On December 7, 2021, the International Court of Justice (ICJ) ordered provisional measures in the Armenia v. Azerbaijan [3] and Azerbaijan v. Armenia [4] cases. Armenia had requested the Court to adjudicate and declare the Azerbaijan violated the Convention on the Elimination of All Forms of Racial Discrimination (CERD) [5] and that, as a consequence, Azerbaijan should cease its wrongful activity, comply with CERD, make reparations for resulting harms, apologize to Armenia, and offer assurance of no further violations. Armenia made similar requests and also alleged that Armenia had “aid[ed], assist[ed], sponsor[ed] and support[ed]” other groups’ in acts in contravention of CERD.

In response to Armenia’s request, the Court ordered Azerbaijan to safeguard, in accordance with its obligations under CERD, the lives of persons captured and detained in relation to the 2020 conflict; to take measures necessary “to prevent the incitement and promotion of racial hatred and discrimination” against Armenians; and to “prevent and punish acts of vandalism and desecration affecting Armenian cultural heritage.” In response to Azerbaijan’s request, the Court unanimously ordered Armenia to comply with CERD and to “take all necessary measures to prevent the incitement and promotion of racial hatred” targeted at Azerbaijanis. The ICJ unanimously ordered both parties to “refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.”

In each of its orders, the ICJ assessed whether it had jurisdiction to rule on the merits of the case by examining whether the acts complained of by both parties are within the scope of CERD. In concluding yes in both cases, the Court noted that its task at this stage in the proceedings is not to judge whether a violation of CERD has occurred, but rather “whether the acts . . . are capable of falling within . . . the Convention.” It was the Court’s view that “at least some of the acts and omissions” fulfilled this condition. However, the Court specifically concluded, in relation to Armenia’s case against Azerbaijan and its claims relating to repatriation of prisoners of war and civilian detainees, that CERD does not “plausibly require[] Azerbaijan to repatriate all persons identified by Armenia as prisoners of war and civilian detainees” and that Armenia had not provided sufficient evidence to demonstrate that such persons “continue to be detained by reason of their national or ethnic origin.” In relation to Azerbaijan’s case against Armenia and rights associated with Armenia’s actions in relation to landmines, the Court concluded that CERD does not “plausibly impose[] any obligation on Armenia to take measures to enable Azerbaijan to undertake demining or to cease and desist from planting landmines” and that Azerbaijan failed to present evidence sufficient to indicate that Armenia’s activities “with respect to landmines has ‘the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing,’” of Azerbaijani people.

Judge Yusuf, in his Dissenting Opinion [6] to the Armenia v. Azerbaijan Order, disagreed with the Court’s conclusions regarding plausibility. He stated that such rights do not have a link with racial discrimination and that therefore, they are not plausible under the CERD, and provisional measures cannot be indicated related to such rights. Relatedly, Judge ad hoc Keith explained, in his Declaration [7], his negative vote “on the measure relating to cultural property” by stating that “CERD does not accord protection to cultural property itself,” and that difficulties accessing Armenian cultural property arise from the placement of landmines, not from the national or ethnic origin of those seeking access.