for referral to the ICC. The ethnic cleansing of Armenians of Artsakh underscores the urgency for Armenia to seek redress at the ICC, particularly in the context of crimes against humanity. The ICJ’s pronouncements in its recent Order, among other things, contribute to the evidentiary and legal assessment of the potential case.
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