Preliminary objections of Armenia

INTERNATIONAL COURT OF JUSTICE
21 APRIL 2023
APPLICATION OF THE INTERNATIONAL CONVENTION ON THE
ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION
AZERBAIJAN
v.
ARMENIA
PRELIMINARY OBJECTIONS OF
THE REPUBLIC OF ARMENIA
VOLUME I

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Table of Contents
CHAPTER 1. Introduction ............................................................. 1
CHAPTER 2. The Court Lacks Jurisdiction Ratione Temporis
Over Azerbaijan’s Claims relating to the First
Nagorno-Karabakh War and its pre-15 September
1996 Aftermath, Which Are Inadmissible in Any
Event ........................................................................ 8
I. Article 22 Does Not Confer upon the Court
Jurisdiction to Apply the CERD to Events Prior to 15
September 1996, the Date of the CERD’s Entry into
Force between the Parties ........................................... 10
II. Azerbaijan Has Impermissibly Brought Claims Based
on Events Predating the CERD’s Entry into Force
between the Parties ..................................................... 21
III. Azerbaijan’s Historical Claims are Inadmissible ....... 29
CHAPTER 3. The Court Lacks Jurisdiction Ratione Materiae
Over Azerbaijan’s Claims and Contentions
Concerning Landmines, Booby Traps and
Environmental Harm ............................................. 34
I. The Legal Standard Governing Questions of
Jurisdiction Ratione Materiae .................................... 34
II. The Court Lacks Jurisdiction Ratione Materiae over
Azerbaijan’s Claims and Contentions Concerning
Landmines and Booby Traps...................................... 41
A. Armenia’s Alleged Use of Landmines and
Booby Traps Does Not Constitute a Distinction,
Exclusion, Restriction or Preference “Based
On” National or Ethnic Origin ....................... 43
B. Armenia’s Alleged Use of Landmines and
Booby Traps Does Not Have a Discriminatory
Purpose or Effect ............................................ 47
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III. The Court Lacks Jurisdiction Ratione Materiae over
Azerbaijan’s Claims and Contentions Concerning
Alleged Environmental Harm .................................... 51
A. The Acts Complained of Do Not Constitute
Racial Discrimination ..................................... 52
B. Certain Acts Complained of Do Not Fall
Within The Scope of the Rights under the
CERD Azerbaijan Invokes ............................. 65
Submissions ............................................................................... 71
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CHAPTER 1. INTRODUCTION
1. In accordance with the Court’s Statute and Rules, the Republic of Armenia
(“Armenia”) submits these Preliminary Objections requesting the Court to find
that it is without jurisdiction over a number of claims and contentions made by the
Republic of Azerbaijan (“Azerbaijan”) under the International Convention on the
Elimination of All Forms of Racial Discrimination (“CERD” or “Convention”),
or that such claims and contentions are inadmissible.
2. The Court has consistently recalled the fundamental principle that no State
may be subject to its jurisdiction without consent.1
3. Under Article 22 of the CERD, Armenia has consented to the jurisdiction
of the Court only with regard to “[a]ny dispute between two or more States Parties
with respect to the interpretation or application of this Convention, which is not
settled by negotiation or by the procedures expressly provided for in this
Convention”.2
4. Just as Azerbaijan has repeatedly filed unfounded provisional measures
requests in transparent reaction to requests filed by Armenia in the case concerning
the Application of the International Convention on the Elimination of All Forms of
Racial Discrimination (Armenia v. Azerbaijan), Azerbaijan’s entire case was
brought solely to mirror Armenia’s own institution of proceedings before the Court.
Yet as explained in these Preliminary Objections, many aspects of Azerbaijan’s
case plainly exceed the scope of the Court’s jurisdiction. Armenia should not be
1 See, e.g., Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary
Objections, Judgment I.C.J Reports 2018, p. 292, para. 42; Armed Activities on the Territory of the
Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 2006, p. 6, paras. 65, 88.
2 CERD, Art. 22.
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compelled to defend itself on the merits of issues as to which it has not provided
consent.3
5. These issues include, first and foremost, the primary focus of Azerbaijan’s
entire Memorial; namely, the period preceding, during and immediately after the
First Nagorno-Karabakh War, which ended in 1994. Armenia too has countless
grievances pertaining to that tragic period. But the First Nagorno-Karabakh War
began more than three decades ago and ended two years before the CERD even
entered into force between the Parties on 15 September 1996. As explained in
Chapter 2 below, Azerbaijan’s claims pertaining to that period are therefore
plainly outside the jurisdiction of the Court ratione temporis (or are, in any event,
inadmissible).
6. In Armenia’s own Memorial in the proceedings it initiated against
Azerbaijan, Armenia took care to distinguish between events occurring before and
after that critical date.4 In its hasty attempt to mirror, Azerbaijan has entirely
ignored that distinction. In fact, Azerbaijan makes its complaints stemming from
the First Nagorno-Karabakh War the very centrepiece of its Memorial. That
deliberate choice shows that Azerbaijan is intent on using these proceedings for
purely political purposes wholly untethered to the Parties’ consent to the Court’s
jurisdiction under the CERD.
7. Azerbaijan’s claims concerning the First Nagorno-Karabakh War are not
the only ones that are plainly outside the Court’s jurisdiction. Its Memorial makes
3 Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Preliminary
Objections, Judgment, I.C.J. Reports 1964, p. 44 (stating that the Court will not join a preliminary
objection to the merits “except for good cause, seeing that the object of a preliminary objection is
to avoid not merely a decision on, but even any discussion of the merits”).
4 See, e.g., Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Armenia v. Azerbaijan), Memorial of Armenia (23 January 2023), paras. 1.23, 2.1,
3.1, 6.82 (hereinafter “Memorial of Armenia”) (confidential) (Annex 14).
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other claims and contentions that, irrespective of the date of occurrence of the
alleged wrongful conduct, also fall outside the Court’s jurisdiction ratione
materiae.
8. As explained in Chapter 3.I, the Court has made clear that the CERD
“exclusively concerns the prohibition of racial discrimination” as defined in Article
1(1);5 claims that do not concern racial discrimination ipso facto fall outside the
Convention’s scope.6 The Court has also made clear that the acts complained of
must, in addition, fall within the particular substantive provisions of the treaty
invoked.7 Despite these clear requirements, Azerbaijan complains about acts that
plainly have nothing to do with racial discrimination, and in some cases do not fall
within any of the CERD’s substantive provisions in any event.
9. First, as shown in Chapter 3.II, Azerbaijan continues to argue that
Armenia’s alleged use of landmines and booby traps, and its purported withholding
of information about them, somehow violate the CERD. It does so even though the
Court has already found, on two separate occasions (including once after
Azerbaijan submitted its Memorial) and on the basis of a nearly identical body of
“evidence”, that the CERD does not even plausibly impose “any obligation on
Armenia to take measures to enable Azerbaijan to undertake demining or to cease
5 See, e.g., Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgement, I.C.J.
Reports 2021, p. 71, para. 104 (emphasis added).
6 See, e.g., Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgement, I.C.J.
Reports 2021, p. 71, para. 112.
7 See, e.g., Certain Iranian Assets (Islamic Republic of Iran v. United States of America),
Preliminary Objections, Judgment, I.C.J. Reports 2019, p. 7, para. 80; Immunities and Criminal
Proceedings (Equatorial Guinea v. France), Preliminary Objections, Judgment, I.C.J. Reports
2018, p. 292, para. 117.
4
and desist from planting landmines”.8 Nothing has changed since the Court reached
those determinations.
10. Even accepting Azerbaijan’s factual allegations as true (quod non), the acts
about which it complains were not “based on” race, colour, descent, or national or
ethnic origin as the definition of “racial discrimination” in Article 1(1) of the CERD
requires. Nor did they have the “purpose or effect” of nullifying or impairing ethnic
Azerbaijanis’ equal enjoyment of human rights and fundamental freedoms as
Article 1(1) also requires. To the contrary, such weapons are indiscriminate by
nature, as demonstrated by the region’s tragic history of death and injury arising
therefrom. Moreover, Azerbaijan’s own evidence makes clear that any landmines
were laid exclusively for self-defence purposes. As such, and in line with the
Court’s reasoning in the case concerning Application of the International
Convention on the Elimination of All Forms of Racial Discrimination (Qatar v.
United Arab Emirates),9 even if the measures concerning landmines and booby
traps of which Azerbaijan complains were to be proven on the facts, they are not
capable of constituting racial discrimination within the meaning of the Convention.
11. The same is true about Azerbaijan’s claims concerning alleged harms to the
environment. As demonstrated in Chapter 3.III, like landmines and booby traps,
environmental harm is inherently indiscriminate. It recognizes no national or other
boundaries, and is incapable of distinguishing between members of different
8 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Azerbaijan v. Armenia), Provisional Measures, Order of 7 December 2021, I.C.J.
Reports 2021, p. 405, para. 53. See also Application of the International Convention on the
Elimination of All Forms of Racial Discrimination (Azerbaijan v. Armenia), Provisional Measures,
Order of 22 February 2023, paras. 22-23.
9 See Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgement, I.C.J.
Reports 2021, p. 71, para. 112 (“Thus, the Court concludes that, even if the measures of which Qatar
complains in support of its ‘indirect discrimination’ claim were to be proven on the facts, they are
not capable of constituting racial discrimination within the meaning of the Convention”).
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national or ethnic groups. Even if environmental harm were in principle capable of
constituting racial discrimination in exceptional circumstances, the facts alleged
here make clear that no such circumstances exist in this case. Rather, Azerbaijan’s
own case is that many of the acts alleged to have harmed the environment were
prompted by economic development, not racial discrimination. Such claims
therefore fall outside the scope of the CERD.
12. The contrived nature of Azerbaijan’s environmental claims is laid bare by
their stark inconsistency with the rest of its case. The central thrust of Azerbaijan’s
other claims is that Armenia “ethnically cleansed” Azerbaijanis from the so-called
“Occupied Territories” and then replaced them with ethnic Armenian “settlers”,10
all the while planting landmines and taking other steps to make sure that ethnic
Azerbaijanis never returned.11 In circumstances in which, according to Azerbaijan,
ethnic Azerbaijanis had already been expelled from the relevant areas and were
never expected to return, it is impossible to understand how Armenia’s alleged
actions related to the environment could have been “based on” Azerbaijani national
or ethnic origin, or had the “purpose or effect” of nullifying or impairing ethnic
Azerbaijanis’ rights. On the contrary, it follows inescapably from Azerbaijan’s own
arguments that the ethnic Armenians in the area would have been the ones most
affected by any environmental harm.
13. It is precisely for that reason that, even though Azerbaijan has raised
virtually identical environmental claims in other fora, it has done so without any
suggestion that the environment was destroyed on the basis of race. For example,
just five days before Azerbaijan submitted its Memorial in these proceedings, it
10 See Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Azerbaijan v. Armenia), Memorial of Azerbaijan, paras. 2, 12-20, 51, 93-132, 217,
419-458 (hereinafter “Memorial”).
11 See Memorial, paras. 273-290, 419, 446-453.
6
submitted a Notice of Arbitration against Armenia under the Bern Convention on
the Conservation of European Wildlife and Natural Habitats. That arbitration also
concerns alleged environmental destruction in the “Occupied Territories”. Not
once do the words “race,” “discrimination” and “national” or “ethnic origin” appear
anywhere in that 75-page Notice.12
14. Even if Azerbaijan’s environmental allegations were somehow capable of
constituting racial discrimination—and they are not—the majority of them would
still be outside the Court’s jurisdiction for another reason: they do not fall within
any of the CERD’s substantive provisions. To cite just one example, the “right to
health” under the CERD does not encompass the so-called right to “return to a
healthy environment” invoked by Azerbaijan.13 Most of the environmental claims
as Azerbaijan itself has articulated them therefore necessarily fall outside the scope
of the CERD for that reason, too.
15. In light of these and other considerations discussed throughout these
Preliminary Objections, Armenia respectfully requests that the Court adjudge and
declare that it does not have jurisdiction over the particular claims and contentions
identified in these Preliminary Objections or, in the alternative, that those claims
and contentions are inadmissible.
⁎⁎⁎
16. In formulating these Preliminary Objections, Armenia has focused only on
objections that have an exclusively preliminary character. As such, it has not
addressed other important issues, such as whether various alleged acts or omissions
12 The Republic of Azerbaijan v. The Republic of Armenia, Notice of Arbitration under the
Convention on the Conservation of European Wildlife and Natural Habitats of 19 September 1979
(18 January 2023) (confidential) (Annex 13).
13 See Memorial, para. 473.
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in Nagorno-Karabakh about which Azerbaijan complains are attributable to
Armenia. Armenia therefore does not address Azerbaijan’s countless accusations
that “Armenia” has or has not taken certain actions in the so-called “Occupied
Territories”. Much less does it address the underlying merits of such accusations.
For the avoidance of doubt, Armenia expressly denies all of Azerbaijan’s
allegations and reserves all rights to respond to them at the appropriate stage,
including on jurisdictional grounds.
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CHAPTER 2. THE COURT LACKS JURISDICTION RATIONE
TEMPORIS OVER AZERBAIJAN’S CLAIMS RELATING TO THE
FIRST NAGORNO-KARABAKH WAR AND ITS PRE-15 SEPTEMBER
1996 AFTERMATH, WHICH ARE INADMISSIBLE IN ANY EVENT
17. Azerbaijan seeks to transform these proceedings under the CERD,
instituted in 2021, into a vehicle for airing its historic grievances pertaining to the
First Nagorno-Karabakh War, which ended in 1994.14 The opening paragraphs of
Azerbaijan’s Memorial make clear that its allegations about Armenia’s purported
acts and omissions “[i]n the run up to and during the First Garabagh War”
constitute the focal point of its entire case.15 The Table of Contents similarly
reveals that the “Facts Underlying Azerbaijan’s Claims”16 include over 75 pages
of allegations specifically concerning events leading up to and during the First
Nagorno-Karabakh War.17 The vast majority of its other factual allegations pertain
to the status quo that resulted from that armed conflict.18
18. At no point in its Memorial, however, does Azerbaijan actually explain
how or why the Court’s temporal jurisdiction under the CERD encompasses events
alleged to have occurred during that period. As explained in Section I below, the
Court’s jurisdiction ratione temporis under Article 22 of the CERD does not and
cannot extend to the period prior to its entry into force between the Parties on 15
September 1996. As such, as detailed in Section II below, Azerbaijan’s claims
concerning the First Nagorno-Karabakh War—which ended over two years before
that critical date—fall outside the Court’s jurisdiction. Finally, Section III explains
14 See Memorial of Armenia, paras. 2.71-72, 2.84 (confidential) (Annex 14); Memorial,
paras. 2, 131.
15 Memorial, para. 3.
16 Memorial, p. i (title of § II).
17 See, Memorial, §§ II.A.1-9 (pp. 21-86), II.C.1 (pp. 199-207).
18 See, e.g., Memorial, §§ II.B, II.D.
9
that, even if the Court were to find that it has jurisdiction over the aforementioned
claims (quod non), they are, at very least, manifestly inadmissible.
19. Azerbaijan’s attempt to blur the lines of the Court’s jurisdiction is as telling
as it is unconvincing. True to form, Azerbaijan’s casting of its historical grievances
concerning the First Nagorno-Karabakh War in terms of the CERD is little more
than an attempt to shift attention away from the State racism fostering the war of
aggression Azerbaijan has waged against the ethnic Armenians of Nagorno-
Karabakh and Armenia since 2020. Indeed, it was only on 8 December 2020—i.e.,
less than one month after Armenia’s own notification of claims under the CERD,
nearly three decades after the end of the First Nagorno-Karabakh War, and more
than 25 years since its own accession to the CERD—that Azerbaijan chose to
institute proceedings.19 As explained below, however, Azerbaijan’s claims
pertaining to events prior to 15 September 1996 fall outside the Court’s temporal
jurisdiction under the CERD.
20. To be clear, Armenia itself has innumerable grievances against Azerbaijan
for acts of racial discrimination that occurred in the context and immediate
aftermath of the First Nagorno-Karabakh War. Hundreds of thousands of ethnic
Armenians were forcibly removed from their ancestral lands, never to return. Even
so, Armenia has meticulously respected the temporal limits of the Court’s
jurisdiction under the CERD, as well as the requirements of the good administration
of justice, in the context of the proceedings it has instituted against Azerbaijan.
That said, should Azerbaijan’s claims in these proceedings be permitted to proceed
to the merits (quod non), Armenia would have no choice but to raise counterclaims
19 See Memorial, para. 378. Cf. Memorial of Armenia, para. 5.4 (confidential) (Annex 14).
10
against Azerbaijan pertaining to that same time period. Armenia reserves all of its
rights in that regard
I. Article 22 Does Not Confer upon the Court Jurisdiction to Apply the
CERD to Events Prior to 15 September 1996, the Date of the CERD’s
Entry into Force between the Parties
21. Armenia deposited its instrument of accession to the CERD on 23 June
1993. In accordance with Article 19, the CERD therefore “enter[ed] into force on
the thirtieth day after the date of the deposit of [Armenia’s] … instrument of
accession”,20 i.e., on 23 July 1993. For its part, Azerbaijan deposited its instrument
of accession after the conclusion of the First Nagorno-Karabakh War, on 16 August
1996, and the CERD entered into force for it on 15 September 1996. As such, the
CERD entered into force between the Parties on the latter of the two States’ dates
of succession, i.e., on 15 September 1996.21
22. The Court’s jurisdiction is based on Article 22 of the CERD, which
provides:
“Any dispute between two or more States Parties with
respect to the interpretation or application of this
Convention, which is not settled by negotiation or by the
procedures expressly provided for in this Convention, shall,
at the request of any of the parties to the dispute, be referred
to the International Court of Justice for decision, unless the
disputants agree to another mode of settlement”.22
20 CERD, Art. 19.
21 See, e.g., Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011, p. 70, para. 20 (since Russia deposited its instrument of ratification on 4 February 1969 and
Georgia deposited its instrument of accession on 2 June 1999, the “CERD entered into force
between the Parties on 2 July 1999”).
