The Long Road to a Peace Treaty: Claims and Contradictions

Negotiations between Azerbaijan and Armenia on a peace treaty have been going on for many months or even years. Can we expect the signing of the treaty soon, most of the articles of which, according to the latest reports, have been agreed upon? Turan had a talk about these matters and the legal aspects of the parties' claims with renowned lawyer Fuad Aghayev.

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Question: Fuad bey, you were a member of the working group of the Supreme Soviet of the Republic of Azerbaijan on drafting the 1991Constitutional Act of the Republic of Azerbaijan "On State Independence". Recently, Armenian Prime Minister Nikol Pashinyan stated that the Constitution of Azerbaijan allegedly contains territorial claims to Armenia. Specifically, he said: "The Azerbaijani Constitution refers to the 1991 Act on State Independence. This act refers to the Declaration of Independence of Azerbaijan of 28 May 1918." What can you say about this?

Answer: The allegations of the Head of the Armenian Government indicate his lack of understanding of the constitutional legislation of the Republic of Azerbaijan. The Constitution of Azerbaijan mentions the Constitutional Act "On State Independence" only in the preamble, and exclusively in the context of the fact that the Constitution is guided by the principles laid down in this act. Among these principles are the separation of powers (Article 13), sovereign equality of states, non-use of force, inviolability of state borders, peaceful settlement of disputes, non-interference in the internal affairs of other states, respect for human rights and freedoms (Article 16), political pluralism (Article 28). Obviously, none of these principles can be regarded as territorial claims against other states.

Question: In addition, according to Pashinyan, “the Act on Independence states that today’s Azerbaijan is the legal successor of Azerbaijan of 1918-1920. And the declaration of Azerbaijan of 1918-1920 states that the territories of Azerbaijan are South and East Transcaucasia. On the map presented by the Entente, Azerbaijan made claims regarding today’s Syunik and Vayots Dzor regions in full, and Tavush, Gegharkunik, Ararat, Lori, and Shirak provinces in part. So, unlike the Armenian Constitution, the Azerbaijani Constitution contains territorial claims against Armenia.” Comment on these statements.

Answer:  It is not written anywhere in the Constitutional Act that the Republic of Azerbaijan is the legal successor of the Azerbaijan Democratic Republic of 1918-1920. The Preamble speaks about the succession of democratic principles and traditions of the Republic of Azerbaijan, Article 2 says that the Republic of Azerbaijan is the successor of the Azerbaijan Republic, which existed from 28 May 1918 to 28 April 1920. In other words, it refers to the continuity of principles and traditions, i.e., it is a declaration, symbolism.

What is succession of States anyway? According to international law, including the Vienna Convention on Succession of States in respect of Treaties, it is the succession of one State by another in the responsibility for the international relations of a territory.

First, international law precludes a discontinuous succession of States in respect of territories, whereby a State that has lost its independence claims succession to the former territory decades ago. Succession of States presupposes continuity in administration and responsibility for a given territory. International law recognises succession only when there is a direct change of States over the same territory, without a significant break in time. If such a break is decades, the succession is considered interrupted. When a State loses its independence and becomes part of another state (e.g. the USSR), its successor in the international legal sense is the new State which controls the territory at the time of restoration of independence. If independence is restored decades later, the state inherits the borders it had as part of the previous state entity (e.g. a union republic).

Second, when a state loses independence, it loses the right to determine its own borders and territorial claims. When independence is restored, borders are determined on the basis of the internationally recognised status at the time of restoration, not at the time of loss.

Third, according to the doctrine of uti possidetis juris, which applies in international law, newly formed states retain the administrative boundaries (or so-called state boundaries between the Azerbaijani and Armenian SSRs) that existed at the time of independence. This rule prevents the revision of borders on the basis of historical claims.

The current Republic of Azerbaijan replaced the part of the USSR called the Azerbaijan Soviet Socialist Republic, which was one of the fifteen Union Republics. Thus, our state inherited the territory that legally belonged to the Azerbaijan SSR for 71.5 years. Therefore, there is no need to speak about any territorial claims to Armenia based on or arising from the Constitution of Azerbaijan.

Question:And how well-founded the claims of the Azerbaijani side to the Constitution of the Republic of Armenia regarding territorial claims to Azerbaijan?

Answer: In brief, they are indeed present in and directly drive from the Constitution of the Republic of Armenia. Its preamble states: "The Armenian people, based on the fundamental principles of Armenian statehood and the national goals enshrined in the Declaration of Independence of Armenia, realising the sacred covenant of their freedom-loving ancestors on the restoration of  sovereign statehood, being committed to the strengthening and development of the Motherland for the sake of ensuring freedom, common welfare, civil harmony for posterity, reaffirming its loyalty to universal values, adopts the Constitution of the Republic of Armenia." As we can see, there is a direct reference to the Declaration of Independence of Armenia, to the so-called "fundamental principles of Armenian statehood and national goals."

