On 12 November 2024, the International Court of Justice (ICJ, ‘the Court’) delivered its ‘twin’ judgments on Azerbaijan’s preliminary objections on jurisdiction in Armenia v. Azerbaijian, and on Armenia’s preliminary objections on jurisdiction and admissibility in Azerbaijan v. Armenia. Both cases, brought in late 2021, invoked Article 36(1) of the ICJ Statute and Article 22 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD, ‘the Convention’) as jurisdictional basis. The ICJ concluded it had jurisdiction over both claims, allowing each to proceed to the merits stage.
At this preliminary stage, the outcome of the two proceedings would appear to indicate that Azerbaijan suffered a major legal defeat in both cases. In Armenia v. Azerbaijan, the Court rejected all two preliminary objections raised by the respondent, thus declaring that it has jurisdiction to entertain all Armenian claims in the merits. Similarly, in Azerbaijan v. Armenia, the ICJ’s jurisdiction has been challenged on several grounds. However, in this case, the ICJ held, by a majority, that it lacked temporal jurisdiction to examine claims related to events between 23 July 1993 and 15 September 1996, given that Azerbaijan had not yet acceded to the CERD. The Court also ruled it lacked jurisdiction over claims that environmental harm to Azerbaijanis amounted to racial discrimination. It rejected Armenia’s second preliminary objection to exclude from the jurisdiction of the Court the claims relating to the laying of landmines and booby traps, as it was without object.
While acknowledging the strong interconnection between these two cases, this contribution focuses only on the judgment on preliminary objection (hereinafter, the ‘Judgment’) issued in Azerbaijan v. Armenia, analyzing some of its main findings.
Despite the controversial extension of the ICJ’s jurisdiction ratione temporis under Article 22 of CERD and the Court’s treatment of continuing and composite breaches – which has been thoroughly criticized by Judge Tladi in his Dissenting Opinion and further discussed here – this piece delves into the ICJ’s treatment of Armenia’s third preliminary objection concerning CERD jurisdiction ratione materiae. Attention will be paid to the Court’s handling of Azerbaijan’s claims that Armenia’s conduct caused environmental harm amounting to racial discrimination, particularly in the light of the Joint Dissenting Opinion of Judges Nolte, Charlesworth, Cleveland and Tladi, which highlights significant nuances the Court arguably overlooked.
From Battlefield to Bench: Armenia and Azerbaijian Before International Courts
Amidst the recent resumption of the hostilities in Nagorno-Karabakh (described in details here), Armenia initiated proceedings before the ICJ on 16 September 2021, alleging CERD violations by Azerbaijan. These included anti-Armenian racial discrimination, hate speech, systemic abuses, and other violations. Azerbaijan responded to this case with a separate application, lodged on 23 September 2021, which accused Armenia of ethnic cleansing, war crimes, destruction of cultural property, and the propagation of anti-Azerbaijani hate speech and general disinformation.
As is evident, Armenia and Azerbaijan are engaged in a twofold conflict, both military and legal. Some scholars have often labelled this practice as ‘strategic litigation’, which they consider as a strategic and effective approach, or as ‘lawfare’, which they view as an ineffective and potentially harmful tactic, capable of hindering the international judiciary. This involves attempting to litigate small legal portions of multifaceted disputes by characterizing them (Harris), compartmentalizing them (Cannizzaro and Bonafè), or disaggregating them (Hill-Cawthorne) through compromissory clauses, almost ‘squeezing’ the relevant claims into specific treaty-based allegations (see here and here). In addition to the dispute brought before the ICJ – whose challenges have been outlined by Fontanelli –, the ‘humanitarian’ consequences of the Nagorno-Karabakh conflict have also been brought before the European Court of Human Rights (see Risini), with seven inter-state applications and over one thousand individual applications still pending before it.
The Majority’s Decision: Environmental Harm Does Not Constitute Racial Discrimination
In Azerbaijan v. Armenia, Armenia’s third preliminary objection argued that the ICJ lacked jurisdiction ratione materiae over claims of environmental harm, asserting that such claims fell outside the CERD’s application scope.
At the outset, the Court emphasized that determining its jurisdiction ratione materiae under CERD required assessing whether the alleged violations ‘fall within the scope of the treaty’ (para. 90).