22 CERD, Art. 22.
11
23. While Armenia had no obligations under the CERD whatsoever prior to its
entry into force for Armenia on 23 July 1993,23 as between Azerbaijan and
Armenia, Article 22 only gives the Court jurisdiction over the application of the
CERD to events that occurred after its entry into force between the Parties on 15
September 1996. That is true for at least five interrelated reasons.
24. First, the ordinary meaning of Article 22, which carefully circumscribes the
jurisdiction of the Court to disputes “between two or more States Parties with
respect to the interpretation or application” of the CERD,24 makes clear that it does
not apply to acts or facts that preceded the CERD’s entry into force as between the
States parties concerned. Nothing in Article 22 thus derogates from the customary
international law principle of non-retroactivity of treaties, reflected in Article 28 of
the Vienna Convention on the Law of Treaties (the “VCLT”).25 Article 28
provides:
“Unless a different intention appears from the treaty or is
otherwise established, its provisions do not bind a party in
relation to any act or fact which took place or any situation
which ceased to exist before the date of the entry into force
of the treaty with respect to that party”.26
23 “An act of a State does not constitute a breach of an international obligation unless the State is
bound by the obligation in question at the time the act occurs”. International Law Commission,
Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries,
Yearbook of the International Law Commission 2001, Vol. II, Part Two, Art. 13 (Annex 9). It thus
goes without saying that the Court does not enjoy jurisdiction over allegations pertaining to events
that took place prior to 23 July 1993. Even if established, such allegations are not capable of
constituting a breach of the CERD by Armenia and are therefore outside the Court’s jurisdiction.
24 CERD, Art. 22 (emphasis added).
25 See, e.g., Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal),
Judgment, I.C.J. Reports 2012, p. 422, para. 100.
26 Vienna Convention on the Law of Treaties, Art. 28.
12
25. In its commentary on the draft form of that provision, the International Law
Commission specifically noted that “when a jurisdictional clause is attached to the
substantive clauses of a treaty as a means of securing their due application, the nonretroactivity
principle may operate to limit ratione temporis the application of the
jurisdictional clause”.27 This echoed a similar observation made by Sir Humphrey
Waldock, the Commission’s last special rapporteur on the law of treaties, who
noted that “when a jurisdictional clause is found not in a treaty of arbitration or
judicial settlement but attached to the substantive clauses of a treaty as a means of
securing their due application, the non-retroactivity principle does operate
indirectly to limit ratione temporis the application of the jurisdictional clause”.28
26. The Court itself has endorsed such a distinction between “a general
provision for the settlement of disputes” and a compromissory clause designed to
provide for jurisdiction over the application of the “substantive provisions” of the
treaty in which it is contained.29
27. Article 22 of the CERD is not a “general provision for the settlement of
disputes” such as those found in treaties concerning the peaceful resolution of
disputes,30 nor can it be equated to unilateral declarations made by States pursuant
to Article 36(2) of the Court’s Statute.31 Rather, it confers upon the Court a specific
27 International Law Commission, Draft Articles on the Law of Treaties with Commentaries,
Yearbook of the International Law Commission 1966, Vol. II, p. 212, para. 2 (Annex 7).
28 Third Report on the Law of Treaties, by Sir Humphrey Waldock, Special Rapporteur, UN Doc.
A/CN.4/167 and Add.1-3 (1964), p. 11, para. 4 (emphasis added) (Annex 6).
29 Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Croatia v. Serbia), Judgment, I.C.J. Reports 2015, p. 3, para. 93.
30 See, e.g., Revised General Act for the Pacific Settlement of International Disputes (entered into
force 20 September 1950); American Treaty on Pacific Settlement (entered into force 6 May 1949);
European Convention for the Peaceful Settlement of Disputes (entered into force 30 April 1958).
31 R. Kolb, “The Compromissory Clause of the Convention” in THE UN GENOCIDE CONVENTION:
A COMMENTARY (P. Gaeta ed., 2009), p. 421 (Annex 20) (“As far as compromissory clauses are
concerned, the general rule as to the nonretroactivity of treaties enshrined in Articles 4 and 28 of
13
and limited jurisdiction, which is designed to secure the application of the CERD
as between States parties to it. It is only upon the “entry into force of CERD
between the Parties”32 in question that Article 22 can begin to operate to secure the
CERD’s application “as between”33 them by conferring compulsory jurisdiction to
the Court.34 It is from this date forward that the two States’ acts and omissions
become justiciable as between them.35
28. This was the conclusion of the Court in Ambatielos, when, applying the
same principle now enshrined in Article 28 of the VCLT, it held that a
compromissory clause does not have retroactive effect absent “any special clause
the 1969 Vienna Convention on the Law of Treaties, and specially recalled in certain conventions,
may be held to limit the temporal reach of jurisdiction without any necessity to invoke a specific
reservation. Here too, then, the optional clause system appears to impose a closer knit of obligations
(the presumption being against time limitation) than the compulsory clauses system (the
presumption being in favor of time limitation)”).
32 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011, p. 70, para. 20 (since Russia deposited its instrument of ratification on 4 February 1969 and
Georgia deposited its instrument of accession on 2 June 1999, the “CERD entered into force
between the Parties on 2 July 1999”). See also Delimitation of the Maritime Boundary in the Gulf
of Maine Area, Judgment, I.C.J. Reports 1984, p. 246, para. 61; Maritime Delimitation in the Black
Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 61, para. 41 (“The entry into force of
UNCLOS as between the Parties in 1999 means that the principles of maritime delimitation to be
applied by the Court in this case are determined by paragraph 1 of Articles 74 and 83 thereof”).
33 Case concerning certain German interests in Polish Upper Silesia (The Merits) (Germany v.
Poland), Judgment No. 7, 1926, P.C.I.J. Series A, No. 7, p. 29 (“A treaty only creates law as between
the States which are parties to it; in case of doubt, no rights can be deduced from it in favour of
third States”).
34 See e.g., Continental Shelf (Libyan Arab Jamahiriya/Malta), Application to Intervene, Judgment,
I.C.J. Reports 1984, p. 3, para. 38 (“[T]he scope of the Court’s action is defined by that agreement,
which embodies the consent of the parties to the settlement by the Court of the dispute between
them”) (emphasis added).
35 See, e.g., Case concerning the Northern Cameroons (Cameroon v. United Kingdom), Preliminary
Objections, Judgment of 2 December 1963, Separate Opinion of Judge Fitzmaurice, I.C. J. Reports
1963, p. 129 (“An act which did not, in relation to the party complaining of it, constitute a wrong at
the time it took place, obviously cannot ex post facto become one. Similarly, such acts or events
could not in themselves have constituted, or retroactively have become, violations of the Trust in
relation to the Applicant State, since the Trust confers rights only on Members of the United
Nations, and the Applicant State was not then one”) (emphasis in original).
14
or any special object necessitating retroactive interpretation”.36 No such special
clause or object can be found in Article 22, or anywhere within the CERD for that
matter.
29. In fact, the opposite intention appears in Article 11 concerning inter-State
proceedings before the CERD Committee, which, as an alternative precondition to
the Court’s jurisdiction under Article 22,37 provides important context for the
interpretation of Article 22.38 Article 11(1) provides that, “[i]f a State Party
considers that another State Party is not giving effect to the provisions of this
Convention, it may bring the matter to the attention of the Committee”.39 The use
of the present tense makes clear that, as between two States parties, the CERD’s
dispute resolution mechanisms do not apply to the period prior to the CERD’s entry
into force as between those States parties.
30. Second, “[w]hen considering whether it has jurisdiction or not, the Court’s
aim is always to ascertain whether an intention on the part of the Parties exists to
confer jurisdiction upon it”.40 As such, in the interpretation of a compromissory
clause, “account must be taken not only of … the grammatical and logical meaning
36 Ambatielos case (jurisdiction) (Greece v. United Kingdom), Judgment of July 1st, 1952: I.C.J.
Reports 1952, p. 40.
37 Application of the International Convention for the Suppression of the Financing of Terrorism
and of the International Convention on the Elimination of All Forms of Racial Discrimination
(Ukraine v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2019, p. 558,
para. 113.
38 Application of the International Convention for the Suppression of the Financing of Terrorism
and of the International Convention on the Elimination of All Forms of Racial Discrimination
(Ukraine v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2019, p. 558,
para. 108 (“Article 22 of CERD must be interpreted in its context. Article 22 refers to two
preconditions, namely negotiation and the procedure before the CERD Committee governed by
Articles 11 to 13 of the Convention”).
39 CERD, Art. 11(1) (emphasis added).
40 Case concerning the Factory at Chorzów (Claim for Indemnity) (Jurisdiction), Judgement No. 8,
1927, P.C.I.J. Series A, No. 9, p. 32.
15
of the words used, but also and more especially of the function which, in the
intention of the contracting Parties, is to be attributed to this provision”.41 There is
no indication in the travaux préparatoires that the parties negotiating the CERD
had an intention to create a jurisdictional basis for unknown future parties to invoke
the CERD’s provisions retroactively. Nor is there any evidence that any of the 182
States now party to the CERD ever understood Article 22 to function in this way.
In fact, of the 37 reservations made to Article 22 since the CERD’s adoption in
1965, not a single one concerns the non-retroactive application or extension to third
States of that provision.42 The absence of such reservations evidences an
understanding that Article 22 was intended to function in a reasonable and
predictable way, and that there was no need to make such reservations to its
scope.43
41 Case concerning the Factory at Chorzów (Claim for Indemnity) (Jurisdiction), Judgement No. 8,
1927, P.C.I.J. Series A, No. 9, p. 24.
42 See United Nations Treaty Collection, List of States Parties, Declarations and Reservations to
the International Convention on the Elimination of All Forms of Racial Discrimination
(entered into force 4 January 1969), available at https://treaties.un.org/doc/Publication/MTDSG/V
olume%20I/Chapter%20IV/IV-2.en.pdf (Annex 8). Reservations to Article 22 are currently
maintained by 25 States (Afghanistan, Bahrain, China, Cuba, Egypt, Equatorial Guinea, India,
Indonesia, Iraq, Israel, Kuwait, Lebanon, Libya, Madagascar, Morocco, Mozambique, Nepal, Saudi
Arabia, Singapore, Syria, Thailand, Turkey, United States, Vietnam and Yemen). See ibid., pp. 3-
10. Reservations to Article 22 were once maintained by 12 States that no longer exist or have since
withdrawn their reservations (Belarus, Bulgaria, Czechoslovakia, East Germany, Hungary,
Mongolia, Poland, Romania, Rwanda, Spain, Ukraine, and USSR). See ibid., notes 3, 20, 21, 27,
29-33.
43 Nor have States made any such temporal reservations to compromissory clauses providing for the
Court’s jurisdiction contained in other multilateral treaties. See, e.g., United Nations Treaty
Collection, List of States Parties, Declarations and Reservations to the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment (entered
into force 26 June 1987), available at https://treaties.un.org/doc/Publication/MTDSG/Volume%20
I/Chapter%20IV/IV-9.en.pdf; United Nations Treaty Collection, List of States Parties, Declarations
and Reservations to the Convention on the Political Rights of Women (entered
into force 7 July 1954), available at https://treaties.un.org/doc/Publication/MTDSG/Volume%20II
/Chapter%20XVI/XVI-1.en.pdf; United Nations Treaty Collection, List of States Parties,
Declarations and Reservations to the Convention relating to the Status of Stateless Persons
(entered into force 9 June 1960), available at https://treaties.un.org/doc/Publication/MTDSG/Volu
me%20I/Chapter%20V/V-3.en.pdf; United Nations Treaty Collection, List of States Parties,
16
31. Third, Article 22 cannot be understood as conferring rights on States
corresponding to a time during which they were not parties to the CERD. This is
in accordance with the customary international law principle of pacta tertiis nec
nocent nec prosunt, enshrined in Article 34 of the VCLT:
“A treaty does not create either obligations or rights for a
third State without its consent”.44
32. As concerns the period during which it was a third State to the CERD,
Azerbaijan has no rights under Article 22. That is to say, as concerns the period
prior to 15 September 1996, the CERD “cannot be relied on as against”45 Armenia
by Azerbaijan.
33. As the Court’s predecessor held in Certain German Interests, “[a] treaty
only creates law as between the States which are parties to it; in case of doubt, no
rights can be deduced from it in favour of third States”.46 The Permanent Court of
International Justice similarly emphasized in the Free Zones case that there can be
no presumption in favour of the creation of rights for third States, absent the
Declarations and Reservations to the Convention on the Elimination of All Forms of Discrimination
against Women (entered into force 3 September 1981), available at
https://treaties.un.org/doc/Publication/MTDSG/Volume%20I/Chapter%20IV/IV-8.en.pdf; and
United Nations Treaty Collection, List of States Parties, Declarations and Reservations to the
International Convention for the Protection of All Persons from Enforced Disappearance
(entered into force 23 December 2010), available at https://treaties.un.org/doc/Publication/MTDS
G/Volume%20I/Chapter%20IV/IV-16.en.pdf.
44 VCLT, Art. 34. See also International Law Commission, Draft Articles on the Law of Treaties
with Commentaries, Yearbook of the International Law Commission 1966, Vol. II, pp. 226-227
(Annex 7); E. David, “Treaties and Third States, Art. 34 1969 Vienna Convention” in THE VIENNA
CONVENTION ON THE LAW OF TREATIES (O. Corten & P. Klein, eds., 2011), pp. 887-888 (“The
customary character of the rule is not in doubt”) (Annex 21).
45 Case relating to the Territorial Jurisdiction of the International Commission of the River Oder,
Judgment No. 16, 1929, P.C.I.J. Series A, No. 23, p. 22.
46 Case concerning certain German interests in Polish Upper Silesia (The Merits), Judgment No. 7,
1926, P.C.I.J. Series A, No. 7, p. 29.
17
demonstration of such an intent.47 This exception to the rule of pacta tertiis was
later codified in Article 36 of the VCLT, which provides:
“A right arises for a third State from a provision of a treaty
if the parties to the treaty intend the provision to accord that
right either to the third State, or to a group of States to which
it belongs, or to all States, and the third State assents thereto.
Its assent shall be presumed so long as the contrary is not
indicated, unless the treaty otherwise provides”.48
34. As noted above, no intention to accord the rights of Article 22 to third States
can be found in its text, context or object and purpose.
35. Fourth, and in this connection, ignoring the intended function of Article 22
would lead to far reaching consequences risking the Convention’s objectives. For
example, a State that is not yet a party could accede to the CERD in 2023 and
institute proceedings against an original State party concerning events that occurred
as far back as 1969. Given that more than half a century has passed since the
CERD’s entry into force, there is already a wide disparity in the dates of entry into
force of the CERD among its current States parties, with 58 States parties having
ratified or acceded since 1990.49 As such, a retroactive interpretation of Article 22
would open up a vast universe of potential historic claims.
47 Case of the Free Zones of Upper Savoy and the District of Gex, Judgment No. 17, 1932, P.C.I.J.
Series A/B, Fascicule No. 46, pp. 147-148. See also International Law Commission, Draft Articles
on the Law of Treaties with Commentaries, Yearbook of the International Law Commission 1966,
Vol. II, p. 228, para. 4 (Annex 7).
48 VCLT, Art. 36 (emphasis added).
49 See United Nations Treaty Collection, List of States Parties, Declarations and Reservations to
the International Convention on the Elimination of All Forms of Racial Discrimination
(entered into force 4 January 1969), available at https://treaties.un.org/doc/Publication/MTDSG/V
olume%20I/Chapter%20IV/IV-2.en.pdf (Annex 8).
18
36. Similar situations exist under other multilateral treaties.50 There are thus
important repercussions that the retroactive interpretation of a standard
compromissory clause in a substantive treaty would have for the multilateral treaty
system in general, including the withdrawal of States from treaties containing
compromissory clauses. Indeed, a retroactive interpretation of a standard
compromissory clause would dissuade States from becoming party to any treaty
containing such a clause without making a reservation to it, or even create
reluctance to include provisions giving jurisdiction to the Court in future treaties.51
37. Fifth, and relatedly, extending the application of Article 22 to events prior
to the entry into force of the CERD as between the Parties would ignore the element
50 See e.g., United Nations Treaty Collection, List of States Parties, Declarations and Reservations
to the Convention relating to the Status of Stateless Persons (entered into force 9
June 1960), available at https://treaties.un.org/doc/Publication/MTDSG/Volume%20I/Chapter%2
0V/V-3.en.pdf (a 61 year gap in entry into force; States have acceded as recently as 2021, whereas
the treaty entered into force in 1960); United Nations Treaty Collection, List of States Parties,
Declarations and Reservations to the Convention on the Political Rights of Women
(entered into force 7 July 1954), available at https://treaties.un.org/doc/Publication/MTDSG/Volu
me%20II/Chapter%20XVI/XVI-1.en.pdf (a 61 year gap in entry into force; States have acceded as
recently as 2015, whereas the treaty entered into force in 1954); United Nations Treaty Collection,
List of States Parties, Declarations and Reservations to the Convention on the
Elimination of All Forms of Discrimination against Women (entered into force 3
September 1981), available at https://treaties.un.org/doc/Publication/MTDSG/Volume%20I/Chap
ter%20IV/IV-8.en.pdf (a 34 year gap in entry into force; States have acceded as recently as 2015,
whereas the treaty entered into force in 1981); United Nations Treaty Collection, List of States
Parties, Declarations and Reservations to the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (entered into force 26 June
1987), available at https://treaties.un.org/doc/Publication/MTDSG/Volume%20I/Chapter%20IV/I
V-9.en.pdf (a 34 year gap in entry into force; States have acceded as recently as 2021, whereas the
treaty entered into force in 1987).
