                                               7 DÉCEMBRE 2021

                                                 ORDONNANCE

APPLICATION DE LA CONVENTION INTERNATIONALE SUR L’ÉLIMINATION
       DE TOUTES LES FORMES DE DISCRIMINATION RACIALE

                   (AZERBAÏDJAN c. ARMÉNIE)

                          ___________

APPLICATION OF THE INTERNATIONAL CONVENTION ON THE ELIMINATION
             OF ALL FORMS OF RACIAL DISCRIMINATION

                    (AZERBAIJAN v. ARMENIA)

                                               7 DECEMBER 2021

                                                    ORDER

                                     TABLE OF CONTENTS

                                                                                Paragraphs

    CHRONOLOGY OF THE PROCEDURE                                                    1-12

 I. INTRODUCTION                                                                  13-14

II. PRIMA FACIE JURISDICTION                                                      15-40
    1.   General observations                                                     15-18
    2.   Existence of a dispute relating to the interpretation or application
         of CERD                                                                  19-28
    3.   Procedural preconditions                                                 29-39
    4.   Conclusion as to prima facie jurisdiction                                 40

III. THE RIGHTS WHOSE PROTECTION IS SOUGHT AND THE LINK BETWEEN
    SUCH RIGHTS AND THE MEASURES REQUESTED                                        41-58

IV. RISK OF IRREPARABLE PREJUDICE AND URGENCY                                     59-67

V. CONCLUSION AND MEASURES TO BE ADOPTED                                          68-75

    OPERATIVE CLAUSE                                                               76

                                         ___________

                            INTERNATIONAL COURT OF JUSTICE

                                            YEAR 2021
                                                                                2021
                                                                                7 December
                                                                                General List
                                                                                No. 181
                                        7 December 2021

 APPLICATION OF THE INTERNATIONAL CONVENTION ON THE ELIMINATION
              OF ALL FORMS OF RACIAL DISCRIMINATION

                                 (AZERBAIJAN v. ARMENIA)

           REQUEST FOR THE INDICATION OF PROVISIONAL MEASURES

                                             ORDER

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

      The International Court of Justice,

      Composed as above,

      After deliberation,

      Having regard to Articles 41 and 48 of the Statute of the Court and Articles 73, 74 and 75 of
the Rules of Court,

      Makes the following Order:

                                                -2-

      1. On 23 September 2021, the Republic of Azerbaijan (hereinafter “Azerbaijan”) filed in the
Registry of the Court an Application instituting proceedings against the Republic of Armenia
(hereinafter “Armenia”) concerning alleged violations of the International Convention on the
Elimination of All Forms of Racial Discrimination of 21 December 1965 (hereinafter “CERD” or
the “Convention”).

      2. At the end of its Application, Azerbaijan

      “respectfully requests the Court to adjudge and declare:

      A. That Armenia, through its State organs, State agents, and other persons and
         entities exercising governmental authority or acting on its instructions or under
         its direction and control, has violated articles 2, 3, 4, 5, 6, and 7 of CERD.

      B. That Armenia, by aiding, assisting, sponsoring and supporting activities inconsistent
         with CERD conducted by other persons, groups, and organizations has violated
         Article 2 (1) (b), (d), and (e) of CERD.

      C. That Armenia must take all steps necessary to comply with its obligations under
         CERD, including to:

           (a) Immediately cease and desist from any and all policies and practices of ethnic
               cleansing that have been directed against Azerbaijanis;

           (b) Immediately cooperate with de-mining operations by Azerbaijan and
               international agencies in the formerly Occupied Territories, including through
               the provision of comprehensive and accurate maps and other information on
               the location of minefields, by ceasing and desisting from the laying of
               landmines on the territory of Azerbaijan, and by other necessary and
               appropriate measures;

           (c) Immediately cease and desist from any acts that detrimentally impact
               Azerbaijanis’ enjoyment of or access to their environment and natural
               resources;

           (d) Immediately cease and desist from the destruction of Azerbaijani heritage sites
               and other pieces of Azerbaijani ethnic and cultural property, and from the
               pursuit of the policy of cultural erasure;

           (e) Immediately cease and desist from disseminating, promoting, or sponsoring
               anti-Azerbaijani propaganda and hate speech, including via educational
               institutions, the media, social media disinformation campaigns, and other
               channels, and from glorifying individuals who have committed ethnically
               motivated crimes against Azerbaijanis;

           (f) Immediately cease and desist from any direct or indirect sponsorship or support
               of persons and organizations that engage in discrimination against
               Azerbaijanis, including VoMA;

                                                -3-

           (g) Publicly condemn discrimination against Azerbaijanis and adopt immediate
               and positive measures to prevent and punish such acts of discrimination, in
               accordance with CERD Articles 2 (1) (d) and (e) and Article 4;

           (h) Ensure the investigation and punishment of acts of discrimination, including
               but not limited to war crimes committed by Armenian forces, in accordance
               with CERD Articles 2 and 4, and provide effective protection and remedies to
               Azerbaijanis for harm caused by such acts;

            (i) Publicly acknowledge its breaches of CERD and apologize for its conduct at
                the highest levels of Government;

            (j) Provide assurances and guarantees of non-repetition of Armenia’s illegal
                conduct under CERD; and

           (k) Make full reparation to Azerbaijan, including compensation in an amount to
               be determined in a later phase in these proceedings, for the harm suffered as a
               result of Armenia’s actions in violation of CERD.”

      3. In its Application, Azerbaijan seeks to found the Court’s jurisdiction on Article 36,
paragraph 1, of the Statute of the Court and on Article 22 of CERD.

      4. Together with the Application, Azerbaijan submitted a Request for the indication of
provisional measures with reference to Article 41 of the Statute and to Articles 73, 74 and 75 of the
Rules of Court.

     5. At the end of its Request, Azerbaijan asked the Court to indicate the following provisional
measures:

     “(a) Armenia shall take all necessary steps to enable Azerbaijan to undertake the prompt,
          safe and effective demining of the landmines laid in Azerbaijan’s territory by the
          Armenian military and/or other groups under the direction, control, or sponsorship
          of Armenia, including by immediately providing comprehensive and accurate
          information about the location and characteristics of landmines in Azerbaijan’s
          territory;

      (b) Armenia shall immediately cease and desist from endangering the lives of
          Azerbaijanis by planting or promoting or facilitating the planting of landmines in
          Azerbaijan’s territory;

      (c) Armenia shall take all necessary steps effectively to prevent organizations operating
          in Armenian territory, including the VoMA organization, from engaging in the
          incitement of racial hatred and racially-motivated violence targeted at Azerbaijanis,
          and immediately shall cease and desist incitement based on the fabrication of public
          and private hate speech attributed to Azerbaijanis on Twitter and other social media
          and traditional media channels;

                                                  -4-

      (d) Armenia shall take effective measures 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, including those identified in
          communications from the Republic of Azerbaijan;

      (e) Armenia shall refrain from any measure that might aggravate, extend, or make more
          difficult the resolution of this dispute; and

      (f) Armenia shall submit a report to the Court on all measures taken to give effect to its
          Order indicating provisional measures within three months, as from the date of the
          Order, and thereafter every six months, until a final decision on the case is rendered
          by the Court.”

