Strasbourg Observers

Catch 22: The Interim Measures of the European Court of Human Rights in the Conflict between Armenia and Azerbaijan

October 09, 2020

By Prof Kanstantsin Dzehtsiarou (University of Liverpool, Editor-in-chief of the European Convention on Human Rights Law Review)

On 29 September 2020, the European Court of Human Rights (ECtHR or Court) granted interim measures in the inter-state application of Armenia against Azerbaijan related to the conflict in Nagorno-Karabakh. Through these measures the Court demanded Armenia and Azerbaijan not to breach human rights of the civilian population. On 6 October 2020, the Court extended the already broad interim measures to ‘all States directly or indirectly  involved in  the conflict, including Turkey, to refrain from actions  that  contribute to breaches of the  Convention rights of civilians, and to respect their obligations under the Convention’. It was at least the third time that the Court granted such measures in the context of the inter-state cases. Interim measures were also requested and granted in Georgia v Russia and Ukraine v Russia. I commented on the effectiveness of these measures in previous interstate cases here and here. Unfortunately, the current case provides further evidence that the Court’s interim measures in inter-state cases suffer from two key challenges: first, they are vague and their legal value is unclear; second, their impact almost entirely depends on the political reality on the ground. One can argue that the latter challenge can be applicable to every decision of the Court but when interim measures are issued in “the heat of the moment”, the costs of compliance for the parties can be too high.

The parties are thus more likely to disobey and the authority and reputation of the Court may suffer as a result. At the same time the Court cannot stop granting these interim measures for two reasons. First, it has done so in the past and there is no good justification to stop now. Moreover, such departure might undermine the coherence of the Court’s case law. Second, the fact that the Court did not grant interim measures also would have meant something. A populist argument might have been presented that, since the Court had not granted interim measures, all actions of the states involved were justifiable. Of course, this argument is incorrect but this implicit message can be received by the parties involved. So, the ECtHR is in the catch 22 situation – it suffers reputational losses for lack of impact and at the same time it cannot avoid granting interim measures because it has mistakenly (I would argue) used interim measures in similar situations in the past. In this short blog post I am not going to discuss the context of the case between Armenia and Azerbaijan and the details of the interim measure, it was helpfully done in blog posts here and here but I will deal with the issue of effectiveness of interim measures in  inter-state cases. I need to make an important clarification here: of course, if interim measures were able to stop hostilities, no reason would be good enough to omit using them. However, as we see the hostilities between Armenia and Azerbaijan are still ongoing and it seems that the interim measures of the ECtHR hardly had any impact on the situation.

Legal value

Arguably, the effectiveness of interim measures rests on two important factors. First, interim measures are used relatively rarely and only in situations in which irreparable harm can be caused by the actions of the state. Evidently, in the conflict over Nagorno-Karabakh this condition is satisfied. There are plenty of victims already and the hostilities continue. However, the second condition is that the interim measures are clearly identifiable and the authorities know what exactly they need to do and these actions will not cause excessive financial and political burden. This condition is lacking in the interim measures adopted by the ECtHR in inter-state cases.

What we know from a very concise press release of the Court is that it has requested both parties “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”. It is clear from the text is that the ECtHR has effectively reminded both Armenia and Azerbaijan that the Convention needs to be complied with. Later the Court extended its call to every state that can be directly or indirectly involved in the conflict. In previous inter-state cases the Court also used interim measures as a reminder of the general obligations under the European Convention on Human Rights. However, interim measures are not just reminders, they need to have a clear scope and the Court then can demand the parties to comply with such precise interim measures. At any point of time, after ratification, the Contracting Parties are under the obligation to comply with the Convention, including the rights under Articles 2 and 3. The Court does not need to remind the parties about it through its interim measures. It creates an incorrect impression that Articles 2 and 3 need to be observed only when interim measures are granted by the Court. Such measures must have a clear added value to what is already known from the text of the Convention and the case law of the ECtHR.