51 This might be the case, for example, in the context of the adoption of a future convention on the
prevention and punishment of crimes against humanity. See International Law Commission, Draft
Articles on Prevention and Punishment of Crimes against Humanity, Yearbook of the International
Law Commission 2019, Vol. II, Part Two, Art. 15(2) (“Any dispute between two or more States
concerning the interpretation or application of the present draft articles that is not settled through
negotiation shall, at the request of one of those States, be submitted to the International Court of
Justice, unless those States agree to submit the dispute to arbitration”) (Annex 11).
19
of reciprocity inherent in compromissory clauses accepting the Court’s jurisdiction.
In the words of Rosenne:
“Reciprocity is a general feature of international law and
international relations, and to say that reciprocity is an
element of jurisdiction is no more than to say that in matters
of jurisdiction, as in matters of substance, the function of
applying the law between parties is the function of
establishing the rules of law reciprocally binding the
parties”.52
38. Indeed, the “principles of reciprocity and equality of States” are
fundamental to a State’s consent to the jurisdiction of the Court.53 Reciprocity is
therefore not limited to the context of declarations accepting the compulsory
jurisdiction of the Court, but applies to all titles of jurisdiction.54 However, unlike
a unilateral declaration, for which the element of reciprocity is accomplished
52 M. Shaw, ROSENNE’S LAW AND PRACTICE OF THE INTERNATIONAL COURT: 1920-2015 (2016),
Vol. II, p. 550, note 66 (Annex 22).
53 Continental Shelf (Libyan Arab Jamahiriya/Malta), Application to Intervene, Judgment, I.C.J.
Reports 1984, p. 3, para. 35. See also M. Shaw, ROSENNE’S LAW AND PRACTICE OF THE
INTERNATIONAL COURT: 1920-2015 (2016), Vol. II, pp. 549-554 (Annex 22); C. Tomuschat,
“Article 36” in THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE: A COMMENTARY (A.
Zimmermann & C. Tams, eds., 2019), p. 735 (“reciprocity ensures fairness relating to the conditions
of access and subjection to the Court”) (Annex 23).
54 C. Tomuschat, “Article 36” in THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE: A
COMMENTARY (A. Zimmermann & C. Tams, eds., 2019), p. 734 (“The term ‘reciprocity’ appears
solely in Article 36, para. 3, but permeates the provision on the jurisdiction of the Court in its
entirety”) (Annex 23). See also M. Shaw, ROSENNE’S LAW AND PRACTICE OF THE INTERNATIONAL
COURT: 1920-2015 (2016), Vol. II, p. 756 (“[R]eciprocity is an element of jurisdiction of the Court
as such, and not merely a peculiarity of the compulsory jurisdiction”) (Annex 22).
20
through the explicit wording of the Statute,55 a compromissory clause contained in
a treaty is by its very nature reciprocal.56
39. To interpret Article 22 in a non-reciprocal manner contrary to the ordinary
functions of a compromissory clause would amount to an exception to the
fundamental requirement of consent. However, as the Court has explained, it will
not easily find “an exception to the fundamental principles underlying its
jurisdiction: primarily the principle of consent, but also the principles of reciprocity
and equality of States”. 57 Rather, “an exception of this kind could not be admitted
unless it were very clearly expressed.”58 No such clear renunciation of reciprocity
can be found in Article 22. It follows that Azerbaijan cannot be permitted to invoke
Armenia’s obligations under the CERD prior to the entry into force of the CERD
for Azerbaijan on 15 September 1996.
55 See Statute, Art. 36(2) (“The states parties to the present Statute may at any time declare that they
recognize as compulsory ipso facto and without special agreement, in relation to any other state
accepting the same obligation, the jurisdiction of the Court”) (emphasis added); Art. 36(3) (“The
declarations referred to above may be made unconditionally or on condition of reciprocity”)
(emphasis added).
56 M. Shaw, ROSENNE’S LAW AND PRACTICE OF THE INTERNATIONAL COURT: 1920-2015 (2016),
Vol. II, p. 551 (“[I]t is true that generally speaking, where the jurisdiction rests on a treaty or
convention in force (Statute, Article 36, paragraph 1) the elements of mutuality and reciprocity are
largely absorbed into the treaty”) (Annex 22). See also, C. Tomuschat, “Article 36” in THE STATUTE
OF THE INTERNATIONAL COURT OF JUSTICE: A COMMENTARY (A. Zimmermann & C. Tams, eds.,
2019), p. 734 (“Whenever a compromissory clause is contained in an international agreement
(‘treaties and conventions in force’) in accordance with Article 36, para. 1, it applies obviously to
all the parties concerned in a like manner, provided that the parties have not opted for a different
formula”) (Annex 23).
57 Continental Shelf (Libyan Arab Jamahiriya/Malta), Application to Intervene, Judgment, I.C.J.
Reports 1984, p. 3, para. 35.
58 Continental Shelf (Libyan Arab Jamahiriya/Malta), Application to Intervene, Judgment, I.C.J.
Reports 1984, p. 3, para. 35.
21
40. In light of the foregoing, the Court lacks jurisdiction over all of
Azerbaijan’s claims concerning alleged acts and omissions that occurred prior to
15 September 1996, as explained below.
II. Azerbaijan Has Impermissibly Brought Claims Based on Events
Predating the CERD’s Entry into Force between the Parties
41. As explained, Azerbaijan fails to acknowledge any temporal restrictions on
the Court’s jurisdiction under the CERD, and instead advances a great number of
factual allegations and claims pertaining to the First Nagorno-Karabakh War and
other events that occurred before 15 September 1996.59 In fact, many such events
even occurred before Armenia acceded to the CERD on 23 July 1993, and thus at
a time when Armenia was not a party to the CERD and could not possibly have
breached its provisions.
42. The temporal flaws in Azerbaijan’s case pervade its nearly three-hundredpage
account of the “Facts Underlying Azerbaijan’s Claims”.60 Despite the
challenges posed by Azerbaijan’s confused presentation of its case, and without
accepting the veracity of any of its allegations, Armenia sets forth below examples
of such allegations that fall outside the Court’s jurisdiction ratione temporis. These
allegations include (i) those that Azerbaijan itself expressly dates to the period
before 15 September 1996; and (ii) those that Azerbaijan asserts in ambiguous
terms such that they cannot be connected to specific events that occurred after the
critical date.
43. First, entire sections of Azerbaijan’s Memorial are dedicated to recounting
events that, on Azerbaijan’s own case, occurred prior to 15 September 1996. For
59 Supra paras. 17-19.
60 Memorial, p. i (title of § II).
22
example, Section II.A of Azerbaijan’s Memorial, entitled “Armenia’s Campaign of
Ethnic Cleansing and Cultural Erasure Directed Against Azerbaijanis”, contains a
litany of allegations against Armenia based on events from as early as 191761 and
running through 1994.
44. The central allegation of Section II.A—which totals nearly 70 pages—
appears to be that “[f]rom 1987 to 1994, more than one million Azerbaijanis were
forcibly expelled from their homes as a result of Armenia’s conduct”.62 Azerbaijan
then develops these allegations—which predate by at least two years the entry into
force of the CERD between the Parties—by focusing on specific periods.
45. For example:
• In Section II.A.4, entitled “The Ethno-Nationalists Galvanized a
Militant Movement to Incorporate the NKAO into the Armenian SSR”,
Azerbaijan purports to describe a supposed Armenian “ethnonationalist
movement” which allegedly “spurred discriminatory attacks
against Azerbaijanis” in the 1980s;63
• In Section II.A.6, entitled “Expulsions and Targeting of Azerbaijanis in
Armenia (1987-1989)”, Azerbaijan alleges “forced expulsions in this
period”64 and “Armenia’s erasure of Azerbaijanis from Armenia”;65
61 Memorial, para. 57.
62 Memorial, para. 51.
63 Memorial, para. 65.
64 Memorial, para. 88.
65 Memorial, para. 90.
23
• In Section II.A.7, entitled “Ethnic Cleansing of Azerbaijanis During the
First Garabagh War (1991–July 1993)”, Azerbaijan makes grave
allegations about “Armenia’s conduct”66 during the First Nagorno-
Karabakh War, including that “from December 1991 onwards,
Azerbaijani villages were systematically destroyed”67 and that Armenia
participated in the “Khojaly massacre” which “began on the evening of
25 February 1992” (i.e., more than a year before Armenia even acceded
to the CERD);68
• In Section II.A.8, entitled “Continued Ethnic Cleansing of Azerbaijanis
During the First Garabagh War (July 1993-1994)”, Azerbaijan makes
further grave allegations about “Armenia’s direct involvement in the
ethnic cleansing” of Azerbaijanis.69
46. Azerbaijan’s express allegations pertaining to the First Nagorno-Karabakh
War are not limited to Section II.A. For instance, Azerbaijan devotes the entirety
of Section II.C.1 to allegations about “The Brutality of Armenia’s Conduct in the
First Garabagh War”.70
47. Such allegations underlie many of Azerbaijan’s claims of violation of the
CERD set forth in Part IV of its Memorial. For example:
• Paragraph 419 of the Memorial claims that “Armenia’s brutal campaign
to ethnically cleanse the then-occupied territories of all Azerbaijanis, in
66 Memorial, para. 105.
67 Memorial, para. 99.
68 Memorial, para. 102.
69 Memorial, para. 123.
70 See also, Memorial, paras. 199-200, 216, 236, 276.
24
pursuit of a ‘united Armenia’ free of ethnic Azerbaijanis, violated
Armenia’s obligations under CERD. Armenia drove Azerbaijanis out
of the area” in a campaign that, according to Azerbaijan, was carried
out before the end of the First Nagorno-Karabakh War;71
• Paragraph 425 of the Memorial claims that “Armenia’s ethnic cleansing
of Azerbaijanis from Armenia and the then-occupied territories, and its
subsequent exclusion of Azerbaijanis from those areas, was an
egregious violation of Articles 2 and 5 of CERD”;
• Paragraph 429 of the Memorial claims that Armenia “violated Article
2(1), Article 5(b) and Article 5(d)(i) of CERD through its use of
violence and terror to expel more than 700,000 Azerbaijanis from the
then-occupied territories on the basis of their ethnic and national origin
during the course of the First Nagorno-Karabakh War”;
• Paragraph 432 of the Memorial claims that “the forced exclusion of
Azerbaijanis from their homes” entailed Armenia’s violation of “the
entire raft of political, economic, social and cultural rights protected by
Article 5”;
• Paragraph 449 of the Memorial claims that Armenia breached the
CERD when “the Armed Forces of Armenia, including its Installed
71 See, e.g., Memorial, para. 51 (“From 1987 to 1994, more than one million Azerbaijanis were
forcibly expelled from their homes as a result of Armenia’s conduct, comprised of: nearly all of the
more than 200,000 Azerbaijanis from Armenia, more than 700,000 Azerbaijanis from the occupied
territories, and more than 100,000 Azerbaijanis from areas adjacent to the border with Armenia and
its occupying military forces”). See also ibid., para. 108 (alleging that “by mid-1992, virtually all
of the more than 40,000 Azerbaijanis who had resided in the former NKAO had been expelled or
killed”).
25
Regime, sealed off the then-occupied territories from the rest of
Azerbaijan”; and
• Paragraph 520 of the Memorial claims that “[i]n addition to violating
Articles 2 and 5 as discussed above, Armenia’s program of ethnic
cleansing violated the prohibition on racial segregation in Article 3”.
48. In fact, in support of its claims that Armenia breached the CERD,
Azerbaijan expressly incorporates its allegations concerning events that occurred
prior to 15 September 1996 by citing to its factual presentations in Sections II.A
and II.C.1.72
49. Second, in addition to raising allegations and claims of breach of the CERD
based on events that Azerbaijan has expressly acknowledged occurred prior to the
critical date of 15 September 1996, Azerbaijan also advances myriad ambiguous
allegations that it fails to connect to events that occurred after the critical date.
50. These include Azerbaijan’s allegations that, following its military conquest
in 2020 of territories now under its control, certain property was found destroyed
or environmental damage was ascertained.73 In most instances, Azerbaijan has not
even attempted to state a case for when such damage to property or the environment
actually occurred. In other cases, it simply alleges that the relevant damage
72 See, e.g., Memorial, paras. 419 (note 1007, citing Section II.A); para. 420 (note 1012, citing
Section II.A-B); para. 425 (note 1020, citing Section II.A); para. 433 (notes 1036-1037, citing
Section II.A, Section II.C.1 and paras. 120-127); para. 532 (note 1227, citing Sections II.A-B); para.
533 (note 1229, citing Section II.A.6).
73 See, e.g., Memorial, paras. 143 (referring to “[i]nspections conducted by the Prosecutor General’s
Office of Azerbaijan after liberation of the territories”); para. 158 (stating that “[f]rom November
2020 through March 2021, the Prosecutor General’s Office of the Republic of Azerbaijan
investigated 536 settlements in the liberated territories using photo and video footage”); para. 159
(stating that “[t]he most extensive inventorying of the tangible cultural heritage in the region from
November 2020 onwards is being conducted by Azerbaijan’s Ministry of Culture”).
26
occurred “during the occupation”,74 which is Azerbaijan’s term for the period
following the May 1994 ceasefire ending the First Nagorno-Karabakh War and up
to the Second Nagorno-Karabakh War.
51. The temporal ambiguity of Azerbaijan’s allegations is particularly apparent
in light of the evidence it has adduced. For example, Azerbaijan relies extensively
on the results of “[i]nspections conducted by the Prosecutor General’s Office of
Azerbaijan after liberation of the territories”, which are set forth in Annex 25 to
Azerbaijan’s Memorial.75 As explained by Azerbaijan’s own Deputy Prosecutor
General in a letter dated 30 December 2022, “[f]rom November 2020 until present
period, the investigators of the Investigation Department of the Prosecutor
General’s Office conducted inspections of the liberated territories to assess damage
to and destruction of buildings, monuments, cultural objects, cemeteries and other
sites in the liberated territories”.76
52. At no point in its reporting, however, does the Prosecutor General’s Office
take a position on when exactly the alleged damage or destruction took place.
Rather, the various reports are composed of before and after “statistics”,77
purporting to indicate the number of properties damaged or destroyed since the
“pre-occupation” time.78 In other words, Azerbaijan’s contention is that, at some
74 See, e.g., Memorial paras. 153, 167, 172, 174, 176, 178, 209.
75 Memorial, para. 143.
76 Letter from Elchin Mammadov, First Deputy Prosecutor General of the Republic of Azerbaijan,
to Elnur Mammadov, Deputy Minister of Foreign Affairs of the Republic of Azerbaijan, dated 30
December 2022, p. 4 (Memorial, Annex 25).
77 See Prosecutor General’s Office of the Republic of Azerbaijan, Reference concerning
investigations into the destruction of and damage to cultural objects and buildings, including
cemeteries (14 April 2022), p. 18 (Memorial, Annex 25, Exhibit A-1-a).
78 See Prosecutor General’s Office of the Republic of Azerbaijan, Reference concerning
investigations into the destruction of and damage to cultural objects and buildings, including
cemeteries (14 April 2022), p. 13 (Memorial, Annex 25, Exhibit A-1-a).
27
point between an unspecified79 “pre-occupation” date and November 2020, certain
destructions or damage took place. However, absent more information, it is
impossible to determine whether the damage allegedly documented in 2020
occurred after 15 September 1996, and not, for example, during the First Nagorno-
Karabakh War.
53. A similar problem arises with regard to Azerbaijan’s attempts to support its
allegations through photographic evidence. In its Memorial, Azerbaijan relies
extensively on “before and after” photographic evidence, with the “before” photos
dating to the period prior to 15 September 1996, and thus failing to establish that
the relevant event actually occurred after the CERD’s entry into force between the
Parties, rather than in the period between when the photo was taken and 15
September 1996.80 Many other photographic comparisons are simply undated.81
Yet other figures in its Memorial are not comparisons at all, but simply photographs
dated to 2020 or later.82
54. The same problems pervade the Annexes to Azerbaijan’s Memorial
purporting to contain photographic evidence on which its claims of breach rely. For
example, Annex 1, styled as a “Compendium of images showing the destruction
79 According to the Prosecutor General’s Office, “[s]tatistical information on pre-occupation
buildings … in each district’s settlements was obtained and analyzed during the inspections from
the district executive authorities”. See Prosecutor General’s Office of the Republic of Azerbaijan,
Reference concerning investigations into the destruction of and damage to cultural objects and
buildings, including cemeteries (14 April 2022), p. 13 (Memorial, Annex 25, Exhibit A-1-a).
However, the sources for these statistics have not been identified or produced, let alone connected
to a specific date during the “pre-occupation” period. Instead, the Prosecutor General’s Office
specifies that “the investigation body has no further information”. Ibid., p. 18.
80 See, e.g., Memorial, p. 125 (Figure 27) (“[S]howing Panah Khan Imarat Complex and Tomb of
Natavan in March 1992 and on 25 February 2021”).
81 See, e.g., Memorial, p. 122 (Figure 25); p. 144 (Figure 38); p. 156 (Figures 43-44); p. 160 (Figures
46-47).