       6. The Registrar immediately communicated to the Government of Armenia the Application
containing the Request for the indication of provisional measures, in accordance with Article 40,
paragraph 2, of the Statute of the Court, and Article 73, paragraph 2, of the Rules of Court. He also
notified the Secretary-General of the United Nations of the filing by Azerbaijan of the Application
and the Request for the indication of provisional measures.

       7. Pending the notification provided for by Article 40, paragraph 3, of the Statute, the Registrar
informed all States entitled to appear before the Court of the filing of the Application and the Request
for the indication of provisional measures by a letter dated 27 September 2021.

      8. Since the Court included upon the Bench no judge of the nationality of either Party, each
Party proceeded to exercise the right conferred upon it by Article 31 of the Statute to choose a
judge ad hoc to sit in the case. Azerbaijan chose Mr. Kenneth Keith and Armenia Mr. Yves Daudet.

       9. By letters dated 27 September 2021, the Registrar informed the Parties that, pursuant to
Article 74, paragraph 3, of its Rules, the Court had fixed 18 and 19 October 2021 as the dates for the
oral proceedings on the Request for the indication of provisional measures.

     10. At the public hearings, oral observations on the Request for the indication of provisional
measures were presented by:

On behalf of Azerbaijan:              H.E. Mr. Elnur Mammadov,
                                      Mr. Vaughan Lowe,
                                      Ms Catherine Amirfar,
                                      Ms Laurence Boisson de Chazournes,
                                      Ms Natalie Reid,
                                      Mr. Donald Francis Donovan.

On behalf of Armenia:                 H.E. Mr. Yeghishe Kirakosyan,
                                      Mr. Robert Kolb,
                                      Mr. Sean Murphy,
                                      Mr. Constantinos Salonidis,
                                      Mr. Pierre d’Argent,
                                      Mr. Lawrence H. Martin.

                                                  -5-

       11. At the end of its second round of oral observations, Azerbaijan asked the Court to indicate
the following provisional measures:

     “(a) Armenia shall take all necessary steps to enable Azerbaijan to undertake the prompt,
          safe and effective demining of the landmines laid in Azerbaijan’s territory by the
          Armenian military and/or other groups under the direction, control, or sponsorship
          of Armenia, including by immediately providing comprehensive and accurate
          information about the location and characteristics of landmines in Azerbaijan’s
          territory;

      (b) Armenia shall immediately cease and desist from endangering the lives of
          Azerbaijanis by planting or promoting or facilitating the planting of landmines in
          Azerbaijan’s territory;

      (c) Armenia shall take all necessary steps effectively to prevent organizations operating
          in Armenian territory, including the VoMA organization, from engaging in the
          incitement of racial hatred and racially-motivated violence targeted at Azerbaijanis,
          and immediately shall cease and desist incitement based on the fabrication of public
          and private hate speech attributed to Azerbaijanis on Twitter and other social media
          and traditional media channels;

      (d) Armenia shall take effective measures 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, including those identified in
          communications from the Republic of Azerbaijan;

      (e) Armenia shall refrain from any measure that might aggravate, extend, or make more
          difficult the resolution of this dispute; and

      (f) Armenia shall submit a report to the Court on all measures taken to give effect to its
          Order indicating provisional measures within three months, as from the date of the
          Order, and thereafter every six months, until a final decision on the case is rendered
          by the Court.”

     12. At the end of its second round of oral observations, Armenia requested the Court “to reject
Azerbaijan’s requests for the indication of provisional measures in full”.

                                                   *

                                              *         *

                                                  -6-

                                           I. INTRODUCTION

       13. Azerbaijan and Armenia, both of which were Republics of the former Union of Soviet
Socialist Republics, declared independence on 18 October 1991 and 21 September 1991,
respectively. In the Soviet Union, the Nagorno-Karabakh region had been an autonomous entity
(“oblast”) that had a majority Armenian ethnic population, lying within the territory of the
Azerbaijani Soviet Socialist Republic. The Parties’ competing claims over that region resulted in
hostilities that ended with a ceasefire in May 1994. Further hostilities erupted in September 2020, in
what Azerbaijan calls “the Second Garabagh War” and Armenia calls “the Second Nagorno-
Karabakh War” (hereinafter the “2020 Conflict”), and lasted 44 days. On 9 November 2020, the
President of the Republic of Azerbaijan, the Prime Minister of the Republic of Armenia, and the
President of the Russian Federation signed a statement referred to by the Parties as the “Trilateral
Statement”. Under the terms of this statement, as of 10 November 2020, “[a] complete ceasefire and
termination of all hostilities in the area of the Nagorno-Karabakh conflict [was] declared”.

      14. The differences between the Parties are longstanding and wide-ranging. The Applicant has
invoked Article 22 of CERD as the title of jurisdiction in the present case, the scope of which is
therefore circumscribed by that Convention.

                                   II. PRIMA FACIE JURISDICTION

                                       1. General observations

       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 (see,
for example, Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020,
I.C.J. Reports 2020, p. 9, para. 16).

       16. In the present case, Azerbaijan seeks to found the jurisdiction of the Court on Article 36,
paragraph 1, of the Statute of the Court and on Article 22 of CERD (see paragraph 3 above). The
Court must therefore first determine whether those provisions prima facie confer upon it jurisdiction
to rule on the merits of the case, enabling it — if the other necessary conditions are fulfilled — to
indicate provisional measures.

      17. Article 22 of CERD reads as follows:

             “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.”

       18. Azerbaijan and Armenia are both parties to CERD; Azerbaijan acceded to CERD on
16 August 1996, Armenia on 23 June 1993. Neither Party made reservations to Article 22 or to any
other provision of CERD.

