16 Mar When Might Is Wrong: Addressing Azerbaijan’s Refusal to Comply with the ICJ’s Order to Unblock the Lachin Corridor
[Sheila Paylan is an international human rights lawyer and former legal advisor to the United Nations for more than 15 years. She is currently a Senior Fellow in International Law at the Applied Policy Research Institute of Armenia, an independent think tank based in Yerevan.]
Sheila Paylan has previously served as a pro bono advisor to the Republic of Armenia in the aftermath of the 2020 Nagorno-Karabakh War, including during the submission of Armenia’s first request for provisional measures against Azerbaijan before the International Court of Justice in 2021. The opinions and views expressed in this article are entirely her own.
On February 22nd, 2023, the International Court of Justice (“ICJ” or “Court”), by near-unanimous vote, ordered Azerbaijan to urgently “take all measures at its disposal to ensure unimpeded movement of persons, vehicles and cargo along the Lachin Corridor in both directions” (“Order”). The Court also unanimously rejected, for lack of evidence, a counter-request by Azerbaijan to order Armenia to enable demining and cease planting landmines. Both rulings were issued on the 73rd day since a group of Azerbaijani self-proclaimed eco-activists set up a roadblock along the Lachin Corridor, closing the only road linking the breakaway region of Nagorno-Karabakh and its indigenous ethnic Armenian population to the outside world. The humanitarian crisis that has since unfolded has prompted repeated calls around the globe (including by the United States, the European Union, and Russia, as well as Human Rights Watch and Amnesty International, among many others) for Azerbaijan to immediately reopen the Lachin Corridor.
The Order came pursuant to a request for the indication of further provisional measures filed by Armenia in its case against Azerbaijan under the Convention for the Elimination of All Forms of Racial Discrimination. Prior measures have been ordered in both Armenia’s and Azerbaijan’s competing cases (see here and here; see also here). In its latest request, Armenia specifically asked the Court 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”.
The Court rejected Measure 3 regarding the disruption of gas and utilities for lack of sufficient evidence (Order, para. 64). The Court also rejected Measure 1 regarding the alleged protests blocking movement along the Lachin Corridor (Order, para. 63), but only after it granted Measure 2 regarding free movement of persons, vehicles and cargo in slightly amended form (Order, para. 62). A reading of the Order shows that, having granted Measure 2, the Court considered that there was no need to then grant “this further measure regarding movement along the Lachin corridor”. The Court thus appears to have considered Measure 1 to be subsumed under amended Measure 2 as among “all measures” at Azerbaijan’s disposal to restore unimpeded movement along the Lachin Corridor in accordance with its Order.
As the blockade now enters its fourth month with the protesters still in place, Azerbaijan evidently disagrees. Immediately after the Order’s issuance, the Agent of Azerbaijan before the ICJ took to Twitter to declare that Azerbaijan “welcomes the Court’s rejection of Armenia’s requested measures [1 and 3]”, and emphasized that “the ICJ took note of our representation that Azerbaijan has and undertakes to continue to take all steps within its power and at its disposal to guarantee safe movement along the Lachin Road”. He omitted, however, to mention the operative part of the Order altogether.
Five days later, in a letter to the UN Secretary-General, Azerbaijan’s Minister of Foreign Affairs expressed his view that the Order confirms Azerbaijan’s positions with respect to the Lachin Corridor, including that it “is not responsible for the protests of a group of civil society organizations, and […] is not obligated to prevent them from exercising their legitimate right to protest” (Letter, p. 3). Azerbaijan’s Foreign Minister thus purports that the Court issued its Order “[i]n the light of the evidence submitted by Azerbaijan, including its undertaking” (Letter, p. 3), in other words, in support of rather than in spite of Azerbaijan’s representations. Such a reading seriously distorts the Order’s phrasing: “The Court takes note of [the Agent of Azerbaijan’s] statement [that his Government has and undertakes to continue to take all steps within its power to guarantee the safety of movement of persons, vehicles and cargo along the Lachin road, including continued and regular engagement with the ICRC]. However, it does not remove entirely the imminent and irreparable prejudice created by the disruption in movement along the Lachin Corridor” (Order, para. 56, emphasis added).
Such a reading also results in giving no effect to the Order, in further violation of basic rules of legal interpretation (verba cum effectu sunt accipienda) as well as the Court’s jurisprudence (see e.g. LaGrand Case, Judgment (2001), paras 115, 128(5)). Indeed, that Azerbaijan intends to maintain the status quo at the Lachin Corridor is demonstrated not only by its continued inaction to unblock it, but also by its continued insistence that “neither the Republic of Azerbaijan nor the demonstrators have put any restriction on the movement along the road” and “the road remains open for the passage for humanitarian purposes” (Letter, p. 4). However, this ignores that the Court was not persuaded by Azerbaijan’s submissions in this regard (see here, pp. 10-11, 15-17, 23-24, 31, 36-40), clearly ruling that the Lachin Corridor is not in fact open, but rather so “disrupted” that it “may have a serious detrimental impact on the health and lives of individuals” and that “there is [thus] urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused” (Order, paras 54-57).
