The International Court of Justice (ICJ) announced its decision on December 7, 2021, regarding the request for provisional measures by Armenia and Azerbaijan, marking the next stage of the proceedings in the ongoing conflict between the two countries.
The background of the case is that Armenia brought a case to the ICJ against Azerbaijan on September 16, and Azerbaijan made a counter-claim against Armenia on September 23. Both states claim violations of the Convention on the Elimination of Racial Discrimination (CERD). The reason both states brought claims under that treaty is that that treaty has a unique method that provides the Court jurisdiction over the parties. (See my previous article here for the background of the case here.
In both states’ applications, they requested provisional measures. Provisional measures are orders that the Court can issue during a court case to “preserve the respective rights of either party.” Importantly, provisional measure orders by the Court are binding on the parties; if a party doesn’t comply with them, then it’s possible the non-compliance could become a matter before the UN Security Council under Article 94.2 of the UN Charter.
The decision of the Court is on both requests for provisional measures. Despite Armenia’s and Azerbaijan’s cases technically being separate, the Court decided to respond to both at the same time by the same decision.
First, the Court found that there was a dispute. Both countries made allegations saying the other country was violating their obligations under CERD, which the other country denied. This is essentially enough to state there is a dispute.
Second, the Court found that negotiations were attempted but failed. This obligation comes directly from Article 22 of CERD. The burden here is higher the Court looks to see whether the party bringing the claim genuinely attempted to engage in negotiations. This is ultimately what sunk Georgia in Georgia v. Russia. The Court had granted Georgia its provisional measures but ultimately found there hadn’t been genuine negotiations relating to the dispute about CERD. Negotiating another dispute isn’t enough. For Armenia and Azerbaijan, the Court found that both engaged in sincere negotiations relating to CERD obligations. Furthermore, since the parties were not budging in their positions, the negotiations had failed.
Third, due to the previous two points, the Court found that it had prima facie jurisdiction in the case, which means that the case could continue.
The three findings above apply to both Armenia’s case and Azerbaijan’s case.
What kind of provisional measures were ordered by the ICJ against Azerbaijan and Armenia?
The Court issued five different provisional measures, four against Azerbaijan, one against Armenia, and one against both states. Here is a summary of them.
The three unique provisional measures imposed on Azerbaijan are:
1) Protect from violence and bodily harm all persons captured in relation to the 2020 Conflict who remain in detention, and ensure their security and equality before the law;
2) Take all necessary measures to prevent the incitement and promotion of racial hatred and discrimination, including by its officials and public institutions, targeted at persons of Armenian national or ethnic origin; and
3) Take all necessary measures to prevent and punish acts of vandalism and desecration affecting Armenian cultural heritage, including but not limited to churches and other places of worship, monuments, landmarks, cemeteries, and artifacts.
One can see a direct connection between the measures and the requests made by Armenia. Provisional measure (a) aligns with Armenia’s 2nd request. Provisional measure (b) aligns with Armenia’s 3rd request, except for the lack of the closing of the Military Trophies Park. And, Provisional measure (c) aligns with Armenia’s 4th request, excluding the request’s “right to access”.
Furthermore, the one unique provisional measure imposed on Armenia is:
1) The Republic of Armenia shall, in accordance with its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination, take all necessary measures to prevent the incitement and promotion of racial hatred, including by organizations and private persons in its territory, targeted at persons of Azerbaijani national or ethnic origin.
This measure aligns with Azerbaijan’s request (c).
Finally, the common provisional measure imposed on both parties is:
Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.
This measure aligns with Armenia’s 7th request and Azerbaijan’s request (e).
What are the consequences of the order for provisional measures? What is dissenting from the orders?
The biggest result from these orders is that Armenia received two of its requests that could make a meaningful impact on the conflict of Nagorno-Karabakh. Those are the protection of POWs from harm and the protection of cultural sites. There was no order to release the POWs. Both of these orders were likely because they both fit within CERD and there is evidence available to show that there is an urgent threat.
The protection of the POWs is important because it puts extra pressure on Azerbaijan to ensure the POWs are well-treated. Now, if Armenia has evidence of further maltreatment of POWs, it can present that evidence to the Court, showing that Azerbaijan is not complying with the order of provisional measures imposed upon it.