                                                    -7-

                      2. Existence of a dispute relating to the interpretation
                                      or application of CERD

       19. Article 22 of CERD makes the Court’s jurisdiction conditional on the existence of a dispute
relating to the interpretation or application of the Convention. According to the established case law
of the Court, a dispute is “a disagreement on a point of law or fact, a conflict of legal views or of
interests” between parties (Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J.,
Series A, No. 2, p. 11). In order for a dispute to exist, “[i]t must be shown that the claim of one party
is positively opposed by the other” (South West Africa (Ethiopia v. South Africa; Liberia v. South
Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328). The two sides must “‘hold
clearly opposite views concerning the question of the performance or non-performance of certain’
international obligations” (Alleged Violations of Sovereign Rights and Maritime Spaces in the
Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016 (I),
p. 26, para. 50, citing Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First
Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74).

        20. In order to determine whether a dispute exists in the present case, the Court cannot limit
itself to noting that one of the Parties maintains that the Convention applies, while the other denies
it (see Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Order of 23 July 2018,
I.C.J. Reports 2018 (II), p. 414, para. 18). Since Azerbaijan has invoked as the basis of the Court’s
jurisdiction the compromissory clause in an international convention, the Court must ascertain
whether the acts and omissions complained of by the Applicant are capable of falling within the
provisions of that instrument and whether, as a consequence, the dispute is one which the Court has
jurisdiction ratione materiae to entertain (see ibid.).

                                                *         *

       21. Azerbaijan contends that a dispute has arisen between Azerbaijan and Armenia concerning
the interpretation and application of CERD. According to Azerbaijan, Armenia has engaged and
continues to engage in discriminatory acts against persons of Azerbaijani national or ethnic origin.
Azerbaijan claims that, taken individually and collectively, Armenia’s policies and conduct of ethnic
cleansing, cultural erasure and fomenting of hatred against ethnic Azerbaijanis systematically
infringe their rights and freedoms in violation of CERD. Azerbaijan specifically alleges that,
following the end of the 2020 Conflict, Armenia “actively continues to prevent” the return of
displaced ethnic Azerbaijanis to the areas formerly under Armenian control by refusing to share
information about the minefields in the area where their former homes were located so as to allow
for mine clearance operations, and by “continu[ing] to plant new mines on Azerbaijan’s territory”
(emphasis in the original). Azerbaijan considers that the Applicant’s conduct in this regard is “a
continuation of Armenia’s decades-long ethnic cleansing campaign” against persons of Azerbaijani
national or ethnic origin. The Applicant adds that, at present, the Court need only make a prima facie
finding of jurisdiction and that its Application is premised on a claim of discrimination against
“Azerbaijanis as an ethnic origin or national origin group and not in relation to nationality or
citizenship”.

                                                    -8-

       22. Azerbaijan alleges, in particular, that Armenia has acted in violation of its obligations
under Articles 2, 3, 4, 5, 6 and 7 of CERD. Azerbaijan asserts that Armenia bears responsibility,
inter alia, for engaging in practices of ethnic cleansing and other acts of racial segregation; for
inciting hatred and violence against persons of Azerbaijani national or ethnic origin through hate
speech and the dissemination of racist propaganda, including at the highest level of its Government;
for harbouring “armed ethno-nationalist hate groups”, including Voxj Mnalu Arvest, which stands
for “Art of Survival” (hereinafter “VoMA”); for engaging in, sponsoring or supporting
disinformation operations across social media; and for failing to investigate and preserve evidence
related to violations of obligations arising under CERD with regard to ethnic Azerbaijanis.
Azerbaijan adds that, in its understanding, both Parties accept “that a dispute under CERD exists”.

                                                     *

       23. Armenia does not address specifically the existence of a dispute concerning alleged
violations of its obligations under CERD. However, Armenia denies that it has violated its
obligations and responsibilities under CERD and stresses that it does not endorse or condone racism
aimed at ethnic Azerbaijanis. Armenia contends that Azerbaijan’s claims have no substance. For
example, it disputes the Applicant’s allegation that hate speech against ethnic Azerbaijanis has
emanated from the highest level of the Government of Armenia, pointing out that Azerbaijan has
only adduced the “statements of a few individuals or non-governmental organizations engaged in
emergency and self-defence trainings”. As to Azerbaijan’s allegation that the Respondent refuses to
co-operate in demining, Armenia states that it has already provided minefield maps to Azerbaijan on
two separate occasions and that it is willing to provide further information in the context of resolving
all outstanding humanitarian issues. Armenia moreover asserts that it is not planting landmines in
the territory of Azerbaijan.

       24. Armenia contends that the claims of Azerbaijan fall outside the scope of the Court’s
jurisdiction ratione materiae, because the measures complained of affect all citizens of the Republic
of Azerbaijan as opposed to persons of Azerbaijani ethnicity. The Respondent states that, in any
event, Azerbaijan’s claims related to the planting of landmines and the alleged refusal by Armenia
to provide minefield maps lie outside the parameters of CERD. Armenia argues that the Court lacks
prima facie jurisdiction over these claims because demining has no connection to CERD. Armenia
also questions whether the Court has jurisdiction ratione temporis because the mining of the relevant
areas allegedly took place during and in the immediate aftermath of the hostilities that ended in 1994,
and hence before CERD entered into force as between the Parties.

                                                *         *

                                                   -9-

      25. The Court recalls that for the purposes of determining whether there was a dispute between
the parties at the time of filing an application, it takes into account in particular any statements or
documents exchanged between them (see Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order of
23 January 2020, I.C.J. Reports 2020, p. 12, para. 26). In so doing, it pays special attention to “the
author of the statement or document, their intended or actual addressee, and their content” (ibid.).
The existence of a dispute is a matter for objective determination by the Court; it is a matter of
substance, and not a question of form or procedure (ibid.).

       26. The Court considers that the exchanges between the Parties prior to the filing of the
Application indicate that they differ as to whether certain acts or omissions allegedly committed by
Armenia gave rise to violations of its obligations under CERD. The Court notes that, according to
Azerbaijan, Armenia has violated its obligations under the Convention in various ways (see
paragraphs 21 to 22 above). Armenia has denied that it has committed any of the alleged violations
set out above and that the acts complained of fall within the scope of CERD (see paragraphs 23 to 24
above). The divergence of views between Azerbaijan and Armenia regarding the latter’s compliance
with its commitments under CERD was already apparent in the first exchange of letters between the
Ministers for Foreign Affairs of the Parties, dated 8 December 2020 and 22 December 2020
respectively, in the immediate aftermath of the 2020 Conflict. It is further demonstrated by
subsequent exchanges between the Parties.

      27. For the purposes of the present proceedings, the Court is not required to ascertain whether
any violations of Armenia’s obligations under CERD have occurred, a finding that could only be
made as part of the examination of the merits of the case. At the stage of making an order on
provisional measures, the Court’s task is to establish whether the acts and omissions complained of
by Azerbaijan are capable of falling within the provisions of CERD. In the Court’s view, 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.

