Provisional Measures at the ICJ in the Cases of Armenia and Azerbaijan

February saw new developments in two cases brought by Armenia and Azerbaijan against one another at the International Court of Justice (ICJ), the U.N.’s principal judicial organ. Most notably, in the request brought by Armenia, the court ordered Azerbaijan to stop its ongoing blockade of the Lachin corridor, the road that connects the breakaway region of Nagorno-Karabakh to Armenia and the rest of the world. Azerbaijan’s blockade endangers ethnic Armenians living in Nagorno-Karabakh, as it severely impedes their access to essential materials such as food and medication. In paragraph 52 of its decision, the court ordered Azerbaijan to “take all measures at its disposal to ensure unimpeded movement of persons, vehicles and cargo along the Lachin Corridor in both directions.” Nevertheless, the road remains blocked, and the people living there are denied freedom of movement. Individuals have limited access to food and medicine; those who need medical procedures in Armenia must wait for International Committee of the Red Cross cars, which have set schedules and a long waiting list; and there are still many individuals in Armenia who, over three months later, cannot return home to their families in Nagorno-Karabakh. In addition to these violations, the population is also being terrorized by those blocking the road, including personal confrontations where Armenians have fainted because of Azerbaijani actions. The situation is growing worse, and former NATO Secretary General Anders Fogh Rasmussen recently described the circumstances in Nagorno-Karabakh as a very serious risk of a humanitarian crisis that could escalate into a humanitarian catastrophe in Nagorno-Karabakh, with a serious risk of imminent ethnic cleansing.

To provide a better understanding of the court’s ruling and its implications, this article reviews the case’s procedural history, describes the context that led to the new requests for the provisional measures, analyzes the judges’ decisions on the matter, and details Azerbaijan’s noncompliance. 

Procedural History

In 2020, Armenia and Azerbaijan brought claims against one another before the ICJ for alleged violations of Articles 2 through 7 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). Armenia accuses Azerbaijan of violating the convention through its continued campaign of ethnic persecution and violence targeting Armenians, including arbitrary detention, torture, and murder. Conversely, Azerbaijan accuses Armenia of violating the convention by denying Azerbaijan maps of landmines on its territory and facilitating the settlement of Armenians in disputed territory. While litigation on the merits of the case is expected to begin formally in 2024 and continue for years, the court, so far, has heard each party’s requests for provisional measures twice, first in 2021 and again in 2023.

In a previous article on Lawfare, I discussed the court’s 2021 decision indicating provisional measures for both parties in both cases. In the case of Armenia v. Azerbaijan, the court ordered that Azerbaijan must (a) prevent any harm to individuals captured in 2020 who remain in detention, and ensure their security and equality before the law; (b) 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 (c) take all necessary measures to prevent and punish acts of vandalism and desecration affecting Armenian cultural heritage, including churches and other places of worship, monuments, landmarks, cemeteries, and artifacts. In the case of Azerbaijan v. Armenia, the court ordered that Armenia must “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.”

February’s court session dealt with the second set of requests for provisional measures from the parties. On Dec. 27, 2022, and Jan. 3, 2023, Armenia and Azerbaijan, respectively, submitted their requests to the court for additional provisional measures. Armenia also added an addendum on Jan. 26, alleging that Azerbaijan was to blame for the persistent cutoffs of natural gas supplies to Nagorno-Karabakh. At the end of January, the court heard the cases (Armenia’s verbatim record is here, and Azerbaijan’s verbatim record is here). 

Context for New Provisional Measures Requests 

In this second round of provisional measures requests, Armenia requested three provisional measures: (a) “Azerbaijan shall cease its orchestration and support of the alleged ‘protests’ blocking uninterrupted free movement along the Lachin Corridor in both directions;” (b) “Azerbaijan shall ensure uninterrupted free movement of all persons, vehicles, and cargo along the Lachin Corridor in both directions;” and (c) “Azerbaijan shall immediately fully restore and refrain from disrupting or impeding the provision of natural gas and other public utilities to Nagorno-Karabakh.”

