This article examines whether the destruction or desecration of cultural heritage can amount to racial discrimination under the International Convention on the Elimination of All Forms of Racial Discrimination, focusing on the provisional measures order issued by the International Court of Justice in the case between Armenia and Azerbaijan.

The post presents competing legal arguments: one side supporting the ICJ’s intervention to protect Armenian heritage, and the other questioning whether CERD is the correct legal framework.

Background: Armenia v Azerbaijan

The dispute arose after renewed hostilities between Armenia and Azerbaijan in and around the Nagorno-Karabakh.

Armenia alleged that Azerbaijan had damaged, erased, or desecrated Armenian churches, cemeteries, monuments, and other historic sites.

Armenia sought provisional measures from the ICJ requiring Azerbaijan to protect this heritage while the case proceeds.

The Argument Supporting Armenia

According to the article, Armenia’s position can be summarized as follows:

1. Destruction of Armenian Heritage Targets a Protected Group

Because the cultural sites are associated with persons of Armenian national or ethnic origin, their destruction may prevent Armenians from accessing and enjoying their heritage on equal terms.

Thus, the conduct may fall within CERD protections.

2. CERD Articles Potentially Engaged

The article refers to:

• Article 2 – obligation to eliminate racial discrimination

• Article 5(d)(vii) – freedom-related protections

• Article 5(e)(vi) – participation in cultural activities

Under this reasoning, destruction of Armenian heritage may interfere with equal enjoyment of cultural life.

3. Plausible Rights Standard Met

At the provisional measures stage, the ICJ does not decide the merits. It only asks whether claimed rights are plausible.

The article notes the Court found Armenia had plausible rights under CERD based on a possible interpretation of the Convention.

4. Urgency and Irreparable Harm

Damage to heritage sites can be permanent.

The Court therefore ordered Azerbaijan to:

take all necessary measures to prevent and punish acts of vandalism and desecration affecting Armenian cultural heritage.

This included churches, monuments, cemeteries, landmarks, and artefacts.

The Counter-Argument Critiquing the Order

The article then sets out objections to using CERD in this context.

1. Monuments Are Not Human Rights Holders

CERD protects the rights of persons and groups, not objects.

Buildings, artefacts, and monuments themselves cannot be racially discriminated against.

Therefore, critics argue the legal connection is indirect.

2. Cultural Participation Is Not a Stand-Alone CERD Right

The author argues that interference with cultural life only engages CERD if it occurs because of racial discrimination.

The ICJ order, in this view, did not sufficiently explain how the alleged desecration was racially discriminatory rather than politically or militarily motivated.

3. Religious vs Racial Discrimination

Many targeted sites were churches or places of worship.

The article argues that attacks on religious heritage may involve religious discrimination, which is conceptually distinct from racial discrimination.

If so, CERD may not be the appropriate treaty basis.

4. Better Covered by International Humanitarian Law

The protection of cultural and religious property during armed conflict is traditionally governed by:

• Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict

• customary international humanitarian law

• law of armed conflict rules protecting civilian cultural objects

Thus, critics say humanitarian law may be more suitable than CERD.

Criticism of the ICJ’s Reliance on Prior Case Law

The article questions the Court’s reference to the Temple of Preah Vihear case.

In that case, the ICJ had broader jurisdiction, allowing it to directly consider cultural heritage obligations.

By contrast, in Armenia v Azerbaijan, the Court’s jurisdiction was based specifically on CERD.

Therefore, critics argue the precedent may not neatly apply.

Broader Legal Significance

This dispute highlights a growing question in international law:

Can attacks on cultural heritage also be understood as attacks on the identity of a people?

If yes, destruction of monuments may implicate anti-discrimination law when linked to ethnic exclusion or erasure.

If no, such conduct should remain primarily governed by armed conflict law and heritage protection treaties.

Conclusion

Fahrid Chishty’s article captures an important tension in international law.

The ICJ appeared willing to interpret CERD broadly enough to protect endangered Armenian heritage where ethnic identity is closely tied to cultural sites.

But critics worry this stretches CERD beyond its intended scope and blurs distinctions between:

• racial discrimination

• religious discrimination

• wartime cultural destruction

• heritage protection law

The case therefore raises a major doctrinal question: when does destruction of culture become discrimination against a people?