       28. The Court finds therefore that there is a sufficient basis at this stage to establish prima facie
the existence of a dispute between the Parties relating to the interpretation or application of CERD.

                                     3. Procedural preconditions

       29. Under Article 22 of CERD, a dispute may be referred to the Court only if it is “not settled
by negotiation or by the procedures expressly provided for in this Convention”. The Court has
previously ruled that Article 22 of CERD establishes procedural preconditions to be met before the
seisin of the Court (see 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 (I), p. 128, para. 141).

       30. The Court has also held that the above-mentioned preconditions to its jurisdiction are
alternative and not cumulative (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 (II), p. 600, para. 113). Since Azerbaijan does not contend that its dispute with
Armenia was submitted to “procedures expressly provided for in [the] Convention”, which begin
with a referral to the Committee on the Elimination of Racial Discrimination under Article 11 of
CERD, the Court will only ascertain whether the dispute is one that is “not settled by negotiation”,
within the meaning of Article 22.

                                                 - 10 -

      31. In addition, Article 22 of CERD states that a dispute may be referred to the Court at the
request of any of the parties to that dispute only if they have not agreed to another mode of settlement.
The Court notes that neither Party contends that they have agreed to another mode of settlement.

       32. At this stage of the proceedings, the Court will examine whether it appears, prima facie,
that Azerbaijan genuinely attempted to engage in negotiations with Armenia, with a view to resolving
their dispute concerning the latter’s compliance with its substantive obligations under CERD, and
whether Azerbaijan pursued these negotiations as far as possible (see Application of the International
Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab
Emirates), Provisional Measures, Order of 23 July 2018, I.C.J. Reports 2018 (II), p. 420, para. 36).

                                                *       *

       33. Regarding the procedural preconditions set out in Article 22 of CERD, Azerbaijan states
that between December 2020 and September 2021, the Parties have exchanged over 40 pieces of
correspondence and held several rounds of meetings in an attempt to settle Azerbaijan’s claims
concerning Armenia’s violations of obligations arising under CERD. In particular, Azerbaijan asserts
that the Minister for Foreign Affairs of Azerbaijan, in a letter dated 8 December 2020 addressed to
his counterpart in Armenia, specified the actions by which Armenia had violated its obligations under
CERD. According to Azerbaijan, further correspondence between the Parties set out the modalities
that were to govern their negotiations, and several bilateral meetings took place between March and
September 2021. Azerbaijan further asserts that Armenia did not engage in good faith in the
negotiations, refusing either to consider properly the requested remedies or to make any proposals or
counterproposals to resolve the issues in dispute. In support of its contention that Azerbaijan
genuinely sought to find a solution to the matters in dispute, counsel for the Applicant refers, in
particular, to three letters, namely, a letter from the Minister for Foreign Affairs of Armenia, dated
11 November 2020, the above-mentioned letter from the Minister for Foreign Affairs of Azerbaijan,
dated 8 December 2020, and a letter, dated 9 October 2021, outlining the proposals made by
Azerbaijan to Armenia in the course of negotiations held on 30 and 31 August 2021. According to
Azerbaijan, these documents show that Azerbaijan made genuine attempts to find a negotiated
solution with Armenia to the dispute, whereas Armenia failed to do so. It contends that to continue
negotiations or to resort to the procedures expressly provided for in CERD would be futile in light
of Armenia’s intransigence. Azerbaijan thus considers that it has pursued the negotiation of its claims
“as far as possible” and that the procedural precondition of negotiation under Article 22 CERD is
therefore satisfied.

                                                    *

                                                 - 11 -

       34. Armenia, for its part, states that it recognizes that the requirement for the failure of
negotiations is met in the present case, although it argues that this is through no fault of its own.
According to Armenia, Azerbaijan did not genuinely attempt to engage in meaningful negotiations
before instituting proceedings alleging violations by Armenia of its obligations under CERD. In its
view, throughout the whole negotiating process, Azerbaijan showed no intention of negotiating and
used delaying tactics to postpone the negotiations, for example by repeatedly requesting the Parties
to clarify the modalities, topics and selection of representatives for the purposes of the negotiations.
Armenia observes in this regard that “[i]t took nearly a year, dozens of exchanges of Notes and
numerous encounters before it was finally possible to address the substance of the dispute”.
Therefore, Armenia claims that it had a “good reason to think that there was no longer any point in
continuing a negotiation that had become futile”. In this context, Armenia submits, “the requirements
in terms of negotiation were met”.

                                                *     *

       35. Regarding the precondition of negotiation contained in Article 22 of CERD, the Court
observes that negotiations are distinct from mere protests or disputations and require a genuine
attempt by one of the parties to engage in discussions with the other party, with a view to resolving
the dispute. Where negotiations are attempted or have commenced, the precondition of negotiation
is met only when the attempt to negotiate has been unsuccessful or where negotiations have failed,
become futile or deadlocked. In order to meet this precondition, “the subject-matter of the
negotiations must relate to the subject-matter of the dispute which, in turn, must concern the
substantive obligations contained in the treaty in question” (see Application of the International
Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab
Emirates), Provisional Measures, Order of 23 July 2018, I.C.J. Reports 2018 (II), p. 419, para. 36,
citing 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 (I), p. 133, para. 161).

       36. The Court notes that, as evidenced by the material before it, Azerbaijan raised allegations
of violations by Armenia of its obligations under CERD in various bilateral exchanges subsequent
to the signing of the Trilateral Statement in November 2020. In particular, the Parties corresponded
through a series of diplomatic Notes over a period running from November 2020 to September 2021
and held several rounds of bilateral meetings covering the procedural modalities, scope and topics of
their negotiations concerning alleged violations of obligations arising under CERD.

       37. The Court observes that, between the first exchange between the Ministers for Foreign
Affairs of Azerbaijan and Armenia, by letters dated 8 December 2020 and 22 December 2020
respectively, and the last bilateral meeting held on 14-15 September 2021, the positions of the Parties
do not appear to have evolved. Although the Parties were able to agree on certain procedural
modalities, including scheduling timetables and topics of discussion, no similar progress was made
in terms of substantive matters relating to Azerbaijan’s allegations of Armenia’s non-compliance
with its obligations under CERD. The information available to the Court regarding the bilateral
sessions held on 15-16 July 2021, 30-31 August 2021 and on 14-15 September 2021 shows a lack of
progress in reaching common ground on substantive issues. The Court observes moreover that both
Parties appear to accept that negotiations between them with a view to addressing the CERD-related
complaints levelled by Azerbaijan against Armenia had reached an impasse.

