Azerbaijan’s position is inconsistent with its own position in the Azerbaijan v. Armenia case, Constantinos Salonidis

Dr. Constantinos Salonidis delivered opening remarks during a hearing of Application of The International Convention on the Elimination of All Forms of Discrimination (Armenia V. Azerbaijan) in International Court Of Justice, The Hague, The Netherlands, on April 16, 2024. He spoke on it during oral proceedings on the preliminary objections raised by Azerbaijan.

 

 

In particular, Salonidis said: 

 

 

As our honourable Agent just said, my task today is to explain how Armenia fulfilled the negotiation precondition under Article 22 of CERD and, therefore, why Azerbaijan’s first preliminary objection must be rejected.

 

The Parties are agreed on the applicable legal test, so I will cut to the chase. Azerbaijan puts forth three arguments. It claims, first, that the Parties never engaged in negotiations. Second, that Armenia “never made a genuine attempt at such negotiations”. And third and in the alternative, that Armenia “did not pursue these negotiations as far as possible”.  I will address each of these arguments in turn. 

 

 The Parties Conducted Negotiations 

I start with Azerbaijan’s argument that the Parties never engaged in negotiations. It is undisputed that, before Armenia filed its Application, the Parties exchanged more than 40 pieces of correspondence and participated in seven rounds of bilateral meetings over a period of ten months, from November 2020 to September 2021. This begs the question what all those letters and meetings concerned if not negotiations. 

 

Azerbaijan argues that during seven of those months, the Parties engaged in so-called “pre-negotiations”, and such “pre-negotiations” are excluded from the concept of negotiations under Article 22 of CERD, because they are, according to Azerbaijan, “not about the substance of the dispute”. But this slicing and dicing of the overall engagement of the Parties in this manner has no grounding in the jurisprudence of the Court and frankly makes no sense. 

 

Azerbaijan says that “procedural and technical exchanges, according to the Court’s own definition, do not qualify as negotiations”. But Azerbaijan cites nothing for this proposition. In fact, the Court has never excluded from its assessment of negotiations procedural and technical exchanges as long as they are made “with a view to resolving the dispute”. This includes the present case. In the Court’s first Provisional Measures Order of 7 December 2021, the Court assessed the evolution of the Parties’ positions from the very “first exchange between the Ministers for Foreign Affairs of Armenia and Azerbaijan, by letters dated 11 November 2020 and 8 December 2020 respectively”, until “the last bilateral meeting held on 14-15 September 2021”. The Court has of course done the same in other cases as well.

 

The Court’s approach makes very good sense. Indeed, if the Court were to accept Azerbaijan’s premise here, then that would mean that any respondent State could indefinitely lock the applicant State into interminable discussion of procedural and technical matters—and thus evade the submission to the Court’s jurisdiction. It is thus Azerbaijan’s position, not Armenia’s, that would deprive Article 22 of its significance and meaning.

 

Counsel for Azerbaijan stated yesterday that seven months of discussion on procedural and technical matters “may seem a long time”. That is because it is a long time, especially in the circumstances of this case. And it would have taken much, much longer had it not been for Armenia accommodating Azerbaijan’s requests at each and every turn. 

 

Indeed, from Azerbaijan’s very first letter, it became evident to Armenia that it would have to accept negotiating Azerbaijan’s mirroring claims alongside its own. It also became evident that if Armenia wanted the negotiations to advance, it would have to accept Azerbaijan’s dictats as to when, where and how the negotiations would proceed. 

 

Already three months in, Azerbaijan insisted that it was first necessary to reach agreement on modalities and then on the scope of the negotiations before proceeding to any substantive discussions. And thus began a three and a half month long discussion of procedural modalities, to which I will return. 

