Official Baku and Yerevan have, in fact, “reached” a stage of conflict resolution where they seem to have nothing to discuss, with no progress expected from any direction. There are only vague prospects for resuming negotiations on border delimitation, but given that the agreed-upon geographic sequence brought both sides very close to the issue (where there are no easy solutions) of enclaves, expecting breakthroughs similar to the spring “thaw” of 2024 is difficult. Although the European Union, China and even the United States have all expressed their interest in involving Armenia in East-West communication projects, Azerbaijan does not abandon its policy of isolating Armenia until certain preconditions are fulfilled. Yerevan, in turn, does not take practical steps that convincingly demonstrate its readiness to unblock the road through Meghri, from time to time putting forward alternative projects that are clearly unacceptable to Azerbaijani side.
In other words, Armenia is being rushed to make further unilateral concessions that carry certain risks- as outlined in the previous publication – and rather than advancing the normalization of bilateral relations, could undermine the path toward that goal. The Constitution of the Republic of Armenia is most often mentioned as an obstacle to signing a peace treaty. Yet, broadly speaking, the Main Laws of both Armenia and Azerbaijan contain formulations that could be viewed as implying territorial claims against each other, if one chooses to do so. Through a series of contradictory statements made by high-ranking officials, Yerevan contributed to placing greater emphasis on the topic of its own Constitution on the agenda of the Armenian-Azerbaijani dialogue. As a consequence, even third parties, who had never regarded this as a problem for the resolution of the conflict, put their engagement on hold, waiting for Armenia to conduct a referendum that would “remove the last obstacle” on the way to peace in the region…
From a purely substantive perspective, RA Prime Minister Nikol Pashinyan’s proposal to remove the reference to the Declaration of Independence from the Main Law – where Nagorno-Karabakh is recognized as part of Armenia – does not affect anything in practical terms. Similarly, retaining this reference in the preamble changes nothing, since it does not amount to a constitutional norm. At the same time, it is not difficult to imagine that some in Armenia will invoke the principles of constitutional law barring such changes. Likewise, there is no guarantee that Baku will be satisfied with official Yerevan’s intention to change the preamble to the Constitution, and that this will not lead to a further demand for changes to the Declaration itself. This could well be interpreted as an encroachment on the foundations of modern Armenian statehood and carries the risk of drawing both countries back into more than a century-old territorial disputes… There is no shortage of examples of how fighting against symbols rather than addressing pragmatic issues based on the imperative of a peaceful settlement, has led to destructive consequences in the history of mankind and, in particular, of our region.
But even if the process does not escalate to extremes, artificially including the Constitution in the context of the settlement itself fills it with entirely unnecessary risks. The most apparent of these is that Armenian citizens could perceive the upcoming referendum not as an essential instrument for carrying out constitutional reform and legitimizing the state and legal system, but exclusively as an event imposed by a hostile state. As a result, many citizens may choose to vote against or abstain from going to the polling stations, without delving into the essence of the proposed amendments. Similar voting behavior may be influenced by other factors that are completely unrelated to Armenian-Azerbaijani relations. For example, some citizens may not be satisfied with certain provisions in the draft Main Law concerning local self-governance, the justice system or other areas, prompting them to either vote against the proposals or boycott the referendum. Added to that, the efficiency of the work of the commission on constitutional reforms, established back in February 2020, has raised many complaints.
In the referendums held in 1995, 2003, 2005, and 2015 on adopting and amending Armenia’s Constitution, the voting was largely determined by the public’s attitude towards the authorities of the time rather than by the content of the proposed projects. According to the assessments of observers whose credibility is beyond question, only the 1995 referendum met the required voter turnout threshold – a result attributed to it being held alongside parliamentary elections, where citizens voted on both the draft Constitution and the composition of the National Assembly in a single process. There remains a significant risk that the tradition of ignoring referendums, especially when their subject matter is contentious, may once again come into play this time.
In fact, Baku is demanding that Armenian authorities commit to a process whose implementation goes far beyond their powers. At best, the government can ensure that the draft of the new Constitution is passed through the parliament. However, once it is submitted to a referendum, its fate is determined by the citizens’ voting, the results of which do not depend on the will of Nikol Pashinyan and his team. While the issue of turnout could be resolved, as it was in 1995, by holding the referendum alongside the elections to the National Assembly, the outcome of the vote – whether “for” or “against” -will remain unpredictable due to a number of factors. Furthermore, combining the two votes seems problematic in terms of democratic procedures and political expediency. Under these circumstances, Azerbaijan’s insistence that Armenian authorities fulfill the precondition related to the Constitution can be viewed as a subtle message to resolve the issue at any cost, including through “adjusting” the voting results. In other words, Armenia seems to be expected to retreat from the principles of electoral democracy, which has been one of its few achievements in recent years.