The second order of protecting cultural sites is also impactful because it provides another possibility to protect cultural heritage. Usually, UNESCO is in charge of protecting cultural sites, but UNESCO has been considered ineffective at fulfilling its job within the region, criticism that only escalated after the recent war. This is in part because UNESCO operates only with the consent of the receiving state. This order now provides another avenue, a stronger one, to ensure the protection of Armenian cultural sites under Azerbaijani control.
The third order against Azerbaijan, regarding preventing the incitement of racial hatred, is almost identical to the single order against Armenia. Both orders come directly from Article 4 of CERD, which aims to prevent racial propaganda and incitement to racial discrimination commonly referred to as hate speech. There is a notable difference in the language used in each of the orders: the order against Armenia refers to incitement of racial hatred “including by organizations and private persons” while the order against Azerbaijan says incitement of racial hatred or racial discrimination “including by its officials and public institutions.” The main difference here is that the order for Armenia connotes that the hate speech is coming from private organizations, while the one for Azerbaijan connotes that the hate speech is coming from the government. There is also a difference in that the Azerbaijani order covers racial hatred and racial discrimination, while the Armenian one only covers racial hatred.
The Plausibility Test: Why Armenian Prisoners of War were not Ordered to be Released by Azerbaijan nor the Landmine Maps Were Ordered to be Handed Over by Armenia?
Both Armenia and Azerbaijan put their most important issue in the first request of their Applications. For Armenia, it was a request for the release of the POWs. For Azerbaijan, it was for Armenia to hand over landmine maps of the areas Armenia controlled prior to last year’s war. The Court rejected both requests.
For a request to be a provisional measure, it must be plausibly connected with a right provided by the treaty. Plausibility means that there must be a link between the right aiming to be protected (e.g., Art 2 of the treaty) and the provisional measure being requested (e.g., landmine maps being handed over). This test requires the party to show two things: first to provide sufficient evidence that their factual claims are plausible and second that their request is plausibly connected to the underlying treaty. As a reminder, since the Court has jurisdiction only because of CERD, that means any rights aiming to be protected must be within CERD. The overall purpose of CERD is listed in its Article 1: to prevent the distinction based on national or ethnic origin that have the effect of impairing someone’s rights.
As far as POWs are concerned, the ICJ did not find that “CERD Plausibility requires Azerbaijan to repatriate all persons identified by Armenia as prisoners of war and civilian detainees” (Azerbaijan v. Armenia, para. 60). Firstly, the Court notes that it’s international humanitarian law that governs the release of POWs, not CERD. Regardless, there is still a theoretical possibility that CERD could apply if the detention was due to their national or ethnic origin. However, Armenia did not and could not provide evidence that the POWs were detained because of their national or ethnic origin.
Regarding the landmine maps, the ICJ did not find that “CERD plausibly imposes any obligation on Armenia to take measures to enable Azerbaijan to undertake demining or to cease and desist from planting landmines” (Armenia v. Azerbaijan, para. 53). The Court noted however that military means could implicate CERD if used as part of “a policy of driving persons of a certain national or ethnic origin from a particular area” but there was no evidence of that here. Azerbaijan would have to show that Armenia was targeting people of Azerbaijani nationality or ethnic origin, not just Azerbaijani citizenship, due to their nationality or ethnic origin. Azerbaijan did not and could not present evidence of this to the Court, so this request failed the plausibility requirement.
What Comes Next in the Case before the International Court of Justice?
The next step of both cases is to continue to the merits stage. That’s where the Court will fully assess the claims and evidence presented by the parties. This step will take years.
In theory, these orders for provisional measures resolved very little, everything is still possible. For example, the Court found that it had prima facie jurisdiction. It might find in the end that it does not have jurisdiction after all. This is what happened in Georgia v. Russia.
Armenia and Azerbaijan will continue presenting their cases to the Court, including providing further evidence and arguments regarding the merits. It’s also possible that the parties might amend their initial requests in light of the provisional measures granted; while the provisional measures don’t directly impact any of the Court’s analysis on the merits, they direct the parties in the direction that the Court is thinking. In the meantime, both states will also monitor the compliance of the other with the orders for provisional measures.