In the present case, the central issue was whether environmental harm allegedly resulting from Armenia’s conduct could, if adequately proven, constitute racial discrimination as defined in Article 1(1) of CERD (para. 91). After reiterating that, for the purpose of CERD, racial discrimination consists of a material element, i.e. “a distinction, exclusion, restriction or preference […] based on one of the prohibited grounds, namely race, colour, descent, or national or ethnic origin”, and of a psychological element, i.e. “[the] differentiation of treatment must have the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights” (Ukraine v. Russia, para. 195), the Court acknowledged that environmental harm could, in some cases, amount to racial discrimination. However, the ICJ determined that Azerbaijan’s claims failed to meet the evidentiary threshold required to establish a causal link between environmental harm and racial discrimination under CERD (para. 95). Specifically, the majority of the Court found that Armenia’s alleged conduct concerning deforestation and overexploitation of mineral resources was driven by commercial interests rather than racial or ethnic targeting. Regarding water infrastructure, the Court rejected Azerbaijan’s argument that Armenia had mismanaged or neglected such resources to deprive Azerbaijanis in the occupied territories of potable water. The ICJ observed that the alleged actions and omissions impacted various ethnic groups (para. 96). In particular, it noted that both Armenian and Azerbaijani populations resided in Nagorno-Karabakh and its surrounding areas, meaning that any mismanagement of water, including at the Sarsang Reservoir, would have affected both groups equally. Consequently, this did not constitute differential treatment amounting to racial discrimination (para. 97). Additionally, the Court observed that Azerbaijani nationals or ethnic groups were not present in the territories affected by the alleged environmental damage during Armenia’s control. Therefore, they could not have been prevented from returning to territories in which, at the time of the contested actions, they were not present, regardless of the circumstances that led to their absence (para. 98). The Court concluded that Azerbaijan’s claims of environmental harm, even if substantiated, did not amount to racial discrimination under CERD (para. 99). Accordingly, it upheld Armenia’s third preliminary objection and declared that it lacked jurisdiction to consider these claims (para. 100).
The (Visible) Dissent: The ‘Capability’ Test and Its Potential to Blur the Divide Between Jurisdiction, Admissibility and Merits
Judges Nolte, Charlesworth, Cleveland, and Tladi criticized the majority’s decision to exclude the possibility that Azerbaijan’s claims concerning environmental harm could constitute racial discrimination under Articles 2, 3, 4, 5, 6, and 7 of CERD. They argued that the Court unduly restricted the CERD’s application ratione materiae by rejecting the premise that environmental harm could amount to racial discrimination. The minority further highlighted the Court’s hesitancy to interpret CERD in line with the Vienna Convention on the Law of Treaties (VCLT). In prior judgments on preliminary objections – such as those rendered in Oil Platforms, Immunities and Criminal Proceedings and Certain Iranian Assets – the Court have rigorously scrutinised the application of treaty provisions, particularly in light of their text, context, object, purpose, and travaux préparatoires. By contrast, in the present case, the ICJ adopted an overly concise approach despite the complexity of the interpretative issues raised in the parties’ arguments. The dissenting opinion criticized the Court’s lack of a thorough verification of whether Azerbaijan’s claims fell within CERD’s scope. Although the approach set out in Oil Platforms has been reiterated and further refined in subsequent ICJ case-law, inconsistencies remain (see Dimetto and Lando). Instead, the Court applied a “capability test,” as implied in Ukraine v. Russia, where jurisdiction was upheld over similar claims of discriminatory harm despite competing explanations. While considerations of judicial economy might justify dismissing manifestly unfounded claims – as argued by Judge Shahabuddeen in his Separate Opinion in Oil Platforms – such mechanisms pertain to admissibility, not jurisdiction. The minority also criticized the majority for relying on factors such as the absence of ethnic Azerbaijanis in the affected territories, Armenia’s purported economic motivations, and the non-exclusive nature of the harm. By conflating jurisdiction with a merits assessment, the Court risks prematurely dismissing valid claims. The dissent urged a more expansive and uniform interpretation of CERD to ensure that claims are adequately examined at the merits stage. Finally, the dissenting opinion expressed concern that the Court’s dismissal of Azerbaijan’s claims created a troubling double standard regarding racial discrimination, a prohibition recognized as a peremptory norm. This was affirmed by the International Law Commission in its Commentary on the 2001 Draft Articles on State Responsibility (p. 85).
The Invisible: The ‘Green’ Dimension of Racial Discrimination
The Joint Dissenting Opinion rightly criticized the Court’s failure to appreciate and explore the possible connection between environmental harm and racial discrimination. However, the minority judges could have elaborated further on the broader implications of such a finding.
