The International Court of Justice (ICJ) issued a press release On 16 September 2021. It is announced that Armenia had initiated a proceeding against Azerbaijan based on violations of the Convention on Elimination of Racial Discrimination (CERD) before ICJ (France 24, 2021). Also, A week after Armenia filed an application against Azerbaijan at the ICJ, Baku filed a separate complaint against Armenia on September 23, alleging the racial discrimination and “ethnic cleansing” by Armenia.
The institution of this case before ICJ is crucial, mainly because it was initiated after the first anniversary of the armed conflict that took place last autumn for control of Nagorno-Karabakh, and resulted in more than 6,500 death. This was taken place in the disputed region of Nagorno-Karabakh and the surrounding territories. The main combatants were Azerbaijan, with support from Turkey and foreign militia groups, on one side and the self-proclaimed Republic of Artsakh and Armenia on the other side.
Another reason that makes this case a prominent development in the context of international law is that the only international judicial body that previously engaged with the Nagorno-Karabakh conflict has been the European Court of Human Rights (ECtHR). As a result, various aspects of Armenia and Azerbaijan’s applications will be addressed in this article.
Overview of the claims
Generally, Armenia’s Application concerns a legal dispute between Armenia and Azerbaijan regarding Azerbaijan’s violations of the International Convention on the Elimination of All Forms of Racial Discrimination (“CERD” or “Convention”). It is alleged that these violations are directed at individuals of Armenian ethnic or national origin, regardless of their actual nationality. Armenia argues that the obligations under the CERD being of an erga omnes partes character, and it is entitled, under the Convention, to invoke Azerbaijan’s responsibility, both as an injured and as a non-injured State.
In other words, In the First application, Armenia claims that Azerbaijan “is responsible for violating the CERD, including Articles 2, 3, 4, 5, 6 and 7”. Also, it claims that “good-faith efforts by Armenia to put an end to Azerbaijan’s violations of the CERD through other means [have] failed”. Armenia, therefore, requests the Court “to hold Azerbaijan responsible for its violations of the CERD, to prevent future harm, and to redress the harm that has already been caused.” As a basis for the Court’s jurisdiction, Armenia invokes Article 36, paragraph 1, of the Statute of the Court and Article 22 of the CERD, to which both States are Parties (ICJ, 2021). Also, Armenia requested the indication of provisional measures filed under Article 41 of the Statute of the Court and Articles 73, 74, and 75 of the Rules of Court. The purpose of this request is to “protect and preserve Armenia’s rights and the rights of Armenians from further harm, and to prevent the aggravation or extension of this dispute, pending the determination of the merits of the issues raised in the Application” (Ibid).
On the other hand, Azerbaijan instituted the same proceeding against Armenia before the ICJ concerning the interpretation and application of the CERD. Azerbaijan contended that “Armenia has engaged and is continuing to engage in a series of discriminatory acts against Azerbaijanis based on their ‘national or ethnic’ origin within the meaning of CERD” (ICJ, 2021). Also, it is claimed that “through both direct and indirect means, Armenia continues its policy of ethnic cleansing”, and that it “incites hatred and ethnic violence against Azerbaijanis by engaging in hate speech and disseminating racist propaganda, including at the highest levels of its government”. Accordingly, Azerbaijan contends, that Armenia’s policy and practice of anti-Azerbaijani discrimination is in violation of Articles 2, 3, 4, 5, 6 and 7 of CERD. therefore, it requests the Court to hold Armenia accountable for violations of the CERD provisions and to redress the harm caused by Armenia (Ibid).
The engrossing point of Azerbaijan’s application refers to the fact that a spokesperson for Azerbaijan’s Foreign Ministry announced that Azerbaijan plans to file a countersuit accusing Armenia of the same rights violations (Radio Free Europe, 2021). However, it instituted an entirely different application and also requested provisional measures in a separate document which amounted to the initiation of a new case (Armas-Cardona Esq, 2021).
Bringing a case before ICJ under CERD; An easy task for states
The CERD is the centerpiece of international attempts to address racial discrimination. It is defined broadly to include discrimination based on skin color, descent, ethnicity, and national origin. Victims of discrimination within the scope of the Convention include minorities, indigenous peoples, non-citizens, and caste or descent groups (Thornberry, 2016).
Nevertheless, the CERD does not include strict conditions for bringing a case before ICJ. In this regard, Article 22 provides that (International Convention on the Elimination of All Forms of Racial Discrimination, 1969);
“Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement.”
Therefore, if an applicant proves the fulfillment of two conditions articulated in article 22 CERD, it may bring the case to the ICJ. First, the existence of a dispute concerning the CERD, and second, failure of negotiations for the settlement of the dispute. In this sense, both states argued in their application that both conditions are fulfilled.
Request for Provisional Measures by both state
Armenia requests relief on the merits of the case, but the core issues of the application refer to the provisional measures requested. The Court noted that Armenia considers the need for provisional measures “as a matter of extreme urgency” (Armas-Cardona Esq, 2021).
In a nutshell, Armenia’s requests include the following (Ibid);
- The release of Armenian POWs and detainees and their treatment in compliance with the CERD,
- Closing the Military Trophies Park,
- Protection of Armenian cultural monuments and landmarks,
- Regular reporting from Azerbaijan on its compliance with the provisional measures.
On the other hand, Azerbaijan requested the following as part of the provisional measures (Ibid);
- Armenia shall “enable Azerbaijan to [demine] … landmines laid in Azerbaijan’s territory”, including by providing maps of landmines.
- Armenia must plant no other mines in Azerbaijan’s territory.
- Armenia must prevent organizations, including VoMa, from engaging in the incitement of racial hatred against Azerbaijanis.
- Armenia must collect and preserve evidence related to ethnically motivated crimes against Azerbaijanis.
- Armenia shall refrain from any measure that might aggravate, extend, or make the resolution of this dispute more difficult.
- Armenia shall regularly report to the Court.
To conclude, although the legal or military conflict among Armenia and Azerbaijan is not limited to recent tensions, the institution of these proceedings could provide a crucial opportunity for ICJ to interpret related provisions of CERD in a case that variety of factors, including religious, ethnic, foreign states intervention, affected the policies of both states towards each other.
Bibliography
Armas-Cardona Esq, 2021, “Armenia and Azerbaijan Take Fight to ICJ”, accessed September 29 2021 < https://evnreport.com/politics/armenia-and-azerbaijan-take-fight-to-icj >.
France24, 2021, “Armenia takes rival Azerbaijan to top UN court”, accessed September 28 2021 < https://www.france24.com/en/live-news/20210916-armenia-takes-rival-azerbaijan-to-top-un-court >.
ICJ, 2021, “The Republic of Armenia institutes proceedings against the Republic of Azerbaijan and requests the Court to indicate provisional measures”, accessed September 29 2021 < https://www.icj-cij.org/public/files/case-related/180/180-20210916-PRE-01-00-EN.pdf >.
ICJ, 2021, “The Republic of Azerbaijan institutes proceedings against the Republic of Armenia and requests the Court to indicate provisional measures”, accessed September 29 2021 < https://www.icj-cij.org/public/files/case-related/181/181-20210923-PRE-01-00-EN.pdf >.
Radio Free Europe, 2021, “Armenia Challenges Azerbaijan At International Court Of Justice”, accessed September 29 2021 < https://www.rferl.org/a/armenia-azerbaijan-hague/31463970.html>.
Thornberry, 2016, “The International Convention on the Elimination of All Forms of Racial Discrimination: A Commentary”, Oxford University Press.
By The European Institute for International Law and International Relations.