As described above, Armenia’s requests stem from the ongoing blockade of the Lachin corridor. Armenia’s reasons for the request are laid out in the recent order in Armenia v. Azerbaijan: 

30. Armenia contends that, since the end of the 2020 conflict between Armenia and Azerbaijan, the Lachin Corridor is the only route connecting Nagorno-Karabakh and Armenia. It asserts that the clear and overt purpose of the “blockade” is fully integrated into what it calls Azerbaijan’s long-standing policy of ethnic cleansing, in the sense that it is aimed at creating living conditions so unbearable for ethnic Armenians that they are forced to leave the area. Armenia further contends that the “blockade” was deployed on 12 December 2022 by a group of persons who present themselves as “eco-activists” but have in fact another goal in mind, many of them being well known for “posting anti-Armenian hate speech publicly on social media”, for having “direct ties to the Government [of Azerbaijan]” or even for being supported by it. For all these reasons, Armenia considers that “the blockade and its support and encouragement constitute plausible and even manifest breaches of the obligations and corresponding rights under Article 2 (1), subparagraphs (a), (b) and (e), of CERD”. 

31. Armenia further contends that the “blockade” of the Lachin Corridor violates the freedom of movement implied in the right to leave any country, including one’s own, and the right to return to one’s country. In this regard, it asserts that the “blockade” has separated many families. Armenia adds that the “blockade” violates the right to public health, medical care, social security and social services, by preventing critically ill ethnic Armenians hospitalized in Nagorno-Karabakh to be transferred to medical facilities in Armenia for urgent medical care and for life-saving treatment. It claims, in addition, that the “blockade” has prevented the importation of essential goods, foodstuffs, medical and medicine supplies into Nagorno-Karabakh. Finally, Armenia alleges that, since 13 December 2022, the natural gas supply to Nagorno-Karabakh has been regularly cut off, leading to a number of adverse humanitarian consequences, such as disruption of the educational process in schools and disruption of the smooth running of hospitals. In conclusion, Armenia considers that the alleged blockade and related measures entail a series of highly plausible violations of rights protected under Article 5 (d), subparagraphs (i) and (ii), and Article 5 (e), subparagraph (iv), of CERD. 

In its case against Armenia, Azerbaijan requested two provisional measures, namely that Armenia (a) “take all necessary steps to enable Azerbaijan to undertake the prompt, safe and effective demining of the towns, villages, and other areas to which Azerbaijani civilians will return”; and (b) “immediately cease and desist from any further efforts to plant or to sponsor or support the planting of landmines and booby traps in these areas.” 

Paragraphs 16 and 17 of the recent order in Azerbaijan v. Armenia lay out the context for Azerbaijan’s provisional measures request. In its request, Azerbaijan refers to the:

alleged discovery in Azerbaijan’s territory, since August 2022, of over 2,700 landmines manufactured in Armenia in 2021. According to Azerbaijan, over half of those landmines were discovered in civilian areas to which Azerbaijani displaced persons and refugees are due to return …. Additionally, Azerbaijan refers to the alleged discovery, in October 2022, of “newly constructed” booby traps, consisting of military equipment such as hand grenades and landmines activated by trip wire, purposely hidden in civilian houses to which Azerbaijanis were expected to return. 

Azerbaijan’s requests for provisional measures stem from a contention that:

the placement of landmines and booby traps in civilian areas previously inhabited by Azerbaijanis and to which they are due to return, following the terms of the Trilateral Statement, demonstrates the racially discriminatory nature of Armenia’s conduct. In this regard, Azerbaijan asserts that the placement of landmines and booby traps in those areas poses an ongoing threat of death or injury to Azerbaijani civilians attempting to return to their homes. 

The Court’s Decisions

For the court to indicate provisional measures, the countries’ requests must be plausible, connected to the rights the CERD is meant to protect, and demonstrate urgency, meaning that if the court does not act and indicate provisional measures quickly, there will be a risk of irreparable harm to the rights being litigated in the case under the CERD. In its order on Armenia’s request for provisional measures, the court explained that the “condition of urgency is met when the acts susceptible of causing irreparable prejudice can ‘occur at any moment’ before the Court makes a final decision on the case.”