Isabella Risini has recently argued that ‘it would be much worse if the Court remained silent when approached by a ECHR member state regarding the outbreak of hostilities and the loss of human life. The Court does not have the choice of which cases come before it’. Indeed, the Court does not have a choice which cases come before it but it clearly has discretion as to what it can do with these cases. It is the role of the political bodies to remind the Contracting Parties about their human rights obligations. The Court’s role is to demand clearly identified actions. The Court needs to be very careful with any broadening of the scope of application of interim measures. Arguably, the Court erred when it granted interim measures in the previous inter-state cases and in Armenia v Azerbaijan, the Chamber of the Court had no other option but to grant new interim measures in a similar situation.

In certain situations, the formula that it is “much worse to remain silent” might not be true because the constraints of the judicial role of the Court demand so. The Court’s role is to review the situation from the perspective of the Convention. It should not produce political statements of general application. It is not the role of the Court to state that the Contracting Parties must comply with the rights enshrined in the Convention. They already made this statement when they joined the Convention. When a party to the Convention knowingly starts a military operation, there is no illusion that it is not going to violate human rights. Although, stating the obvious is often useful, I would argue that such statements need to come from the political branches of the Council of Europe. This does not mean that their statements would be more or less effective than interim measures of the ECtHR, but simply that these statements are more suitable to the role of political bodies. Finally, these interim measures and the presence of the inter-state application might significantly delay individual redress from the Court as has been pointed out recently and cause other technical difficulties. Often the Court deals with the inter-state case first while freezing all individual applications related to the conflict. The Court will also need to decide when the measures are removed and whether these were complied with or not.


The Court is stuck: interim measures in inter-state applications are vague and not effective but it has to grant them because otherwise it creates a wrong impression of legality of state actions and undermines the coherence of its case law because they were granted previously. I would suggest a solution to this vicious circle: The Court could amend the Rules of Court by which the Court would only be competent to grant interim measures in the cases where victims and requested actions are clearly identifiable. Alternatively, a new protocol could be adopted that would elevate interim measures to the text of the Convention and restrict their use to clearly identifiable cases of irreparable harm. This idea was mooted a number of times but I would argue that it is important to revisit it. Such addition to the text of the Convention would add legitimacy and clarity to the Court’s decisions in this area.

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  • I’m not qualified to weigh in but found your article interesting. In general, I think that taking a stance against violence, even though it may be seen as impotent, is still worth doing.

  • Piers Gardner says:

    The generalised extension of the interim measures indication on 6 October 2020 to States ‘directly or indirectly’ involved in the conflict underlines your point and the inappropriateness of applying Rule 39. According to Rule 39(1) in granting interim measures the Court should ‘indicate to the parties any interim measure which they consider should be adopted in the interests of the parties or of the proper conduct of the proceedings’. However, the ‘parties’ are the parties to the inter State case, not all the State parties to the Convention. The ‘interim’ nature of relief under Rule 39 is supposed to prevent irreversible harm while the Court assesses the case, which inevitably takes time. In a case brought by State A against State AB, there will not be a stage in the proceedings when the compliance or otherwise of third States with an interim measure can properly be assessed. Nor with those third States be parties to either plead in or be bound by the ultimate judgment of the Court.

    Separately, I cannot agree that it would be wise to allow the further formalisation of Rule 39 by amendment of the Convention. The binding character of interim measures under Rule 39 took many years even for the Court to acknowledge and longer for States to accept. The Court should pause before granting interim measures in inter State cases, which is a measure of self-restraint which it could and should adopt itself. This would be an extension of the existing doctrine that there are various fields in which, even where severe violations of the Convention could be prevented, the Court regards Rule 39 as of no application, such as where the ‘irreversible harm’ can be compensated financially. Inviting the States Party to amend Rule 39 may produce some unexpected and unwelcome restrictions of one of the substantial achievements of the Convention system in practice.

  • Lize Glas says:

    I think it’s important to note that the second decision was not registered under the Armenia v. Azerbaijan case, but under another inter-state case, that of Armenia v. Turkey. This will not change your arguments, but it does clarify why Turkey was mentioned explicitly in the second interim measure.

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