Armenia v Azerbaijan: Understanding the World Court’s Orders

On 22 February, the International Court of Justice (ICJ) issued yet another Provisional Measure on Armenia’s request. In essence, the “World Court”, among other things, ordered Azerbaijan to cease the Lachin Corridor's blockade and ensure unimpeded road operation. Yet, legal language can be confusing, and the ICJ’s recent may have left some readers confused about its practical implications. In this blog post, I will clarify what the order actually entails for the parties involved and, more importantly, how it can improve the dire situation in Artsakh (Nagorno-Karabakh).

Before delving into the provisional measure ordered by the ICJ, let’s first clarify what the ICJ is and what it is not, as many people may not be familiar with its mission, mandate, and limitations, and may also confuse it with other international courts and tribunals.

What you need to know about the ICJ

The ICJ is the principal judicial organ of the United Nations (UN). The Court settles legal disputes between states and gives advisory opinions on legal questions referred to by authorized UN organs and specialized agencies. It was established in 1945 by the UN Charter and began work in April 1946. The Court has its seat in the Hague, Netherlands, and it is composed of 15 judges elected to nine-year terms of office by the UN General Assembly and the Security Council.

The ICJ is not a criminal court and does not have the power to prosecute individuals for criminal offenses. On the other hand, the International Criminal Court (ICC) is responsible for examining and prosecuting individuals accused of committing the most serious offenses that affect the international community, such as genocide, war crimes, crimes against humanity, and the crime of aggression. The ICC is also located in the Hague.

The Court has a mandate over disputes only if the States concerned have accepted its jurisdiction in one or more of the following ways:

• by entering into a special agreement to submit the dispute to the Court;

• when they are parties to a treaty containing a provision, which allows them to refer their disputes to the Court;

• through accepting the Court’s compulsory jurisdiction in the event of a dispute with another State having accepted the same jurisdiction.

Judge Hersch Lauterpacht, one of the leading international lawyers of the twentieth century, believed that the main role of the International Court is to contribute to the establishment of peace through the application of the law.

Armenia v. Azerbaijan

On 28 December 2022, Armenia asked the ICJ to order Azerbaijan to:

1. “cease its orchestration and support of the alleged ‘protests’ blocking uninterrupted free movement along the Lachin Corridor in both directions”;

2. “ensure uninterrupted free movement of all persons, vehicles, and cargo along the Lachin Corridor in both directions”; and

3. “immediately fully restore and refrain from disrupting or impeding the provision of natural gas and other public utilities to Nagorno-Karabakh”.

Azerbaijan has since 12 December 2022, blocked the Lachin corridor, the sole road connecting Nagorno-Karabakh with Armenia, denying access to vital goods and services, including food, fuel, and medical supplies, for over 120,000 ethnic Armenians living in the region. The unfolding humanitarian crisis has prompted calls from the United States, the European Union, Human Rights Watch, and Amnesty International for Azerbaijan to reopen the corridor. Regrettably, the international response to this blatant disregard of international law was too feeble, which has encouraged Azerbaijan to carry on its policies.

The ICJ in its deliberation addressed and acknowledged the dire factual background underlying Armenia’s judicial motion:

“The Court observes that, since 12 December 2022, the connection between Nagorno-Karabakh and Armenia via the Lachin Corridor has been disrupted. The Court notes that a number of consequences have resulted from this situation and that the impact on those affected persists to this date,” the court said in reading its decision.”

“The information available to the Court indicates that the disruption on the Lachin Corridor has impeded the transfer of persons of Armenian national or ethnic origin hospitalized in Nagorno- Karabakh to medical facilities in Armenia for urgent medical care. The evidence also indicates that there have been hindrances to the importation into Nagorno-Karabakh of essential goods, causing shortages of food, medicine and other life-saving medical supplies.”

On 22 February 2023, the ICJ issued a provisional measure directing Azerbaijan to take immediate action to ensure unimpeded movement along the Lachin Corridor. The order, which was passed by an overwhelming majority, requires Azerbaijan to take all necessary measures to ensure the free flow of people, vehicles, and cargo along the corridor in both directions. The ICJ’s order underscores the urgency of the situation and highlights the need for immediate action to address the crisis.

The Court, due to a lack of evidence, rejected Measure 3 submitted by Armenia, which pertained to the disruption of gas and utilities. Measure 1 regarding the alleged protests blocking movement along the Lachin Corridor was also rejected. However, the Court did so only after granting Measure 2 regarding the free movement of persons, vehicles, and cargo in a slightly amended form. This means the Court considered Measure 1 to be already included in Measure 2 as among “all measures” at Azerbaijan’s disposal to restore unimpeded movement along the Lachin Corridor.

The ICJ also emphasized the responsibilities outlined in the Tripartite ceasefire agreement, signed on 9 November 2020. The agreement, among other things, compels Azerbaijan to ensure unimpeded movement along the Lachin Corridor, which is under the direct control of the Russian peacekeeping contingent.

In the same ruling, the Court unanimously rejected Azerbaijan's counter-request to impose provisional measures on Armenia for the alleged planting of landmines. The court ruled that there was insufficient evidence to support Azerbaijan’s claim.

What’s on the horizon?

The question “what if Azerbaijan refuses to comply with the ICJ order” looms large and not without a reason. Therefore, let’s find out what legal, political, and practical effects the ICJ rulings normally have.

As Article 94(1) of the UN Charter stipulates, by signing the Charter, a Member State of the United Nations undertakes to comply with the decision of the Court in any case to which it is a party. Simply put, the Court’s judgments are final, binding on the parties to a case, and without appeal. Yet what if Azerbaijan does not comply with the Court’s order and wants to keep things at the Lachin Corridor the way they stand?