Between the two cases, the court found that only one of the five requested provisional measures met all three prerequisites described above: Armenia’s second request. Namely, that Azerbaijan “take all measures at its disposal to ensure unimpeded movement of persons, vehicles and cargo along the Lachin Corridor in both directions.” Because of this decision, the court also found that there was no need to grant Armenia’s first request regarding “directing Azerbaijan to cease its orchestration and support of the alleged protests blocking uninterrupted free movement along the Lachin Corridor in both directions,” as it would prove redundant and unnecessary since the measure it did issue addressed the blockade in its order to ensure “unimpeded” movement of people and cargo in the corridor. As for Armenia’s third request regarding directing Azerbaijan to “immediately fully restore and refrain from disrupting or impeding the provision of natural gas and other public utilities to Nagorno-Karabakh,” the court found that Armenia did not offer sufficient evidence that Azerbaijan is disrupting the region’s supply of natural gas and other utilities to the residents of Nagorno-Karabakh and, thus, found it unwarranted as well. This finding, however, does not preclude the possibility of Armenia bringing this claim—should the issue persist and the country gather sufficient evidence—before the ICJ again. 

Notably, two judges offered dissenting opinions in Armenia v. Azerbaijan: Judge Abdulqawi Yusuf and ad hoc Judge Kenneth Keith. In his dissent, Yusuf reemphasized the same point he made in his last dissent during Armenia’s first request for provisional measures in this case. He explained that he believes the court is misusing the compromissory clause of CERD to “stuff claims into the framework of CERD … which do not fall within the provisions of that Convention.” He calls this a “regrettable tendency[,]” suggesting that this sets a dangerous precedent of using the CERD for matters that go beyond the treaty simply for a state to obtain jurisdiction to bring these matters before the court. In turn, Keith explained that he dissented because Elnur Mammadov, the Azerbaijani agent for the case, said in a statement before the court that “Azerbaijan has and undertakes to continue to take all steps within its power to guarantee the safety of movement of persons, vehicles and cargo along the Lachin road.” In his dissent, Keith interpreted this statement to “demonstrate the limits of Azerbaijan’s powers in the current circumstances.” Separately, Keith also wrote that “security” along the corridor is the responsibility of Russian peacekeepers, not Azerbaijan, and thus he disagrees with the provisional measure’s order placing the burden on the country. 

In Azerbaijan v. Armenia, the court unanimously rejected Azerbaijan’s request for provisional measures. In paragraph 22 of its judgment, the court reiterates that the request is not plausible, just as it was not plausible the last time Azerbaijan brought it, and unanimously rejects Azerbaijan’s requests for provisional measures on that ground:

[T]he Court recalls that Azerbaijan claims that this conduct is part of a longstanding campaign of ethnic cleansing. The Court recognizes that a policy of driving persons of a certain national or ethnic origin from a particular area, as well as preventing their return thereto, can implicate rights under CERD and that such a policy can be effected through a variety of military means. However, the Court does not consider 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. Azerbaijan has not placed before the Court evidence indicating that Armenia’s alleged conduct with respect to landmines has “the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing”, of rights of persons of Azerbaijani national or ethnic origin.

Additionally, four judges issued concurring opinions that offered separate reasoning for rejecting Azerbaijan’s request. Judge Julia Sebutinde agreed that the use of mines does not implicate plausible rights under CERD but disagreed that this reasoning also applies to the booby traps described above. Sebutinde continued, however, reasoning that Azerbaijan has not provided enough evidence to substantiate the claim that booby traps were placed in civilian areas. Keith agreed that landmines do not implicate plausible rights under CERD, writing, “by their very nature, landmines are indiscriminate in their effects.” He also pointed out that “the requested measures would require Armenia to take actions in areas which Azerbaijan has now recovered and which are part of its sovereign territory. How could Armenia undertake those tasks?” Lastly, Judges Hilary Charlesworth and Leonardo Nemer Caldeira Brant agreed with the court’s reasoning and recalled the court’s reasoning in its Dec. 7, 2021, order reiterating that it had already ruled on this request at that time and need not address it again. 

What Happens Next?

Under the provisional measure, Azerbaijan is now legally obligated to take all measures at its disposal to ensure unimpeded movement of persons, vehicles, and cargo along the Lachin corridor. Two external factors can help to ensure that Azerbaijan follows through on the ICJ’s order. First, the U.N. Security Council can—pending the compliance of all five permanent members—pass a resolution to enforce the provisional measure. Second, the European Union and other members of the international community could threaten further involvement in the region if Azerbaijan does not comply with the order.