                                                  - 12 -

       38. Despite the fact that Azerbaijan alleged in bilateral exchanges that Armenia had violated
a number of obligations under CERD and that the Parties engaged in a significant number of written
exchanges and meetings over a period of several months, it seems that their positions on the alleged
non-compliance by Armenia with its obligations under CERD remained unchanged and that their
negotiations had reached an impasse. It therefore appears to the Court that the dispute between the
Parties regarding the interpretation and application of CERD had not been settled by negotiation as
of the date of the filing of the Application.

       39. Recalling that, at this stage of the proceedings, the Court need only decide whether, prima
facie, it has jurisdiction, the Court finds that the procedural preconditions under Article 22 of CERD
appear to have been met.

                            4. Conclusion as to prima facie jurisdiction

       40. In light of the foregoing, the Court concludes that, prima facie, it has jurisdiction pursuant
to Article 22 of CERD to entertain the case to the extent that the dispute between the Parties relates
to the “interpretation or application” of the Convention.

           III. THE RIGHTS WHOSE PROTECTION IS SOUGHT AND THE LINK BETWEEN
                           SUCH RIGHTS AND THE MEASURES REQUESTED

       41. The power of the Court to indicate provisional measures under Article 41 of the Statute
has as its object the preservation of the respective rights claimed by the parties in a case, pending its
decision on the merits thereof. It follows that the Court must be concerned to preserve by such
measures the rights which may subsequently be adjudged by it to belong to either party. Therefore,
the Court may exercise this power only if it is satisfied that the rights asserted by the party requesting
such measures are at least plausible (see, for example, Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional
Measures, Order of 23 January 2020, I.C.J. Reports 2020, p. 18, para. 43).

       42. At this stage of the proceedings, however, the Court is not called upon to determine
definitively whether the rights which Azerbaijan wishes to see protected exist; it need only decide
whether the rights claimed by Azerbaijan on the merits, and for which it is seeking protection, are
plausible. Moreover, a link must exist between the rights whose protection is sought and the
provisional measures being requested (ibid., para. 44).

                                                *      *

       43. In the present proceedings, Azerbaijan asserts rights under Articles 2, 3, 4, 5, 6 and 7 of
CERD. In particular, Azerbaijan argues that “Armenia’s policies and practices target Azerbaijanis
for discriminatory treatment falling within the scope of Article 1 (1) and in violation of Articles 2, 3,
4, 5, 6, and 7 of CERD”. Azerbaijan thus considers that its rights under these provisions of CERD
are plausible and that Armenia’s acts plausibly constitute racial discrimination in violation of its
obligations under CERD.

                                                - 13 -

       44. Azerbaijan contends more specifically that by laying mines, including in the course of the
2020 Conflict, in civilian areas previously inhabited by ethnic Azerbaijanis, Armenia has deliberately
made it impossible for them to return to their homes. Azerbaijan further contends that Armenia
continues to plant landmines and intentionally withholds comprehensive and accurate information
about mine placement. Azerbaijan asserts that the laying of landmines and the alleged refusal to share
information about their location are part of a longstanding campaign of “ethnic cleansing” by
Armenia which constitutes “racial discrimination” under the definition set out in Article 1,
paragraph 1, of CERD, and violates the rights of ethnic Azerbaijanis under this Convention in so far
as it has both the purpose and effect of nullifying or impairing, for example, the right not to be
arbitrarily deprived of life, the right to liberty and security of person and the right to liberty of
movement and freedom to choose one’s residence. Azerbaijan thus submits that the rights it asserts
under CERD with regard to the laying of landmines by Armenia are plausible.

       45. Azerbaijan notes that Armenia has neither condemned the activities within its territory of
armed ethnonationalist hate groups, such as VoMA, that are said to incite violence against ethnic
Azerbaijanis, including through social media, nor punished those involved in such activities.
Azerbaijan cites, for example, anti-Azerbaijani propaganda disseminated by VoMA on social media,
referring to persons of Azerbaijani national or ethnic origin pejoratively as “Turks” or “Caspian
Turks”, and referring to Azerbaijan as the “Caspian Threat”, which should be “liquidat[ed]”.
According to Azerbaijan, VoMA claims that its personnel has “work[ed] in close cooperation with
[Armenia’s] Armed Forces and received a commendation by the command”. Moreover, Azerbaijan
considers that, by failing to condemn or prohibit anti-Azerbaijani paramilitary groups, Armenia has
allowed those groups to proliferate. In this regard, it also refers to the group “Statehood as National
Value” (hereinafter “POGA”) which apparently began organizing military training programmes in
March 2021. In addition, Azerbaijan asserts that the Government of Armenia is responsible for an
“ongoing anti-Azerbaijani cyber disinformation campaign”. According to Azerbaijan, by not
condemning or prohibiting the operations of VoMA, POGA and similar groups, by glorifying the
racist ideology used to target persons of Azerbaijani national or ethnic origin and by engaging, at a
governmental level, in a cyber disinformation campaign in an attempt “to stoke ethnic tensions
between Azerbaijanis and Armenians”, Armenia is infringing the rights guaranteed by Articles 2, 4,
5 and 7 of CERD.

                                                  *

       46. With respect to Azerbaijan’s claim relating to Armenia’s supposed “policy and practice”
of laying landmines, Armenia contends that Azerbaijan has no plausible rights under CERD because
“landmines, by their nature, do not engage in ethnic discrimination”. Moreover, according to
Armenia, there is no evidence that it ever used mines to target persons of Azerbaijani ethnic origin.
It asserts that the laying of mines in areas in and around Nagorno-Karabakh was not for the purpose
of racial discrimination but for the purpose of military defence. Armenia states that it has already
provided maps to Azerbaijan and its Agent announced that it “stand[s] ready to provide any more
maps in [its] possession regarding minefields located behind the lines currently held by Azerbaijani
armed forces, which now present solely humanitarian concerns”.

                                                 - 14 -

       47. Regarding Azerbaijan’s allegations that the Respondent has neither condemned nor
punished the activities within its territory of armed ethnonationalist hate groups, Armenia observes
that the groups in question are not State entities and that it has not endorsed, nor does it endorse or
condone, the rhetoric of these organizations. Armenia asserts that Azerbaijan’s alleged rights in this
regard are not plausible in so far as the private speech that Azerbaijan has cited does not constitute
speech against which CERD provides protection. Moreover, Armenia refers to the wording of
Article 4 of CERD, which requires States parties to take measures to eradicate acts of discrimination
“with due regard to the principles embodied in the Universal Declaration of Human Rights and the
rights expressly set forth in article 5 of [the] Convention”. Armenia notes that these rights include
the right to freedom of expression and freedom of association contained in Article 5 (d) of CERD.
According to Armenia, the evidence before the Court does not establish that the organizations in
question seek to incite racial hatred in such a way that the Government of Armenia would be required
to prevent their speech and, thus, Armenia considers that the rights that Azerbaijan seeks to protect
are not plausible.