Indeed, shortly after the ICJ ruling, in a letter to the UN Secretary-General, Azerbaijan’s Minister of Foreign Affairs maintained that Azerbaijan was not responsible for the protests and was not obligated to prevent them from exercising their right to protest. Moreover, according to the official the Corridor has never been blocked either by Azerbaijan or the activists, an allegation that the Court had not been persuaded by.

Under the UN Charter, the responsibility for ensuring compliance is not up to the ICJ. Instead, the Security Council, the principal political organ for maintaining peace and security is vested with that mandate. Thus, Article 94(2) of the UN Charter provides:

“[e]ach member of the United Nations undertakes to comply with the decisions of the International Court in any case to which it is a party. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.”

This highlights the close nexus between the ICJ and the Security Council as institutions with distinct but complementary roles in resolving international disputes. As such, the ICJ is responsible for allocating rights and responsibilities and resolving legal disputes among parties, while the Security Council is responsible for enforcing the ICJ’s rulings if a state fails to comply voluntarily.

Now, if Armenia believes that Azerbaijan has failed fulfilling its obligations, it can raise the issue with the Security Council. The Security Council has the authority and discretion to suggest or decide on measures to ensure the implementation of the judgment, or not to do so at all.

As one prominent scholar noted, non-compliance may give rise to new political tensions, and the efficacy of the post-adjudicative phase is not determined by another judicial examination, but rather by immediate political action.

So far so good. Or is it? As is almost always the case when dealing with legal issues, many subtle points can be extracted from the text and practice. Let's consider the following issues:

• The enforcement under Article 94 of the UN Charter covers only ‘judgments’ of the ICJ.

• It is up to the UN Security Council to decide whether to act to enforce the ICJ rulings at all and, if so, what measures to take.

Now, bear with me, as I will try and explain what each of these points implies. Firstly, the ICJ order from 22 February is not a judgment for the purposes of the UN Charter as well as the ICJ Statute, but it is a provisional measure, which was requested under Article 41 of the ICJ Statute by Armenia, who considered that the rights of Armenians living in Nagorno-Karabakh, that formed the subject of the application were in immediate danger. So, what is a provisional measure at all, and does it mean that Azerbaijan is not bound by the provisional measure?

Imagine two neighbors disputing the legal title over a cabin in the woods before a Court. In this context, the Court can order one (or both) of them to refrain from demolishing the cabin, the very subject matter of the dispute, pending the final decision (judgment) on the title, provided the Court believes there is such imminent danger.

The ICJ issued its Provisional Measure on 22 February in the context of an earlier Application by Armenia filed on 16 September 2021, which instituted proceedings against Azerbaijan. The proceeding concerned alleged violations of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). Notably, the ICJ had ordered prior measures in both Armenia’s and Azerbaijan’s competing cases (see here and here; also here).

This is illustrated in the picture below.

The Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Azerbaijan v. Armenia) Request for the indication of provisional measures

Secondly, as it was briefly mentioned above, the UN Charter views compliance as much more a political matter involving international peace and security than a legal one. Considering the very vibrant factual and political backgrounds underlying each dispute before the ICJ as well as the limited mandate of every international court or tribunal, the UN understandably envisages only political solutions in cases of plausible non-compliance with the ICJ judgment. In its entire history, the Security Council has never employed its powers under Article 94 powers even on occasions of blatant non-compliance. Nevertheless, notably, the mere threat of Security Council action was sufficient to trigger the desired response from the recalcitrant state.

We have agreed at this point that the 22 February Provisional Measure is not a judgment, meaning Article 94 of the UN Charter does not cover it. Does it mean then that the Provisional Measure is not binding upon Azerbaijan? The short answer is “no”.

As the ICJ established in LeGrand case (Germany v. US) its “orders on provisional measures under Article 41 [of the Statute] have binding effect”, and thus create international legal obligations for any party to whom the provisional measures are addressed. In a subsequent case (Avena and Other Mexican Nationals (Mexico v. US)) provisional remedies order was a direct test of whether the ICJ’s final judgment in LaGrand would be obeyed. The US duly respected the ICJ provisional measure. The US’ compliance has sent a strong message, political at least, to other states. This of course does not, in any case, establish an automatic compliance mechanism, but the morale could not be any simpler: if the US has obeyed, well, you know the drill…

Also, under Article 11 of its Internal Judicial Practice, the Court is vested with the responsibility to monitor compliance with its orders. In this vein, when the Court issues a provisional measure, it shall establish an ad hoc committee of three ICJ-elected judges, which will assist the Court to monitor the implementation of the measure at hand. In particular, the Committee shall examine the information received from the parties in relation to compliance with the measure. It also periodically reports to the Court, recommending certain options for it. The Court shall take respective decisions if needed.

Before adjourning

While the ICJ judgements are backed with an “enforcement mechanism” under Article 94 of the UN Charter, the implementation of the provisional measures remains with the Court. At any rate, Armenia still is not barred from calling on the UN Security Council to “encourage” Azerbaijan to adhere to the ICJ order and unblock the Lachin Corridor. Alternatively, and parallelly the ICJ ad hoc Committee(s) monitoring the implementation of the recent Provisional Measures is yet another forum to communicate the urgency of compliance with the Court’s order.

Armenia’s commitment to upholding international law and seeking peaceful resolution of international disputes is evidenced by its methodical strategy in the ICJ. The Court’s recent Provisional Measure underscores the urgency of opening the Lachin Corridor as well as the need for immediate action to address the humanitarian crisis in Nagorno-Karabakh with practical and decisive actions.

While the order could have been expressed in clearer and more detailed terms through specific benchmarks to make compliance easy to determine, from now on the ICJ, while monitoring its order’s implementation, must not underestimate the deadly consequences that Azerbaijan’s reluctance to comply with the order will bring about.