by Eleni Giannakou, Member of the International Law Research Team

Conflict does not belong in the past. More or less «heated» incidents disrupt the «frozen» situation between states («frozen conflict»). The disturbed regularity causes embarrassment and concern. A recent example, the Armenia-Azerbaijan conflict in Nagorno-Karabakh, resulted in the deaths of soldiers from both countries and rekindled legal disputes in the Western world.

This paper analyses the conflict through the prism of human rights. The purpose is to evaluate the effectiveness of the protection of human rights during armed conflicts by the European Court of Human Rights (ECtHR), with the European Convention on Human Rights as a legal vehicle. Human rights can be seen as legal tools and used as the guarantee for those directly affected by the conflict. 

For better or for worse, the norm is that the judicial review happens post factum and handles the outcomes of human rights’ violations. Of course, it all boils down to the Convention, which is a “living instrument” that offers the definitions, sets the boundaries and poses the basis on which the Court presents some remedial redress to breaches that have already happened (Dzehtsiarou, 2016). 

The starting point is the Request of Armenia before the ECtHR for interim measures with respect to Azerbaijan, in accordance with Article 39 of the Rules of the Court. When the Court accepts an appeal, it may require that one or more states take certain urgent measures, provisionally, pending consideration of the case. Interim measures are granted by the Court only under clearly defined conditions, in particular when there is a risk that serious breaches of the Convention will occur. In this case, on the September 28th, 2020, and after the reignition of the conflict regarding the region of Nagorno-Karabakh, Armenia lodged the request for interim measures  against Azerbaijan and indeed one day later, the ECtHR agreed to apply Rule 39. 

The Court’s decision did not come in a legal vein and in order to better understand that we must remember previous cases concerning these countries, relevant to the issue. We must recall the Chiragov v Armenia case, which concerned the complaints of six Azerbaijani refugees, who were unable to return to their homes and properties in the district of Lachin, in Azerbaijan, from where they had been forced to flee in 1992 during the Armenian-Azerbaijani conflict over Nagorno-Karabakh. The Court ruled that there were continuing violations of Article 1 of Protocol No. 1 to the Convention (protection of property), Article 8 (right to respect for private and family life) and Article 13 (right to an effective remedy). The case is interesting since the Court confirmed that Armenia exercised effective control over Nagorno-Karabakh and the surrounding territories and, thus, had jurisdiction over the district of Lachin. 

Similarly, the same continuing violations were identified in the Sargsyan v Azerbaijan case, where the Court ruled that the applicant, an Armenian refugee, had been denied the right to return to his village and access his property after having been forced to flee from his home during the same conflict. Although again, the village was located in a disputed area (Shahumyan region), the Court confirmed that Azerbaijan had jurisdiction over it.

The latter case was the first in which the Court decided on a complaint against a State (Azerbaijan), which had lost control over part of its territory as a result of war and occupation. Nevertheless, the area was disputed, Azerbaijan was found to be responsible for refusing a displaced person access to his property. Likewise, in the Chiragov v Armenia case,, the Court ruled that Armenia exercised effective control over Nagorno-Karabakh and the surrounding territories and, thus, exercised (extraterritorial) jurisdiction in terms of Article 1 ECHR. The reasons we discuss these cases root in our fact that the Court confirmed that both countries exercised effective control (over the same disputed area) as a necessary condition to hold them responsible, hence to protect human rights of both Armenian and Azerbaijani people.

The initial international response was aiming to a peace agreement, seeking for immediate ceasefire. The UN Secretary-General also called for a de-escalation via inviting the parties to end the fighting and to “refrain from provocative rhetorics.” (UNSG Statement, 2020). In a statement on October 1st, the Secretary General of the Council of Europe, Marija Pejčinović-Burić, implored “all sides of the conflict to immediately cease hostilities and implement without delay the interim measures decided by the European Court of Human Rights”. 

In the same direction, the ECtHR called both Azerbaijan and Armenia “to refrain from taking any measures, in particular military action, which might entail breaches of the Convention rights of the civilian population, including putting their life and health at risk, and to comply with their engagements under the Convention, notably in respect of Article 2 (right to life) and Article 3 (prohibition of torture and inhuman or degrading treatment or punishment) of the Convention.” (The Court grants an interim measure in the case of Armenia v. Azerbaijan). Furthermore, the Court urged both countries to inform it, as soon as possible, of the measures taken to comply with their obligations,  as per Rule 39§3 of the Rules of the Court. 