       48. Armenia adds that Azerbaijan has not demonstrated that Armenia is engaging in cyber
disinformation operations to incite anti-Azerbaijani hate and concludes that the “rights for which
Azerbaijan seeks protection through the second part of its third request are therefore not plausible”.

                                                *     *

       49. The Court notes that CERD imposes a number of obligations on States parties with regard
to the elimination of racial discrimination in all its forms and manifestations. Article 1, paragraph 1,
of CERD defines racial discrimination in the following terms:

      “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”.

Articles 2, 3, 4, 5, 6 and 7 of the Convention, invoked by Azerbaijan in its Application and for the
purposes of its Request for the indication of provisional measures, read as follows:

                                                “Article 2

      1. States Parties condemn racial discrimination and undertake to pursue by all
         appropriate means and without delay a policy of eliminating racial discrimination
         in all its forms and promoting understanding among all races, and, to this end:

            (a) Each State Party undertakes to engage in no act or practice of racial
                discrimination against persons, groups of persons or institutions and to ensure
                that all public authorities and public institutions, national and local, shall act
                in conformity with this obligation;

                                          - 15 -

     (b) Each State Party undertakes not to sponsor, defend or support racial
         discrimination by any persons or organizations;

     (c) Each State Party shall take effective measures to review governmental,
         national and local policies, and to amend, rescind or nullify any laws and
         regulations which have the effect of creating or perpetuating racial
         discrimination wherever it exists;

     (d) Each State Party shall prohibit and bring to an end, by all appropriate means,
         including legislation as required by circumstances, racial discrimination by any
         persons, group or organization;

     (e) Each State Party undertakes to encourage, where appropriate, integrationist
         multi-racial organizations and movements and other means of eliminating
         barriers between races, and to discourage anything which tends to strengthen
         racial division.

2. States Parties shall, when the circumstances so warrant, take, in the social,
   economic, cultural and other fields, special and concrete measures to ensure the
   adequate development and protection of certain racial groups or individuals
   belonging to them, for the purpose of guaranteeing them the full and equal
   enjoyment of human rights and fundamental freedoms. These measures shall in no
   case entail as a consequence the maintenance of unequal or separate rights for
   different racial groups after the objectives for which they were taken have been
   achieved.

                                         Article 3

      States Parties particularly condemn racial segregation and apartheid and
undertake to prevent, prohibit and eradicate all practices of this nature in territories
under their jurisdiction.

                                         Article 4

       States Parties condemn all propaganda and all organizations which are based on
ideas or theories of superiority of one race or group of persons of one colour or ethnic
origin, or which attempt to justify or promote racial hatred and discrimination in any
form, and undertake to adopt immediate and positive measures designed to eradicate all
incitement to, or acts of, such discrimination and, to this end, with due regard to the
principles embodied in the Universal Declaration of Human Rights and the rights
expressly set forth in article 5 of this Convention, inter alia:

     (a) Shall declare an offence punishable by law all dissemination of ideas based on
         racial superiority or hatred, incitement to racial discrimination, as well as all
         acts of violence or incitement to such acts against any race or group of persons
         of another colour or ethnic origin, and also the provision of any assistance to
         racist activities, including the financing thereof;

                                              - 16 -

     (b) Shall declare illegal and prohibit organizations, and also organized and all
         other propaganda activities, which promote and incite racial discrimination,
         and shall recognize participation in such organizations or activities as an
         offence punishable by law;

     (c) Shall not permit public authorities or public institutions, national or local, to
         promote or incite racial discrimination.

                                         Article 5

        In compliance with the fundamental obligations laid down in article 2 of this
Convention, States Parties undertake to prohibit and to eliminate racial discrimination
in all its forms and to guarantee the right of everyone, without distinction as to race,
colour, or national or ethnic origin, to equality before the law, notably in the enjoyment
of the following rights:

     (a) The right to equal treatment before the tribunals and all other organs
         administering justice;

     (b) The right to security of person and protection by the State against violence or
         bodily harm, whether inflicted by government officials or by any individual
         group or institution;

     (c) Political rights, in particular the right to participate in elections  to vote and
         to stand for election  on the basis of universal and equal suffrage, to take
         part in the Government as well as in the conduct of public affairs at any level
         and to have equal access to public service;

     (d) Other civil rights, in particular:

         (i) The right to freedom of movement and residence within the border of the
             State;

        (ii) The right to leave any country, including one’s own, and to return to one’s
             country;

       (iii) The right to nationality;

       (iv) The right to marriage and choice of spouse;

        (v) The right to own property alone as well as in association with others;

       (vi) The right to inherit;

       (vii) The right to freedom of thought, conscience and religion;

      (viii) The right to freedom of opinion and expression;

       (ix) The right to freedom of peaceful assembly and association;

     (e) Economic, social and cultural rights, in particular:

         (i) The rights to work, to free choice of employment, to just and favourable
             conditions of work, to protection against unemployment, to equal pay for
             equal work, to just and favourable remuneration;

                                                  - 17 -

               (ii) The right to form and join trade unions;

              (iii) The right to housing;

              (iv) The right to public health, medical care, social security and social services;

               (v) The right to education and training;

              (vi) The right to equal participation in cultural activities;

            (f) The right of access to any place or service intended for use by the general
                public, such as transport, hotels, restaurants, cafés, theatres and parks.

                                                 Article 6

             States Parties shall assure to everyone within their jurisdiction effective
      protection and remedies, through the competent national tribunals and other State
      institutions, against any acts of racial discrimination which violate his human rights and
      fundamental freedoms contrary to this Convention, as well as the right to seek from such
      tribunals just and adequate reparation or satisfaction for any damage suffered as a result
      of such discrimination.

                                                 Article 7

             States Parties undertake to adopt immediate and effective measures, particularly
      in the fields of teaching, education, culture and information, with a view to combating
      prejudices which lead to racial discrimination and to promoting understanding,
      tolerance and friendship among nations and racial or ethnical groups, as well as to
      propagating the purposes and principles of the Charter of the United Nations, the
      Universal Declaration of Human Rights, the United Nations Declaration on the
      Elimination of All Forms of Racial Discrimination, and this Convention.”

