The ICJ and the ECtHR’s Provisional Measures in the “Lachin Corridor” in Azerbaijan: Can Armenia Use the Civilian Passage for Military Purposes?

[Nurlan Mustafayev is a counsel on international legal affairs at the State Oil Company of the Republic of Azerbaijan, an instructor on public international law, and a pro bono advisor to Azerbaijani refugees on claims before the European Court of Human Rights.]

One of the hot points of the Armenia-Azerbaijan conflict in 2022-2023 is the ongoing crisis in the “Lachin Corridor” in Azerbaijan that redrew the international community’s attention to the conflict. As part of the Trilateral Statement signed in November 2020, an armistice agreement that ended the Armenia-Azerbaijan ‘44-Day War,’ Azerbaijan granted a “connection between Nagorno-Karabakh and Armenia” and undertook to guarantee the safety of “citizens, vehicles and goods” travelling  through an 80km road inside Azerbaijan (the “Lachin Corridor”) to its Karabakh region, populated by the majority of ethnic Armenians (see Article 6). The Lachin Corridor remains under the Russian peacekeepers’ control until 2025. 

Since early 2021, tensions have been building up. Azerbaijan blamed Armenia for transporting weapons and soldiers in disguise and illegal mining exports through the civilian Lachin corridor from Armenia to Karabakh and vice versa. Since 12 December 2022, Azerbaijani eco-activists have started protests against illegal mining operations in Karabakh near the Russia-controlled checkpoint with alleged Azerbaijan’s tolerance. The reports indicate that Armenia also closed its border with Azerbaijan and was not permitting Armenians to travel along the corridor after the protests began and blamed Azerbaijan for the ‘blockade of the 120,000 ethnic Armenians in Karabakh.’ Despite factual uncertainties, however, what is clear is that the facts on the ground have changed. Since early December, only the Russian peacekeepers’ and the International Red Cross’s vehicles have used the passage to transport people and supplies to Karabakh and vice versa. And there is now tighter control on military-related personnel and cargo.   

The UN Human Rights Commission issued a statement “calling on the sides to resolve pending issues through a dialogue, and enable free and safe movement, protect human rights and avoid adverse humanitarian impact on civilians.” 

Both Armenia and Azerbaijan applied to the International Court of Justice (ICJ), and Armenia applied to the European Court of Human Rights (ECtHR) for provisional measures. 

Pending Inter-State Cases

These provisional measures should be seen in a broader context of ongoing Azerbaijan-Armenia reciprocal claims before the ICJ and the ECtHR under the UN Convention on Elimination of All Forms of Racial Discrimination (CERD) and the European Convention on Human Rights (ECHR). The parties allege various violations of international law and human rights law, including military occupation, ethnic cleansing, property rights, security of persons, etc., arising from Armenia’s occupation of Azerbaijan’s Karabakh region and adjacent districts from 1991-2020.   

Provisional Measures 

ECtHR 

On 21 December 2022, the ECtHR adopted its provisional measure order. According to it, Azerbaijan to “take all measures within its jurisdiction to ensure safe passage through the Lachin Corridor of seriously ill persons in need of medical treatment in Armenia and others who were stranded on the road without shelter or means of subsistence.”

The ECtHR did not accept the arguments for “unhindered access” or “unblocking the road” but limited its order to “safe passage” only. It is an essential difference as the Trilateral Agreement does not envisage “free” movement in the Lachin corridor. Thus, it limited its order to a vulnerable part of the population, which may be the most affected by interruptions.   

The ECtHR also did not take Azerbaijan’s alleged control in the passage at its face value by holding that the “extent to which Azerbaijan was currently in control of the situation in the Lachin Corridor was disputed.” Since Russia has control over the passage and Armenia exercises effective control in parts of Karabakh, the ECtHR appeared unclear as to which party is actually controlling the passage and its entry and exit.  

ICJ 

Armenia made three requests for provisional measures: (1) ceasing the orchestration of the eco-activities protests; (2) uninterrupted free movement; and (3) restoring gas supply and other public utilities.  

