On September 16, Armenia submitted a grievance to the Intercontinental Court docket of Justice (ICJ) towards Azerbaijan, alleging ethnic discrimination of Armenians in breach of Azerbaijan’s obligations beneath the Worldwide Convention on the Elimination of All Kinds of Racial Discrimination (CERD). Armenia alleges that Azerbaijan discriminated and persecuted Armenians by a assortment of solutions such as despise speech, atrocities that are condoned and rewarded, a policy of ethnic cleansing and the destruction of their cultural heritage.
This was achieved with scepticism, and even dismissal, from many commentators, who appeared to see it both as a PR stunt on Armenia’s part or simply an act of spite, an underestimation of the move maybe grounded in the bitterness that proceeds to fester pursuing final year’s war. That narrative was only strengthened when Azerbaijan responded that it would file a mirror grievance, with similar allegations, to the similar court docket.
A lot more cautious voices instructed that it may possibly be a tactic aimed at securing provisional actions to shield Armenia’s assistance customers who keep on being detained in Azerbaijan. The CERD is 1 of the several treaties to which Armenia and Azerbaijan are the two parties, and that also features the probability of judicial arbitration and software of provisional steps in specific instances.
In truth, Armenia’s software does ask for actions to secure and launch the prisoners. But the chance of the court approving these kinds of actions is minimal, given the specific obligations laid out in the CERD, and Armenia’s lawyers are no doubt aware of that.
The implications of Armenia’s criticism can in fact grow to be far more broad-reaching and could have implications for the lengthy-phrase political resolution of the conflict.
The essential disagreement involving the two sides is that Azerbaijan considers the conflict proficiently fixed as a result of last year’s war, and that it has reestablished sovereignty in excess of all of its internationally recognised territory. Armenia, meanwhile, views the standing of Nagorno-Karabakh as unresolved and the subject of diplomatic negotiations to arrive. It is this concern that Armenia seeks to concentrate on – albeit indirectly – in its criticism to the ICJ.
How would an alleged ethnic discrimination by Azerbaijan towards Armenians be related to the status of Karabakh? At concern is the principle of “responsibility to defend,” or R2P. According to this basic principle, spearheaded by former United Nations Secretary-Normal Kofi Annan, the intercontinental local community is obliged to intervene in instances of grave human legal rights violations on a significant scale. Although the basic principle is not nonetheless formally section of worldwide regulation, it has obtained reputation among some global lawyers and human rights activists.
In its personal transform, R2P plan is typically connected to the notion of “remedial secession” – the theoretical justification for the secession of a minority populace from a condition in the case that it faces full annihilation if it continues to be inside of that state’s borders.
These guidelines and theories, whilst not formally aspect of global law, are attaining help. The circumstance of Kosovo, which broke absent from Serbia and is now partly recognised as an unbiased point out, is the most distinguished instance of a secession justified by this line of thinking.
If the ICJ had been to aspect with Armenia in this situation, it would lend reliability to the political statements that the standing of the territory should really be reconsidered by the worldwide local community. That would be a blow to the lawful placement of Azerbaijan, even if it does not generate immediate lawful outcomes.
Azerbaijan’s mirror criticism, even if also accepted by the courtroom, would not generate the exact effect as there is no lengthier an Azerbaijani minority compactly settled in Armenia.
This would make an uneven influence wherein twin circumstances are viewed as by global arbitration, and both equally received by the applicants, but the effects of which in outcome favour only one particular of the sides. This has already occurred just before: in the circumstance Chiragov v. Armenia, beforehand the most sizeable circumstance related to the conflict in global law. In that 2015 judgment, the European Court of Human Rights ruled that Armenia exercised “effective control” around the territory of the conflict and had a armed forces presence there (so-named “boots on the ground”), therefore indirectly confirming it as an occupying state. Armenia gained its mirror scenario, Sargsyan v. Azerbaijan, as the European Court docket observed that Azerbaijan had violated inter alia Sargsyan’s residence rights. But since Sargsyan lived in Azerbaijan’s internationally recognised territory, it did not have the same implications vis-à-vis profession.
Azerbaijan could however however come out the winner in this situation. It will be tough to confirm point out discrimination in opposition to Armenians when Azerbaijan did not exercising efficient command above the territory of Karabakh and hence had no jurisdiction about Armenians. Additionally, Armenia would have to establish that the rhetoric of Azerbaijan directed at Armenia and Armenians dwelling exterior Azerbaijan has a immediate influence on the Armenian neighborhood living inside of Azerbaijan but outdoors the territory of the conflict. Furthermore, basing its case on the reality that Azerbaijan by default exercise bars (with some unusual exceptions) ethnic Armenians from getting into the place may perhaps be challenging legally, as usually worldwide regulation offers extensive authority to states to choose whom to allow for inside their borders. Importantly, an Armenian defeat in the ICJ would further solidify Azerbaijan’s legal scenario on the conflict in the international group.
Nonetheless, Armenia’s authorized challenge need to also be found in a constructive context, as it delivers careful hope that the street to ending this conflict will go by way of the courtroom and not by way of the battlefield.
Kamal Makili-Aliyev is an affiliate professor of international law and human legal rights at Malmo University in Sweden. He is an creator of “Contested Territories and Global Regulation: A Comparative Analyze of the Nagorno-Karabakh Conflict and the Aland Islands Precedent” (Routledge, 2020).
This write-up initially appeared on Eurasianet below.