July 6, 2023

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INTERNATIONAL COURT OF JUSTICE

APPLICATION OF THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION (ARMENIA v. AZERBAIJAN)

REQUEST FOR THE MODIFICATION OF THE ORDER OF 22 FEBRUARY 2023 INDICATING A PROVISIONAL MEASURE

ORDER

Present:

President DONOGHUE; Vice-President GEVORGIAN; Judges TOMKA, ABRAHAM, BENNOUNA, YUSUF, XUE, SEBUTINDE, BHANDARI, ROBINSON, SALAM, IWASAWA, NOLTE, CHARLESWORTH, BRANT; Judges ad hoc DAUDET, KOROMA; Registrar GAUTIER.

The International Court of Justice,

Composed as above,

After deliberation,

Having regard to Article 41 of the Statute of the Court and Article 76 of the Rules of Court,

Makes the following Order:

1. By an Application filed in the Registry of the Court on 16 September 2021, the Republic of Armenia (hereinafter “Armenia”) instituted proceedings against the Republic of Azerbaijan (hereinafter “Azerbaijan”) concerning alleged violations of the International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965 (also referred to as “CERD”).
2. The Application contained a Request for the indication of provisional measures submitted with reference to Article 41 of the Statute and to Articles 73, 74 and 75 of the Rules of Court (the “first Request”).
3. Since the Court included upon the Bench no judge of the nationality of either Party, each Party proceeded to exercise the right conferred upon it by Article 31 of the Statute to choose a judge ad hoc to sit in the case. Armenia chose Mr Yves Daudet and Azerbaijan Mr Kenneth Keith. Following the resignation of Judge ad hoc Keith, Azerbaijan chose Mr Abdul G. Koroma to replace him as judge ad hoc in the case.
4. After hearing the Parties, the Court, by an Order of 7 December 2021, indicated the following provisional measures:

   “(1) The Republic of Azerbaijan shall, in accordance with its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination,

   1. Protect from violence and bodily harm all persons captured in relation to the 2020 Conflict who remain in detention, and ensure their security and equality before the law;
   2. Take all necessary measures to prevent the incitement and promotion of racial hatred and discrimination, including by its officials and public institutions, targeted at persons of Armenian national or ethnic origin;
   3. Take all necessary measures to prevent and punish acts of vandalism and desecration affecting Armenian cultural heritage, including but not limited to churches and other places of worship, monuments, landmarks, cemeteries and artefacts;

   (2) Both Parties shall refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.” (Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan), Provisional Measures, Order of 7 December 2021, I.C.J. Reports 2021, pp. 392-393, para. 98.)

5. By an Order of 21 January 2022, the Court fixed 23 January 2023 and 23 January 2024 as the respective time-limits for the filing of a Memorial by Armenia and a Counter-Memorial by Azerbaijan. The Memorial was filed within the time-limit thus prescribed.
6. By a letter dated 16 September 2022, Armenia, referring to Article 76 of the Rules of Court, requested the modification of the Court’s Order of 7 December 2021 (the “second Request”).
7. By an Order dated 12 October 2022, the Court found that “the circumstances, as they [then] present[ed] themselves to the Court, [were] not such as to require the exercise of its power to modify the measures indicated in the Order of 7 December 2021”. The Court reaffirmed the provisional measures indicated in its Order of 7 December 2021, in particular the requirement that both Parties refrain from any action which might aggravate or extend the dispute before the Court or make it more difficult to resolve.
8. Armenia, referring to Article 41 of the Statute and Article 73 of the Rules of Court, filed a new Request for the indication of certain provisional measures set out in its letters of 28 December 2022 and 26 January 2023 (the “third Request”).
9. After hearing the Parties, the Court, by an Order of 22 February 2023, indicated the following provisional measure:

   “The Republic of Azerbaijan shall, pending the final decision in the case and in accordance with its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination, take all measures at its disposal to ensure unimpeded movement of persons, vehicles and cargo along the Lachin Corridor in both directions.”

10. On 21 April 2023, within the time-limit prescribed by Article 79bis, paragraph 1, of the Rules of Court, Azerbaijan raised preliminary objections to the jurisdiction of the Court. By an Order of 25 April 2023, the Court, noting that the preliminary objections raised by Azerbaijan concerned only the question of the jurisdiction of the Court to entertain the dispute, decided that the preliminary objections would be examined by the Court in the course of the present proceedings and that no further decision should be made on the Request of 16 September 2022 until the Court had delivered its judgment on the preliminary objections.
11. By a letter dated 30 April 2023, Armenia requested the modification of the Court’s Order of 22 February 2023, arguing that the Republic of Azerbaijan had failed to comply with the provisional measure indicated by the Court. In its letter dated 25 May 2023, Azerbaijan informed the Court that it had provided explanations and clarifications with regard to its compliance with the measure. Armenia subsequently reiterated its request for modification by a letter dated 28 June 2023.

For these reasons, the Court, by 12 votes to 3,
Indicates the following provisional measure:

“The Republic of Azerbaijan shall, pending the final decision in the case and in accordance with its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination, take all measures at its disposal to ensure unimpeded movement of persons, vehicles and cargo along the Lachin Corridor in both directions.”

Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this sixth day of July, two thousand and twenty-three, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Republic of Armenia and the Government of the Republic of Azerbaijan, respectively.

(Signed) M. Jean-Marc Sossin

Registrar

President

Judge