82 See, e.g., Memorial, pp. 98-100 (Figures 13-15); pp. 102-103 (Figures 16-17).
28
and erasure of Azerbaijani cities, villages, cultural and religious sites”, is replete
with undated photographs,83 “before” photos from the 1980s,84 and photos taken
after the Second Nagorno-Karabakh War in 2020 with no “before” comparators.85
55. Another example is Annex 7, which is the “Affidavit of Reza Deghati” an
“independent photojournalist”.86 Mr. Deghati explains that his photographic
evidence derives from “visits between March 1992 and April 1992 and between
October 2020 and November 2022”, and that his “affidavit contains true and
authentic copies of photographs [he] took during [his] time in the Garabagh
region”.87 However, out of 92 photographs submitted, only four date from his 1992
visit, of which two are portraits of individuals.88 Mr. Deghati’s remaining
photographs, which all date from 2020-2022, cannot establish that alleged damage
and destruction to property actually occurred after 15 September 1996.
56. Azerbaijan’s case on jurisdiction ratione temporis for its undated claims
thus depends on the illogical assumption that, rather than having occurred at the
height of hostilities in the relevant areas—i.e., in 1991, 1992, 1993 or early 1994—
83 Compendium of images showing the alleged destruction and erasure of Azerbaijani cities,
villages, cultural and religious sites, p. 1 (Figure 2); p. 6 (Figure 10); p. 7 (Figure 11); p. 17 (Figure
24); p. 20 (Figure 29); p. 26 (Figure 38); p. 30 (Figure 43, which is an “archival photo” in black and
white with the characteristic appearance of photography from the first half of the 20th century)
(Memorial, Annex 1).
84 Compendium of images showing the alleged destruction and erasure of Azerbaijani cities,
villages, cultural and religious sites, p. 1 (Figure 1); p. 8 (Figures 13-14, comparing photographs
from 1980 and 2022); pp. 15-16 (Figures 22-23, comparing photographs from 1980 and 2022)
(Memorial, Annex 1).
85 Compendium of images showing the alleged destruction and erasure of Azerbaijani cities,
villages, cultural and religious sites, p. 2 (Figure 2); p. 3 (Figure 4); p. 9 (Figure 15); p. 13 (Figure
20); p. 37 (Figure 51) (Memorial, Annex 1).
86 Affidavit of Reza Deghati (10 January 2023), p. 1 (title, para. 1) (Memorial, Annex 7).
87 Affidavit of Reza Deghati (10 January 2023), pp. 1-2 (paras. 4-5) (Memorial, Annex 7).
88 Affidavit of Reza Deghati (10 January 2023), Exhibit A, pp. 1-5 (Memorial, Annex 7).
29
various instances of alleged damage to property or the environment occurred after
15 September 1996, i.e., more than two years after the end of hostilities.
57. Accordingly, while many of Azerbaijan’s allegations are explicitly linked
to events prior to the critical date for the Court’s jurisdiction ratione temporis, other
allegations are also jurisdictionally flawed by virtue of Azerbaijan’s failure to
substantiate their timing. Basic considerations of due process, procedural
efficiency, and the need for the Parties’ consent to the hearing of the case on the
merits require that Azerbaijan demonstrate that its allegations fall within the scope
of the Court’s jurisdiction at this stage.
III. Azerbaijan’s Historical Claims are Inadmissible
58. Although an authoritative statement of principle concerning the Court’s
jurisdiction ratione temporis would contribute greatly to legal security and
predictability in the operation of compromissory clauses contained in multilateral
30
treaties,89 fundamental considerations of party equality, judicial propriety, fairness,
and good faith would in any event operate to render Azerbaijan’s claims
inadmissible in the case at hand.
59. Indeed, “the principle of equality of the Parties follows from the
requirements of good administration of justice”.90 The Court has therefore found
that, in accordance with its Statute, it must ensure that such equality is maintained
89 In at least four cases in the past three decades, the Court was faced with the question of the
application of compromissory clauses contained in multilateral conventions to events predating the
entry into force of the convention between the parties. However, no jurisprudence constante has
emerged. First, in Bosnia and Herzegovina v. Yugoslavia, a case which involved questions of State
succession to the Genocide Convention, the Court “confine[d] itself to the observation that the
Genocide Convention - and in particular Article IX - does not contain any clause the object or effect
of which is to limit in such manner the scope of its jurisdiction ratione temporis”. Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996, p. 595, para. 34. Second, in
Georgia v. Russian Federation, it was not necessary for the Court to decide Russia’s fourth
preliminary objection that “any jurisdiction the Court might have is limited ratione temporis to the
events which occurred after the entry into force of CERD as between the Parties, that is, 2 July
1999”. Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports
2011, p. 70, paras. 22, 185. Third, in Belgium v. Senegal, the Court explicitly noted that its
jurisdiction encompassed the parties’ compliance with the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment as of the date on which the applicant State,
Belgium, became a party to the Convention, which was two years after its entry into force for
Senegal, the respondent State. See Questions relating to the Obligation to Prosecute or Extradite
(Belgium v. Senegal), Judgment, I.C.J. Reports 2012, p. 422, para. 104 (“The Court considers that
Belgium has been entitled, with effect from 25 July 1999, the date when it became party to the
Convention, to request the Court to rule on Senegal’s compliance with its obligation under Article
7, paragraph 1. In the present case, the Court notes that Belgium invokes Senegal’s responsibility
for the latter’s conduct starting in the year 2000, when a complaint was filed against Mr. Habré in
Senegal”). Fourth, in Croatia v. Serbia, Serbia argued that the Court’s jurisdiction did not extend
to “claim[s] in relation to events alleged to have taken place before” Croatia, the applicant State,
became a party to the Genocide Convention, and that such claims would in any event be
inadmissible. Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Croatia v. Serbia), Judgment, I.C.J. Reports 2015, p. 3, paras. 119, 442. However, the
Court did not decide the question, instead dismissing the claims on other grounds.
90 Judgments of the Administrative Tribunal of the I.L.O. upon complaints made against the
U.N.E.S.C.O., Advisory Opinion of October 23rd, 1956: I.C.J. Reports 1956, p. 86.
31
in practice.91 As with the principle of reciprocity discussed above,92 this is
fundamentally a question of fairness.93 Moreover, since “[o]ne of the basic
principles governing the creation and performance of legal obligations, whatever
their source, is the principle of good faith”,94 States cannot be permitted to pursue
claims that threaten the equality of the parties, fundamental fairness and the good
administration of justice.
60. The Court has thus held that, when the good administration of justice is
threatened, or there are “reasons why the Court should not proceed to an
examination of the merits”,95 the Court is empowered to decline to exercise its
jurisdiction.96 Accordingly, even if the Court were to find that it has jurisdiction
over some of Azerbaijan’s historical claims against Armenia but not over
Azerbaijan’s own conduct during the same period (quod non), this would create an
impermissible situation of inequality and fundamental unfairness, privileging one
party for acceding later in time than another, that would, in Armenia’s respectful
submission, compel the Court to decline to exercise its jurisdiction.
91 Judgments of the Administrative Tribunal of the I.L.O. upon complaints made against the
U.N.E.S.C.O., Advisory Opinion of October 23rd, 1956: I.C.J. Reports 1956, p. 85.
92 See supra paras. 37-39.
93 C. Tomuschat, “Article 36” in THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE: A
COMMENTARY (A. Zimmermann & C. Tams, eds., 2019), p. 735 (Annex 23).
94 Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 457, para. 49; Nuclear
Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 253, para. 46.
95 Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I.C.J. Reports
2003, p. 161, para. 29. See also Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Croatia v. Serbia), Judgment, I.C.J. Reports 2015, p. 3, para. 118.
96 Case concerning the Northern Cameroons (Cameroon v. United Kingdom), Preliminary
Objections, Judgment of 2 December 1963: I.C.J. Reports 1963, p. 29 (“It is the act of the Applicant
which seises the Court but even if the Court, when seised, finds that it has jurisdiction, the Court is
not compelled in every case to exercise that jurisdiction. There are inherent limitations on the
exercise of the judicial function which the Court, as a court of justice, can never ignore”).
32
61. Azerbaijan’s three-decade delay in bringing its claims is yet another factor
militating against the admissibility of its claims. Such a delay prejudices Armenia’s
ability to mount its defence, which would require investigating and obtaining
evidence pertaining to events that occurred in the early 1990s. Relevant evidence
has inevitably been lost or destroyed due to the passage of time, and many
custodians of evidence or witnesses may no longer be living. Indeed, as explained
above, Azerbaijan’s own evidence is ambiguous and unsubstantiated, with
Azerbaijan relying principally on contemporary conjectures about what may have
happened and when. Through its unjustified delay in instituting these proceedings,
Azerbaijan has not only prejudiced Armenia’s defence, but also the Court’s ability
to ascertain the truth.
62. It is in light of such considerations that the Court has held that “delay on
the part of a claimant State may render an application inadmissible”.97 Unless
otherwise provided for by treaty, it is “for the Court to determine in the light of the
circumstances of each case whether the passage of time renders an application
inadmissible”.98 In the case at hand, nearly 29 years have passed since the
conclusion of the First Nagorno-Karabakh War in May 1994 and more than 26
years have passed since Azerbaijan’s accession to the CERD in September 1996.
Notwithstanding Azerbaijan’s objectives in instituting these proceedings, the
objective reality is that the passage of time has substantially limited the availability
of relevant evidence and irretrievably hindered the Court’s ability to assess and
decide the case before it. In these circumstances, in which Armenia’s ability to
97 Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment,
I.C.J. Reports 1992, p. 240, para. 32.
98 Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment,
I.C.J. Reports 1992, p. 240, para. 32.
33
defend against far-reaching allegations is gravely undermined, the Court should
reach the conclusion that Azerbaijan’s delay has rendered its claims inadmissible.99
⁎⁎⁎
63. For the reasons explained above, the Court plainly lacks jurisdiction over
Azerbaijan’s claims pertaining to the period prior to the CERD’s entry into force
as between the Parties on 15 September 1996, which are inadmissible in any event.
64. As such, the entirety of Azerbaijan’s allegations pertaining to events that
took place prior to 15 September 1996, including those set forth in Sections II.A
and II.C.1 of its Memorial, cannot form the basis for establishing a breach of the
CERD. Moreover, absent substantiation that they pertain to events postdating 15
September 1996, Azerbaijan’s vague allegations described above must also be
found to fall outside the Court’s temporal jurisdiction, or be deemed inadmissible.
99 Should Azerbaijan’s claims be deemed to fall within the Court’s jurisdiction and to be admissible,
Armenia reserves all of its rights to request any relief that may be necessary to remedy any prejudice
caused by Azerbaijan’s delay in seising the Court. See Certain Phosphate Lands in Nauru (Nauru
v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 240, para. 36 (“[I]t will be
for the Court, in due time, to ensure that [the applicant’s] delay in seising it will in no way cause
prejudice to [the respondent] with regard to both the establishment of the facts and the determination
of the content of the applicable law”).
34
CHAPTER 3. THE COURT LACKS JURISDICTION RATIONE
MATERIAE OVER AZERBAIJAN’S CLAIMS AND CONTENTIONS
CONCERNING LANDMINES, BOOBY TRAPS AND
ENVIRONMENTAL HARM
65. In its Memorial, Azerbaijan alleges that by purportedly planting landmines
and booby traps, and by engaging in conduct that allegedly caused environmental
harm, Armenia committed acts of racial discrimination in violation of the CERD.
This Chapter demonstrates that these claims and contentions do not fall within the
scope of the Convention and that the Court therefore does not have jurisdiction
ratione materiae to consider them. Section I lays out the legal standard governing
questions of jurisdiction ratione materiae. Section II then shows that the Court has
no jurisdiction ratione materiae under the CERD with respect to Armenia’s alleged
placement of landmines or booby traps. Finally, Section III shows that the Court
has no jurisdiction ratione materiae under the CERD over Azerbaijan’s claims and
contentions concerning alleged environmental harm.
I. The Legal Standard Governing Questions of Jurisdiction Ratione
Materiae
66. As stated, Azerbaijan invokes Article 22 of the CERD as the basis for the
Court’s jurisdiction. Article 22 provides that only disputes “with respect to the
interpretation or application of” the CERD may be referred to the Court.
Accordingly, only such disputes fall within the Court’s jurisdiction ratione
materiae.
67. The Court has not yet determined whether it has jurisdiction ratione
materiae over this dispute. In its Orders on provisional measures, the Court merely
concluded that it had prima facie jurisdiction to entertain the case pursuant to
35
Article 22.100 That conclusion required the Court to decide only whether, on a
prima facie basis, “at least some of the acts and omissions alleged by Azerbaijan to
have been committed by Armenia are capable of falling within the provisions of
the Convention”101 and “whether, as a consequence, the dispute is one which the
Court could have jurisdiction ratione materiae to entertain”.102
68. It now falls to the Court to determine whether it in fact has jurisdiction
ratione materiae over all the claims Azerbaijan presents. The analysis at this stage
must necessarily be more exacting than that undertaken in the context of the
provisional measures requests. Indeed, the Court must now “bring a detailed
analysis to bear”103 and examine “each of the provisions on which [Azerbaijan]
100 See Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Azerbaijan v. Armenia), Provisional Measures, Order of 7 December 2021, I.C.J.
Reports 2021, p. 405, para. 40; Application of the International Convention on the Elimination of
All Forms of Racial Discrimination (Azerbaijan v. Armenia), Provisional Measures, Order of 22
February 2023, para. 13.
101 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Azerbaijan v. Armenia), Provisional Measures, Order of 7 December 2021, I.C.J.
Reports 2021, p. 405, para. 27 (emphasis added).
102 See, e.g., Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular
Rights (Islamic Republic of Iran v. United States of America), Provisional Measures, Order of 3
October 2018, I.C.J. Reports 2018, p. 623, para. 30 (emphasis added). See also Application of the
International Convention on the Elimination of All Forms of Racial Discrimination (Azerbaijan v.
Armenia) Provisional Measures, Order of 7 December 2021, I.C.J. Reports 2021, p. 405, para. 15
(“The Court may indicate provisional measures only if the provisions relied on by the Applicant
appear, prima facie, to afford a basis on which its jurisdiction could be founded, but need not satisfy
itself in a definitive manner that it has jurisdiction as regards the merits of the case”) (emphasis
added).
103 Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection
(Separate Opinion of Judge Higgins), Judgment, I.C.J. Reports 1996, p. 803, para. 29.
36
relies, in order to ascertain whether it permits [Azerbaijan’s claims] to be
considered as falling within the scope ratione materiae of the [CERD]”.104
69. In carrying out this analysis, the Court must examine (1) any relevant
provisions that define the scope of the treaty as a whole, and (2) the scope of any
other substantive provisions on which the Applicant relies.
70. With respect to the scope of the treaty as a whole, the Court has explained
that determining whether the acts complained of fall within the provisions of a
treaty “may require the interpretation of the provisions that define the scope of the
treaty”.105 In the context of the CERD in particular, the Court has further explained
that its scope “exclusively concerns the prohibition of racial discrimination”106 as
defined under Article 1(1).107
71. Article 1(1) provides:
104 Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary
Objections, Judgment, I.C.J Reports 2019, p. 7, para. 52. See also Oil Platforms (Islamic Republic
of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J. Reports 1996, p. 803,
para. 16; Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgement, I.C.J.
Reports 1998, p. 432, para. 38 (“[I]t is for the Court to determine from all the facts and taking into
account all the arguments advanced by the Parties, ‘whether the force of the arguments militating
in favor of jurisdiction is preponderant, and to ‘ascertain whether an intention of the part of the
Parties exists to confer jurisdiction upon it’”).
105 Application of the International Convention for the Suppression of the Financing of Terrorism
and of the International Convention on the Elimination of All Forms of Racial Discrimination
(Ukraine v. Russian Federation), Preliminary Objections, I.C.J. Reports 2019, p. 558, para. 57.
106 See, e.g., Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgement, I.C.J.
Reports 2021, p. 71, para. 104.
107 See, e.g., Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgement, I.C.J.
Reports 2021, p. 71, para. 113 (“[T]he Court does not have jurisdiction ratione materiae to entertain
Qatar’s third claim, since the measures complained of therein by that State do not entail, either by
their purpose or by their effect, racial discrimination within the meaning of Article 1, paragraph 1,
of the Convention”).
37
“In this Convention, the term ‘racial discrimination’ shall
mean any distinction, exclusion, restriction or preference
based on race, colour, descent, or national or ethnic origin
which has the purpose or effect of nullifying or impairing
the recognition, enjoyment or exercise, on an equal footing,
of human rights and fundamental freedoms in the political,
economic, social, cultural or any other field of public
life”.108
72. In determining whether the acts complained of fall within the provisions of
the CERD, the Court must therefore determine (a) whether there is a distinction,
exclusion, restriction or preference which is “based on” race, colour, descent, or
national or ethnic origin; and, if so, (b) whether it has had the “purpose or effect”
of nullifying or impairing the equal recognition, enjoyment or exercise of human
rights and fundamental freedoms.
73. The Court’s Judgment on Preliminary Objections in Application of the
International Convention on the Elimination of All Forms of Racial Discrimination
(Qatar v. United Arab Emirates) provides helpful guidance in determining whether
the acts complained of in a particular case fall within the scope of Article 1 of the
CERD.
74. In that case, the Court rejected Qatar’s primary argument that the CERD
prohibits discrimination “based on” current nationality.109 Importantly, the Court
also rejected Qatar’s alternative argument that the acts complained of had also been
taken “based on” national origin in the more narrow historical-cultural sense that
108 CERD, Art. 1(1).
109 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgement, I.C.J.
Reports 2021, p. 71, para. 112.
