The Peace Treaty and Armenia’s Constitution: Is There a Fast Track to a Solution?

Author: Namiq Aliyev, Doctor of Law, Professor, Ambassador Extraordinary and Plenipotentiary, Head of the Department of International Relations and Foreign Policy at the Academy of Public Administration under the President of the Republic of Azerbaijan.

The adoption of a new Constitution of Armenia remains on the agenda of the ruling «Civil Contract» party, Armenian Prime Minister Nikol Pashinyan said in his 5 July address to the nation marking Constitution Day.

Following the completion of negotiations on the text of a peace agreement between Azerbaijan and Armenia, the principal obstacle to its signature remains the need to bring Armenian legislation into line with the principle of mutual recognition of states’ territorial integrity.

Baku has repeatedly stated that it cannot sign a final peace treaty while Armenia’s Constitution continues to refer to the 1990 Declaration of Independence, whose provisions Azerbaijan regards as containing territorial claims against it. Amending the Constitution has therefore become one of the key conditions for completing the peace process.

Official Yerevan has not rejected this demand. Moreover, Prime Minister Nikol Pashinyan has publicly stated that the Republic of Armenia needs to adopt a new Constitution.

A considerable period has already passed since the draft peace agreement was initialled. Parliamentary elections have taken place in the meantime, with the ruling Civil Contract party retaining its majority and securing 64 seats. This, however, was insufficient for it to adopt a new Constitution on its own, because submitting a draft Constitution to a referendum requires a two-thirds parliamentary majority, or 70 deputies.

At present, the Armenian side has effectively focused on the idea of preparing an entirely new Constitution, which raises several questions.

Does fulfilling the condition that Azerbaijan regards as a necessary prerequisite for signing the peace treaty truly require a complete revision of the Basic Law? Or does Armenia’s current Constitution provide legal mechanisms capable of removing, much more quickly, the specific provisions that have generated the greatest disagreement?

The answers have not only legal but also major political significance. If such legal mechanisms exist, the issue for analysis is no longer whether amendments are possible, but why these mechanisms have not yet been used.

How Armenia’s Constitution Can Be Amended

Armenia’s Constitution establishes a multi-tiered system for amending the Basic Law. It includes: 1) amendments adopted by a qualified parliamentary majority; 2) amendments requiring a mandatory referendum; 3) intermediate procedures under which Parliament may submit an issue to a referendum; 4) a separate procedure for constitutional laws; and 5) unamendable provisions. Regarding the fifth category, one should recall the unconstitutional decision of Armenia’s Constitutional Court of 29 April 2021, which attempted, through an expansive reading of Article 203, to classify the preamble among the unamendable provisions of Armenia’s Constitution.

Within this framework, particular importance attaches to the distinction between: (a) a complete revision of the Constitution; (b) amendments to individual provisions; and (c) amendments to provisions not included in the list of rules subject to a mandatory referendum.

This creates a legal basis for pursuing different reform trajectories.

Preparations for amending the Constitution of the Republic of Armenia should, where necessary, begin by bringing the Law on Referendum into proper order. It should be borne in mind that amending the preamble of Armenia’s Constitution, which refers to the 1990 Declaration of Independence containing territorial claims against Azerbaijan, does not necessarily require a nationwide referendum. Under Article 103(2) of Armenia’s Constitution, the Law on Referendum, like the six other Armenian laws listed in that provision, is a constitutional law and must be adopted by Parliament by at least three fifths of the total number of deputies. Civil Contract’s 64 parliamentary seats are sufficient to amend the Law on Referendum or adopt a new one.

Article 202 of the Constitution is decisive. Paragraph 1 contains an exhaustive list of chapters and articles that may be amended exclusively by referendum. Because the preamble is not included in that list, paragraph 2 of the same article applies. It provides that amendments to the Constitution’s other provisions are adopted by the National Assembly by a majority of at least two thirds of the total number of deputies.

Accordingly, if Civil Contract submits a draft amendment to the Constitution’s preamble for consideration by the National Assembly, Pashinyan’s supporters will need 70 votes for it to pass.