       50. The Court notes that Articles 2, 3, 4, 5, 6 and 7 of CERD are intended to protect individuals
from racial discrimination. It recalls, as it did in past cases in which Article 22 of CERD was invoked
as the basis of its jurisdiction, that there is a correlation between respect for individual rights
enshrined in the Convention, the obligations of States parties under CERD and the right of States
parties to seek compliance therewith (see, for example, Application of the International Convention
on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates),
Provisional Measures, Order of 23 July 2018, I.C.J. Reports 2018 (II), p. 426, para. 51).

       51. A State party to CERD may invoke the rights set out in the above-mentioned articles only
to the extent that the acts complained of constitute acts of racial discrimination as defined in Article 1
of the Convention (see ibid., para. 52). In the context of a request for the indication of provisional
measures, the Court examines whether the rights claimed by an applicant are at least plausible.

                                                  - 18 -

        52. The Court considers, on the basis of the information presented to it by the Parties, that
at least some of the rights claimed by Azerbaijan are plausible rights under the Convention. This
is the case, with respect to rights allegedly violated through Armenia’s failure to condemn the activities
within its territory of groups that, according to Azerbaijan, are armed ethnonationalist hate groups
that incite violence against ethnic Azerbaijanis, and to punish those responsible for such activities.

         53. With regard to rights under CERD asserted by Azerbaijan with respect to Armenia’s
alleged conduct in relation to landmines, the Court recalls that Azerbaijan claims that this conduct is
part of a longstanding campaign of ethnic cleansing. The Court recognizes that 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 and that such a policy can be effected through a variety of
military means. However, the Court does not consider that CERD plausibly imposes any obligation
on Armenia to take measures to enable Azerbaijan to undertake demining or to cease and desist from
planting landmines. 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.

                                                *       *

      54. The Court now turns to the condition of the link between the rights claimed by Azerbaijan
and the provisional measures requested. In this regard the Court recalls that at this stage of the
proceedings only some of the rights claimed by Azerbaijan have been found to be plausible. It will
therefore limit itself to considering the existence of the requisite link between these rights and the
measures requested by Azerbaijan.

                                                *       *

       55. Azerbaijan considers that each of the provisional measures requested is clearly linked to
the rights for which it seeks protection. In particular, with regard to the measure requesting that
Armenia be ordered to prevent certain groups from engaging in hate speech, and to cease and desist
from its alleged ongoing cyber disinformation campaign, Azerbaijan asserts that this is aimed at
protecting ethnic Azerbaijanis from racist hate speech and the risk of ethnic violence and therefore
are directly linked to the rights asserted by Azerbaijan under CERD.

                                                    *

                                                 - 19 -

       56. Armenia maintains, in general, that the measures requested by Azerbaijan have no link to
rights of Azerbaijan arising under CERD.

                                                *     *

      57. The Court has already found that at least some of the rights claimed by Azerbaijan under
CERD are plausible (see paragraph 52 above). It considers that a link exists between one of the
measures requested by Azerbaijan (see paragraphs 5 and 11 above) and the plausible rights it seeks
to protect. This is the case for the measure aimed at ensuring that any organizations and private
persons in the territory of Armenia do not engage in the incitement and promotion of racial hatred
and racially motivated violence targeted at people of Azerbaijani national or ethnic origin. This
measure, in the view of the Court, is directed at safeguarding plausible rights invoked by Azerbaijan
under CERD.

     58. The Court concludes, therefore, that a link exists between some of the rights claimed by
Azerbaijan and one of the requested provisional measures.

                      IV. RISK OF IRREPARABLE PREJUDICE AND URGENCY

      59. The Court, pursuant to Article 41 of its Statute, has the power to indicate provisional
measures when irreparable prejudice could be caused to rights which are the subject of judicial
proceedings or when the alleged disregard of such rights may entail irreparable consequences (see,
for example, Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J.
Reports 2020, p. 24, para. 64, referring to 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 (II), p. 645, para. 77).

       60. However, the power of the Court to indicate provisional measures will be exercised only
if there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will
be caused to the rights claimed before the Court gives its final decision. The condition of urgency is
met when the acts susceptible of causing irreparable prejudice can “occur at any moment” before the
Court makes a final decision on the case (ibid., p. 24, para. 65). The Court must therefore consider
whether such a risk exists at this stage of the proceedings.

       61. The Court is not called upon, for the purposes of its decision on the Request for the
indication of provisional measures, to establish the existence of breaches of CERD, but to determine
whether the circumstances require the indication of provisional measures for the protection of rights
under this instrument. It cannot at this stage make definitive findings of fact, and the right of each
Party to submit arguments in respect of the merits remains unaffected by the Court’s decision on the
Request for the indication of provisional measures.

                                                *     *

                                                - 20 -

       62. Azerbaijan submits that Armenia has incited and continues to incite hatred and violence
against persons of Azerbaijani national or ethnic origin by permitting armed hate groups to recruit
members, raise funds, and operate training centres. It claims in particular that VoMA, whose stated
aim is “to create an entirely ethnic Armenian ‘Nation Army’ and to ready the mono-ethnic Armenian
State against the perceived ‘threat’ of Azerbaijanis”, uses fear and hatred of persons of Azerbaijani
national or ethnic origin as a recruiting tool, regularly disseminates messages of racial superiority,
and arms and trains Armenians for an ethnic war against persons of Azerbaijani national or ethnic
origin. Azerbaijan adds that the threat of violence is exacerbated by “growing calls to arms” by
VoMA, which, in its most recent activity report for September 2021, stated that it had trained dozens
of people and instructors across Armenia and had solicited donations for vehicles and “arms for
weapons practice and protection in the populated areas along the borders”. Azerbaijan adds that, by
not condemning or prohibiting anti-Azerbaijani paramilitary groups, Armenia has allowed groups,
such as VoMA and POGA, which apparently began organizing military training programmes in
March 2021 to prepare Armenians for war, to proliferate within its territory. Azerbaijan considers
that there is an urgent need to protect Azerbaijanis from continued hate speech and violence on
account of their national or ethnic origin and that the emotional effects of this constant threat of
violence can cause an irreparable prejudice to their rights.