38
unquestionably does fall within the scope of the CERD.110 In the Court’s words,
“the various measures of which Qatar complains do not, either by their purpose or
by their effect, give rise to racial discrimination against Qataris as a distinct social
group on the basis of their national origin”.111
75. The Judgment thus shows that the Court need not accept an Applicant’s
characterisation of the alleged “basis” on which the acts complained of were taken,
but must instead independently evaluate whether the acts complained of were in
fact taken “based on” race, colour, descent, or national or ethnic origin as required
by Article 1.112 If, even after accepting the Applicant’s factual allegations as true
(as opposed to the Applicant’s characterisation of those allegations),113 the Court
110 See, e.g., Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgement, I.C.J.
Reports 2021, p. 71, para. 50 (“Qatar points out that the UAE’s measures are not exclusively
addressed to Qataris on the basis of their current nationality … It alleges that the measures imposed
by the UAE penalize persons of Qatari national origin based on their identification with Qatari
national traditions and culture, their Qatari accent or their Qatari dress. It further alleges that these
measures discriminate against persons who are not Qatari citizens on the basis of their cultural
identification as ‘Qataris’”); Application of the International Convention on the Elimination of All
Forms of Racial Discrimination (Qatar v. United Arab Emirates), Written Statement of Qatar
Concerning the Preliminary Objections of the United Arab Emirates (30 August 2019), para. 18
(asserting that the UAE “intentionally target[ed] … persons of Qatari ‘national origin’ in the
historical-cultural sense, irrespective of their present nationality”).
111 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgement, I.C.J.
Reports 2021, p. 71, para. 112 (emphasis added).
112 As the Court recently confirmed in the Ukraine v. Russia (ICSFT & CERD) case, although “an
examination by the Court of the alleged wrongful acts or of the plausibility of the claims is not
generally warranted”, during this phase of the proceedings, the Court must “consider the questions
of law and fact that are relevant to the objection to its jurisdiction”. Application of the International
Convention for the Suppression of the Financing of Terrorism and of the International Convention
on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation),
Preliminary Objections, Judgement, I.C.J. Reports 2019, p. 558, para. 58.
113 See, e.g., Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgement, I.C.J.
Reports 2021, p. 71, para. 112 (“[T]he Court concludes that, even if the measures of which Qatar
complains in support of its ‘indirect discrimination’ claim were to be proven on the facts, they are
not capable of constituting racial discrimination within the meaning of the Convention”).
39
finds that the acts complained of were not taken “based on” race, colour, descent,
or national or ethnic origin, they fall ipso facto outside the provisions of the CERD.
76. In determining whether the acts complained of were taken “based on” race,
colour, descent, or national or ethnic origin, the Court has found that it is not
enough to establish merely an indirect effect on a protected group.114 The plain
language of Article 1(1) makes clear that the requirement that the impugned acts
be taken “based on” race, colour, descent, or national or ethnic origin is prior to
and distinct from the requirement that the acts complained of also have the
“purpose or effect” of nullifying or impairing the equal recognition, enjoyment or
exercise of human rights and fundamental freedoms.115 In other words, only if the
Court finds that there was a distinction, exclusion, restriction or preference “based
on” race, colour, descent, or national or ethnic origin does the separate threshold
question of whether the acts complained of had the further “purpose or effect” of
nullifying or impairing the equal enjoyment of human rights even become
relevant.116
77. As noted above, in addition to examining the question of whether the acts
complained of fall within the scope of the treaty as a whole (in this case by
constituting racial discrimination under Article 1(1)), the acts complained of must
also fall within the particular substantive provisions invoked. Thus, in Certain
114 See, e.g., Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgement, I.C.J.
Reports 2021, p. 71, paras. 109, 112 (“According to Qatar, a measure may be considered as ‘based
on’ one of the grounds listed in Article 1 if, by its effect, it implicates a protected group … In the
present case, while the measures based on current Qatari nationality may have collateral or
secondary effects on persons born in Qatar or of Qatari parents, or on family members of Qatari
citizens residing in the UAE, this does not constitute racial discrimination within the meaning of
the Convention”).
115 CERD, Art. 1(1).
116 CERD, Art. 1(1).
40
Iranian Assets, the Court granted the United States of America’s Preliminary
Objection after concluding that Iran’s claims with respect to sovereign immunity
did not fall under the particular provisions of the Treaty of Amity invoked.117
Similarly, in Equatorial Guinea v. France, the Court held that particular alleged
violations of the Palermo Convention, concerning the purported overextension of
France’s jurisdiction in relation to the predicate offenses of money laundering,
were not capable of falling within the provisions of the Palermo Convention upon
which the relevant claims were based.118 The Court therefore determined that it
lacked jurisdiction to entertain that aspect of the dispute.
78. More generally, in determining whether the acts complained of fall within
the provisions of the treaty, “[i]t is not enough for the claimant Government to
establish a remote connection between the facts of the claim and the [treaty]”.119 In
other words, the acts complained of cannot have “too tenuous a connection” with
the provisions upon which the Applicant seeks to establish the Court’s
jurisdiction.120 Rather, “it is necessary that the complaint should indicate some
genuine relationship between the complaint and the provisions invoked”.121
117 Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary
Objections, Judgment, I.C.J. Reports 2019, p. 7, para. 80 (“The Court concludes from all of the
foregoing that none of the provisions the violation of which Iran alleges, and which, according to
the Applicant, are capable of bringing within the jurisdiction of the Court the question of the United
States’ respect for the immunities to which certain Iranian State entities are said to be entitled, is of
such a nature as to justify such a finding”).
118 Immunities and Criminal Proceedings (Equatorial Guinea v. France), Preliminary Objections,
Judgment, I.C.J. Reports 2018, p. 292, para. 117.
119 Ambatielos case (merits: obligation to arbitrate), Judgement of May 19th, 1953: I.C.J Reports
1953, p. 18.
120 Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary
Objections, Judgment, I.C.J. Reports 2019, p. 7, para. 79.
121 Judgments of the Administrative Tribunal of the I.L.O. upon complaints made against the
U.N.E.S.C.O., Advisory Opinion of October 23rd, 1956: I.C.J. Reports 1956, p. 89.
41
79. It is ultimately for the Court to determine, “from all the facts and taking into
account all the arguments advanced by the Parties”, “whether an intention on the
part of the Parties exists to confer jurisdiction upon it”.122 As explained below, no
such intention can be discerned with respect to Azerbaijan’s claims as they relate
to landmines and booby traps (Section II) or alleged environmental harm (Section
III).
II. The Court Lacks Jurisdiction Ratione Materiae over Azerbaijan’s
Claims and Contentions Concerning Landmines and Booby Traps
80. Armenia respectfully submits that the Court should find that it lacks
jurisdiction ratione materiae with respect to Azerbaijan’s claims and contentions
concerning the alleged placement of landmines and booby traps because—even if
they were accepted as true (quod non)—Armenia’s alleged laying of landmines and
booby traps, and any withholding of information about them, are not acts of racial
discrimination that fall within the scope of the CERD.123 These claims and
contentions may or may not implicate other sources of law,124 but they certainly do
not implicate Armenia’s obligations under CERD.
122 Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports
1998, p. 432, para. 38.
123 Azerbaijan’s factual submissions in this regard are at Memorial, paras. 116, 223, 273-283, and
its legal submissions at Memorial, paras. 19, 446, 449-451, 532-534. See also Memorial, paras. 568-
570, 574.
124 For example, any obligation (and hence any claim relating to a failure in that regard) to provide
information on the location of landmines after the end of a conflict is regulated by rules in the field
of arms control. Those rules are found in treaties such as Protocol II on Prohibitions or Restrictions
on the Use of Mines, Booby-Traps and Other Devices to the Convention On Prohibitions Or
Restrictions On The Use Of Certain Conventional Weapons Which May Be Deemed To Be
Excessively Injurious Or To Have Indiscriminate Effects As Amended On 21 December 2001 and
the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-
Personnel Mines and on Their Destruction. Similarly, any obligation (and hence any claim relating
to a failure in that regard) not to plant landmines or booby traps in areas of either active armed
conflict or along lines of contact after the cessation of hostilities—such as what constitute feasible
precautions for protecting civilians from the effects of such weapons—are regulated by the laws of
war, notably the 1907 Regulations concerning the Laws and Customs of War on Land and
42
81. As stated, at this stage in the proceedings, to find it has jurisdiction ratione
materiae, the Court must determine whether the acts of which Azerbaijan
complains fall within the provisions of the CERD.125 In order to do so, Azerbaijan
must show that the acts complained of constitute a distinction, exclusion, restriction
or preference “based on” national or ethnic origin (the only categories its claims
invoke),126 and that they had “the purpose or effect” of nullifying or impairing the
equal recognition, enjoyment or exercise of human rights and fundamental
freedoms.
82. Azerbaijan fails to show that Armenia’s alleged use of landlines and booby
traps amount to a distinction, exclusion or restriction “based on” national or ethnic
origin (Section A), or that its actions had either the “purpose or effect” of nullifying
or impairing the equal recognition, enjoyment or exercise of human rights and
fundamental freedoms (Section B). Indeed, virtually all of the allegations in
Azerbaijan’s Memorial simply restate evidence that it previously presented in its
two requests for provisional measures, which the Court decided was insufficient to
establish, even prima facie, that Armenia’s alleged conduct constituted racial
discrimination under the CERD. Azerbaijan’s claims and contentions regarding
Armenia’s alleged use of landmines and booby traps therefore not only have “too
tenuous a connection”127 with any substantive CERD provision, but they also fall
Additional Protocols I and II of the 1949 Geneva Conventions. The Court may naturally take
account of the regulation of a matter by other sources of law when considering the scope of its
jurisdiction under a particular instrument.
125 See supra, para. 68.
126 See, e.g., Memorial, para. 451 (“Where, as here, the targeted civilians are selected on the basis
of ethnic origin or national origin, the use of landmines against them constitutes a violation of
CERD”).
127 Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary
Objections, Judgment, I.C.J. Reports 2019, p. 7, para. 79. See also Ambatielos case (merits:
obligation to arbitrate), Judgement of May 19th, 1953: I.C.J Reports 1953, p. 18; Judgments of the
Administrative Tribunal of the I.L.O. upon complaints made against the U.N.E.S.C.O., Advisory
Opinion of October 23rd, 1956: I.C.J. Reports 1956, p. 89.
43
outside the scope of the Convention in its entirety and must be dismissed in full at
this stage.
A. ARMENIA’S ALLEGED USE OF LANDMINES AND BOOBY TRAPS DOES NOT
CONSTITUTE A DISTINCTION, EXCLUSION, RESTRICTION OR PREFERENCE “BASED
ON” NATIONAL OR ETHNIC ORIGIN
83. Even accepting Azerbaijan’s factual allegations as true (quod non),
Armenia’s alleged use of landmines and booby traps would not constitute a
distinction, exclusion, restriction or preference “based on” national or ethnic origin,
and therefore could not constitute racial discrimination within the meaning of
Article 1(1) of the CERD.
84. By their nature, landmines are indiscriminate weapons that are incapable of
making a distinction based on national or ethnic origin. The toll that these weapons,
and other remnants of war, has exacted on all sides of the conflict is heavy.128
Azerbaijan itself has acknowledged and accepted this fact.129 So has Azerbaijan’s
Commissioner for Human Rights and Ombudsperson, who has stressed not only
that landmines are “indiscriminate by nature”,130 but also that they “have
128 See, e.g., “Nagorno-Karabakh conflict: Landmines, a disturbing reminder of war”, ICRC (31
May 2019), available at https://www.icrc.org/en/document/nagorno-karabakh-conflict-landminesdisturbing-
reminder-war (Annex 17); Artak Beglaryan, Facebook (4 April 2023), available at
https://www.facebook.com/Artak.A.Beglaryan/posts/6344191602285690 (in which the former
Human Rights Ombudsman of the Republic of Artsakh states, inter alia, that “[t]housands of
Nagorno-Karabakh citizens, including at least 1,076 civilian persons (many of them children and
women), have been killed or injured as a result of landmine and other unexploded ordnance
explosions”, and notes that he himself was “one of the victims of those accidents”) (Annex 28).
129 See, e.g., CR 2021/24, p. 22, para. 6 (Lowe).
130 Ad Hoc Report of the Commissioner for Human Rights (Ombudsman) of the Republic of
Azerbaijan, Mine Problem in the Liberated Areas (June 2021), available at
https://www.ombudsman.az/upload/editor/files/Ad%20Hoc%20Report%20of%20the%20Ombuds
man%20on%20landmine%20problem.pdf, p. 4 (Annex 12).
44
indiscriminate effects”.131 Such statements, and actual events in Nagorno-
Karabakh, both confirm that landmines are per se non-discriminatory.132
85. None of the facts alleged by Azerbaijan in any way suggest that Armenia’s
use of landmines amounts to a distinction “based on” national or ethnic origin. On
the contrary, and as Armenia demonstrated in response to Azerbaijan’s two
requests for provisional measures, any placing of landmines by Armenia was done
exclusively for defensive military purposes and only along the line of contact
between military forces.133
86. Booby traps, like landmines, are also indiscriminate by nature. They can
cause harm to individuals of any national or ethnic origin. Azerbaijan agrees with
this proposition as well, claiming that booby traps “are a real and present threat to
Azerbaijani IDPs and anyone else engaged in clearance and reconstruction
operations in the liberated territories”.134 Moreover, Armenia has always denied
and continues to deny ever laying booby traps,135 and Azerbaijan has not produced
any evidence to the contrary.
131 Ad Hoc Report of the Commissioner for Human Rights (Ombudsman) of the Republic of
Azerbaijan, Mine Problem in the Liberated Areas (June 2021), available at
https://www.ombudsman.az/upload/editor/files/Ad%20Hoc%20Report%20of%20the%20Ombuds
man%20on%20landmine%20problem.pdf, p. 15 (Annex 12).
132 As one example presented by Armenia during the first provisional measures hearing shows, a
single landmine can injure individuals of multiple backgrounds. In the situation referred to, an
Azerbaijani officer was killed and several ethnic Armenians and a Russian peacekeeper were
injured when a landmine exploded. See CR 2021/25, p. 27, para. 22 (Murphy) (citing to “Land Mine
Kills Officer as Search Continues for Armenian, Azerbaijani Missing”, Radio Free Europe/Radio
Liberty (23 November 2020), available at https://www.rferl.org/a/land-mine-kills-officer-searchfor-
armenian-azerbaijanimissing/30965287.html (Annex 25)).
133 See CR 2021/25, pp. 22-23, paras. 7-9 (Murphy); CR 2023/4, pp. 12-13, paras. 3-5 (Murphy);
ibid., pp. 17-26, paras. 20-48 (Murphy).
134 See, e.g., Memorial, para. 282.
135 See CR 2023/4, p. 28, para. 54 (Murphy).
45
87. The Court has already twice decided, at the provisional measures stage, that
the evidence presented by Azerbaijan was insufficient to establish, even prima
facie, that Armenia’s alleged conduct constituted racial discrimination under the
CERD.136 None of the facts alleged in the Memorial—which was already before
the Court by the time it issued its second Order on provisional measures—in any
way suggest that Armenia’s alleged use of landmines and booby traps was “based
on” national or ethnic origin. On the contrary, as demonstrated in Annex 15
submitted with these Preliminary Objections,137 Azerbaijan’s Memorial does little
more than simply restate the allegations made during the provisional measures
phase, relying almost entirely on evidence produced there.
88. There are only three new allegations impugning Armenia (allegedly
supported by only three new annexes) not previously presented in Azerbaijan’s
provisional measures requests, none of which support the contention that
Armenia’s alleged actions related to landmines and booby traps are “based on”
national or ethnic origin.
136 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Azerbaijan v. Armenia), Order of 7 December 2021, p. 405, para. 53; Application
of the International Convention on the Elimination of All Forms of Racial Discrimination
(Azerbaijan v. Armenia), Order of 22 February 2023, para. 23. In particular, and as discussed in
Section 3.III.B below, the Court found that Azerbaijan had “not placed before the Court evidence
indicating that Armenia’s alleged conduct with respect to landmines has ‘the purpose or effect of
nullifying or impairing the recognition, enjoyment or exercise, on an equal footing’, of rights of
persons of Azerbaijani national or ethnic origin”. Application of the International Convention on
the Elimination of All Forms of Racial Discrimination (Azerbaijan v. Armenia), Order of 7
December 2021, p. 405, para. 53. While the Court did not explicitly address the separate
requirement that the acts complained of be “based on” national or ethnic origin, its conclusion that
there was no evidence indicating that Armenia’s alleged conduct had the “purpose” of impairing
the equal enjoyment of human rights strongly suggests that Armenia also could not have acted
“based on” national or ethnic origin, and that the acts complained of fall outside the scope of the
CERD for that reason as well.
137 See Azerbaijan’s Allegations Concerning Landmines and Booby Traps (April 2023) (Annex 15).
46
89. Two of these new allegations are very closely associated with the facts
presented by Azerbaijan in its requests. The first is that Armenia “seeded the Line
of Contact with anti-personnel landmines”, which relies on factual findings by the
Mine Action Agency of the Republic of Azerbaijan.138 Similar evidence advanced
in Azerbaijan’s first request expressly stated that landmines had been “confirmed”
only along the Line of Contact and characterised the mines in this area as
“traditional military doctrine barrier defences”,139 making clear that even on
Azerbaijan’s own case, they were there for defensive purposes unrelated to the
CERD.
90. The second allegation is that maps provided by Armenia are inaccurate,
which also relies entirely on findings by the Mine Agency of the Republic of
Azerbaijan.140 The provision of maps by Armenia to Azerbaijan was also part of
Azerbaijan’s allegations at the provisional measures stage.141 These “new”
allegations and their supporting evidence clearly change nothing from the Court’s
prior assessment.