There are two possible scenarios. In the first, the ruling party secures support for its proposal from opposition deputies and passes the bill, eliminating the need for a referendum. In the second, if the ruling party cannot add the necessary votes to its 64 seats, the proposal will naturally be rejected. In that event, Civil Contract deputies may invoke Article 202(3), under which, ‘if the National Assembly does not adopt the draft amendments to the Constitution provided for in paragraph 2 of this Article, the draft may be submitted to a referendum by a resolution adopted by at least three fifths of the total number of deputies.’

Pashinyan’s supporters command three fifths of all parliamentary seats. Subject to the conditions described above, they can therefore submit the proposed amendment of the preamble to a referendum and secure its adoption.

Under Article 207 of the Constitution and Article 35 of the constitutional Law on Referendum, an act is adopted if more than half of referendum participants vote in favour. At the same time, the number of votes in favour must equal at least one quarter of all citizens entitled to participate in the referendum.

Thus, an analysis of Articles 103, 202 and 207 of the Constitution demonstrates that, under the existing status quo, provisions in the preamble that permit territorial claims against neighbouring states may be removed either through Parliament or by referendum.

In practical terms, therefore, there are two principal options:

1) A targeted amendment to the preamble. As a narrowly defined legal task, this option offers a procedure that can be implemented quickly, minimises the institutional burden and directly removes the specific obstacle to signing the peace agreement.

2) Comprehensive constitutional reform through the adoption of a new Constitution. This would entail a lengthy process, considerable institutional complexity, the need for broad political consolidation and dependence on a referendum, thereby delaying the peace process.

Legal Possibility and Political Expediency

As can be seen, Armenia’s current Constitution creates no legal obstacle to amending the preamble. Moreover, it provides a sequence of steps under which an amendment may first be adopted by Parliament and, if the required majority is unavailable, the same issue may be submitted to a nationwide referendum by a decision that the ruling party is capable of adopting on its own.

This means that, from both a legal and a political perspective, there is a fundamental difference between amending the preamble alone and drafting an entirely new Constitution.

Preparing a new Basic Law is a complex and lengthy process. It entails establishing a constitutional commission, drafting a text, conducting public consultations and expert review, securing parliamentary consideration, and holding a referendum. The experience of various countries shows that such processes often take several years.

Amending the preamble alone, by contrast, addresses a much narrower task. This prompts an obvious question: if the main objective is to remove the obstacle to signing the peace treaty, why is priority being given to the most time-consuming course of action?

There are different answers. The first is that Armenia’s leadership genuinely regards the adoption of a new Constitution as part of a far-reaching modernisation of the state and does not wish to limit itself to targeted amendments. The second is that large-scale constitutional reform makes it possible to defer the most politically sensitive question indefinitely. Armenia’s domestic political situation remains difficult. Any amendment to the Declaration of Independence, or the removal of the reference to it from the preamble, will inevitably draw criticism from parts of the opposition and nationalist political forces. In these circumstances, comprehensive constitutional reform may be perceived as a more convenient political format because it avoids concentrating public debate exclusively on the territorial issue.

The second interpretation is supported by the unconstitutional decision of Armenia’s Constitutional Court of 29 April 2021, which, contrary to Article 203, attempted to classify the preamble among the unamendable provisions of Armenia’s Constitution.

Further developments will show which interpretation is closer to reality. Legal analysis, however, indicates that the problem is not an absence of the necessary procedures. They exist and are regulated in detail by the current Constitution.

The principal question today is therefore not whether the preamble can be amended without waiting for comprehensive constitutional reform to be completed, but whether this opportunity will be used to secure the earliest possible signature of the peace agreement.

The answer will indicate whether the Armenian leadership is genuinely prepared to accelerate the signing of the peace treaty. If the constitutionally prescribed procedures for amending the preamble are initiated in the near future, this will demonstrate a willingness to remove the existing legal obstacle within the shortest possible period.