On 22 February 2023, the ICJ adopted its provisional measure order. While it rejected the first and the third requests, it partially satisfied the second request. It held that Azerbaijan shall “take all measures at its disposal to ensure unimpeded movement of persons, vehicles, and cargo along the Lachin Corridor in both directions,” partially mirroring Article 6 of the Trilateral Statement. 

The ICJ did not accept the concept of “blockade” and instead chose “interruption of movement” along the Lachin Corridor as the basis of its analysis. It did not attribute such “interruption of movement” to any conflicting parties’ actions.  

Second, while the ICJ focused its decision on Article 5 (d) and (e) in its irreparable harm analysis, it found “at least some of the rights” Armenia is alleging under Articles 2 and 5 to be plausible (see § 39). These plausible rights included the right to freedom of movement and residence within the border of the State, the right to leave any country, including one’s own, and to return to one’s country, and the right to public health, medical care, social security, and social services (see § 36).  

The ICJ reasoned that the plausible rights under Article 5 (d) and (e) are of such a nature that prejudice due to “interruption of movement” is capable of causing them irreparable harm. Thus, the urgency to protect such plausible rights warranted the provisional measure pending the final decision. Accordingly, it ordered “unimpeded movement” in the Lachin corridor to protect such plausible rights rejecting the request for “uninterrupted free movement.” This critical difference is usually missed in the analysis of experts and the media.  

Azerbaijan also made a request for several provisional measures, as discussed below. 

Judge Sebutinde, Judge Kenneth Keith, and Judge Yusuf issued separate declarations expressing their disagreements with the orders on various grounds. 

Safe Passage v. Unimpeded Movement    

There are two seemingly different concepts used by the ECtHR (“safe passage”) and the ICJ (“unimpeded movement”) in their respective orders. Textually, the scope of the ICJ’s order appears broader and less nuanced than the ECtHR’s order. The ECtHR’s extensive experience with the Armenia-Azerbaijan conflict since 2001 and a well-developed jurisprudence on freedom of movement could partially explain the choice of different terms and defining exceptions. 

Regardless of such textual differences, the ICJ order defines positive and negative obligations on Azerbaijan not to impose ‘arbitrary barriers’ at its disposal on citizens (civilians), vehicles, and cargo in the passage that may amount to impediment. Thus, if an entering person is a civilian and the cargo is legal (.e.g., not a weapon), the Azerbaijani agencies cannot refuse or impede entry. Avoiding adverse humanitarian impacts on civilians shall dominate the orders’ interpretation in this context.

The commonality of the ICJ and the ECtHR’s orders is that they do not envisage free movement in the Lachin Corridor. For instance, these orders do not entitle Armenian civilians, vehicles and cargo to use the corridor for military purposes, e.g., transport soldiers and weapons in contravention of international law. It specifically mentioned the ‘civilian traffic in the Lachin corridor’ (see § 34), which could explain the rationale for the choice of ‘unimpeded’ instead of ‘free’ movement. Interestingly, the word ‘citizens’ in the Azerbaijan and Russian languages in the Trilateral Statement is used interchangeably with ‘civilians,’ which defines the signatories’ intent.   

The argument that “unimpeded movement” in the ICJ order means “free movement” is not in line with any reasonable rules of legal interpretation. The court could have used ‘free’ but instead opted for ‘unimpeded,’ which was not accidental. It mentioned ‘impediments’ and ‘hindrances’ to describe situations where the freedom of movement was unduly interrupted or obstructed (see § 54). In the court’s thinking, the freedom of movement is not an absolute right and there can be legitimate restrictions under international law. Opening the freedom of movement to foreign soldiers and military goods would be a far-fetched interpretation beyond the scope of CERD and ECHR. It would lead to absurd outcomes by legitimizing the entry of foreign armies into other states’ territories without sovereign consent. Such military use would also be a violation of international law principles of non-intervention and non-use of force and cannot be protected under such freedom of movement. The ICJ’s order and choice of words partly reflects this approach.