Despite these safeguards and its legal obligation, Azerbaijan has publicly stated that it will not comply with the court’s order. As described in a tweet immediately following the court’s decision by Azerbaijan’s ambassador to the Netherlands, Azerbaijan argues that the country is doing everything in its control and at its disposal to stop the protests and to ensure free access along the corridor, and thus there is nothing else it must or can do. 

There are at least three reasons, however, that this argument would likely not be successful in court, and why Azerbaijan should do more. First, Keith’s dissent in Armenia v. Azerbaijan argued the same: that Azerbaijan need not do more. However, the fact that it was a dissent underscores that the majority did not agree with him, and thus he had to write a separate opinion espousing this view. Further, the majority decision even took note of this statement at paragraph 56 of its order, yet still ordered Azerbaijan to stop the blockade. Thus, it can be suggested that the majority believes Azerbaijan must do more than what it is doing now and precludes the country from saying that it is already doing everything in its power to achieve unimpeded access across the corridor. 

Second, Azerbaijan likely cannot rely on an argument that doing more would infringe on the rights of the protesters, such as freedoms of speech or assembly. In a letter to the U.N. secretary-general, Azerbaijan’s minister of foreign affairs said that Azerbaijan “is not responsible for the protests of a group of civil society organizations, and Azerbaijan is not obligated to prevent them from exercising their legitimate right to protest.” As outlined in Article 21 of the International Covenant on Civil and Political Rights (ICCPR), “The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.” The U.N. Human Rights Committee’s General Comment on the right to freedom of assembly under the ICCPR (which serves as an interpretative tool for it) reiterates the grounds on which freedom of assembly can be restricted: “the interests of national security; public safety; public order (ordre public); the protection of public health or morals; or the protection of the rights and freedoms of others.” As described previously, the protesters creating the blockade are denying those in the Nagorno-Karabakh region access to essential goods and, more broadly, access to Armenia and the rest of the world. The blockade of protesters clearly threatens the public safety and public order of those in the region, as well as many of the other rights and categories specified above. To protect these rights and, more broadly, national security, it is defensible and legal for Azerbaijan to infringe on certain rights of protesters, such as freedom of speech. 

Further, even Azerbaijan’s laws allow for the government to regulate freedom of speech in certain scenarios. For example, Article 7 of the Law of the Republic of Azerbaijan on Freedom of Assembly provides for the regulation of the time, place, and manner of protests. Therefore, complying with international law by infringing on the individual rights of these protesters would not necessarily be at odds with Azerbaijan’s own national law. 

Lastly, the CERD itself, in the articles discussed above, prohibits such treatment and makes Azerbaijan’s omission a violation of Articles 2 and 5 of the convention. The court notes in paragraph 36 of its order that the CERD imposes obligations on state parties with regard to the elimination of racial discrimination in all its forms and manifestations; thus, Azerbaijan’s noncompliance with these obligations is unlawful. 

Still, the blockade is ongoing, and those trapped in Nagorno-Karabakh are largely continuing to suffer. The provisional measure should have been welcome news for the people of Nagorno-Karabakh and could have served as an example of how human rights treaties can be enforced using the legal mechanisms set in place for them. Yet this case lends further doubt to the efficacy of the law in ending hostilities and necessitates looking elsewhere for relief. While Armenia will likely still look to the law as a recourse for justice, it is frustrating for those who hope the court can enforce the human rights treaties within its purview to face the noncompliance of states that ultimately have the control to enforce whatever is decided. The international community can help, though, by bolstering the EU Mission already in place in border villages in Armenia, advocating that their own governments rescind support from Azerbaijan for these offensives, and even urging the Security Council to intervene in the name of peace and security for the people of Nagorno-Karabakh. There is an arsenal of tools that states can use to make the political reality match the judicial one, and at this point it seems to be a matter of will. Until then, the Armenians in Nagorno-Karabakh will keep being resilient, enduring gas and electricity shortages, standing in line for food rations, and withstanding the damaging effects on their businesses, physical health, and mental wellbeing, until the situation on the ground changes.