                                                   *

       63. Armenia denies that there exists an imminent risk of irreparable prejudice to the rights of
Azerbaijan with respect to its “allegations of incitement of ethnic hatred and violence through an
alleged failure to sanction or punish so-called armed hate groups”. Armenia contends that the
objectives of these organizations have nothing to do with incitement of racial hatred and racially
motivated violence targeted at persons of Azerbaijani national or ethnic origin. In particular, Armenia
states that VoMA is a non-governmental organization engaged in emergency and civil-military
defence preparedness, education and training, which aims to “raise the spirits of the Armenian
people”. Armenia further references the obligation to respect the right of freedom of opinion and
expression when considering the reach of Article 4 of CERD, and observes that statements must be
of an “exceptionally/manifestly offensive character” (emphasis in the original) to fall outside the
protection of the “due regard” clause in Article 4. With respect to the statements made by VoMA,
Armenia acknowledges that they could be considered as nationalistic, patriotic, and sometimes
offensive and even controversial, but it denies that these statements could be viewed as an incitement
to ethnic hatred and violence against an ethnic group. Therefore, the Respondent asserts that
Azerbaijan has neither demonstrated that Armenia has allowed militant hate groups  such as,
according to Azerbaijan, VoMA and POGA  to proliferate, nor provided evidence of incitement
of racial hatred imputable to these or similar organizations. Consequently, Azerbaijan has failed to
establish an imminent risk of irreparable prejudice.

                                               *       *

                                                 - 21 -

       64. Having previously determined that some of the rights asserted by the Applicant are
plausible and that there is a link between those rights and the provisional measures requested, the
Court now considers whether irreparable prejudice could be caused to those rights and whether there
is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused
to those rights before the Court gives its final decision.

       65. The Court recalls that in past cases in which CERD was at issue, it stated that the rights
stipulated in Article 5 (a), (b), (c), (d) and (e) are of such a nature that prejudice to them is capable
of causing irreparable harm (see Application of the International Convention on the Elimination of
All Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures, Order
of 15 October 2008, I.C.J. Reports 2008, p. 396, para. 142; 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),
Provisional Measures, Order of 19 April 2017, I.C.J. Reports 2017, p. 138, para. 96; Application of
the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v.
United Arab Emirates), Provisional Measures, Order of 23 July 2018, I.C.J. Reports 2018 (II),
pp. 430-431, para. 67). The Court considers that this statement also holds true in respect of the right
of persons not to be subject to racial hatred and discrimination that stems from Article 4 of CERD.

      66. In the view of the Court, acts prohibited under Article 4 of CERD  such as 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. Such a situation may have serious damaging effects on individuals
belonging to the protected group. Such damaging effects may include, but are not limited to, the risk
of bodily harm or psychological harm and distress.

       67. In light of the considerations set out above, the Court concludes that the alleged disregard
of the rights deemed plausible by the Court (see paragraph 52 above) may entail irreparable
prejudice to those rights and that there is urgency, in the sense that there is a real and imminent
risk that such prejudice will be caused before the Court makes a final decision in the case.

                         V. CONCLUSION AND MEASURES TO BE ADOPTED

       68. The Court concludes from all of the above considerations that the conditions required by
its Statute for it to indicate provisional measures are met. It is therefore necessary, pending its final
decision, for the Court to indicate certain measures in order to protect the rights claimed by
Azerbaijan, as identified above (see paragraph 52).

       69. The Court recalls that it has the power, under its Statute, when a request for provisional
measures has been made, to indicate measures that are, in whole or in part, other than those requested.
Article 75, paragraph 2, of the Rules of Court specifically refers to this power of the Court. The Court
has already exercised this power on several occasions in the past (see, for example, Application of
the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020, p. 28, para. 77).

                                                    - 22 -

      70. In the present case, having considered the terms of the provisional measures requested by
Azerbaijan and the circumstances of the case, the Court finds that the measures to be indicated need
not be identical to those requested.

       71. The Court considers that, with regard to the situation described above, Armenia must,
pending the final decision in the case and in accordance with its obligations under CERD, take all
necessary measures to prevent the incitement and promotion of racial hatred, including by
organizations and private persons in its territory, targeted at persons of Azerbaijani national or ethnic
origin.

       72. The Court recalls that Azerbaijan has requested it to indicate measures aimed at ensuring
the non-aggravation of the dispute with Armenia. When it is indicating provisional measures for the
purpose of preserving specific rights, the Court may also indicate provisional measures with a view
to preventing the aggravation or extension of a dispute whenever it considers that the circumstances
so require (see, for example, Application of the International Convention on the Elimination of All
Forms of Racial Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Order of
23 July 2018, I.C.J. Reports 2018 (II), pp. 432-433, para. 76). In the present case, having considered
all the circumstances, in addition to the specific measure it has decided to order, the Court deems it
necessary to indicate an additional measure directed to both Parties and aimed at ensuring the
non-aggravation of their dispute.

       73. The Court further recalls that Azerbaijan requested it to indicate provisional measures
directing Armenia to “take effective measures to collect, to prevent the destruction and ensure the
preservation of, evidence related to allegations of ethnically-motivated crimes against Azerbaijanis”
and to provide regular reports on the implementation of provisional measures. The Court, however,
considers that, in the particular circumstances of the case, these measures are not warranted.

                                                      *

                                                *            *

       74. The Court reaffirms that its “orders on provisional measures under Article 41 [of the
Statute] have binding effect” (LaGrand (Germany v. United States of America), Judgment,
I.C.J. Reports 2001, p. 506, para. 109) and thus create international legal obligations for any party to
whom the provisional measures are addressed.

                                                      *

                                                *            *

                                                  - 23 -

       75. The Court further reaffirms that the decision given in the present proceedings in no way
prejudges the question of the jurisdiction of the Court to deal with the merits of the case or any
questions relating to the admissibility of the Application or to the merits themselves. It leaves
unaffected the right of the Governments of Azerbaijan and Armenia to submit arguments in respect
of those questions.

                                                    *

                                              *            *

      76. For these reasons,

      THE COURT,

      Indicates the following provisional measures:

      (1) Unanimously,

      The Republic of Armenia shall, in accordance with its obligations under the International
Convention on the Elimination of All Forms of Racial Discrimination, take all necessary measures
to prevent the incitement and promotion of racial hatred, including by organizations and private
persons in its territory, targeted at persons of Azerbaijani national or ethnic origin;

      (2) Unanimously,

      Both Parties shall refrain from any action which might aggravate or extend the dispute before
the Court or make it more difficult to resolve.

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

                                                               (Signed)   Joan E. DONOGHUE,
                                                                               President.

                                                               (Signed)   Philippe GAUTIER,
                                                                               Registrar.

                                      - 24 -

Judge IWASAWA appends a declaration to the Order of the Court.

                                                      (Initialled)   J.E.D.

                                                      (Initialled)   Ph.G.

                                  ___________