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Armenian ex-FM's legal-diplomatic objection to peace treaty overruled

19 April 2022 17:54 (UTC+04:00)
Armenian ex-FM's legal-diplomatic objection to peace treaty overruled

By Orkhan Amashov

Acrimonious pleas permeating the domain in which the Armenian opposition reign supreme are full of tempestuous notes. The fecundity of the reasoning prowess of those vehemently resisting the incumbent government’s progressive Karabakh agenda is being trammelled by one simple urge, where all conceivable measures are being taken to ensure the impossibility of a peace treaty with Azerbaijan.

One particular strain of argumentation propounded by the critics of Armenian Prime Minister Nikol Pashinyan is that it is neither constitutionally justified, nor diplomatically wise to agree to a deal with Azerbaijan, as any official commitment enshrined in a peace agreement would, in all probability, mean the final and irreversible “loss of Karabakh”, leaving even Armenia’s own future in tatters.

Vartan Oskanian, a former Armenian Foreign Minister (1998–2008), has recently published an article in which he expounded his vision which is, in some ways, a clear demonstration of the aforementioned strain.

Legal challenge

The former diplomat is of the opinion that signing a peace treaty would inevitably signal recognition by Armenia that Karabakh is part of Azerbaijan, and that this would contradict the national constitution, which has some provisions mandating otherwise. In other words, the incumbent prime minister has no right to officially commit the country to such a fate without changing the actual Basic Law.

First of all, the question as to whether a treaty commitment could override the constitutional norms of a given country is an issue of a nuanced legal nature. The answer to this question would vary on the basis of the exact nature and place of the domestic legal provision within the hierarchy of an order underpinning a constitution, and, quite often, assessment of the validity of this is the duty of the constitutional (or supreme) court.

Secondly, in this particular case, Oskanian’s assertion is that the existing Constitution forbids Pashinyan from signing a peace treaty on the basis mentioned. Of course, it is possible for a government to refer a certain matter, if believed to have potential constitutional ramifications, to the judiciary before taking further steps.

But for a constitutional review mechanism to enter the equation, without the executive’s special reference, such an official commitment has to be made in the first place. In the case of Armenia, the constitutional court of the country may determine the compliance of a treaty obligation with the Constitution before it goes to the National Assembly for ratification.

Thirdly, if all international peace treaties had been presumed to be signed in line with the dogmatic interpretation of national laws, then no peace agreement would have been concluded. The preamble of the Armenian Constitution and the Declaration of Independence, which are mostly referred to by “formalists” opposing a potential peace deal, are not stonecast divine immutable norms, but rather aspirational precepts. If the facts on the ground militate against these, they are either to be changed or interpreted differently.

Another part of Oskanian’s legal objection is that Pashinyan has no mandate to make a fateful decision on Karabakh, and the recent election victory, which kept him in power, does not amount to omnipotence. The question arises as to what that victory in the 2021 June snap election meant if it was not a fresh mandate to a peace agenda. Pashinyan was embattled at the time, and the victory was widely perceived as a vote of confidence. Unless one is interested in engaging in esoteric mental gymnastics, this element is better left for theorists to ponder.

Diplomacy: 1997 and 2022

Oskanian also draws parallels between the state of affairs entrapping Armenia in 1997 and the present situation, claiming that the approaches maintained by former President Levon Ter-Petrosyan then and Pashinyan now are only superficially similar. Indeed, the comparison between 1997 and 2022 is interesting.

Ter-Petrosyan, as Oskanian contends, was in favour of not including the status of “Nagorno-Karabakh” within the immediate negotiations and surrendering control over the adjacent territories, with the exception of Lachin, because he believed the inclusion of the status issue on the agenda would inevitably result in discussions of the territorial integrity of Azerbaijan, and Yerevan wanted to leave this for determination at a later stage. On the other hand, he claims that Pashinyan wants to abandon the idea of status from the outset.

First of all, it could be tentatively assumed that, for both Ter-Petrosyan and Pashinyan, the physical presence of Armenians in Karabakh takes precedence over clarification in relation to the status of the region. In this particular aspect, they appear to be close to each other, and that truism cannot be denied.

Secondly, Oskanian deliberately does not take the context into account. In 1997, Armenia was a winner with an inflated sense of self-importance. But even then, the strength of its international legal position left a lot to be desired and the then-ongoing occupation of the Azerbaijani territories was heavily inimical to Yerevan’s economic interests.

Pashinyan has lost the war and the facts on the ground do not favour him. In 1997, Baku was ready to agree to the idea of granting the region the highest autonomy, but after the 2020 campaign, it is out of the question.

Ter-Petrosyan was of the opinion that a sensible compromise could see the nation out of isolation. Had he managed to convince the country and muddle through the turmoil that engulfed Armenia at the time, the circumstances could have proven to be auspicious for greater autonomy of the region within Azerbaijan, and Baku would have probably been content with such a resolution at the time.

Thirdly, as we can now establish with a sufficient degree of certainty, the hardliners who succeeded Ter-Petrosyan failed to translate the military gains of the First Karabakh War into a peace agreement. Instead, the conflict had remained frozen for 13 years thereafter, and the Second Karabakh War eventually has induced a sea-changing effect, which now many, including Oskanian, are unable to process.

The former Armenian foreign minister, for all his biases and self-interested interpretations, is a diplomat who has the intellectual mettle to defend his case. But, in any Court of Reason, any incorruptible judge would have overruled his objections instead of sustaining them.

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