On these grounds, and given the absence of any reference by any international actor to the Security Council Resolution 2532 (July 1st, 2020), which encouraged a global ceasefire, we should evaluate the value of such provisional measures issued by the ECtHR. Although interim measures are relatively rare in interstate cases, recently, there has been an increase of such requests, for instance in relation to the conflicts in Ukraine and the Caucasus. Our present analysis will go beyond the pros and cons of these measures, aspiring to imagine how international mechanisms could effectively secure human rights. 

Taking a step back, we should remark that compared to some 750,000 individual applications, States have referred less than 30 times to the Court for interstate disputes. This is not to undermine their importance, since inter-State applications affect a very wide scope of individuals at the same time. We argue that inter-state applications shape the architecture of global equilibrium and the Convention per se. We should evaluate the present situation.  

The -then- President of the Court, L.A. Sicilianos, in his message for the 60th anniversary of the Court, recognized the challenges the latter faces with State to State litigation: the Court bears the burden to protect numerous individuals and their human rights and resolve the dispute brought before it. It has been stressed that inter-State cases induce crucial substantive and procedural issues. It is a multi-layered issue on which we may expand now, but it is argued that although the “jurisdiction and admissibility, multi-forum litigation, (…) overlap of individual and inter-State cases, fact-finding proceedings” problems (Ulfstein, Risini, 2020), the increased number of inter-State applications is a positive development for the successful protection of human rights. It should be underlined that the fact that no inter-State application has failed to overcome the admissibility stage, thus all these cases which bear claims on the grounds of  human rights treaties have been examined by the Court. 

Nevertheless, before the possible ameliorations that may occur based on the Court’s proposals for a more efficient procedure in inter-State cases and the draft report of the Steering Committee for Human Rights (CDDH), which will be submitted in Spring 2021, we should examine its current techniques.   

Back in September 2014, the Registrar of the ECtHR voiced the opinion on the Steering Committee for Human Rights that ‘the Court is (…) not equipped to deal with large scale abuses of human rights. It cannot settle war-like conflicts between States.’. However, he added that the Court is gradually founding itself in the place of adjudicating on such situations. If we focus on cases like Sargsyan v Azerbaijan and Chiragov v Armenia, has the European Court set foot into the area of international conflict resolution -and if so, successfully?

Both judgments concern the consequences of an unsolved problem. It is a problem that political disputes could not -so far- tackle. The Azerbaijani or Armenian displaced families, refugees or internally-displaced persons (IDPs) turned to the Court, after peace negotiations supported by the OSCE ‘Minsk Group’ had bear little fruit. Hence, the Court was addressed and faced a vital challenge: judges had to confront the uncompromising position of both governments, working in the context of already failed settlement negotiations and concluding in legally important positions with political implications as well. 

The Court then underlined in its ruling the significance of establishing a property claims mechanism, for which it gave a delay in order to re-discuss when States would have returned with proposals on redress. Thus, the Court provided with renewed momentum the resolution of the ‘frozen conflict’ (Leach, 2015). Today, in the interim measures phase, the critic to the Court has been harsher. The reason lies in the absence of legal obligations on Armenia and Azerbaijan. The Court, rather than imposing specific commitments, highlighted pre-existing and already established treaty obligations. Is it meaningful to ask from States-parties to the conflict not to breach human rights of the civilian population?

It goes without saying that both governments know their duties, since they have agreed on the ECHR. Moreover, it is obvious that during armed conflicts human rights are violated. The error of the Court is not spotted in choosing to implement interim measures. The core issue is the content of such  measures. Interim measures remain a sharp light of hope for Human Rights Law, during dark times, like war. Their regulatory preventive weight is grand. But then again, simple reminders are lacking value. 

In the midst of an escalating controversy, the Court applied Rule 39, urging all States directly or indirectly involved (see Turkey) in the conflict to abstain from actions that cause human right infringements. Of course, we cannot expect from the Court to stop a decades’ long-rooted war. On the other hand, we cannot lower our expectations that much so as to quiet the other long-lasting fight: the one for justice. The Court bears the burden not only to avoid staying silent while human rights are violated, but also to voice rulings that are profound and do not undermine its reputation, on the contrary actually contribute to the ongoing reality. Human lives are lost in Nagorno-Karabakh and a case appeared in front of the Court. The Court had to act, without that meaning that it would end the conflict. Far away from the battles, in Strasbourg, there is hope and power to limit and avoid further human rights’ violations. The world is listening to the Court and its press releases influence the world. For that influence to continue thriving, the Court must embark on the venture of not just repeating itself, but enriching the dialogue. 

The Court, by imposing the interim measures, is in a position for continuous supervision, which is also boosted from the fact that the Court will decide when the measures will be removed and whether these were fulfilled or not. Thus, this procedure stands as a guarantee. 

