After several decades of legal commentary (or rather, lamentations) that UNESCO lacks proper enforcement mechanisms to protect cultural heritage and punish states for their intentional destruction of cultural heritage, it appears that the Republic of Armenia has provided the international community with a creative roadmap. Instead of going through the UNESCO conventions, which inherently apply only to recognized states (and have therefore left out Armenian cultural heritage within the currently unrecognized Republic of Artsakh), Armenia brought a case against Azerbaijan under the CERD — the Convention on the Elimination of all Forms of Racial Discrimination — a United Nations treaty to which both Armenia and Azerbaijan are party.
Today, the International Court of Justice (“ICJ”) indicated provisional measures in that case, ordering that Azerbaijan must “[t]ake 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.” Provisional measures can be thought of as “interim” or “temporary” orders for states, which the court “indicates” to preserve the rights of the parties to the dispute, pending a decision on the merits of the case — which can take several years.
This decision is significant for Armenian cultural heritage, in addition to its implications for other minority and indigenous cultural heritage around the world. As a preliminary matter, one cannot reasonably expect Azerbaijan to safeguard Armenian cultural heritage in its possession, under UNESCO or otherwise, because Azerbaijan continues to deny that such heritage even exists. The most apparent encapsulation of this position was perhaps articulated by Azerbaijan’s counsel during oral argument, who also happens to be the President of the American Society of International Law, when she referred to this cultural heritage as the “alleged” Armenian heritage sites — as if its existence was debatable.
Almost a year ago, following Azerbaijan’s hostilities against the ethnic Armenian populace of Artsakh, which resulted in large swaths of Artsakh’s territory (and its Armenian cultural heritage) coming under Azerbaijan’s control, I predicted what elements of movable and immovable Armenian cultural heritage would be destroyed by Azerbaijan. Sadly, my analysis of Azerbaijan’s deliberate cultural erasure in Artsakh became reality, in a manner not dissimilar to Azerbaijan’s earlier wholesale destruction of Armenian cultural heritage in the exclave of Nakhichevan, which Azerbaijan controls, as reported in Hyperallergic.
Notably, for Armenia and states party to the CERD, the ICJ’s decision means that the protection of cultural heritage in “peacetime” can move beyond the toothless mechanisms of UNESCO — which last year was unable to send even a fact-finding mission to Artsakh, due to Azerbaijan’s objections — and into the realm of the UN Security Council. This is because the UN Charter requires member states to “comply with” the ICJ’s decisions, and Article 94(2) specifically tasks the Security Council to take measures to enforce the ICJ’s judgments. While the Security Council has never invoked its powers under Article 94(2) in response to a request by a creditor state (past attempts were thwarted by debtor states with permanent seats and thus veto power), for non-permanent Security Council member states, in recent decades, the mere threat of Security Council action, coupled with diplomatic pressure, has helped to ensure compliance.
The true implications of today’s indication of provisional measures by the ICJ will depend on whether and how Armenia will use the order as a tool in its offensive legal diplomacy. Until then and beyond, Armenia has provided states with a roadmap to protect their cultural heritage from destruction by other member states — not through UNESCO, but through the CERD.