The most meaningful way for Azerbaijan to comply with the Order would obviously be to move the protesters to a new location where they could no longer disrupt the Lachin Corridor. Even assuming Azerbaijan is not responsible for the protests, given their severely detrimental impact on the rights of 120,000 ethnic Armenians in Nagorno-Karabakh, there are undeniably legitimate reasons permitted under the European Convention on Human Rights to limit the protesters’ right to freedom of assembly (see e.g. here, paras 22, 47 et seq, 60-62, 85), without having to prevent them exercising that right altogether.
Azerbaijan has nevertheless been known for decades to routinely and violently crack down on peaceful protests against the Azerbaijani government, even during the Lachin Corridor’s blockade. Freedom House has consistently ranked Azerbaijan as “Not Free” and one of the “worst” (i.e. most repressive) countries in the world (see here, p. 31), scoring zeroes on nearly all political rights and civil liberties including freedom of assembly. Azerbaijan’s sudden change of heart in respect of these particular protests is therefore per se discriminatory as they exclusively target Armenians. And with the prospect of renewed attacks looming uncomfortably close against a background of long-standing Azerbaijani state-sponsored incitement of hatred against Armenians (see e.g. ECRI Reports 2002, 2006, 2011, 2016; CERD Committee 2022, para. 4(d)), the longer the blockade drags on, the sooner the Armenians of Nagorno-Karabakh will be forced to leave their ancestral homeland for good. Similar cases before the ad hoc international criminal tribunals have been found to amount to persecution and deportation or forcible transfer/displacement as crimes against humanity (see e.g. Prosecutor v. Šešelj, Appeal Judgement (2018), paras 138-166, 181).
In the light of such grievously imminent implications, Azerbaijan’s refusal to comply with the Order requires immediate intervention, as waiting for the Court to remedy such non-compliance in its final judgment on the merits could take years. In this respect, Article 94(2) of the UN Charter provides that, “[i]f 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.” It is unclear, however, whether such recourse also applies to orders for provisional measures.
Regardless, nothing precludes the UN Security Council from taking action, on its own initiative, to compel the execution of the ICJ’s interim orders, as it has previously referred to such provisional measures on a few occasions in deploring certain States’ behaviors (see e.g. S/RES/461 (1979), para. 2 and S/RES/819 (1993), preamble; see also S/1996/301 and here). In fact, the UN Security Council is arguably duty bound at this stage to make recommendations, or take binding measures if necessary, under Chapters VI and VII given that the blockade threatens the ongoing peace process between Armenia and Azerbaijan as well as security in the region.
The Court is also vested with the authority and responsibility to monitor compliance with its orders since the adoption in December 2020 of Article 11 of its Internal Judicial Practice, which provides: “(i) Where the Court indicates provisional measures, it shall elect three judges to form an ad hoc committee which will assist the Court in monitoring the implementation of provisional measures. […] (ii) The ad hoc committee shall examine the information supplied by the parties in relation to the implementation of provisional measures. It shall report periodically to the Court, recommending potential options for the Court. (iii) Any decision in this respect shall be taken by the Court.” Article 11 is silent, however, as to the publicity of information supplied or recommendations made in relation thereto, and it remains a mystery whether or to what extent the Court is currently monitoring the implementation of provisional measures ordered in the cases of Armenia and Azerbaijan.
What is certain is that there is a world of difference between Armenia’s and Azerbaijan’s understanding of what the Order entails. The latest point of contention has arisen over the phrase “unimpeded movement”, which Azerbaijani officials now argue does not mean “free movement” or “without any control” (see also Letter, p. 3). This, despite “free” being a synonym of “unimpeded”, which is commonly defined as precluding any hindrance or interruption whatsoever. The November 2020 ceasefire agreement between Armenia and Azerbaijan also clearly stipulates that control of the Lachin Corridor rests with the Russian peacekeeping contingent. Azerbaijan has nonetheless resorted to demanding the establishment of Azerbaijani checkpoints along the Lachin Corridor and using lethal force to “prove the necessity” thereof.
In framing the Order so broadly – conceivably in a cautious exercise of judicial self-restraint – the Court has unwittingly sparked a war of interpretation. While States are undeniably obliged to adhere to the ICJ’s orders, the Court must nevertheless assure that the measures it indicates are well-suited for effective implementation. To achieve this, a provisional measure should be framed in self-executing terms by prescribing clear stipulations and benchmarks by which compliance may be easily determined, thus making it easier and faster for parties to implement.
The Order might therefore benefit from clarification or modification so as to avert any further misconstruction or abuse. While the Order may be clear to those who genuinely value human rights and democratic principles, the Court must take into account the political context in which it issues its instructions. Azerbaijan’s dictatorial President Ilham Aliyev, who has ruled with an iron fist for the last 20 years after inheriting his post from his father, has made no secret that he believes the “might is right” principle to prevail over the rule of international law. Whereas Armenia has reversed its slippage towards autocracy, Azerbaijan continues to fall ever deeper into its abyss – including by aggressive military invasion and occupation of Armenian sovereign territory (see e.g. here, p. 35 and here, p. 31) – and thus manifestly views international law through an authoritarian lens. The Court must recognize such realities when formulating its orders for provisional measures, particularly where non-compliance could carry such heinous and deadly consequences for 120,000 innocent lives.