We, as observers, remain to underline the deficits of interim measures, which -as all binding measures- have to be undoubtedly identifiable, with the purpose of providing authorities with exact and just obligations. The measures’ specificity endorses human rights protection, as they offer supplemented precise charge to the States, beyond the general declarations of human rights respect, which they have already signed. The added value would permit a specialized review of the situation from the lens of the Convention, but particular to the current conflict. 

We also have to take into consideration that interim measures, as well as the presence of the inter-State application, could be a reason for considerable delay on individual redress. This is pointed out, because the Court often freezes related individual applications, as long as it deals with the inter-State case. As a result, individual claims should be balanced with provisional measures that pass the implicit message that human right breaches are always unjustifiable (Dzehtsiarou, 2020). As already explained, interim measures are used rarely, only in situations in which irreparable harm can be caused by the actions of the state(s). It seems that the conflict over Nagorno-Karabakh creates such a condition.. 

Nonetheless, these measures may not be fruitful. Some claim that during circumstances of intense hostility, the compliance is subject to the political reality. In other words, during warfare, governments may value their political acceptance within their country higher (national pride and protection of territorial integrity), rather than their international compliance. The conflict in Nagorno-Karabakh was no longer “frozen” when the Court issued the decision of measures, thus in «“the heat of the moment”, the costs of compliance for the parties can be too high» (Dzehtsiarou,      2020). Disobeying the Court is not the necessary flow of events. Disobedience is more likely, the vaguer the measures are, given that governments have more to lose if the scope of the measures is broad. In addition, a very wide scope may create the fear that the Contracting Party can be charged of violating them even if it tried not to. As a result, the Contracting Party may come to the conclusion that it gains very little from its attempts to comply. Accordingly, vague measures make noncompliance more beneficial for the state, especially if compliance creates an unfair advantage in favour of the non-compliant party (Dzehtsiarou, 2016). In this case, governments will weigh the costs. Besides, bearing in mind the numerous interim measures about the conflicts in Ukraine and the Caucasus, we conclude that States have a scarce record of complying with interim measures (Kushtrim Istrefi, Antoine Buyse, 2020). Apart from the obvious, the hampering to protect human rights, defiance of interim measures would possibly harm the authority and reputation of the Court (Dzehtsiarou, 2020).

Additionally, beyond deliberate insolence from the States, interim measures of a general character do not provide well-defined instructions and can lead to further litigation, especially since the Court does not explain the rationale behind these measures (Dzehtsiarou, 2016). 

To put it in a nutshell, the more general the measures, the more open to misinterpretation, the more exposed to disobedience and less possible to provide solutions, resulting in damaging the legitimacy of the ECtHR. The Court’s power to offer solutions issuing interim measures is determined by the clarity of the list of acts or omissions that the Contracting Party to which they are addressed has to accomplish. Otherwise, the Court weakens not only its position, but also its efficacy, thus it weakens the protection of human rights, since it merely reminds the Contracting Parties that they have an obligation under the Convention, a reminder that could be read as a simple suggestion, implying that “the Court presumes that this obligation might be violated, otherwise this reminder would not be needed” (Dzehtsiarou, 2016).

Reaching our final remarks, we underline that the reason why the ECtHR hardly had any impact on the situation regarding Nagorno-Karabakh, is its elusive reminder, not the measures as a legal choice per se. Besides, issuing interim measures in similar conflicts is a recent Court’s strategy and abandoning that would undermine the coherence of the Court’s case law. An amendment of the Rules of the Court has been suggested in order to limit granting interim measures only “in the cases where victims and requested actions are clearly identifiable” (Dzehtsiarou, 2020). Seeing that we are far from this idea, we could be inspired from the successful use of interim measures in individual cases. Namely, the measures should be precise and unambiguous, specifying the conduct required and the Contracting Party should have the maximum control on the execution of the measure. This way the one Party will be prevented from blaming the other for any violations of general interim measures or from being the “bad example” so as  the other State feel excused for violating as well (Dzehtsiarou, 2016). The challenge is finding the balance between losing the support of the Contracting Parties to the Convention and the threat of neglecting actual and active protection of human rights. The balance is found in interim measures that do create new legal obligations, as supposed to, and the States have in mind that noncompliance with them is a violation of this new obligation. 

