The previous publication, dedicated to the development of Armenian-Azerbaijani relations after the 44-Day War, underscored the topical issue of the methodology employed in the settlement process between the two countries. One of the points discussed was the price of compromises as a key component contributing to an exit from the conflict. When it comes to mutual compromises, their positive impact on the process is beyond doubt: both sides gain equally, or even lose equally, while simultaneously creating the prerequisites for peace and stability. Evaluating unilateral concessions in the same way is difficult, since everything in their case is far more complicated. There is an indisputable, albeit harsh for the defeated side, truth: the outcomes of the war cannot but be taken into consideration in the post-war course of events. Even in cases where the cessation of hostilities is not followed by an act of unconditional surrender, unilateral concessions from the losing party to the victor are nearly unavoidable. Yet, the objective interests in overcoming the conflict suggest that these concessions should facilitate progress toward peace, rather than serve as an additional obstacle to its achievement.
Alongside the relative successes in the Armenian-Azerbaijani process – primarily related to the modest progress in border delimitation and the intensifying expert dialogue – one can also recall, to put it mildly, the contradictory consequences of unilateral concessions at earlier stages. The first wake-up call was the “creative approach” to the first point of the trilateral statement of November 9/10, 2020, which implied that at midnight, following the agreement on the document, the parties would stop at their positions. The sixth point, in turn, set the dates for the withdrawal of Armenian forces from the territories of Kelbajar, Aghdam and Lachin districts, which were still under their control. However, in practice, in the days that followed, the Armenian military also pulled back from the territories of Zangelan and Kubatly districts, retreating to the former Soviet administrative border, including some of its disputed sections. Additionally, Armenian forces pulled back from positions in Nagorno-Karabakh, which at the time of the conclusion of the ceasefire had not yet been captured by the Azerbaijani side. The logic behind the night Statement clearly implied that the entire territory of Soviet Azerbaijan, except for the part of the former Nagorno Karabkah Autonomous Oblast (NKAO) and the Lachin Corridor, where Russian peacekeepers were deployed, was to fall entirely under Azerbaijan’s control. However, for some reason, Zangelan and Kubatly districts, where Armenian troops remained in certain areas, were not mentioned in the ceasefire document at all. Perhaps it was not in Baku’s interest to include in the statement territories whose return had already been announced. Meanwhile, Yerevan refrained from strictly adhering to the agreements, aiming to avoid the resumption of hostilities. However, this unilateral concession triggered tensions and acute conflict situations, including over a section of the main highway connecting the north and south of Armenia’s Syunik region. The situation grew even more tragic in the Karabakh villages of Hin Tagher and Khtsaberd, where disagreements regarding the line of contact led to clashes, which resulted in the death and capture of dozens of Armenian servicemen. Just like in the case of Armenian-Azerbaijani border itself, here too, it was assumed that Russian peacekeepers would clearly fulfill their roles. However, they either were unable to or did not want to interfere and challenge the victorious side’s desire to gain control of the entire Hadrut district, including those settlements that had not been captured by the time the ceasefire came into effect. Defeated Yerevan came to terms with this situation as well, while it is redundant to discuss the negative background created for the entire settlement process by the new casualties and the presence of prisoners of war.
Another example of the absence of concrete agreements regarding the consequences of the inevitable unilateral compromises from the losing side was partially discussed in the previous publication. Contrary to the 2021 election agenda of the “Civil Contract” party he leads, RA Prime Minister Nikol Pashinyan unconditionally recognized Azerbaijan’s territorial integrity, including Nagorno-Karabakh, at the Prague summit on October 6, 2022. Although there seemed to be grounds for expecting further constructive steps to resolve the conflict, the absence of an action plan agreed upon by both sides to reduce tensions led to the blockade of Nagorno-Karabakh, which marked the beginning of a mass exodus of Armenians from the region. While one can endlessly discuss the inconsistency of Armenian diplomacy, the contrived pretexts put forward by Baku to isolate NK from the outside world, the unpreparedness of the countries that volunteered to mediate in the conflict to guarantee the implementation of agreements, this retrospective review of the events of the last four and a half years pursues a different objective – namely, as previously mentioned, a review of the methodology behind the process of normalization of Armenian-Azerbaijani relations. This is especially important at this stage, when text of the agreement on the establishment of peace and state relations has been agreed upon and it is highly desirable to avoid pitfalls capable of changing the favorable course of the process.