91. The third new allegation presented by Azerbaijan is that Armenia allegedly
planted landmines and booby traps in Shahumyan (Kalbajar) district in 1993.142
This proposition, which relies exclusively on one interview by Colonel Koryun
Gumashyan (given almost thirty years after the alleged event), obviously relates to
138 Memorial, para. 223.
139 See CR 2021/25, p. 30, paras. 30-31 (Murphy) (citing to Mine Action Agency of The Republic
of Azerbaijan, Assistance Required for the Republic of Azerbaijan in Humanitarian Mine Action
for Safe Reconstruction and Return of IDPs to the Conflict Affected Territories of Azerbaijan (2021)
(Azerbaijan’s Request for Provisional Measures (23 September 2021), Annex 32)).
140 Memorial, para. 275.
141 See Azerbaijan’s Request for Provisional Measures (23 September 2021), paras. 11-14; CR
2021/25, paras. 12-14 (Murphy); CR 2021/27, paras. 2, 5, 6, 13-16 (Murphy); CR 2023/4, para. 66
(Murphy).
142 Memorial, paras. 116, 276.
47
a period of armed conflict and defensive manoeuvres by opposing forces, with any
claim of discrimination purportedly based on the prospect that at some future point
ethnic Azerbaijanis might return to the Shahumyan (Kalbajar) district. The
remoteness of this alleged fact—which occurred well before the CERD even
entered into force between the two States—to any discrimination under the CERD
is obvious.
92. In sum, there is nothing in Azerbaijan’s Memorial to establish that
Armenia’s alleged laying of booby traps could have been “based on” national or
ethnic origin, and could therefore constitute racial discrimination. The acts
complained of thus do not fall within the provisions of the CERD for that reason
alone.
B. ARMENIA’S ALLEGED USE OF LANDMINES AND BOOBY TRAPS DOES NOT
HAVE A DISCRIMINATORY PURPOSE OR EFFECT
93. Azerbaijan’s claims and contentions also fail because, even accepting
Azerbaijan’s allegations as true (which Armenia categorically does not), Armenia’s
alleged planting of landmines and booby traps did not have “the purpose or effect”
of nullifying or impairing the equal recognition, enjoyment or exercise of human
rights and fundamental freedoms. Azerbaijan’s claims and contentions concerning
landmines and booby traps therefore fall outside the scope of the CERD for that
reason as well.
94. To begin with, Azerbaijan cannot even identify who exactly laid the
landmines and booby traps about which it complains. Rather than presenting facts
suggesting any actual discriminatory purpose, its position rests entirely on
conjecture. As noted above,143 and as demonstrated in Armenia’s responses to
143 See supra, para. 85.
48
Azerbaijan’s two requests for provisional measures,144 Armenia only used
landmines for military defence purposes along the lines of contact.
95. Azerbaijan’s allegations related to booby traps and their connection to the
CERD are equally flawed. The alleged use of booby traps set up by unknown
persons in Lachin town, Aghavno (Zabukh) village and Sus village,145 areas that
were under the control of the Russian peacekeeping contingent at the time in
question, bears no relationship to any provision of the CERD.146 Not only has
Azerbaijan failed to provide any evidence that these devices were planted by the
Armenian Armed Forces, as it suggests, but it has also failed to demonstrate any
discriminatory purpose or intent.
96. Azerbaijan has similarly failed to show that the acts complained of had a
discriminatory effect on Azerbaijanis as a national or ethnic group. To the extent
the placement of landmines and booby traps could be said to specially affect a
particular group, that group could only be Azerbaijani nationals who are members
of the Armed Forces. Azerbaijani nationals are not all ethnic Azerbaijanis—this
much Azerbaijan proudly acknowledges. In fact, Azerbaijan has touted its multiethnic
society on countless occasions, claiming that it “encapsulates the diversity
found throughout the Caucasus region”, and that it “encompasses an array of other
ethnic groups, including substantial numbers of Armenians, Russians, Ukrainians,
Lezgis, Talyshs, Avars, Kurds, Jews and Tatars”.147 Azerbaijan’s own
characterisation underscores that an effect on its citizens is not an effect on
144 See CR 2021/25, pp. 22-23, paras. 7-9 (Murphy); CR 2023/4, pp. 12-13, paras. 3-5 (Murphy);
ibid. pp. 17-26, paras. 20-48 (Murphy).
145 See Memorial, para. 281.
146 See CR 2023/4, pp. 27-29, paras. 52-59 (Murphy).
147 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Azerbaijan v. Armenia), Application of Azerbaijan, para. 3 (emphasis added).
49
individuals of a particular national or ethnic group. As the Court clearly held in
Qatar v. United Arab Emirates, it does not have jurisdiction under the CERD when
the measure complained of by a party is predicated on adverse effects caused to
nationals of a party.148 As such, these allegations cannot fall within any of the
specific provisions of the CERD.
97. Consistent with these conclusions, in its 7 December 2021 Order on
provisional measures, the Court stated that although
“a policy of driving persons of a certain national or ethnic
origin from a particular area, as well as preventing their
return thereto, can implicate rights under CERD …
Azerbaijan has not placed before the Court evidence
indicating that Armenia’s alleged conduct with respect to
landmines has ‘the purpose or effect of nullifying or
impairing the recognition, enjoyment or exercise, on an
equal footing’, of rights of persons of Azerbaijani national
or ethnic origin”.149
98. The Court repeated that conclusion in its 22 February 2023 Order on
provisional measures, saying that the same conclusion applied to the “new” facts
presented in Azerbaijan’s second request.150 Moreover, the Court found the same
conclusion also applied to Azerbaijan’s facts concerning booby traps.151
148 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgment, I.C.J. Reports
2021, p. 71, para. 105.
149 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Azerbaijan v. Armenia), Order of 7 December 2021, p. 405, para. 53.
150 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Azerbaijan v. Armenia), Order of 22 February 2023, para. 23.
151 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Azerbaijan v. Armenia), Order of 22 February 2023, para. 23.
50
99. There is nothing set forth in Azerbaijan’s Memorial—which, as noted
above, had in fact already been submitted by the time the Court issued its 22
February 2023 Order—that can change the Court’s conclusion that the CERD does
not even plausibly impose “any obligation on Armenia to take measures to enable
Azerbaijan to undertake demining or to cease and desist from planting
landmines”.152 As discussed above,153 virtually all of Azerbaijan’s allegations in
the Memorial simply cite back to the evidence Azerbaijan presented at the
provisional measures phase, providing no basis for revisiting the position taken by
the Court with respect to Azerbaijan’s two requests for provisional measures of
protection. As such, Azerbaijan still “has not placed before the Court evidence
indicating that Armenia’s alleged conduct with respect to landmines has ‘the
purpose or effect of nullifying or impairing the recognition, enjoyment or exercise,
on an equal footing’, of rights of persons of Azerbaijani national or ethnic
origin”.154 Azerbaijan’s claims with respect to landmines and booby traps therefore
do not fall within the provisions of the CERD for that reason as well.
⁎⁎⁎
100. In sum, and to again borrow the words of the Court in Qatar v. United Arab
Emirates, “even if the measures [concerning landmines and booby traps] of which
[Azerbaijan] complains … were to be proven on the facts, they are not capable of
152 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Azerbaijan v. Armenia), Order of 7 December 2021, p. 405, para. 53.
153 See supra, paras. 87-91.
154 Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Azerbaijan v. Armenia), Order of 7 December 2021, p. 405, para. 53; Application
of the International Convention on the Elimination of All Forms of Racial Discrimination
(Azerbaijan v. Armenia), Order of 22 February 2023, para. 23.
51
constituting racial discrimination within the meaning of the Convention”.155 The
acts complained of were not “based on” national or ethnic origin, nor did they have
the “purpose or effect” of nullifying or impairing the equal recognition, enjoyment
or exercise of human rights and fundamental freedoms. As such, they not only have
“too tenuous a connection”156 with the substantive provisions on which Azerbaijan
relies, but they fall entirely outside the scope of the Convention. They are therefore
outside the Court’s jurisdiction ratione materiae and must be dismissed at the
preliminary stage.
III. The Court Lacks Jurisdiction Ratione Materiae over Azerbaijan’s
Claims and Contentions Concerning Alleged Environmental Harm
101. This Section demonstrates that the Court does not have jurisdiction ratione
materiae over Azerbaijan’s claims and contentions concerning alleged
environmental harm.157
102. Section A explains why, even accepting the acts complained of as true
(quod non), they do not constitute “racial discrimination” within the meaning of
Article 1(1) of the CERD and therefore fall outside the Court’s jurisdiction. Section
B then explains why the acts complained of do not fall within the scope of two of
the three particular rights on which Azerbaijan relies.
155 See Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgement, I.C.J.
Reports 2021, p. 71, para. 112.
156 Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary
Objections, Judgment, I.C.J. Reports 2019, p. 7, para. 79.
157 Azerbaijan’s factual submissions in this regard are at Memorial, paras. 291-344, and its legal
submissions at Memorial, paras. 459-485. See also Memorial, para. 591(1)(a)(iii).
52
A. THE ACTS COMPLAINED OF DO NOT CONSTITUTE RACIAL DISCRIMINATION
103. As stated,158 for the Court to have jurisdiction, Azerbaijan must establish
that the alleged acts and omissions for which it claims Armenia is responsible
constitute “racial discrimination” as defined in Article 1(1) of the CERD. As also
stated,159 for an act or omission to constitute “racial discrimination” under Article
1(1), it must be (a) a distinction, exclusion, restriction or preference “based on”
race, colour, descent, or national or ethnic origin, that (b) has the “purpose or
effect” of nullifying or impairing the equal recognition, enjoyment or exercise of
human rights and fundamental freedoms.
104. Azerbaijan has not shown any of these elements in stating its environmental
claims. Indeed, even assuming arguendo that its allegations are true, the acts of
which it complains do not constitute a distinction, exclusion, restriction or
preference that was “based on” national or ethnic origin (Section 1). They also did
not have the “purpose or effect” of nullifying or impairing ethnic Azerbaijanis’
equal enjoyment of human rights and fundamental freedoms (Section 2). In the
absence of such showings, the environmental harms complained of do not fall
within the CERD and are therefore outside the Court’s jurisdiction ratione
materiae.
Armenia’s alleged actions causing harm to the environment do not
constitute a distinction, exclusion, restriction or preference “based on” national
or ethnic origin
105. Even viewing Azerbaijan’s claims and contentions in the light most
favourable to it, Armenia’s alleged acts or omissions causing harm to the
environment would not constitute distinctions, exclusions, restrictions or
158 See supra, para. 70.
159 See supra, para. 72.
53
preferences that are “based on” national or ethnic origin.160 They therefore once
again cannot constitute “racial discrimination” within the meaning of Article 1(1)
of the CERD for that reason alone.
106. Like landmines and booby traps, environmental harm is indiscriminate by
nature. Whether the harm is to land, air or water, it does not and cannot distinguish,
exclude, restrict or prefer its victims based on national or ethnic origin. In some
cases, environmental harm can also be transboundary, simultaneously affecting
several geographic areas and populations. In fact, in the arbitration it recently
instituted under the Bern Convention on the Conservation of European Wildlife
and Natural Habitats, Azerbaijan has brought claims against Armenia for the
alleged transboundary pollution of rivers that flow through Armenia, Nagorno-
Karabakh and Azerbaijan. Given the very nature of environmental harm, it is
difficult even to conceive of a scenario in which a State might use such harm as a
form of differential treatment to target a particular group.
107. That being the case, it is not surprising that nowhere in the almost 50 pages
that Azerbaijan devotes to arguing that Armenia’s alleged acts or omissions
harming the environment constituted racial discrimination does Azerbaijan suggest
that Armenia’s conduct was expressly “based on” national or ethnic origin. To the
contrary, Azerbaijan accepts that many of Armenia’s alleged acts were
economically motivated. For example, Azerbaijan’s nominal environmental
experts “determined that … logging was done ‘for commercial purposes’”.161
160 As with Azerbaijan’s claims concerning landmines and booby traps, these are the only two
protected categories its environmental claims invoke. See, e.g., Memorial, para. 465 (“Armenia’s
deleterious conduct towards the environment had both the purpose and the effect of harming
Azerbaijanis in the exercise of their protected rights based on their national or ethnic origin”)
(some emphasis added).
161 Memorial, para. 310 (citing to Industrial Economics, Inc. and RESPEC, Inc., Report on
Environmental and Natural Resource Harms During the Period of the Republic of Armenia’s
Invasion and Occupation of Sovereign Lands of the Republic of Azerbaijan, for Use in Proceedings
54
Similarly, according to Azerbaijan, “forests were also clear-cut to make way for
mines, hydropower plants, and associated infrastructure, such as access roads and
powerlines”.162 These acts were therefore not taken “based on” national or ethnic
origin. Even on Azerbaijan’s own case, they were undertaken for more prosaic
reasons: economic development.
108. Rather than argue that Armenia’s conduct was expressly “based on”
national or ethnic origin, Azerbaijan asserts instead that the ethnic motivation of
Armenia’s actions can somehow be inferred. In particular, Azerbaijan focuses on
the so-called “differential treatment” of areas that it claims were populated
predominantly by ethnic Azerbaijanis (more than 75%) before the First Nagorno-
Karabakh War, as compared to areas populated predominantly by ethnic
Armenians (again, more than 75%).163 Azerbaijan also makes much of the claim
that Armenia allegedly mismanaged the Sarsang Reservoir and other water
infrastructure, thus depriving Azerbaijanis of water.164 “The only credible
inference”, Azerbaijan argues, is that Armenia’s environmental conduct was
“purposely aimed at Azerbaijanis as an ethnic or national group”.165
109. The fact that Azerbaijan must resort to an “inference” is by itself telling.
But even accepting all of the evidence Azerbaijan adduces as true (quod non), there
is no basis for the inference it asks the Court to make. Consistent with its Judgement
Before the International Court of Justice in Application of the International Convention on the
Elimination of All Forms of Racial Discrimination (Azerbaijan v. Armenia) (12 January 2023), p. 13
(emphasis added) (Memorial, Annex 65)).
162 Memorial, para. 311 (emphasis added).
163 Memorial, paras. 301, 466, p. 245 (Figure 67).
164 Memorial, para. 467.
165 Memorial, para. 468 (emphasis added).
55
in Qatar v. United Arab Emirates, the Court may therefore reject that inference
even at this preliminary stage.
110. The ethnic Armenians of Nagorno-Karabakh have long claimed the region,
including the surrounding areas that Azerbaijan calls the “Liberated Territories” or
“Azerbaijani districts”, as their homeland. An article Azerbaijan itself cites
emphasizes that, for the ethnic Armenians of Nagorno-Karabakh, these districts
“[are] not occupied territories—they’re their homeland”.166
111. As such, those territories are protected by the founding instruments of the
Nagorno-Karabakh Republic. Its 1992 Declaration of Independence, for example,
was made on the “understanding [of] the responsibility for the fate of the historical
Motherland”.167 Similarly, the 2006 Constitution of the Nagorno-Karabakh
Republic affirmed the people of Artsakh’s “responsibility for the fate of [their]
historic Homeland before present and future generations”.168 And the 2017
Constitution continues in the same spirit and recognizes that the people of Artsakh
“stay[] faithful to the dream of their ancestors to freely live and create in their
homeland”.169
112. Thus, even if the environmental damage Azerbaijan alleges were
attributable to Armenia (quod non), such damage occurred in areas that, on
166 J. Kucera, “For Armenians, they’re not occupied territories – they’re the homeland”, Eurasianet
(6 August 2018), available at https://eurasianet.org/for-armenians-theyre-not-occupied-territoriestheyre-
the-homeland, PDF p. 1 (Annex 24).
167 Office of the Nagorno Karabakh Republic, Declaration on State Independence of the
Nagorno Karabakh Republic (6 January 1992), available at http://www.nkrusa.org/nk_conflict/de
claration_independence.shtml, PDF p. 3 (Annex 30).
168 Constitution of the Nagorno Karabakh Republic (2006), available at
http://www.nkrusa.org/country_profile/constitution.shtml, PDF p. 2 (Annex 32).
169 Constitution of the Republic of Artsakh (2017), available at
http://president.nkr.am/media/documents/constitution/Constitution-eng2017.pdf, PDF. p. 1
(Annex 33).
56
Azerbaijan’s own case, ethnic Armenians viewed as historically Armenian and in
which they intended to continue living. To argue ethnic motivation behind the
alleged environmental damage is thus counterintuitive and not credible at all.
113. Relatedly, the heart of Azerbaijan’s case is that during the First Nagorno-
Karabakh War, Armenia conducted an “ethnic cleansing” campaign to create “an
ethnically ‘pure’ Armenian settlement” in Nagorno-Karabakh.170 Azerbaijan
contends that “virtually no Azerbaijanis remain[ed]” in the region after 1994.171
The alleged environmental harms Azerbaijan complains of, however, took place
between the First and Second Nagorno-Karabakh War; that is, after the Azerbaijani
population had allegedly been “ethnically cleansed” from the region. According to
Azerbaijan’s Memorial, for example:
• “8900 hectares of forest [were] verified as lost from the-then occupied
territories during the occupation period”;172
• “Of the registered natural monument trees in the then-occupied
territories, at least 38 were destroyed during Armenia’s occupation”;173
• “‘[T]he total amount of agricultural land lost from productivity’ during
the occupied period between 1995 and 2015 [was] 54,544 hectares”;174
170 Memorial, para. 93.
171 Memorial, paras. 54, 93.
172 Memorial, para. 303 (emphasis added).
173 Memorial, para. 317 (emphasis added).
174 Memorial, para. 324 (emphasis added).
57
• “‘[H]undreds of kilometres’ of irrigation canals in the liberated
territories were abandoned, unmaintained, and blocked during
Armenia’s occupation”.175
114. It is thus simply not credible to assert that the ethnic Armenians of Nagorno-
Karabakh, or Armenia for that matter, have engaged in the alleged conduct “based
on” national or ethnic origin when, according to Azerbaijan’s own case, ethnic
Azerbaijanis no longer lived in the relevant territories and the Armenian population
had no intention of allowing them to return.176 The Court need not look beyond this
fundamental contradiction in Azerbaijan’s own case before concluding that it has
no jurisdiction over the alleged environmental harm claims.