Considering the passage’s primary civilian purpose, these orders do not exclude legitimate control Azerbaijan’s agencies could exercise to check persons, vehicles, and cargo to prevent the entry and exit of soldiers and illegal cargo. Thus, both orders should be understood in the context of prohibiting arbitrary interferences into freedom of movement of civilians, which should be balanced with other well-established principles of international law in this complex legal case .e.g., national security, self-defense    

There are other factors which may impact the interpretation and enforcement of these orders in practice. For instance, unlike the ECtHR’s order, the ICJ failed to fully address the “control” of the Russian peacekeeping force in the passage. While it mentioned that under the Trilateral Statement, the passage “…shall remain under the control of the Russian Federation peacemaking forces,” however, it did not elaborate on what obligations such controlling party has in the passage (See § 60). It is an inexplicable omission, considering that the Russian army is stationed in the passage and has numerous checkpoints. 

Armenia’s Continued Military Presence in Karabakh 

Notably, the ICJ did not fully consider Armenia’s control over the entry and exit on the Azerbaijan-Armenia border and inside Karabakh. As per the International Crisis Group’s (ICG) estimate, about a 12,000-strong Armenian army still remains in Azerbaijan’s Karabakh region after the 2020 war. Azerbaijan also officially claims that there are 10,000 Armenian army forces inside Karabakh. The recently emergent videos also indicate the presence of Armenia’s military bases and its remaining units in Karabakh. The ICG’s earlier reports found that “Armenian and de facto Armenian-Karabakh military forces are intertwined, with Armenia providing all logistical and financial support, as well as ammunition and other types of military equipment.” This state of affairs has not changed on the ground after the 2020 war; on the contrary, this military dependence and integration has significantly increased. These factors are critical in determining the extent of control Azerbaijan and Armenia exercise in the passage in theory and practice and the respective obligations to execute the orders. 

Landmines and Return of IDPs

Azerbaijan’s request for provisional measures asked the ICJ to order Armenia not to transport through the Lachin corridor and plant mines and booby traps, and they have the intent and purpose of preventing the return of Azerbaijani IDPs to these areas. 

While the ICJ noted sympathy for the argument that a policy driving an ethnic group from a particular area and prevent their return could implicate rights under CERD, but it did not link that to landmines in particular. The court held that CERD does not “plausibly imposes any obligation on Armenia to take measures to enable Azerbaijan to undertake demining or to cease and desist from planting landmines” (See § 22). Arguably, the ICJ’s thinking was that the request’s scope was more relevant to international humanitarian law instead of CERD, and the requested measures, without direct and substantial evidence of racial discrimination, were too remote to protect such plausible rights.   

Solution: Predictable Rules and Seamless Civilian Passage  

The “Lachin Corridor,” a part of Azerbaijani territory, can best be described as a temporary visa-free regime for Armenian civilians, vehicles, and cargo entry to Azerbaijan’s Karabakh region. It is not an extraterritorial corridor as Armenia and Russia do not have any sovereign rights (e.g., transit rights) over the road. Azerbaijan’s laws apply to the passage. Azerbaijan’s army, police, customs, and other agencies do not check the persons and cargo yet. The Russian peacekeeping force supposedly exercises this function on behalf of Azerbaijan in the passage and also in Karabakh as well.   

However, unclear passage rules in the Lachin corridor are the main cause of this international legal dispute. To prevent potential abuse and bring more predictability, Azerbaijan should publish transparent passage rules, e.g., in line with the Council of Europe’s relevant standards. Azerbaijan should clearly establish who cannot use the passage (e.g., soldiers, military contractors) and determine the list of the disallowed cargo (e.g., weapons, military equipment, mines, etc.). This will eliminate the seemingly arbitrary use of the passage and assess violations, and prevent adverse impact on civilians.  

To ease tensions, border control, including smart and seamless custom posts with cameras and scanners, can also be established at the Azerbaijan-Armenia border. The smart system will ensure these two key goals: first, it will ensure the exclusively civilian use of the passage – the legitimate needs of ethnic Armenians in Karabakh; second, it will also guarantee that no military goods will be transported through the passage – the security concerns of Azerbaijan.