The political branches of the Council of Europe could emphasise obligations ringing a bell with general statements, but the Court can do better than strengthening the memory of the Contracting Parties. The few and valuable inter-State applications offer the possibility of endorsing the core aims of the Court and the Convention via maintaining the peace and preventing human rights’ violations. Some claim “that the Court has failed in achieving these «original» purposes, while being quite successful in offering redress to victims of human rights violations in individual cases” (Dzehtsiarou, 2016), but there are no grounds to conclude to such an absolute failure. If the ECtHR recognises its role in crisis management on a large scale, the legal tools and experience are available. These tools have not been used to their full potential yet, but could be. A positive precedent on the subject of long-standing intense political disputes, where the Court contributed creatively to  resolving claims, such as property right claims, is inspiring (Xenides-Arestis v Turkey,  Demopoulos v Turkey, Broniowski v Poland,  Maria Atanasiu And Others v. RomaniaCase Of Driza V. Albania,Cordino V. Italy, Sarica and Dilaver v Turkey, Yetiş v Turkey).

It all boils down to the Court reconsidering or not its approach to interim measures in inter-State complaints. The legitimacy of the Court is not to be weakened, as human rights protection depends on it. Therefore, within its boundaries, the Court has to defend its core values and find the way between “too much and not enough interference” (Dzehtsiarou, 2016).

In the case regarding Nagorno-Karabakh the Court had stressed the inadequacy of both States’ stances towards the settlement negotiations and the fact that peace on-going and long-lasting negotiations did not release the two Governments from their obligation to take other measures. In these cases, the Court directed the Governments’ attention towards international standards on property rights (notably the UN Pinheiro Principles) (Leach, 2015). However, it is another question how these decisions lead to tangible change. Then again, the Nagorno-Karabakh provides an opportunity for the international community to agree on resolutions, issue statements and conclude in judgments that will ensure that victims of conflict, including numerous refugees and IDPs, can receive redress. For some there is no hope, 2,783Arzebajanis are dead and 1,245 are undergoing medical treatment, while the dead Armenian soldiers amount to 2,718. The Court has to guarantee that violation of the European Convention will not continue. The interim measures were just the beginning. It does not stand alone, as the Council of Europe is in a position to pursue the interests of the individual victims, detached from the political implications that arise in the OSCE Minsk Group. If there is political will and legal determination, human rights can be protected.

Academic articles

Dzehtsiarou, K. (2016). Can the European Court of Human Rights prevent war? Interim measures in inter-state cases. Westlaw.UK. Available here.

Dzehtsiarou, K. (2020, October 9th). The Interim Measures of the European Court of Human Rights in the Conflict between Armenia and Azerbaijan. Retrieved from STRASBOURG OBSERVERS: Available here.

Emtseva, J. (2020, August 6th). “Stop quarantine, start war” The legality of the use of force in Nagorno-Karabakh. Retrieved from Völkerrechtsblog/International public law and international legal thought. Available here.

Kushtrim Istrefi, Antoine Buyse. (2020, October 7). Strasbourg Court issues interim measures against Turkey regarding the Nagorno-Karabakh conflict. Retrieved from ECHR Blog. Available here.

Leach, P. (2015, July 6). Thawing the Frozen Conflict? The European Court’s Nagorno-Karabakh Judgments. Retrieved from EJIL:Talk! Blog of the European Journal of International Law. Available here.

Risini, I. (2020, October 1st). Armenia v Azerbaijan before the European Court of Human Rights. Retrieved from EJIL:Talk! Available here.

Ulfstein, Risini. (2020, January 24th). Inter-State Applications under the European Convention on Human Rights: Strengths and Challenges. Retrieved from EJIL:Talk! Available here.

Legal texts

ECONOMIC, SOCIAL AND CULTURAL RIGHTS, Principles on Housing and Property Restitution for Refugees and Displaced Persons (the Pinheiro Principles), UN Sub-Commission on the Promotion and Protection of Human Rights, June 2005. Available here.

Deadly Exchanges of Fire along Armenia-Azerbaijan Border. Available here.

Resolution 2532 (2020), adopted by the Security Council on 1 July 2020. Available here.

Rules of the European Court of Human Rights. Available here.

Sicilianos A. The European Court of Human Rights marks 60 years of work for peace, democracy, and tolerance. Available here.

Statement by the Co-Chairs of the OSCE Minsk Group (2/10/ 2020). Available here.

STEERING COMMITTEE FOR HUMAN RIGHTS (CDDH)  Proposals for a more efficient processing of inter-State cases. Available here.

The Court grants an interim measure in the case of Armenia v. Azerbaijan. Available here.

UN Secretary-General António Guterres: Request for interim measures lodged by Armenia against Azerbaijan. Available here.





CASE OF DRIZA v. ALBANIA. Available here.