115. With respect to Azerbaijan’s claims about the destruction and degradation
of forests in the “Liberated Territories” in particular, there is still another reason
why Azerbaijan’s “inference” is not credible. According to Azerbaijan’s own
environmental experts, “[t]he primary identifiable cause of forest harm, and one
that occurred in every district, is fire”.177 Yet nowhere in its Memorial does
Azerbaijan claim that Armenia was responsible for causing those wildfires, much
less that it did so “based on” ethnic origin. Azerbaijan has also produced no
evidence that Armenia failed to control wildfires only in “Azerbaijani districts” to
175 Memorial, para. 333 (emphasis added).
176 See, e.g., Memorial, para. 409 (“Armenia is not willing to support withdrawal from the seven
occupied districts around Nagorno-Karabakh, or allow the return of Azerbaijani [IDPs] to Nagorno-
Karabakh”); para. 453 (“[I]n preventing the return of Azerbaijanis who had been expelled from the
then-occupied territories or from Armenia, Armenia uprooted their entire lives”); para. 533
(“Armenia not only expelled Azerbaijanis as an ethnic or national origin group, but also took steps
to ensure Azerbaijanis could not and would not return to their homes”).
177 See Industrial Economics, Inc. and RESPEC, Inc., Report on Environmental and Natural
Resource Harms During the Period of the Republic of Armenia’s Invasion and Occupation of
Sovereign Lands of the Republic of Azerbaijan, for Use in Proceedings Before the International
Court of Justice in Application of the International Convention on the Elimination of All Forms of
Racial Discrimination (Azerbaijan v. Armenia) (12 January 2023), p. 14 (Memorial, Annex 65).
58
target ethnic Azerbaijanis.178 Moreover, even accepting that “Azerbaijani districts”
suffered from more significant forest loss than other districts (quod non),
Azerbaijan’s own environmental experts admit that “[f]or a significant portion of
forest reduction across the Formerly Occupied Area, no specific cause has yet been
identified”.179 Without a cause, there can be no genuine claim of responsibility, still
less responsibility for conduct “based on” national or ethnic origin.
116. Similarly, with respect to Azerbaijan’s claims concerning the alleged
mismanagement of the Sarsang Reservoir, Azerbaijanis living downstream from
the Reservoir are not the only population that depends on it for water. On the
contrary, the Reservoir irrigates thousands of hectares of farmland in Nagorno-
Karabakh and supplies water for the largest and most important hydroelectric plant
in the area.180 Its management has therefore been critical to the survival of the
ethnic Armenian population in the region, and it is inconceivable that the Reservoir
would have been mismanaged “based on” Azerbaijani national or ethnic origin.
117. Just as the Court refused in Qatar v. United Arab Emirates, at the
preliminary stage, to accept Qatar’s argument that the acts complained of had been
“based on” national origin in the historical-cultural sense (rather than just
178 See Memorial, paras. 312-315.
179 Industrial Economics, Inc. and RESPEC, Inc., Report on Environmental and Natural Resource
Harms During the Period of the Republic of Armenia’s Invasion and Occupation of Sovereign
Lands of the Republic of Azerbaijan, for Use in Proceedings Before the International Court of
Justice in Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Azerbaijan v. Armenia) (12 January 2023), p. 14 (emphasis added) (Memorial,
Annex 65).
180 Council of Europe, Parliamentary Assembly, Inhabitants of frontier regions of Azerbaijan are
deliberately deprived of water (12 December 2015), available at https://pace.coe.int/en/files/22290,
paras. 9, 10 (Annex 29). See also “Water Security and the Nagorno-Karabakh Conflict”, Planetary
Security Initiative (4 October 2022), available at
https://www.planetarysecurityinitiative.org/news/water-security-and-nagorno-karabakh-conflict,
PDF p. 2 (“Located on the Tartar River, which flows through climate-vulnerable agricultural
regions in Azerbaijan, the Sarsang dam accounts for roughly half of the hydropower production of
Nagorno-Karabakh”) (Annex 18).
59
nationality),181 it can and should reject Azerbaijan’s wholly baseless claim that
Armenia’s alleged acts or omissions affecting the environment were “based on”
national or ethnic origin. The Court need not further look into the merits of issues
that manifestly have nothing to do with conduct “based on” national or ethnic
origin, and Azerbaijan’s claims with respect to the environment must be dismissed
for that reason alone.
Armenia’s alleged acts or omissions causing environmental harm also did
not have a discriminatory purpose or effect
118. In addition to not being “based on” national or ethnic origin, the acts about
which Azerbaijan complains also did not have the “purpose or effect” of nullifying
or impairing ethnic Azerbaijanis’ equal enjoyment of human rights and
fundamental freedoms. The Court lacks jurisdiction ratione materiae over
Azerbaijan’s environmental claims for that reason too.
119. As stated, stripped to its essence, Azerbaijan’s case is that Armenia
occupied portions of its territory, claimed that territory as its historic homeland,
and drove out the Azerbaijani inhabitants with no intention of allowing them to
181 See, e.g., Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), Preliminary Objections, Judgement, I.C.J.
Reports 2021, p. 71, para. 50 (“Qatar points out that the UAE’s measures are not exclusively
addressed to Qataris on the basis of their current nationality … It alleges that the measures imposed
by the UAE penalize persons of Qatari national origin based on their identification with Qatari
national traditions and culture, their Qatari accent or their Qatari dress. It further alleges that these
measures discriminate against persons who are not Qatari citizens on the basis of their cultural
identification as ‘Qataris’”); Application of the International Convention on the Elimination of All
Forms of Racial Discrimination (Qatar v. United Arab Emirates), Written Statement of Qatar
Concerning the Preliminary Objections of the United Arab Emirates (30 August 2019), para. 1.18
(asserting that the UAE “intentionally target[ed] … persons of Qatari ‘national origin’ in the
historical-cultural sense, irrespective of their present nationality”); Application of the International
Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab
Emirates), Preliminary Objections, Judgement, I.C.J. Reports 2021, p. 71, para. 112 (“[T]he various
measures of which Qatar complains do not, either by their purpose or by their effect, give rise to
racial discrimination against Qataris as a distinct social group on the basis of their national origin”).
60
return. At the same time, Azerbaijan also asks the Court to entertain the claim that
over the following three decades, Armenia damaged the environment in a manner
that constituted racial discrimination against persons who had already allegedly
been “forcibly expelled from” and “prevent[ed] [from] return[ing] to” the
territories where the alleged environmental harm occurred,182 and who were
purportedly not expected to live there in the future.183 In other words, Azerbaijan
alleges that (a) Armenia harmed the environment of territory in which it was
purportedly determined to—and allegedly did—settle Armenians, simply because
Azerbaijanis had previously lived there, and that (b) this amounts to “racial
discrimination” against the former Azerbaijani population, inflicted through the
bizarre means of harming the lands and the environment where Armenia
purportedly wanted its own people to settle. As discussed further below, it is
impossible in such circumstances to discern either a discriminatory “purpose” or a
discriminatory “effect”.
120. The lack of a discriminatory “purpose” follows ipso facto from the fact that
the acts complained of were not “based on” ethnicity or national origin. After all,
acts that were not “based on” on national or ethnic origin—whether facially or with
a hidden intent—could not possibly have had the “purpose” of impairing a
protected group’s equal enjoyment of human rights and fundamental freedoms.
182 Memorial, paras. 3, 13, 51, 228.
183 As to the present day, see for example Azerbaijan’s case as set out at Memorial, para. 228: “In
practice, Armenia’s actions to exclude Azerbaijanis as a group and prevent their return to their
rightful homes and lands continues to be felt today”. See also Memorial, para. 233 (claiming that
Armenia, while an “occupying power”, “implemented policies affirmatively encouraging the
settlement of ethnic Armenians throughout the then-occupied territories, including in areas that
prior to occupation had been inhabited entirely or primarily by Azerbaijanis”, and thereby
“cemented its cleansing of all Azerbaijanis from the then-occupied territories and ensured the newly
monoethnic Armenian character of these territories”); para. 459 (describing the alleged
environmental damage as having been committed by Armenia “[i]n pursuit of its campaign of ethnic
cleansing”).
61
Indeed, it is absurd to speak of a “purpose” of impairing the equal enjoyment of
rights by a group that, on Azerbaijan’s own case, was never intended to return.
121. It is precisely because, even accepted as true, the acts complained of do not
show a discriminatory purpose that Azerbaijan is forced to fall back on the
argument that Armenia’s alleged acts constitute “racial discrimination” under
Article 1(1) merely because they are said to have a disproportionate effect on ethnic
Azerbaijanis.184 As discussed above,185 in the absence of a distinction, exclusion,
restriction or preference that is “based on” national or ethnic origin, mere disparate
impact is not enough. But even if it were, Azerbaijan’s claims would still fail for
two different reasons, discussed in turn below.
(a) The alleged acts or omissions causing environmental harm could not have
had a disproportionate effect on the equal enjoyment of the rights of
Azerbaijanis who Azerbaijan claims did not live in Nagorno-Karabakh
122. The alleged acts and omissions of which Azerbaijan complains fall into six
categories: (a) destruction and degradation of forests in the so-called “Liberated
Territories”;186 (b) destruction and degradation of natural monument trees in the
“Liberated Territories”;187 (c) destruction and pillaging of water infrastructure in
the “Liberated Territories”;188 (d) destruction and degradation of vital agricultural
land and vineyards in the “Liberated Territories”;189 (e) destruction and
degradation of land and water quality through strip mining in the “Liberated
184 See Memorial, para. 469.
185 See supra, para. 76.
186 Memorial, paras. 303-316.
187 Memorial, paras. 317-318.
188 Memorial, paras. 319-322.
189 Memorial, paras. 323-328.
62
Territories”;190 and (f) neglecting and mismanaging water infrastructure in the
“Liberated Territories”, particularly the Sarsang Reservoir, allegedly affecting the
Azerbaijani population living downstream from the reservoir in Azerbaijan.191
123. Except for the last category (namely, the neglect and mismanagement of
water infrastructure), Azerbaijan’s sole basis for claiming a discriminatory effect
is that the alleged acts took place in, and impacted, the areas said to have been
predominantly populated by Azerbaijanis before the First Nagorno-Karabakh War.
124. Unsurprisingly, Azerbaijan offers no evidence that ethnic Azerbaijanis,
who had allegedly been “ethnically cleansed” from the very same areas long before
the alleged environmental harm occurred, were actually impacted, let alone
disproportionately.
(b) In any event, the alleged environmental harms would have had a similar
effect on other ethnic groups
125. The alleged acts of environmental destruction, degradation and neglect,
even if proven, would have impacted many ethnic groups, not just ethnic
Azerbaijanis, particularly given that ethnic Armenians continued to live in
Nagorno-Karabakh at the time of such acts. In fact, on Azerbaijan’s own
articulation of its case, if any ethnic group was disproportionately impacted by the
acts about which it complains, it would have to have been the ethnic Armenians
who lived in the areas in which the environment was allegedly harmed.
126. As stated, Azerbaijan’s own evidence shows that a majority ethnic
Armenian population lived in Nagorno-Karabakh and the surrounding territories
when the alleged environmental harms occurred. For example, Azerbaijan claims
190 Memorial, paras. 329-331.
191 Memorial, paras. 332-343.
63
that, by 2005, thousands of ethnic Armenian settlers had populated the Shahumyan
(Kalbajar) and Karshatagh (Zangelan and Gubadly) districts, and the eastern-most
parts of Askeran and Martakert (Aghdam) districts, where the alleged destruction
of forests, natural monumental trees, water infrastructure and agricultural land took
place.192 According to Azerbaijan, at that time “137,380 ethnic Armenians
resid[ed] in the then-occupied territories, [accounting for] 99.7% of its
population”.193 Similarly, Azerbaijan claims that, in 2015, ethnic Armenians
accounted for 95% of the population in Nagorno-Karabakh.194 If the alleged harm
indeed occurred, it would have been felt first and foremost by the ethnic Armenians
who lived in Nagorno-Karabakh and the surrounding districts until forcibly
removed by Azerbaijan, not ethnic Azerbaijanis who Azerbaijan says had left the
area.
127. Azerbaijan’s only claim about alleged environmental harm that allegedly
disproportionately affected ethnic Azerbaijanis living outside Nagorno-Karabakh
and the surrounding territories concerns the Sarsang Reservoir. According to
Azerbaijan, the Reservoir was mismanaged by Armenia, depriving 400,000
Azerbaijanis living in the lower Karabakh region of fresh water.195 On Azerbaijan’s
own evidence, however, there were 138,000 inhabitants of Nagorno-Karabakh who
also depended on the Sarsang Reservoir for water and energy196—and the ones
who have survived Azerbaijan’s campaign of ethnic cleansing still do. Thus, the
192 Memorial, para. 242.
193 Memorial, para. 242 (citing to Republic of Nagorno-Karabakh, De Jure Population (Urban,
Rural) by Age and Ethnicity (2002), available at http://census.stat-nkr.am/nkr/5-1.pdf (Annex 31)).
194 See Memorial, note 60 (citing to Chiragov and Others v. Armenia, ECtHR, Application No.
13216/05, Judgment (16 June 2015)).
195 See Memorial, para. 334.
196 See Council of Europe, Parliamentary Assembly, Inhabitants of frontier regions of Azerbaijan
are deliberately deprived of water (12 December 2015), available at
https://pace.coe.int/en/files/22290, para. 9 (Annex 29).
64
alleged mismanagement of the Reservoir would have affected those inhabitants as
much as it affected ethnic Azerbaijanis. Similarly, the alleged lack of irrigated
water would also have affected more than 40,000 hectares of land in Nagorno-
Karabakh that adjoin the Sarsang Reservoir, interfering with agricultural activities
of ethnic Armenian inhabitants as well.197
128. Azerbaijan’s blockade of Nagorno-Karabakh since 12 December 2022198
further calls into question the real extent of the Sarsang Reservoir’s impact on
Azerbaijanis. The blockade, which has triggered an energy crisis in Nagorno-
Karabakh, has forced the Republic of Artsakh to release more water from the
Sarsang Reservoir for the operation of its main hydropower plant and resulted in
the depletion of the Reservoir’s water resources, the water level of which is
reportedly dropping 50 centimetres daily.199 On Azerbaijan’s own case, the
blockade would therefore deprive the Azerbaijani population living downstream of
equal access to water. As of the time of this submission, however, Azerbaijan has
taken no steps at its disposal to ensure the “unimpeded movement of persons,
vehicles and cargo along the Lachin Corridor”, and thereby end the blockade.
129. Moreover, even if the alleged environmental harms concerning the Sarsang
Reservoir could have affected ethnic Azerbaijanis in Azerbaijan (alongside ethnic
Armenians in the so-called “Occupied Territories”), they would have had a similar
197 See “Water Politics Anger Armenia”, Institute for War & Peace Reporting (22 February 2016),
available at https://iwpr.net/global-voices/water-politics-angers-armenia, PDF p. 4 (Annex 16).
198 See, e.g., “Azerbaijan: Blockade of Lachin corridor putting thousands of lives in peril must be
immediately lifted”, Amnesty International (9 February 2023), available at
https://www.amnesty.org/en/latest/news/2023/02/azerbaijan-blockade-of-lachin-corridor-puttingthousands-
of-lives-in-peril-must-be-immediately-lifted/ (Annex 19).
199 See “Sarsang water levels drop at alarming rate amid blockade, farmers in both Nagorno
Karabakh and Azerbaijan to be affected”, Artsakh News (17 March 2023), available at
https://artsakh.news/en/news/262005, PDF p. 1 (Annex 27); “Sarsang Reservoir resources reduced,
Azerbaijan farmers will have no irrigation water”, News.am (27 February 2023), available at
https://news.am/eng/news/747156.html (Annex 26).
65
effect on other ethnic groups in Azerbaijan as well. As explained in Section II in
relation to landmines, Azerbaijan proudly claims that it is a multi-ethnic country,
with “more than fifty diverse ethnicities, religions, and/or nationalities”, including
“Armenians, Russians, Ukrainians, Lezgins, Talyshs, Avars, Kurds, and Tatars”.200
The multi-ethnic nature of the Azerbaijani population has been recognized by the
CERD Committee itself.201 Any alleged environmental harms causing effects in
Azerbaijani territory would thus implicate all these ethnicities, not just ethnic
Azerbaijanis. In this respect, Azerbaijan has not placed before the Court any
evidence that ethnic Azerbaijanis were disproportionately impacted by the alleged
environmental conduct compared to other ethnic groups in Azerbaijan.
130. Accordingly, just as the acts about which Azerbaijan complains were not
“based on” national or ethnic origin and did not have the “purpose” of
discriminating against ethnic Azerbaijanis, they also did not have the “effect” of
impairing their equal recognition, enjoyment or exercise of human rights and
fundamental freedoms. They therefore could not constitute “racial discrimination”
as defined in Article 1(1) and thus do not fall within the provisions of the CERD.
B. CERTAIN ACTS COMPLAINED OF DO NOT FALL WITHIN THE SCOPE OF THE
RIGHTS UNDER THE CERD AZERBAIJAN INVOKES
131. As explained, the environmental harms about which Azerbaijan complains
do not give rise to a claim of “racial discrimination” and therefore do not fall within
the Convention as a whole. That said, there is still another reason that the majority
of Azerbaijan’s environmental claims and contentions must be rejected at this
preliminary stage: the acts complained of do not fall within the scope of two of the
200 Memorial, para. 43.
201 Memorial, para. 43 (citing to Committee on the Elimination of Racial Discrimination,
Concluding observations on the combined tenth to twelfth periodic reports of Azerbaijan, UN Doc.