Baku’s arguments that peace should be established not only with Armenia’s current authorities, but also with Armenian society – through a referendum confirming its renunciation of territorial claims to Azerbaijan – also raise questions. As noted above, voters’ motivations may vary widely, and it is impossible to assess them based on the overall results of the referendum. Additionally, since a peace agreement implies mutual recognition of territorial integrity, doesn’t this mean that a referendum should be held in Azerbaijan as well? This is particularly relevant since claims to Armenia’s different regions are being voiced quite intensively in the information space of Azerbaijan…
To avoid allowing mutual suspicion to escalate to an absurd level, wouldn’t it be reasonable to jointly establish an independent arbitration panel composed of reputable international constitutional law experts and seek their opinion on whether the two countries’ Main Laws contain obstacles to mutual recognition of territorial integrity and whether the stated preconditions for signing a peace treaty are justified?
A similar example is the precondition demanding the dissolution of the OSCE Minsk Group – another case of a “race for symbols” that has little to do with the establishment of normal interstate relations. This issue was addressed in another article in the “Line of Contact” series.
The last two agreed points in the draft peace treaty have already created certain risks for the settlement process. The mutual dropping of lawsuits in international courts, in principle, implies that both sides grant each other amnesty for all current and potential legal claims between them. However, the ongoing trials in Baku (even regardless of whether there is trust in the adherence to procedural norms) against representatives of the military-political leadership of Nagorno-Karabakh actually suggest a selective approach to those who should be held liable. There is no objective criterion by which some of the potential respondents were allowed to leave NK, while others were taken into custody—not to mention that Armenian and Azerbaijani nationals who allegedly committed serious war crimes, but were never captured by the opposing side, remain beyond the reach of justice. It turns out that the parties refuse to file lawsuits in international courts with their regard… Doesn’t this mean an intentional disregard for the principle of equality before the law?
The main risk to the settlement probably lies in the fact that the trials being held in Baku will not mark the end of legal proceedings, and individual lawsuits will be submitted to the European Court of Human Rights. In other words, legal disputes, one way or another related to the conflict, will continue, and with them, the broader public confrontation between the parties will go on as well. What benefit, in that case, can the peace process gain from mutually dropping lawsuits at the state level and sacrificing justice for war crimes? Such a compromise would be understandable if Baku and Yerevan declared a full amnesty or created a joint tribunal to handle post-conflict justice. Yet, there were no indications of such decisions during the Armenian-Azerbaijani negotiation process, or, at least, no information about this has been made public…
Equally risky is the agreement on the non-deployment of third-party forces along the Armenian-Azerbaijani border. It is clear that this concerns the presence of European observers on the border from the Armenian side, whose mandate has been extended until 2027. Although it still remains unclear when the peace treaty will be signed and whether it will be signed at all, changes in the behavior of observers are already noticeable. Unlike previous years, the observers practically do not comment on the latest incidents on the border, which cannot but impact the effectiveness of their preventive mission and increase the likelihood of escalations. Their presence might be no longer necessary if the parties had agreed on joint border monitoring mechanisms; however, since no such agreement was reached, the termination of the EU mission – especially with the border delimitation and demarcation process still underway – could not so much contribute as hinder the execution of peace agreements.
There is no doubt that even the declarative elements contained in the constitutional provisions should eventually be eliminated, that the existence of the OSCE Minsk Group loses its relevance in case of the normalization of Armenian-Azerbaijani relations, that the absence of mutual lawsuits by Baku and Yerevan in international courts is highly desirable, and that there should be a secure border between the two countries, without third-party involvement. However, as discussed earlier, making the signing of a peace treaty dependent on the mentioned circumstances is fraught with risks for its actual implementation. Instead of focusing on the symbolic components of the conflict, which may continue to cause mutual mistrust and dissatisfaction for a long time, wouldn’t it be better to focus on the pragmatic aspects of the settlement? Speeding up the border determination processes while taking into account the feasibility and mutual benefit, unblocking transport communications, establishing normal ties between the two neighbors – as well as in the wider region – will contribute more to the stability and development in the South Caucasus than any abstract points with no direct influence on the establishment of interstate relations.
The transition of the Iranian-Israeli conflict into a military stage, now unfolding in dangerous proximity to Armenia and Azerbaijan, underscores the imperative for both nations to approach the swift resolution of the remaining contradictions with utmost responsibility and seriousness.