 

I should also point out that Azerbaijan’s position is inconsistent with its own position in the Azerbaijan v. Armenia case, where Azerbaijan has expressly referred to the very same exchanges and meetings between the parties concerning procedural matters as a part of the “negotiations”—not “pre-negotiations”—in both its Application and Memorial. There is simply no basis for Azerbaijan to qualify them as negotiations in the Azerbaijan v. Armenia case but only as so-called “pre-negotiations” here. As the Court is aware, in contrast with Azerbaijan, Armenia does not dispute that the negotiation precondition has been fulfilled in that case.

 

In short, there is no principled reason to exclude from negotiations exchanges between the Parties relating to procedural and technical matters as long as they are made “with a view to resolving the dispute”. This is even more so here considering Azerbaijan’s dilatory tactics.

 

Azerbaijan’s second reason for arguing that negotiations did not take place in the present case is that the Parties supposedly “did not engage in a discussion, with a view to resolving the dispute”. This is also wrong. 

 

The discussion began when Armenia sent its letter of 11 November 2020 asserting its claims under the Convention. Azerbaijan in its letter of 8 December 2020 rejected those claims, and thereafter Armenia repeatedly asserted its claims and Azerbaijan repeatedly rejected them. This back-and-forth discussion went on for months. At the meeting on 31 May 2021, Armenia once again presented its claims, and then again at the 15-16 July 2021 meetings, alongside the remedies it sought. Azerbaijan addressed them at the 30-31 August meetings, after which Armenia considered that it had pursued negotiations as far as possible. It is thus false to assert that by 15 September 2021, all the Parties had done was to exchange “a series of accusations and rebuttals”. The reality is that Azerbaijan fully considered Armenia’s claims and remedies sought and repeatedly rejected them. That really is the end for Azerbaijan’s first argument. 

 

Armenia Made a Genuine Attempt to Negotiate

Azerbaijan’s second argument is that Armenia allegedly never made a genuine attempt at negotiations. Now I could rest on my submissions so far and say no more, but four brief observations are in order.

 

First, we heard yesterday Azerbaijan argue that much discussion between the Parties “solely concerned … Armenia’s wish to include in the Agreed Procedural Modalities a passage that would allow Armenia to prove as a matter of fact that negotiations had in fact failed”, and that somehow detracts from the genuine character of its attempt to negotiate its claims. This is false. Armenia did not make its proposals because it had the proceedings before the Court “at the forefront of [its] mind”, as Azerbaijan argues. Rather, Armenia made its proposal, which Azerbaijan resisted strongly, because Azerbaijan sought to limit the Parties’ ability to rely on their diplomatic exchanges before the Court. As Armenia wrote on 16 April 2021, already five months into the negotiations, Azerbaijan’s proposals “would gravely impair the ability of the Parties to establish that, in the event that such comes to pass, there has been a failure of negotiations … Such consequence would contradict the States Parties’ aim to eradicate all forms of racial discrimination effectively and promptly, as reflected in several provisions of the Convention, including its preamble”. And as Armenia noted in its 20 April 2021 letter, “for more than five months now, Armenia has been attempting to begin substantive negotiations precisely in order to bring about a ‘lasting resolution to the Parties’ dispute’. Azerbaijan[’s] insist[ence] that the only manner in which these substantive negotiations can commence is at the expense of Armenia’s rights under Article 22 speaks volumes about Azerbaijan’s preoccupations at this stage”.

 

Second, it is equally false for Azerbaijan to argue that Armenia did not genuinely negotiate the dispute because it did not allocate enough time for doing so. Counsel for Azerbaijan surmised that negotiations over “such a substantial dispute” should probably take “months, if not years”. By contrast, he argued, QUOTE “Armenia ... initially suggested just one day, with a second day held in reserve for possible further discussion on Armenia’s claims”.

 

Counsel for Azerbaijan cites here to Annex 5 to Azerbaijan’s Preliminary Objections, which is a letter from Armenia dated 22 January 2021. The letter, however, makes clear that Armenia was proposing one day with a second day in reserve for a first meeting. Armenia by no means assumed that the entire dispute would be settled within those two days. In fact, Armenia’s proposed agenda—the annex to that same letter—expressly provided for a (quote) “[e]xchange of views on whether the dispute can be amicably resolved through further discussions”.