CERD/C/AZE/CO/10-12 (22 September 2022), para. 35 (Annex 5)).
66
three particular rights on which Azerbaijan relies. Specifically, the alleged acts or
omissions in question do not fall within the right to health (Section 1) or the right
to property (Section 2) that Azerbaijan invokes in this part of its case.202
The Right to Health
132. Azerbaijan’s legal case on the right to health is comprised of two parts: first,
that Armenia deliberately targeted historically “Azerbaijani districts” for the
infliction of environmental harm, thereby having “a disproportionate and
continuing effect on people of Azerbaijani ethnic or national origin, who continue
to be prevented from exercising their right to return home due to Armenia’s
actions”203; and second, that Armenia polluted the soil and water in the “occupied
territories”, thereby harming ethnic Azerbaijanis living near the “occupied
territories”.204
133. Turning to the first argument, Azerbaijan’s position is not that Azerbaijanis
are in fact suffering harm to their health as a result of Armenia’s alleged
environmental harm. The nominal harm complained of is that they are being
prevented from exercising their alleged right to return home, and even then not
simply to return home per se, but “to return to a healthy environment, which is
crucial to human health”.205
134. The sleight of hand here, of course, is to elide (a) the proposition that a
healthy environment is crucial to human health (an uncontroversial position in the
abstract), with (b) the contrived proposition that the right to health entails a right
202 See Memorial, paras. 470-474 (health), paras. 482-485 (property).
203 Memorial, para. 474.
204 Memorial, para. 473.
205 Memorial, para. 473.
67
“to return to a healthy environment”. Article 5 of the CERD does not articulate a
right to return to a healthy environment and Azerbaijan cites no authority for the
existence of such a right, either as an aspect of the right to health or the right to
return or otherwise.
135. Indeed, the legal materials that Azerbaijan cites have no relevance to its
argument. Its legal authorities can be divided into two categories: (a)
uncontroversial statements of general principle as to the importance of a healthy
environment (materials which do not take Azerbaijan’s specific argument any
further forward); and (b) findings by the CERD Committee in relation to the right
to health or the right to a healthy environment of indigenous peoples, but not the
right to return to a healthy environment.
136. Thus, to take the materials cited by Azerbaijan at paragraph 471 of the
Memorial, every one of the CERD Committee’s concluding observations that
Azerbaijan cites relates to potential and actual health risks caused (by matters such
as chemical pollution from mining and oil extraction activities) to indigenous
peoples on traditional lands on which they currently reside. In its concluding
observations on Slovakia, the Committee emphasized the importance of healthcare
access to the Roma community in Slovakia precisely because of the statistics as to
their current health detriments, including “higher mortality rates … poorer nutrition
levels, and low levels of awareness of maternal and child health”.206 The
Committee’s recommendations were thus based on evidence as to the actual health
problems faced by an ethnic group which was physically resident in Slovakia’s
territory.
206 Committee on the Elimination of Racial Discrimination, Concluding observations of the
Committee on the Elimination of Racial Discrimination: Slovakia, UN Doc. CERD/C/304/Add.110
(1 May 2001), para. 14 (Annex 2).
68
137. Similarly, the Committee has called on Suriname to “take specific measures
to ensure that no mercury is used or dispersed on territories occupied by indigenous
and tribal people”.207
138. The Committee likewise expressed concern to the United States over
“reports of adverse effects of economic activities connected with the exploitation
of natural resources … on the right to land, health, living environment and the way
of life of indigenous peoples living in these regions”.208 There is nothing in these
CERD Committee’s findings that supports the existence of a right under the CERD
of a displaced population to return to a healthy environment.
139. Without a right to return to a healthy environment, Azerbaijan’s claims and
factual allegations in this regard are not capable of falling within the scope of the
right to health under the CERD. To put it differently, there can be no violation of
the right to health or even the right to a healthy environment of ethnic Azerbaijanis
when, according to Azerbaijan itself, they did not live in areas in which the alleged
environmental damage took place.
140. Azerbaijan’s second argument concerning the right to health—namely, that
Armenia polluted the soil and water in the “Liberated Territories” and thereby
harmed ethnic Azerbaijanis living nearby—also does not involve allegations
falling within the scope of the CERD. First, to once again state the obvious, it is
simply absurd to suggest that Armenia would seek to harm ethnic Azerbaijanis by
harming the environment in areas in which Armenians, not Azerbaijanis, resided.
207 Memorial, para. 471 (citing to Committee on the Elimination of Racial Discrimination,
Concluding observations on the combined thirteenth to fifteenth periodic reports of Suriname, UN
Doc. CERD/C/SUR/CO/13-15 (25 September 2015), para. 28 (emphasis added) (Annex 4)).
208 Memorial, note 1100 (citing to Committee on the Elimination of Racial Discrimination,
Concluding observations of the Committee on the Elimination of Racial Discrimination: United
States of America, UN Doc. CERD/C/USA/CO/6 (8 May 2008), para. 30 (emphasis added) (Annex
3)).
69
Second, even if this were accepted as true, Azerbaijan’s Memorial only describes
the impact of mining activities on the soil and water “across the occupied
territories”.209 It has placed no evidence before the Court that the alleged pollution
of soil and water in the “Liberated Territories” had any effect on the right to health
of Azerbaijanis living nearby but not on Armenians residing in those territories.
The acts complained of therefore have “too tenuous a connection”210 with the right
to health and do not fall within the CERD.
The Right to Property
141. Azerbaijan’s attempt to bring its claims within the scope of the right to
property211 faces structural difficulties similar to those faced by its case on the right
to health. Perhaps recognizing those difficulties, Azerbaijan devotes only four short
paragraphs to this part of its legal case.212 Again, the CERD Committee materials
which it cites213 deal exclusively with the situation of indigenous peoples resident
on their traditional lands. The relationship between indigenous peoples and their
lands is, of course, a unique one which has been recognised by international law as
209 See Memorial, paras. 329-331.
210 Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Preliminary
Objections, Judgment, I.C.J. Reports 2019, p. 7, para. 79. See also Ambatielos case (merits:
obligation to arbitrate), Judgement of May 19th, 1953: I.C.J. Reports 1953, p. 18 (stating that, in
determining whether the acts complained of fall within the relevant treaty, “[i]t is not enough for
the claimant Government to establish a remote connection between the facts of the claim and the
[treaty]”); Judgments of the Administrative Tribunal of the I.L.O. upon complaints made against
the U.N.E.S.C.O., Advisory Opinion of October 23rd, 1956, I.C.J. Reports 1956, p. 89 (“[I]t is
necessary that the complaint should indicate some genuine relationship between the complaint and
the provisions invoked”).
211 The property in question is described as “forests, monument trees, water sources and
infrastructure, agricultural land, and vineyards in the Azerbaijani districts of the occupied
territories”. Memorial, para. 485.
212 See Memorial, paras. 482-485.
213 See Memorial, para. 483.
70
requiring special protection.214 The CERD Committee itself has specifically called
for the protection of the rights of indigenous peoples to own, develop, control and
use their communal lands, territories and resources, considering that they “have
lost their lands and resources to colonists, commercial companies and State
enterprises” and thus have had the preservation of their culture and their historical
identity jeopardized.215 The materials cited by Azerbaijan in relation to indigenous
peoples therefore provide no support for its case, which arises out of a
fundamentally different factual background. For the same reasons as in respect of
the right to health, Azerbaijan’s allegations have “too tenuous a connection” with
the right to property it invokes to fall within CERD.
⁎⁎⁎
142. In sum, even if accepted as true (quod non), the acts of which Azerbaijan
complains with respect to the environment could not constitute racial
discrimination because they were not “based on” national or ethnic origin, and did
not have the “purpose or effect” of nullifying or impairing the equal recognition,
enjoyment or exercise of human rights and fundamental freedoms. In addition, and
separately, the majority of the acts complained of do not fall within the particular
provisions of the CERD Azerbaijan invokes. For either or both reasons,
Azerbaijan’s claims and contentions are outside the Court’s jurisdiction ratione
materiae.
214 See, e.g., UN General Assembly, United Nations Declaration on the Rights of Indigenous
People, UN Doc. A/RES/61/295 (13 September 2007), p. 2 (“Recognizing the urgent need to respect
and promote the inherent rights of indigenous peoples which derive from their political, economic
and social structures and from their cultures, spiritual traditions, histories and philosophies,
especially their rights to their lands, territories and resources”) (Annex 10).
215 Committee on the Elimination of Racial Discrimination, General Recommendation No. 23:
Indigenous Peoples (1997), para. 3 (Annex 1).
71
SUBMISSIONS
143. In view of the foregoing, the Republic of Armenia respectfully requests the
Court to adjudge and declare that it lacks jurisdiction over the claims and
contentions described above and/or that those claims and contentions are
inadmissible. Specifically, the Republic of Armenia requests that the Court adjudge
and declare:
a) That it lacks jurisdiction ratione temporis with respect to Azerbaijan’s claims
and contentions concerning events that transpired prior to the entry into force
of the CERD as between the Parties on 15 September 1996, or that such claims
and contentions are inadmissible;
b) That it lacks jurisdiction ratione materiae with respect to Azerbaijan’s claims
and contentions concerning the alleged placement of landmines and booby
traps; and
c) That it lacks jurisdiction ratione materiae with respect to Azerbaijan’s claims
and contentions concerning alleged environmental harm.
144. The Republic of Armenia reserves the right to amend and supplement this
submission in accordance with the provisions of the Statute and the Rules of Court.
The Republic of Armenia also reserves the right to submit further objections to the
jurisdiction of the Court and to the admissibility of Azerbaijan’s claims in any
subsequent phase.
72
Respectfully submitted,
___________________________
Dr. Yeghishe Kirakosyan
AGENT OF THE REPUBLIC OF ARMENIA
21 APRIL 2023
73
CERTIFICATION
I certify that the Annexes are true copies of the documents referred to and
that the translations provided are accurate.
___________________________
Dr. Yeghishe Kirakosyan
AGENT OF THE REPUBLIC OF ARMENIA
21 APRIL 2023

LIST OF ANNEXES
VOLUME II
COMMITTEE ON THE ELIMINATION OF
RACIAL DISCRIMINATION DOCUMENTS
Column2
Annex 1 Committee on the Elimination of Racial Discrimination, General
Recommendation No. 23: Indigenous Peoples (1997)
Annex 2 Committee on the Elimination of Racial Discrimination,
Concluding observations of the Committee on the Elimination of
Racial Discrimination: Slovakia, UN Doc.
CERD/C/304/Add.110 (1 May 2001) (excerpt)
Annex 3 Committee on the Elimination of Racial Discrimination,
Concluding observations of the Committee on the Elimination of
Racial Discrimination: United States of America, UN Doc.
CERD/C/USA/CO/6 (8 May 2008) (excerpt)
Annex 4 Committee on the Elimination of Racial Discrimination,
Concluding observations on the combined thirteenth to fifteenth
periodic reports of Suriname, UN Doc. CERD/C/SUR/CO/13-15
(25 September 2015) (excerpt)
Annex 5 Committee on the Elimination of Racial Discrimination,
Concluding observations on the combined tenth to twelfth reports
of Azerbaijan, UN Doc. CERD/C/AZE/CO/10-12 (22 September
2022) (excerpt)
OTHER UNITED NATIONS DOCUMENTS
Annex 6 Third Report on the Law of Treaties, by Sir Humphrey Waldock,
Special Rapporteur, UN Doc. A/CN.4/167 and Add.1-3 (1964)
(excerpt)
Annex 7 International Law Commission, Draft Articles on the Law of
Treaties with Commentaries, Yearbook of the International Law
Commission 1966 (excerpt)
Annex 8 United Nations Treaty Collection, List of States Parties,
Declarations and Reservations to the International Convention
on the Elimination of All Forms of Racial Discrimination
(entered into force 4 January 1969), available at
https://treaties.un.org/doc/Publication/MTDSG/Volume%20I/
Chapter%20IV/IV-2.en.pdf (excerpt)
Annex 9 International Law Commission, Draft Articles on Responsibility
of States for Internationally Wrongful Acts, with Commentaries,
Yearbook of the International Law Commission 2001 (excerpt)
Annex 10 UN General Assembly, United Nations Declaration on the
Rights of Indigenous People, UN Doc. A/RES/61/295 (13
September 2007) (excerpt)
Annex 11 International Law Commission, Draft Articles on Prevention
and Punishment of Crimes against Humanity, Yearbook of the
International Law Commission 2019 (excerpt)
DOCUMENTS OF THE REPUBLIC OF ARMENIA
AND THE REPUBLIC OF AZERBAIJAN
Annex 12 Ad Hoc Report of the Commissioner for Human Rights
(Ombudsman) of the Republic of Azerbaijan, Mine Problem in
the Liberated Areas (June 2021), available at
https://www.ombudsman.az/upload/editor/files/Ad%20Hoc%2
0Report%20of%20the%20Ombudsman%20on%20landmine%
20problem.pdf (excerpt)
Annex 13 The Republic of Azerbaijan v. The Republic of Armenia, Notice
of Arbitration under the Convention on the Conservation of
European Wildlife and Natural Habitats of 19 September 1979
(18 January 2023) (confidential)
Annex 14 Application of the International Convention on the Elimination
of All Forms of Racial Discrimination (Armenia v. Azerbaijan),
Memorial of Armenia (23 January 2023) (excerpt) (confidential)
Annex 15 Azerbaijan’s Allegations Concerning Landmines and Booby
Traps (April 2023)
NON-GOVERNMENTAL AND NON-PROFIT
ORGANIZATIONS DOCUMENTS
Annex 16 “Water Politics Anger Armenia”, Institute for War & Peace
Reporting (22 February 2016), available at
https://iwpr.net/global-voices/water-politics-angers-armenia
Annex 17 “Nagorno-Karabakh conflict: Landmines, a disturbing reminder
of war”, ICRC (31 May 2019), available at
https://www.icrc.org/en/document/nagorno-karabakh-conflictlandmines-
disturbing-reminder-war
Annex 18 “Water Security and the Nagorno-Karabakh Conflict”, Planetary
Security Initiative (4 October 2022), available at
https://www.planetarysecurityinitiative.org/news/watersecurity-
and-nagorno-karabakh-conflict
Annex 19 “Azerbaijan: Blockade of Lachin corridor putting thousands of
lives in peril must be immediately lifted”, Amnesty International
(9 February 2023), available at
https://www.amnesty.org/en/latest/news/2023/02/azerbaijanblockade-
of-lachin-corridor-putting-thousands-of-lives-in-perilmust-
be-immediately-lifted/
BOOKS
Annex 20 R. Kolb, “The Compromissory Clause of the Convention” in THE
UN GENOCIDE CONVENTION: A COMMENTARY (P. Gaeta ed.,
2009) (excerpt)
Annex 21 E. David, “Treaties and Third States, Art. 34 1969 Vienna
Convention” in THE VIENNA CONVENTION ON THE LAW OF
TREATIES (O. Corten & P. Klein, eds., 2011) (excerpt)
Annex 22 M. Shaw, ROSENNE’S LAW AND PRACTICE OF THE
INTERNATIONAL COURT: 1920-2015 (2016) (excerpt)
Annex 23 C. Tomuschat, “Article 36” in THE STATUTE OF THE
INTERNATIONAL COURT OF JUSTICE: A COMMENTARY (A.
Zimmermann & C. Tams, eds., 2019) (excerpt)
NEWS ARTICLES AND SOCIAL MEDIA POSTS
Annex 24 J. Kucera, “For Armenians, they’re not occupied territories –
they’re the homeland”, Eurasianet (6 August 2018), available at
https://eurasianet.org/for-armenians-theyre-not-occupiedterritories-
theyre-the-homeland (excerpt)
Annex 25 “Land Mine Kills Officer as Search Continues for Armenian,
Azerbaijani Missing”, Radio Free Europe/Radio Liberty (23
November 2020), available at https://www.rferl.org/a/landmine-
kills-officer-search-for-armenianazerbaijanimissing/
30965287.html
Annex 26 “Sarsang Reservoir resources reduced, Azerbaijan farmers will
have no irrigation water”, News.am (27 February 2023),
available at https://news.am/eng/news/747156.html
Annex 27 “Sarsang water levels drop at alarming rate amid blockade,
farmers in both Nagorno Karabakh and Azerbaijan to be
affected”, Artsakh News (17 March 2023), available at
https://artsakh.news/en/news/262005
Annex 28 Artak Beglaryan, Facebook (4 April 2023), available at
https://www.facebook.com/Artak.A.Beglaryan/posts/63441916
02285690
OTHER
Annex 29 Council of Europe, Parliamentary Assembly, Inhabitants of
frontier regions of Azerbaijan are deliberately deprived of water
(12 December 2015), available at
https://pace.coe.int/en/files/22290 (excerpt)
Annex 30 Office of the Nagorno Karabakh Republic, Declaration on State
Independence of the Nagorno Karabakh Republic (6 January
1992), available at
http://www.nkrusa.org/nk_conflict/declaration_independence.sh
tml
Annex 31 Republic of Nagorno-Karabakh, De Jure Population (Urban,
Rural) by Age and Ethnicity (2002), available at
http://census.stat-nkr.am/nkr/5-1.pdf (excerpt)
Annex 32 Constitution of the Nagorno Karabakh Republic (2006),
available at
http://www.nkrusa.org/country_profile/constitution.shtml
(excerpt)
Annex 33 Constitution of the Republic of Artsakh (2017), available at
http://president.nkr.am/media/documents/constitution/Constituti
on-eng2017.pdf (excerpt)