Severe shortages in food and medical supplies are increasingly imposing great hardship on Nagorno-Karabakh’s 120,000 ethnic Armenian residents, with provisions depleting quickly and no alleviation anticipated so far. The question that arises is whether a responsibility to end the (current form of) protests and hence alleviate the situation may be uncovered.
The Lachin Corridor – the sole land route connecting the Nagorno-Karabakh region to Armenia and the outside world – has been inaccessible to all civilian and commercial traffic for more than four months now, after having been blockaded by Azerbaijani protesters, allegedly backed by the state’s government. Since 12 December 2022, several dozen Azerbaijani protesters, claiming to be concerned with mining activities in the region, have set up tents along the road and have kept the corridor blocked around the clock, with serious humanitarian consequences for the local population (see here and here). Indeed, the protesters’ blockade has impaired and continues to impair access to vital food sources, medical supplies, and services indispensable for survival of the ethnic Armenian residents of Nagorno-Karabakh (see para 54 of the 22 February 2023 Order of the ICJ in Armenia v Azerbaijan). To this end, it may be argued that the enjoyment of human rights of these people – including, but not limited to, the rights to food and to health, has been and continues to be (severely) restricted.
The right to food, as recognized in article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), provides that food must be available, accessible, and adequate (see here, here and here). This entails, among others, that food supplies should be available in the region of Nagorno-Karabakh; that physical access to food supplies must be guaranteed to all people, including those in remote areas or in situations of armed conflict (depending on the legal assessment of the blockade); and that the food must satisfy dietary needs ‘taking into account the individual’s age, living conditions, health, occupation, sex, etc.’ (here).
The right to health, as stipulated in article 12 of the ICESCR, provides in a similar line of thought that health services, goods and facilities must be available, accessible, acceptable and of good quality (see here and here). Applied here, it means that health services, goods and facilities must be available in sufficient quantity within the region of Nagorno-Karabakh; that they must be physically accessible (e.g. not be restricted to only specific people); that they should be medically and culturally acceptable, including being gender-sensitive (e.g. taking into account maternity needs); and, that they must be of good quality, requiring, among others, unexpired drugs and hospital equipment, adequate sanitation and safe drinking water.
Reports by international NGOs and other organizations (see here, here, here, here, here and here) have highlighted various examples of hardship experienced by Nagorno-Karabakh residents due to the blockade, which in turn suggests that these standards are not being met. Indeed, the blockade has resulted in shortages of basic goods and services for the 120,000 ethnic Armenian residents of Nagorno-Karabakh. Overall, the situation resulting from the blockade of the Lachin Corridor – where medicine and adequate food supplies are lacking and access to health care services and facilities is often deficient, inaccessible or even completely unavailable – indicates a failure to meet the required standards under the ICESCR.
The International Covenant on Economic, Social and Cultural Rights, which provides the legal basis for the respective rights to food and to health, contains no derogation clause. Instead, the Committee on Economic, Social and Cultural Rights has confirmed that the Covenant applies at all times, including times of conflict or general emergency. In this line of thought, the progressively realizable rights to food and health apply unrestrictedly to the situation of the blockade under discussion here.
Under the auspices of the Covenant, duty bearers are under the obligations to respect, protect and fulfil the human rights to food and health. Crucial for the case at hand – the obligation to protect encompasses an obligation on behalf of the jurisdictional State to ensure that Nagorno-Karabakh residents’ access to food, other essential goods, medication and health care services or facilities is not denied by third parties (see here and here). In respect to the Lachin Corridor – blockaded by Azerbaijani protesters for the past four months uninterrupted, and resulting in a situation where medicine and adequate food supplies lack and access to health care services and facilities is often deficient or even entirely unavailable – it may be said that Nagorno-Karabakh residents’ right to protection from interference by third parties has been violated.
A responsibility to alleviate the situation?
Azerbaijan – which claims sovereignty over the territory of Nagorno-Karabakh and which is the home state of the protesters causing the blockade – ratified the ICESCR on 13 August 1992. As a result, the State has accepted to be bound by the respective ESC state obligations. This includes the obligation to respect, the obligation to protect (discussed above and crucial for the case at hand), and the obligation to fulfil the rights to food and health.