 

Counsel for Azerbaijan yesterday went on to say that QUOTE “Armenia in the end only agreed to a schedule that allocated two days for the presentation of its claims and requested remedies, and gave Azerbaijan another two days to present its replies—four days in all”.

 

This too is misleading. Here, counsel cites to Annex 42 to Azerbaijan’s Preliminary Objections, which is a letter from Armenia dated 14 July 2021. But once again, Armenia proposed these four days for meetings without assuming that the negotiations would end thereafter. In its prior letter of 9 July 2021, Armenia expressly stated that (quote) “it was open to additional discussions” beyond those days of meetings. And in fact, in its prior letter of 22 June 2021, Armenia expressly envisaged in its proposed schedule the possibility of additional meetings in August, September, October, November, and beyond.

 

I move now to my third observation. Neither Article 22 nor international law requires Armenia to jointly with Azerbaijan declare the negotiations to have become futile. Armenia was happy to suggest that the Parties “jointly assess whether further negotiations are constructive in resolving the dispute” in April 2021.  It was not so happy to do so by June 2021 after seeing yet another two months being squandered away on Azerbaijan’s dilatory tactics.

 

Finally, it is false to assert that Armenia rejected Azerbaijan’s proposals QUOTE “outright without engaging with them”. Armenia carefully considered these proposals for two weeks, and explained at the 15 September 2021 meeting that they failed to address its claims and requested remedies.

 

Armenia Filed Its Application after Negotiations Became Futile

This brings me to Azerbaijan’s last ground for its first preliminary objection, which is being asserted in the alternative, namely, that Armenia, after ten whole months, allegedly did not pursue the negotiations as far as possible, with a view to resolving the dispute. Azerbaijan’s argument is basically that Azerbaijan’s position could have evolved had it been given a chance to evolve.

 

But Armenia did afford Azerbaijan an adequate chance to reconsider its repeated rejections of Armenia’s claims. Azerbaijan’s proposals of August 2021 merely concerned proposed steps that Azerbaijan would take only if Armenia took them. Even then, the proposed actions were couched in tentative terms. Azerbaijan would “facilitate” the return of the forcibly displaced, but not allow it as Armenia was asking. It would “take steps” to provide equality before the law, regardless of ethnic origin, but not guarantee it, as Armenia was asking. It would “assess” educational materials, but not adopt immediate and effective educational measures, as Armenia was asking. And it would “consider” the removal of the Military Trophy Parks’ racist depictions, but not remove them as Armenia was asking.

 

Armenia’s Memorial submissions make clear that Armenia seeks declarations that Azerbaijan has breached the CERD, and an order that Azerbaijan shall cease these breaches, offer assurances and guarantees of non-repetition, and make reparation by way of restitution and compensation. Azerbaijan’s proposals, on the other hand, contained no acknowledgement of any wrongdoing; and of course, no provision of remedies for Azerbaijan’s many violations of the CERD. As I noted, they merely called for joint steps to be taken without any particular further indication.  

 

But concrete steps needed to be taken immediately—steps that were in Azerbaijan’s sole power to take. Throughout its supposed genuine engagement in amicable settlement of this dispute, Azerbaijan was in fact aggravating it, compounding the harm and Armenia’s necessity to act. As early as 22 December 2020, referring to the “scale and severity of Azerbaijan’s ongoing violations” of the CERD and the “paramount importance of resolving these matters as to pave the way for building trust and establishing conditions conducive for peace”, Armenia asked that “negotiations on these matters be conducted promptly and in good faith”.

 

On 22 January 2021, Armenia reiterated the “urgent need to protect … ethnic Armenians from Azerbaijan’s ongoing discrimination—including the torture and murder of civilians and hate speech emanating from the highest levels of government,” and expressed its regret that the Parties had not yet been able to meet two months after the commencement of the negotiations.

