Azerbaijan and Armenia, both former Soviet Republics, declared independence in 1991. The disputed region of Nagorno-Karabakh, with an ethnic Armenian majority, was an autonomous area within Azerbaijan’s Soviet boundaries. Their competing claims led to two major conflicts, which Azerbaijan terms the "First and Second Garabagh Wars" and Armenia calls the "First and Second Nagorno-Karabakh Wars," the latest ending with a Trilateral Ceasefire Statement signed by Azerbaijan, Armenia, and Russia on 9 November 2020. Despite this, clashes continued, notably in September 2022 and September 2023.

On September 23, 2021, Azerbaijan brought proceedings against Armenia under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), alleging a long-standing policy of racial discrimination against Azerbaijanis. Azerbaijan claimed that Armenia violated multiple CERD provisions through discriminatory acts based on national or ethnic origin. Azerbaijan sought ICJ jurisdiction based on Article 36, paragraph 1, of the ICJ Statute, combined with Article 22 of CERD, which provides for dispute resolution by the ICJ if bilateral negotiations fail.

FIRST PRELIMINARY OBJECTION: JURISDICTION RATIONE TEMPORIS

The Court addressed two main issues regarding its jurisdiction under Article 22 of CERD: the principle of non-retroactivity of treaties and the erga omnes partes character of obligations under CERD.

The Court stated that "the temporal scope of the Court’s jurisdiction under a compromissory clause is determined by the scope of the temporal application of the substantive provisions of a treaty between the parties concerned". The Court found that the jurisdiction should be linked to "the date on which obligations under CERD took effect between the Parties, 15 September 1996". As Azerbaijan was not yet a party to CERD from 23 July 1993 to 15 September 1996, there were no treaty relations during this period, and "Azerbaijan has no right to invoke Armenia’s responsibility for the alleged acts that occurred during that period".

The Court clarified that "the mere fact that rights and obligations erga omnes may be at issue in a dispute would not give the Court jurisdiction". The Court found that the CERD Committee’s views irrelevant because the interstate communication procedure differs from the judicial mechanism under Article 22.

Thus, the Court concluded that it "lacks jurisdiction ratione temporis" to entertain Azerbaijan's claims based on acts before September 15, 1996, upholding Armenia's preliminary objection.

SECOND PRELIMINARY OBJECTION: JURISDICTION RATIONE MATERIAE IN RESPECT OF THE ALLEGED LAYING OF LANDMINES AND BOOBY TRAPS BY ARMENIA

The Court considered Azerbaijan's claim regarding the alleged laying of landmines and booby traps by Armenia, focusing on whether this constituted a violation of CERD. It found that Azerbaijan did not directly request the Court to rule that the laying of landmines itself violated CERD. Instead, Azerbaijan presented this act as part of its broader argument that Armenia engaged in ethnic cleansing. Specifically, Azerbaijan sought the Court's intervention to compel Armenia to "immediately co-operate with de-mining operations," but did not seek a ruling on the laying of landmines as a standalone violation of CERD.

In its memorial, Azerbaijan described the laying of landmines and booby traps as evidence of Armenia’s intent to "create, support, and maintain the monoethnic character" of the occupied territories and to obstruct the return of displaced Azerbaijanis. The Court noted that while Azerbaijan presented this evidence in support of its ethnic cleansing claim, it was not claiming that the act of laying landmines was a direct violation of CERD obligations.

The Court rejected Armenia's second preliminary objection, which sought to exclude claims relating to the laying of landmines and booby traps from its jurisdiction. Since Azerbaijan was not directly asserting that landmines constituted a CERD violation, the Court concluded that Armenia's objection was "without object" and, therefore, must be dismissed. 

THIRD PRELIMINARY OBJECTION: JURISDICTION RATIONE MATERIAE IN RESPECT OF ALLEGED ENVIRONMENTAL HARM

The Court examined Armenia's third preliminary objection, which challenged its jurisdiction ratione materiae concerning Azerbaijan's claims of environmental harm under CERD. The objection was limited to Azerbaijan's claims in specific sections of its Memorial related to environmental degradation, including deforestation, destruction of water infrastructure, and overexploitation of natural resources in territories previously inhabited by Azerbaijanis.

The Court emphasised that, to determine jurisdiction, it must assess whether the alleged acts, if proven, could constitute racial discrimination under CERD. It noted that racial discrimination involves a distinction based on "race, colour, descent, or national or ethnic origin" and must have the effect of impairing the recognition, enjoyment, or exercise of human rights. The Court found that Azerbaijan's claims, which included harm to forests, agricultural land, and water resources, were largely based on commercial or negligent activities and did not appear to target Azerbaijanis based on their national or ethnic origin. Specifically, the destruction of forests was linked to "agricultural and industrial activities" and "commercial purposes," while the alleged mismanagement of water infrastructure was not shown to be based on ethnicity but rather neglect and mismanagement.

The Court concluded that, even if the environmental harm were proven, it would not fall within the scope of CERD, as the acts were not discriminatory on the basis of national or ethnic origin. It noted that the alleged harm impacted both ethnic Armenians and Azerbaijanis, and the destruction of resources such as the Sarsang Reservoir affected both populations. Therefore, the environmental claims did not meet the criteria for racial discrimination under CERD.

In conclusion, the Court upheld Armenia's third preliminary objection, ruling that it lacked jurisdiction ratione materiae to address Azerbaijan's environmental harm claims, as they did not constitute violations of CERD.

ORDER

By a majority of 14:3, the Court upheld Armenia's first preliminary objection, ruling in favour of Armenia. By a majority of 16:1, the Court rejected Armenia's second preliminary objection, allowing Azerbaijan’s claims regarding ethnic cleansing to proceed. By a majority of 12:5, the Court upheld Armenia's third preliminary objection, dismissing Azerbaijan’s claims related to environmental harm under CERD.

The Court unanimously found that it has jurisdiction, based on Article 22 of CERD, to entertain Azerbaijan’s application, subject to the rulings on the first and third preliminary objections.

Case Summary: Azerbaijan v. Armenia—Application of the International Convention on the Elimination of All Forms of Racial Discrimination [Tap here for the Order]

Court Composition:
President: Judge Salam
Vice-President: Judge Sebutinde
Judges: Tomka, Abraham, Yusuf, Xue, Bhandari, Iwasawa, Nolte, Charlesworth, Brant, Gómez Robledo, Cleveland, Aurescu, Tladi
Judges Ad Hoc: Daudet, Koroma
Registrar: Gautier