One of the topics that continues to cause concern in this regard is Baku’s demand to change the Constitution of Armenia, which, it states, contains territorial claims against Azerbaijan. In response, Yerevan notes “reciprocity” in the Constitution of Azerbaijan, but does not regard this an impediment to signing the agreement, since in both cases no constitutional norm has been established that would exclude the recognition of each other’s territorial integrity. In simple terms, Azerbaijanis are naturally not happy with the fact that the preamble of the RA Constitution contains a reference to the Declaration of Independence, where Nagorno-Karabakh is proclaimed as part of Armenia. Armenians, in turn, see a threat in the fact that the Constitution of Azerbaijan positions today’s Azerbaijan as the successor of the Azerbaijan Democratic Republic (1918-1920), which officially laid claim to two-thirds of the present-day territory of the Republic of Armenia. The fact that both peoples and societies are dissatisfied with many things in each other and will remain so for a long time – whether the perception of historical events, competing claims to cultural heritage, or perhaps even certain traits of national character – is natural and inevitable… But should this stand in the way of the normalization of interstate relations? Or is it more appropriate to focus on the strictly legal aspects of the issue, as a basis for advancing good-neighborly relations in other areas?
It is from this standpoint that one should probably approach the fundamental content of the Main Laws of the two countries, along with their law enforcement practices. Recently, the principal argument “in defense” of the Armenian Constitution against accusations of harboring territorial claims toward the neighboring state has been the ruling of the RA Constitutional Court, which in September 2024 confirmed that the document regulating the process of delimitation of the Armenian-Azerbaijani border – based on the Almaty Declaration, i.e. the administrative division of the USSR at the time of its collapse – complied with the Main Law. In Azerbaijan, this argument is countered by stating that while today the Constitutional Court has rendered such a decision, tomorrow, under a different government, it could issue an opposite one. Leaving aside the self-evident truth that constitutions can also be amended in one direction today and in another tomorrow – especially since it is not constitutions that prevent aggression, occupation, and border changes – let us look at how the RA Main Law has “functioned” over the past 30 years.
Since the adoption of the Constitution in 1995, Armenia has held 15 nationwide votes – presidential and parliamentary elections, as well as referendums to amend the Constitution itself. In none of these votes were electoral districts established or polling stations opened in Nagorno-Karabakh, despite the fact that in 14 cases (up until 2020) there were no physical obstacles to doing so. And if the Constitution defined NK as part of Armenia, all these elections and referendums should have been declared unconstitutional, especially given that in most cases the opposition challenged the results, albeit under other pretexts. Moreover, nationwide votes were held under all four Armenian governments, each of which had quite different positions on the Karabakh issue, providing sufficient evidence that the relevant provisions of the Main Law were interpreted unambiguously, irrespective of the political circumstances.
Between 1995 (when the RA Constitution was adopted) and 2019, again under all four governments of Armenia, different versions of laws on administrative-territorial division and territorial governance were passed. In all of them, the external borders of the republic were defined in accordance with Soviet-era maps. Hence, had there been a constitutional norm implying the inclusion of NK as part of Armenia, these laws should have also been declared unconstitutional. The same can be said about the relevant legislative acts of Azerbaijan and their compliance with the Constitution of Azerbaijan: they do not contain claims to any territories of Armenia that could stem from the legal succession of the ADR. These far from comprehensive facts demonstrate that the causes of the Armenian-Azerbaijani conflict lie not in the constitutional foundations of the Republic of Armenia or the Republic of Azerbaijan, but completely different circumstances, which remain today an obstacle to the mutual recognition of territorial integrity as a fundamental principle of international relations in general and a peace agreement between Baku and Yerevan in particular.
Representatives of the expert community and journalists of Azerbaijan, when discussing the existence of problems in the Armenian Constitution and its application, cite a non-existent ruling of the RA Constitutional Court, which supposedly gave the right to NK resident Robert Kocharyan to run for the presidency of Armenia in 1998. In reality, the legal foundation for registering Kocharyan as a candidate was a certificate from the OVIR (now the Passport and Visa Department of the RA Police), confirming his fulfillment of the ten-year residency requirement in Yerevan. While one may reject the authenticity of the data provided in the certificate – something that has been done multiple times in Armenia – it has nothing to do with the Constitution… This is another illustration of how contrived or invented circumstances create artificial barriers to solving pressing issues. This does not mean that the conflicting sides should refrain from reassessing their approaches in legal, educational, informational and other fields, which lead to mutual rejection and even hostility. In this regard, the ratification of the peace treaty by parliaments – following the confirmation of its constitutionality by the relevant constitutional courts – will eliminate Armenia’s reservations upon its signing of the Almaty Declaration, and other problematic decisions made by the legislative and executive authorities of both countries. At the same time, however, it is necessary to minimize the risks of symbols prevailing over pragmatic decisions at decisive moments. The discourse surrounding the Constitution and a number of other topics – despite their largely symbolic weight – can become a real spoiler in the Armenian-Azerbaijani dialogue. Moreover, as already noted, unilateral compromises may not so much bring the parties closer to agreement as they might disrupt the process. Further details regarding these risks will be provided in the next publication (to be continued).