Karabakh is Azerbaijan and the Armenian Constitution Contemplations with Orkhan Amashov

Although it is certain that Armenia will eventually need to ditch “the Miatsum Clause” embedded in its 1990 Declaration of Independence, the question is how consequential an obstacle this provision is on the boulder-strewn path to the peace deal that Yerevan needs to conclude with Baku. Orkhan Amashov looks into this thorny issue in his latest ‘Contemplations’.

Armenia’s existing constitutional order contains a chain of references cumulatively amounting to territorial pretensions against Azerbaijan. This is of some considerable concern in light of a prospective peace deal to be signed between these two nations, which will entail, inter alia, basic principles such as, “the mutual recognition of respect for the sovereignty and territorial integrity” at its core.

Although, at present, there is a certain amount of uncertainty regarding the exact imminent status of a future peace agreement, and as to legal instruments by virtue of which it will eventually assume a legally-binding character, the question is that once the document in question needs to be approved by Armenia’s Constitutional Court before being submitted to the parliament for ratification, assuming such a procedure will be necessary, could the Court refuse to validate this treaty on the basis of its presumed incompatibility with Armenia’s Constitution, causing a ‘crisis’.

The preamble of the current effective Armenian constitution refers to “the fundamental principles of Armenian statehood and pan-national aspirations enshrined in the Declaration on the Independence of Armenia”, dated 23 August 1990. This refers to what it describes as “the joint Resolution of the Supreme Council of the Armenian Soviet Socialist Republic and National Council of Nagorno-Karabakh of 1 December 1989”. Article 15 of this Declaration, self-ascribes itself as an act forming “the basis for development of the Constitution of the Republic of Armenia, modification and amendments in the existing Constitution, activities of state bodies, and development of the new legislation of the Republic.”

The fundamental flaw in this construct is that it is rooted in that which has never had any legitimacy, despite touted as such by Armenia for decades. For the sake of absolute clarity, it is vital to recall that what the 1990 Declaration refers to as “the joint resolution” of 1989 was, in fact, a unilateral illegal decision by the Supreme Council of Armenia SSR “on the unification of Armenia SSR and the-then Nagorno-Karabakh Autonomous Oblast”, in other words, an act of an unlawful incorporation of one Soviet republic’s autonomous oblast by another, in contravention of the Constitution of Azerbaijan SSR, the existing Soviet constitutional-administrative law, in general, and international law.

When, on 20 February 1988, the deputies of Armenian origin from the Nagorno-Karabakh Council of People’s Deputies appealed to cede the Nagorno-Karabakh Autonomous Oblast from Azerbaijan SSR to Armenia, this was rejected both by the Supreme Council of Azerbaijan SSR and the Supreme Council of the USSR.

In line with Article 78 of the Soviet Constitution of 1977, the territory of a Soviet Republic could not be altered without its consent, and the borders between Union Republics could only be redrawn by mutual agreement of the republics concerned, subject to approval by the higher legislative bodies of the USSR. The self-same provision was also stipulated in the Constitutions of Azerbaijan SSR and Armenia SSR.

As to the decision of the Supreme Council of Armenia on the incorporation of the then-Nagorno-Karabakh into Armenia on 1 December 1989, in addition to being groundless in the eyes of law, in principle, it was also declared as illegal by the Supreme Council of the USSR on 10 January 1990.

One may ask why on earth I have decided to engage in this somewhat painstaking examination of the 1989 decision, for it was illegal ab initio, with no mere shred of legitimacy.

The point is that Armenia, for many years, has built its territorial pretensions, amongst other instruments, on the basis of this very act and, furthermore, this has long been declared as part of its constitutional legislation, being included in the 1990 declaration as a focal reference point.

Consequently, the judges of Armenia’s Constitutional Court may now, in light of Yerevan’s expressly declared commitment to recognising Azerbaijan’s territorial integrity, interpret the chain of references, linking the modern Constitution with the 1989 decision, as being ineffective and broken. This is a viable exit clause if such a question, in fact, emerges.

Nevertheless, beyond the exigencies enveloping the prospective peace deal between Baku and Yerevan, Armenia will be obliged to make the necessary amendments to its legal order sooner or later, removing all elements amounting to territorial pretensions against Azerbaijan. This could be undertaken either prior to signing a peace treaty with Azerbaijan to avoid an unnecessary, but unlikely, ‘drama’ at the Constitutional Court which will need to approve the prospective deal before it goes to the parliament for ratification, or after a peace deal by ushering in the Fourth Armenian Republic on the basis of a new carefully-worded constitutional identity.

Under international law, “a State cannot justify its failure to perform its obligations under a treaty because of any provisions or omissions in its municipal law, or because of any special features in its governmental organisation or its constitutional system.” Consequently, once Armenia signs a peace treaty with Azerbaijan, and that treaty comes into force, Yerevan will no longer be able to refer to its domestic legislation to obviate its international legal obligations, even if no change is made to those domestic laws amounting to territorial claims towards Azerbaijan.

It is not entirely unthinkable - in fact, it is increasingly probable - that Azerbaijan, in view of the revanchist sentiments prevailing in Armenian society and amongst some of its chattering political circles and, in the context of the talk of creating “a government-in-exile” by the separatists, may demand that Yerevan should not merely take robust measures against these forces, but also amend its constitutional law in advance, so it is in holistic conformity with the principles of a future peace deal. This could even be Baku’s non-negotiable precondition that may cause it to refuse to sign the deal itself.

As Neil Watson, British Journalist, remarked: “Illegal expansionism, based on inherent self-delusion and a sense of victimhood, is an inescapable element of the Armenian psyche and its constitution reflects that. The peace deal provides a chance for a long-awaited reality check and it is the unenviable duty of Pashinyan to press the reset button on his country, so the Fourth Republic may be founded on the basis of fact and not lies and innocent blood.”