Generally speaking, human rights obligations of States are towards individuals who are on their territory or within their jurisdiction. Territorial control and jurisdiction over the Nagorno-Karabakh region has been and continues to be issue of debate by the parties to the conflict. Nagorno-Karabakh was annexed to the Azerbaijani Soviet Socialist Republic as an autonomous region in 1923 and has been home to a predominantly ethnic Armenian population. Lack of clarity on the issue of authority over the region complicates a precise determination as to which state bears primary responsibility over the realization of human rights of Nagorno-Karabakh’s residents. Nevertheless, though authority over Nagorno-Karabakh (whether de jure or de facto) remains an issue of debate, some level of responsibility on behalf of Azerbaijan as to (its ability to alleviate) the situation in Nagorno-Karabakh may be traced, irrespective of this legal determination. In other words, even if it is held that Azerbaijan does not have (effective) control over Nagorno-Karabakh and that without jurisdiction, it is not responsible for the enjoyment of the human rights of Nagorno-Karabakh residents, it is argued here that the State may nevertheless be responsible for failure to provide protection against violations of the population’s human rights by conduct of its citizens.
In the General Comment 14 on the right to health, the Committee on Economic, Social and Cultural Rights states that:
‘To comply with their international obligations in relation to article 12, States parties have to respect the enjoyment of the right to health in other countries, and to prevent third parties from violating the right in other countries, if they are able to influence these third parties by way of legal or political means, in accordance with the Charter of the United Nations and applicable international law.”
A similar approach has been adopted in General Comment 12 on the right to adequate food (see here, para 36). Accordingly, the state obligation to protect extends beyond protection of the enjoyment of human rights of individuals who are under the State’s territorial control or jurisdiction. Instead, it also includes protection of such enjoyment by individuals beyond its authority insofar the State would be able to prevent third parties from interfering with this enjoyment – giving rise to some level of extraterritorial obligation to protect.
Given that the protesters are Azerbaijani civilians, it is submitted that Azerbaijan would be able to prevent them from continuing the blockade of the Corridor, and as such protect the residents of Nagorno-Karabakh against further violations of their human rights by third parties. Accordingly, it may be argued that Azerbaijan is under an obligation to take all measures at its disposal to end (the current form of) the protests by its citizens which have violated and continue to violate the respective rights of the ethnic Armenian residents of Nagorno-Karabakh.
Further, the 2020 Trilateral Statement, signed by the president of the Republic of Azerbaijan, the prime minister of the Republic of Armenia as well as the president of the Russian Federation, stipulates that ‘the Republic of Azerbaijan shall guarantee the safety of citizens, vehicles and goods traveling along the Lachin corridor in both directions’, while ‘the Lachin corridor […] shall remain under the control of the Russian Federation’s peacekeeping contingent’ (see here, here and here). Though pointing to a separation of duties and responsibilities between Azerbaijan and the Russian peacekeepers, the Trilateral Statement demonstrates (acceptance of) an obligation on behalf of the Republic of Azerbaijan to ensure safe passage of persons as well as goods along the Lachin Corridor. It points to the State’s potential of exercising (some level of) control over the Corridor.
The International Court of Justice (ICJ) also seems to point in the direction that the potential of ending the blockade by Azerbaijani nationals lies with the State of Azerbaijan. Without making any statements as to the merits of the case between Armenia and Azerbaijan on breaches of CERD, the Court concluded in its decision as recent as 22 February 2023 that the conditions for the indication of provisional measures were met (see para 58 of the Court’s Order in Armenia v Azerbaijan). It held that there exists a real and imminent risk that irreparable prejudice, created by the disruption in movement along the Lachin Corridor, will be caused before the Court makes a final decision in the case. To avoid such irreparable harm, the International Court of Justice indicated the provisional measure that Azerbaijan must ‘[…] take all measures at its disposal to ensure unimpeded movement of persons, vehicles and cargo along the Lachin Corridor in both directions’ (see para 62 of the Order). As such, the ICJ Order adds further support to the argument that the State of Azerbaijan would be able to influence the protesters to end (the current form of) the protests.
To conclude, the fact that the protests, causing the blockade, have been ongoing uninterruptedly since 12 December 2022, implies that the State of Azerbaijan does not comply with its obligations under the ICESCR, the Trilateral Statement, nor the Order of the ICJ. Put differently, by not taking measures to end the blockade of the Lachin Corridor by Azerbaijani nationals, Azerbaijan is violating, among others, the right to health and the right to food of the residents of Nagorno-Karabakh, and fails to fulfill its obligations under public international law more broadly.
To date, the Lachin Corridor remains closed.