Armenia Secures Critical Victories Against Azerbaijan Before the International Court of Justice

December 07, 2021

On December 7, 2021, Foley Hoag LLP's client the Republic of Armenia has prevailed over the Republic of Azerbaijan in two orders on provisional measures issued by the International Court of Justice in cases brought by the parties against one another under the International Convention the Elimination of All Forms of Racial Discrimination (“CERD”).

In the first order, deciding on Armenia’s request for provisional measures, the Court ordered Azerbaijan:
  1. By 14 votes to 1, to “protect from violence and bodily harm all persons captured in relation to the 2020 Conflict who remain in detention, and ensure their security and equality before the law”;
  2. Unanimously, to “take all necessary measures to prevent the incitement and promotion of racial hatred and discrimination, including by its officials and public institutions, targeted at persons of Armenian national or ethnic origin”; and
  3. By 13 votes to 2, to “take all necessary measures to prevent and punish acts of vandalism and desecration affecting Armenian cultural heritage, including but not limited to churches and other places of worship, monuments, landmarks, cemeteries and artefacts.”

The Court also wholly rejected the vast majority of provisional measures requests made by Azerbaijan. Among other things, the Court found that “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.” The Court also rejected Azerbaijan’s request that Armenia be ordered to “collect, and to prevent the destruction and ensure the preservation of, evidence related to allegations of ethnically-motivated crimes against Azerbaijanis of which it is aware,” as well as Azerbaijan’s allegations that Armenia has engaged in a “widespread” and “systematic” campaign of incitement of racial hatred on social media.

The Court did order Armenia to take all necessary measures to prevent the incitement and promotion of racial hatred “by private organizations and persons.” That order, however, stands in contrast to its order against Azerbaijan, which is explicitly addressed, among other things, at “officials and public institutions.” As also noted by the Court, “propaganda promoting racial hatred and incitement to racial discrimination or to acts of violence against any group of persons based on their national or ethnic origin can generate a pervasive racially charged environment within society. This holds particularly true when rhetoric espousing racial discrimination is employed by high-ranking officials of the State.”

Foley Hoag leads Armenia’s legal team in these proceedings. The firm’s team of lawyers on these cases include partners and Co-Chairs of the International Litigation and Arbitration Department Constantinos Salonidis and Lawrence Martin, special counsel Pierre d’Argent, counsel Diana Tsutieva, and associates Joseph Klingler, Peter Tzeng, Iulia Padeanu Mellon, Natalia Tchoukleva, Nour Nicholas, Yasmin Al Ameen, Tracy Roosevelt, Ofilio Mayorga,  Margaux Méry and Juan Pablo Hughes. Professors Sean Murphy of George Washington University Law School and Robert Kolb of the University of Geneva Faculty of Law are also part of Armenia’s legal team.

Foley Hoag specializes in the representation of sovereign States in disputes with other States and foreign investors before international courts and arbitral tribunals. It has been ranked by Chambers and Partners Global 2021 in Band 1, the highest rating given, for 10 consecutive years.