Inter-State Cases under icerd as an Avenue to Protect Cultural Heritage

Abstract

The most recent applications before the International Court of Justice (icj) under Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination (icerd), Armenia v. Azerbaijan and Azerbaijan v. Armenia, both claim that the destruction of cultural heritage during the Nagorno-Karabakh conflict constitutes a violation of the Convention. The applications have met with enthusiasm that icerd offers a potential new avenue for the protection of cultural heritage, as well as scepticism as to whether these claims fall within the scope of the treaty. Armenia and Azerbaijan bypassed the inter-State communications mechanism under Articles 11–13 before the Committee on the Elimination of Racial Discrimination (cerd), as they are legally entitled to do. But the cerd perspective remains important. First, the Articles 11–13 mechanism is available in relation to 182 States Parties, whereas due to reservations, the Article 22 mechanism is available only in relation to 157 States Parties. Second, cerd practice in relation to cultural heritage ought to inform the determination of the Court. This article investigates the cerd approach to the protection of cultural heritage. It draws in related questions such as whether religious cultural heritage comes under a treaty on racial discrimination; the applicability of these protections in situations of armed conflict; and icerd’s relationship with other specialised instruments. It offers conclusions as to what extent an avenue for the protection of cultural heritage under icerd exists before the Committee and the Court.