The ICJ’s ever-growing engagement with the field of international environmental law (IEL) underscores its relevance in addressing environmental harm. This is evident, inter alia, in the ongoing consideration of a Request for an Advisory Opinion on States’ obligations in respect of climate change. Beyond this recent development, IEL’s foundational principles were already articulated in Corfu Channel and Barcelona Traction. Over time, the Court has recognized the environment’s critical impact on human rights, notably in Nuclear Weapons and Gabčíkovo-Nagymaros. In Nuclear Weapons, the ICJ emphasized the environment’s role in human health and quality of life, including for future generations (para. 244). Similarly, in Gabčíkovo-Nagymaros, Judge Weeramantry’s Separate Opinion emphasized the link between environmental conservation and the realization of human rights, especially those pertaining to health and life itself (para. 341).
Environmental deterioration and harm are increasingly acknowledged as threats to human rights, as already reflected in the Universal Declaration of Human Rights. Today, a healthy environment is considered not only essential for the enjoyment of fundamental rights, but also as an ‘autonomous’ human right in itself. In 2022, the United Nations General Assembly (UNGA) formally acknowledged the right to a clean, healthy, and sustainable environment as a fundamental human right. This resolution builds on the Human Rights Council’s 2018 Framework Principles on Human Rights and the Environment, particularly Principle 3, which requires States to prohibit discrimination and ensure equal and effective protection against discrimination in the enjoyment of a safe, clean, healthy, and sustainable environment. The Human Rights Council’s 2021 Resolution on the human right to a clean, healthy and sustainable environment further reinforce these principles. Outside the UN framework, the Inter-American Court of Human Rights has been an authentic forerunner in this area, recognizing a right to a healthy environment in Advisory Opinion OC-23/17.
Although CERD does not explicitly address environmental rights, the CERD Committee has established a link between environmental harm and racial discrimination, specifically in cases affecting indigenous communities (General Recommendation No. 23 (1997) on the rights of indigenous people), connecting environmental harm to socio-economic rights under, inter alia, Article 5(d)(iv) (property) and Article 5(e)(iv) (health). Moreover, General Recommendation No. 34 (2011) emphasizes the right of people of African descent to protect their traditional territories and natural resources. Accordingly, the CERD Committee has addressed cases where environmental harm compromises indigenous lands, recognizing that such degradation undermines rights to property, health, and cultural significance.
Additionally, recent international and EU case-law – such as the ICJ’s Advisory Opinion on Israel’s policies and practices in the Occupied Palestinian Territories, including East Jerusalem and the European Court of Justice’s ruling on the consequences of Morocco’s military presence in the Western Sahara – demonstrated how the existence of a situation of occupation often enables the exploitation and extraction of natural resources, leading to environmental harm and degradation. Such practices exacerbate environmental racism by creating an unequal distribution of benefits and burdens in occupied communities. Pollution, overexploitation of groundwater, and depletion of agricultural land harm ecosystems and the well-being of people in the occupied territories, as well as those who have been forced to flee. In this context, Armenia’s actions in Nagorno-Karabakh undermine CERD provisions, particularly the Azerbaijani people’s right to return under Article 5(d)(iii) of the Convention. Environmental degradation in occupied territories not only compromises the ecosystem, but also deepens racial inequalities, highlighting the need for a more integrated approach to addressing environmental harm and racial discrimination.
Conclusion: The ICJ’s (Persistent) Struggle With CERD’s Interpretation
Over the past decade, CERD has emerged as a ‘golden goose’ – or, to borrow Judge Yusuf’s words, a ‘fourre-tout’ – for advancing human rights litigation before the ICJ. Despite a lack of case-law interpreting CERD, States have increasingly invoked it as a jurisdictional basis for their claims. Initially, the ICJ approached CERD with caution, adopting a narrow interpretation of both procedural and substantive issues in cases such as Georgia v. Russia and Qatar v. UAE, which did not reach the merits stage. More recently, however, CERD-based cases have gained traction, with Ukraine v. Russia recently adjudicated on the merits, while the cross-cases between Armenia and Azerbaijan remain pending.
Yet, this apparent progress is tempered by persistent challenges. The ICJ’s approach to racial discrimination continues to reveal significant limitations. The Court now faces a pivotal decision: whether to persist in narrowing CERD’s application, thereby constraining its relevance in addressing contemporary global challenges, or to adopt a more progressive and inclusive interpretation that allows diverse claims to proceed to the merits stage.
In the context of environmental harm, embracing a broader interpretative approach would enable a deeper examination of the evolving ways in which racial discrimination manifests. Allowing such claims to reach the merits stage would not only enhance CERD’s utility, but also reinforce the ICJ’s role as the United Nations’ principal judicial organ, increasingly tasked with safeguarding fundamental rights and rigorously addressing issues of jus cogens.
