There are many comments within the Armenian diaspora and Armenia about the order issued by the International Court of Justice (ICJ) on February 22, 2023. It seems appropriate to provide a frame of reference to better understand the meaning or scope of the judicial orders. To get a complete and accurate picture, it is necessary to explain the establishment and purpose of this court, its judges, its functioning, the advantages and limits of its acts. Then, I will analyze the two orders binding Azerbaijan. In the end, I will elaborate on the political outcome of those. While what happens after the order is still up in the air, there is one positive: This was the first time that Armenia has filed a claim at the ICJ and thus moved from a passive role to an active one.
ICJ: A Primer
The ICJ was established in 1945 through the Charter of the United Nations, as a successor to the Permanent Court of International Justice, which had been the judicial organ of the League of Nations (1920-1945). It is an exclusively inter-state jurisdiction, meaning only states can file claims against other states. In certain cases, the court can hear cases regarding damages caused by a third state against its nationals. This is called the principle of diplomatic protection (e.g., Cyprus v. Turkey at the European Court, or Democratic Republic of Congo v. Uganda, Guinea v. DRC or Qatar v. United Arab Emirates at the ICJ).
To allege the responsibility of a state, the mere violation of its obligations under treaties and conventions is sufficient. It does not require material damages.
The court is composed of 15 judges from 15 different countries, elected for nine-year terms. The nomination and election processes are highly diplomatic. The candidates appointed by the states carry out campaigns orchestrated by their diplomatic apparatus. Candidates must provide guarantees of competence and of former high-level appointments. The UN system manages this election with the aim of reaching a fair geographical representation. However, countries with a strong background in international law are rarely absent from this college of judges. The diplomatic pressures and bargaining by powerful states within the UN’s General Assembly and Security Council influence the election of judges and court’s general opinions.
The sources of law taken into consideration are imposed by the statutes. They consist of treaties and conventions, customary international law and general principles of law. When a case is referred to the ICJ, the judges debate the admissibility of the application. Even before examining the formal application, the court verifies that both parties have tried to reach an amicable compromise through negotiations.