Is the Constitution of Armenia not superior to international treaties?

As is well known, the Prime Minister of Armenia, Nikol Pashinyan, has stated:

"After the ratification of international treaties, including the Peace Treaty, the Republic of Armenia is obliged to ensure its supremacy over internal laws."

In simpler terms, Pashinyan's statement means that there is no need to amend the Constitution of Armenia for the signing of the Peace Treaty with Azerbaijan because, once ratified, the treaty will take precedence over Armenian laws.

This is indeed a highly relevant issue and can be quite appealing even to those without legal training. If the Peace Treaty between Azerbaijan and Armenia will take precedence over Armenian laws after its ratification, then why should Azerbaijan push for amendments to the Armenian Constitution?

Unfortunately, even some laypersons and experienced lawyers fall for this manipulative "disguise." My intention is neither to argue with them nor to give Nikol Pashinyan a lesson in international law. Rather, it is useful to provide a legal interpretation of why Azerbaijan considers the amendment of the Armenian Constitution a red line for the signing of the Peace Agreement.

International treaty law refers to the body of international legal norms governing the formation, implementation, and termination of international treaties.

In this field, there are currently two principal acts. The first is the 1969 Vienna Convention on the Law of Treaties, which is a reference point for our discussion. This Vienna Convention was signed in Vienna on May 23, 1969, and entered into force on January 27, 1980. Azerbaijan ratified this Convention with a separate law adopted on October 2, 2017. The Convention emphasizes "good faith" as one of its fundamental principles and also lists many well-known principles reflected in the United Nations Charter.

From international law theory and the aforementioned Convention, we know that the Peace Treaty to be signed between Azerbaijan and Armenia will be considered an "international agreement" between two states.

Article 151 of the Constitution of the Republic of Azerbaijan addresses the legal force of international acts. It states that if there is a contradiction between international treaties ratified by the Republic of Azerbaijan and normative legal acts incorporated into the Azerbaijani legislative system (excluding the Constitution and acts adopted by referendum), the international treaties apply.

The unequivocal conclusion from this article is that the Republic of Azerbaijan cannot enter into any treaty that contradicts its Constitution. If it does, the Constitution and acts adopted by referendum have a superior legal force compared to international treaties. This also gives the Azerbaijani parliament full authority to refuse ratification of any international agreement if it reveals contradictions with the Azerbaijani Constitution.

A similar requirement is reflected in Article 5 of the Constitution of the Republic of Armenia. This article determines the hierarchy of legal norms in Armenia as follows:

- The Constitution has the highest legal force.
- Laws must be in conformity with constitutional laws, and subordinate normative legal acts must be in conformity with constitutional laws and laws.
- When there is a conflict between the norms of international treaties ratified by the Republic of Armenia and Armenian laws, the norms of international treaties apply.

In summary, this article means that international treaties are considered part of Armenian law. If a ratified international treaty conflicts with Armenian laws, the provisions of the international treaty apply. However, this applies only to ordinary laws, not to the CONSTITUTION!

NECESSARY NOTE: According to this article, Armenia cannot sign a treaty that contradicts its laws. However, if a provision in a subsequently discovered or adopted law conflicts with an international treaty, the international treaty must be upheld. But, unlike laws, an international treaty does not have superior force over the Armenian Constitution!

According to Article 15 of the Constitution of the Republic of Azerbaijan, "the approval and termination of inter-state treaties fall under the authority of the National Assembly." The Armenian parliament has the same authority according to Article 116 of its Constitution.

In the Vienna Convention on the Law of Treaties, terms like "ratification," "acceptance," "approval," and "accession" refer to a state's expression of its agreement to the binding nature of a treaty under international law, depending on the situation.

The Convention also states that a party to an international treaty cannot rely on its domestic laws as a defense for failing to perform the treaty. This rule remains in effect without prejudice to Article 46.

Thus, a treaty cannot be performed based on domestic law, although exceptions are specified. Let’s look at the exception reflected in this article:

46.1. A state cannot invoke its domestic law as a defense for failing to perform a treaty if the breach of domestic law is not manifest and does not relate to a rule of fundamental importance concerning the state’s ability to enter into treaties.

46.2. A manifest breach is one that is objectively evident and clear to any state acting in good faith and in accordance with standard practice.

The conclusion drawn is: if a breach is manifest, i.e., objectively evident and relates to a rule of fundamental importance in the state’s domestic law, the agreement may be challenged on the grounds of invalidity. This applies to international treaties that have already been ratified.

According to Article 168.3 of the Armenian Constitution, the Constitutional Court of Armenia must determine "the conformity of obligations set forth in an international treaty with the Constitution before ratification." The Armenian Constitutional Court has set a "noteworthy" precedent regarding the "Zurich Protocols." Considering this precedent, let’s recall what Azerbaijan is demanding from Armenia.

It is well-known that during the Soviet era, the deputies of the Nagorno-Karabakh Autonomous Oblast (NKAO), which was part of the Azerbaijan SSR, exceeded their authority and adopted a "decision" to merge with Armenia, contrary to the constitutions of the Azerbaijan SSR and the USSR. This decision was supported by the Supreme Soviet of the Armenian SSR, and the NKAO was incorporated into the Armenian SSR. In Armenia’s Declaration of Independence, this "merger decision" was considered the basis for state independence, and its provisions were declared a "national goal" in the Constitution. Furthermore, Article 21.3 of the Armenian Constitution also contains territorial claims against Azerbaijan, as well as Turkey and Georgia.

Without removing these provisions, the Peace Agreement with Azerbaijan, in other words, a bilateral international treaty:

- Cannot be accepted by the Armenian Constitutional Court;
- Even if accepted by the Constitutional Court, it cannot be ratified by the Armenian parliament;
- Even if ratified by the Armenian parliament, it cannot have superior legal force over the Armenian Constitution;
- Because it does not have superior legal force over the Armenian Constitution, it can be declared invalid and annulled at any time according to Article 46 of the Vienna Convention.

Thus, Nikol Pashinyan’s statement is legally ignorant, morally irresponsible regarding peace, and risky in terms of international relations, making it unacceptable to Azerbaijan.

Go ahead and change Armenia’s Constitution, Nikol!

Taleh SHAHSUVARLI