And the preamble of the Declaration of 23 August 1990 itself states that the Supreme Soviet of the Armenian SSR starts the process of establishing independent statehood "implementing the right of nations to free self-determination, based on the Joint Resolution of the Supreme Soviet of the Armenian SSR and the National Council of Nagorno-Karabakh of 1 December 1989, ‘On the Reunification of the Armenian SSR and Nagorno-Karabakh’.” For the completeness of the picture, let us also refer to the joint resolution itself, in particular to paragraph 3: “The Supreme Soviet of the Armenian SSR and the National Council of Nagorno-Karabakh proclaim the reunification of the Armenian SSR and Nagorno-Karabakh.”

Thus, the Constitution of the Republic of Armenia, as can be seen from its systematic interpretation together with the Declaration of Independence and the so-called Joint Resolution, contains unambiguous territorial claims to Azerbaijan.

Question: Didn’t the Supreme Soviet of the USSR cancel this "joint resolution"?

Answer: Yes, by its Resolution dated 10 January 1990, the Presidium of the Supreme Soviet of the USSR recognised the "joint resolution" as inconsistent with the USSR Constitution and unable to operate of the territory of the Republic. However, this did not prevent the Supreme Soviet of the Armenian SSR seven months later from referring to this "document" as one of the grounds for the establishment of an independent state, and in 1995, the Armenian Constitution from referring to the Declaration itself.

Consequently, according to its Constitution, the Republic of Armenia claims the territories of the former Nagorno-Karabakh Autonomous Region as well as the former Shaumian District. However, the Republic of Armenia did not legally include these regions in its territory. According to the Law "On the Administrative-Territorial Division of the Republic of Armenia," its territory consists of 10 marzes (regions) and the city of Yerevan. These territories do not touch any territory of Azerbaijan.

Question: The Azerbaijani side insists on amending the Constitution of the Republic of Armenia. Is this possible?

Answer: It is possible. Amendments to the Constitution of Armenia are made by referendum or by a decision of the National Assembly by at least two thirds of votes of the total number of deputies. The Constitution as a whole is adopted and some certain articles can be amended only through referendum. I do not consider myself a specialist in the constitutional law of Armenia, but the issue of the possible amendment of the Preamble can be clarified by the Constitutional Court of this country.

Question: Some Armenian officials, in particular Justice Minister Grigor Minasyan, have said that they are not going to amend the current Constitution, they have a consensus on a referendum on a new Constitution in 2027. Is this not a far-fetched excuse for not amending the Constitution?

Answer: I don't know what they have in mind. At the same time, I see no obstacles to concluding a treaty, of course, if all its significant provisions are agreed upon.

Question: What about Armenia’s territorial claims to Azerbaijan?

Answer: According to Articles 168 and 169 of the Constitution and the Law of the Republic of Armenia "On International Treaties," the treaty, prior to ratification, is submitted to the Constitutional Court, which determines its compliance with the Constitution. If the conclusion is favourable and then the treaty is ratified by the National Assembly of Armenia, it can be considered that the Republic of Armenia has renounced its territorial claims to Azerbaijan.

Question: What if Armenia delays ratification or refuses to ratify the peace treaty at one stage or another?

Answer: According to Article 18 of the Vienna Convention on the Law of Treaties, a State which has signed a treaty subject to ratification is obliged to refrain from acts that would defeat the object and purpose of the treaty. And as for the refusal to ratify, I believe such an outcome is unlikely, but even if it happens, Armenia will shoot itself in the foot, will show that it is extremely unreliable in terms of compliance with international law.

Question: Can there be problems with ratification in Azerbaijan?

Answer: I am sure that no such problems will arise at any level, including the Constitutional Court and the Milli Majlis (parliament).

Question: And the last question. The Armenian side, represented by Prime Minister N. Pashinyan and others, claims that of the 16 articles of the draft agreement, 13 have already been agreed upon, and the three more have been partially agreed upon. On this basis, they propose to sign what has already been agreed. The Azerbaijani side objects, pointing out that it is unacceptable to sign the treaty by excluding unagreed provisions from the draft: for the peace agreement to be sustainable and successful, the draft should clarify the problematic issues between the two countries in a number of directions. What can you say about this?

Answer: It is difficult for me to say anything specific in this regard without being familiar with the draft, which is kept strictly confidential: after all, much depends on the nature of the unagreed points in the draft treaty – certainly, if these are provisions without which a peace is meaningless, there can hardly be any talk of achieving sustainable peace.