ARMENIA V. AZERBAIJAN: INTERNATIONAL COURT OF JUSTICE: ORDER ON THE REQUEST FOR THE INDICATION OF PROVISIONAL MEASURES 7 DECEMBER 2021.
| Author | Herman, Alexander |
It is rare that an international court confronts cultural heritage issues. On 7 December 2021, this is exactly what occurred when the International Court of Justice (ICJ) in The Hague delivered an important Order on a Request for the Indication of Provisional Measures in a dispute between Armenia and Azerbaijan (Provisional Measures Order). (1) The decision included consideration of, amongst other matters, the importance of tangible cultural heritage to minority populations in times of violence and aggression. Being such an unusual occurrence, it is worth providing a thorough explanation of this ruling.
HISTORICAL BACKGROUND
The Order relates to the armed conflict in 2020 when Azerbaijani troops re- occupied parts of the Nagorno-Karabakh region. This is the region that, since 1994, had functioned as an autonomous entity within the borders of Azerbaijan. It was the self-declared 'Republic of Artsakh', but since it formed part of the sovereign territory of Azerbaijan, its recognition under international law has been non-existent. (2) The region is made up of a majority of ethnic Armenians and comprises churches, cemeteries, libraries and other sites of Armenian heritage. The State of Armenia, which borders the Nagorno-Karabakh region, has long sided with its fellow Armenians in the region, putting it at odds with Azerbaijan. That said, not even Armenia has recognised Artsakh as a State.
There is great friction generally between Armenia and Azerbaijan in the Caucasus. This region once sat at the fringe of two major empires, Tsarist Russia and Ottoman Turkey. During the Soviet period, what are now Armenia and Azerbaijan were part of the USSR, first united as the Transcaucasian Soviet Republic and then, after 1936, as distinct Republics. They each secured their independence following the dissolution of the USSR in 1991. Now, both Russia and Turkey continue to assert their interests in the region, with Russia usually siding with Armenia and Turkey with Azerbaijan. This only heightens the tension between the two countries.
In September 2020, the Azerbaijan military began to occupy Nagorno-Karabakh. This caused much alarm amongst the Armenian community therein, as well as in Armenia. The 44 days of conflict that followed involved damage to heritage sites including the cathedral at the town of Shushi/Shusha, (3) which was left with a major crater in its apse as a result of aerial bombardment in October. (4) A ceasefire on 9 November 2020, brokered by Russia, put an end to the conflict, resulting in significant amounts of Nagorno- Karabakh territory now being held by Azerbaijan (including the town of Shushi/Shusha).
It is not the armed conflict itself that was the subject of the ICJ case, but rather an allegation by Armenia that Azerbaijan is violating an international convention that seeks to prevent discrimination against minority groups within a State's own territory. This is the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), which was adopted in 1965. The CERD has a very wide uptake, with 182 States Parties, including Armenia (acceded in 1993) and Azerbaijan (acceded in 1996). The CERD commits signatories to preventing racial discrimination, condemning apartheid and prohibiting any incitement to ethnic or racial hatred. (5) Armenia brought its claim to the ICJ under the CERD on 16 September 2021, which is the subject of the present Order. Several days later, on 23 September 2021, Azerbaijan brought a claim before the ICJ as well, claiming Armenia had itself violated the CERD, (6) though this claim did not relate directly to cultural heritage destruction and so is of less interest for present purposes.
THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION
Article 2 of the CERD sets out the fundamental obligations for States Parties to condemn racial discrimination and to pursue by all 'appropriate means and without a delay' a policy for eliminating such discrimination. This includes: ensuring that all public authorities refrain from the practice of racial discrimination, ensuring that there is no sponsoring, defending or supporting of racial discrimination, eliminating any policies that might promote racial discrimination, and prohibiting and bringing to an end any racial discrimination being practised in the State. (7)
Article 5 of the Convention then requires States Parties, in compliance with the fundamental obligations set out above, to guarantee equality before the law, regardless of race, colour or national/ethnic origin. This includes equality in the enjoyment of the right to equal treatment, the right to security of the person, political and other civil rights, and economic, social and cultural rights. In this last category is included at Article 5(l)(e)(vi) the 'right to equal participation in cultural activities'. It is this particular right, and its treatment by the ICJ, that is of particular interest for the present analysis. By tracing the contours of the 'cultural participation' right we will be able to better understand how the right might extend to a...
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