 

On 2 April 2021, Armenia recalled the “seriousness and ongoing nature of Azerbaijan’s breaches of the Convention and the imperative need to bring them to an immediate end”, hoping that Azerbaijan “will confirm the agreed scope of negotiations so that substantive discussions can proceed”. This did not happen until two months later.

 

On 20 April 2021, Armenia specifically referred to Azerbaijan’s decision to open the Military Trophies Park, recalling the need to maintain a constructive atmosphere in the negotiations. 

 

At the meeting of 31 May 2021, Armenia reiterated its great concern that the “‘Military Trophies Park’, as well as Azerbaijan’s recent widely condemned incursion onto Armenian territory, negatively affect the atmosphere of negotiations and risk undermining their progress”. 

 

And on 22 June 2021, Armenia noted that “while within the framework of these negotiations Azerbaijan professes an intent to ‘maximize the prospect of resolving this dispute’, outside that framework It has acted to exacerbate its violations … since negotiations began, including by opening [the] ‘Military Trophies Park’…” 

 

What was Azerbaijan’s response? To deny and double down on its own claims.  And what made it finally remove the racist mannequins? The threat of provisional measures by the Court.

 

Azerbaijan argues that “[n]egotiations … do not mean that one party simply submits to the demands of the other”.  We agree. Armenia was not obliged to accept Azerbaijan’s proposals and reject them, in the same way that Azerbaijan was not obliged to accept Armenia’s.  But this is why Article 22 of the CERD vests the Court with jurisdiction to resolve this dispute. 

 

Mr. President, Distinguished Members of the Court, Armenia of course acknowledges that the Court has not yet ruled on the merits of Armenia’s claims, but it is a fact that Azerbaijan has been the subject of three provisional measures orders and two affirmations of provisional measures, setting a most notorious record in the jurisprudence of the Court. The fact that the Court has indicated so many provisional measures against Azerbaijan in less than two years makes indisputably clear that Armenia’s concerns in resolving this dispute without delay are entirely warranted. Again, we recognize that the Court has not yet ruled on the merits of Armenia’s claims. But to call Armenia’s conduct in bringing this case to the Court premature is very unfortunate and disrespectful to the thousands of victims of Azerbaijan’s conduct, some of whom it purports to consider its citizens.

 

It has now been two and a half years since Armenia filed its Application—two and a half years of extensive written pleadings and multiple oral hearings before the Court. If anything, positions have hardened, particularly as Azerbaijan continues to grossly breach its obligations under the CERD, not to mention its obligations under the Court’s provisional measures. The situation on the ground has also worsened dramatically, to the point that the centuries-old presence of ethnic Armenians in Nagorno-Karabakh and indeed Armenian ethnic identity are facing existential risks.

Conclusion

The upshot of all this should now be clear. Armenia genuinely engaged with Azerbaijan throughout the entire negotiations. Armenia accommodated Azerbaijan’s requests to discuss its claims alongside Armenia’s; to first discuss modalities; and then the scope of the negotiations. And Armenia yielded to Azerbaijan’s proposals on the schedule and format of the presentation of its claims.

 

But all this was met only with rejection upon rejection, mirroring, dilatory tactics and aggravation. Still, Armenia did not put an end to the negotiations when Azerbaijan rejected Armenia’s claims, not once, not twice, not thrice, but multiple times. Armenia also did not put an end to the negotiations when Azerbaijan repeatedly aggravated the dispute. Armenia put an end to the negotiations only when it became evident that Azerbaijan would never acknowledge any wrongdoing or remedy its violations—that is, after more than 40 pieces of correspondence, seven rounds of bilateral meetings, and ten months of negotiations.

 

There can thus be no question that Armenia fulfilled the negotiation precondition in Article 22 of the Convention, and therefore Azerbaijan’s first objection to jurisdiction must be rejected.