By Philippe Raffi Kalfayan
Special to the Mirror-Spectator
While this column tends to be analytical always in approach, this current one will focus in minute detail on the agreement whose signing Prime Minister Nikol Pashinyan announced on November 10 to end aggression by Azerbaijan and Turkey in Karabakh (Artsakh, NKR). The three signatories are Armenia, Azerbaijan and Russia. The shock waves are still reverberating in Armenia.
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It is submitted in this legal opinion that:
- The statement is only of political nature, and not of a legal one; it is therefore not legally binding (International Court of Justice (ICJ), Bolivia v. Chile, 2018). It all depends in this regard on the wording of the text;
- Since the referral to the Parliament is not foreseen in the statement, it tends to confirm that it is not a legal agreement, but only a political declaration;
- This is confirmed by Armenian domestic law: an agreement of that type, dealing with military and territorial questions, if it were to have legal effects, it would then have had to go to Parliament;
- Assuming it is a legal agreement, hence it would be invalid for reasons exposed herein below;
- The scope of the political statement is a violation of the three principles agreed by all parties so far in the Minsk Process for settlement of the conflict;
- The circumstances of the “statement” signature question its validity too.
Text of the Statement
Statement by President of the Republic of Azerbaijan, Prime Minister of the Republic of Armenia and President of the Russian Federation
November 10, 2020 11:45 pm
(Kremlin official translation)
We, President of the Republic of Azerbaijan Ilham Aliyev, Prime Minister of the Republic of Armenia Nikol Pashinyan and President of the Russian Federation Vladimir Putin, state the following:
- A complete ceasefire and termination of all hostilities in the area of the Nagorno-Karabakh conflict is declared starting 12:00 am (midnight) Moscow time on November 10, 2020. The Republic of Azerbaijan and the Republic of Armenia, hereinafter referred to as the “Parties,” shall stop in their current positions.
- The Agdam District shall be returned to the Republic of Azerbaijan by November 20, 2020.
- The peacekeeping forces of the Russian Federation, namely, 1,960 troops armed with firearms, 90 armored vehicles and 380 motor vehicles and units of special equipment shall be deployed along the contact line in Nagorno-Karabakh and along the Lachin Corridor.
- The peacekeeping forces of the Russian Federation shall be deployed concurrently with the withdrawal of the Armenian troops. The peacekeeping forces of the Russian Federation will be deployed for five years, a term to be automatically extended for subsequent five-year terms unless either party notifies about its intention to terminate this clause six months before the expiration of the current term.
- For more efficient monitoring of the Parties’ fulfillment of the agreements, a peacekeeping center shall be established to oversee the ceasefire.
- The Republic of Armenia shall return the Kelbajar District to the Republic of Azerbaijan by November 15, 2020, and the Lachin District by December 1, 2020. The Lachin Corridor (5 km wide), which will provide a connection between Nagorno-Karabakh and Armenia while not passing through the territory of Shusha, shall remain under the control of the Russian Federation peacekeeping forces.
As agreed by the Parties, within the next three years, a plan will be outlined for the construction of a new route via the Lachin Corridor, to provide a connection between Nagorno-Karabakh and Armenia, and the Russian peacekeeping forces shall be subsequently relocated to protect the route.
The Republic of Azerbaijan shall guarantee the security of persons, vehicles and cargo moving along the Lachin Corridor in both directions.
- Internally displaced persons and refugees shall return to the territory of Nagorno-Karabakh and adjacent areas under the supervision of the United Nations High Commissioner for Refugees.
- The Parties shall exchange prisoners of war, hostages and other detained persons, and dead bodies.
- All economic and transport connections in the region shall be unblocked. The Republic of Armenia shall guarantee the security of transport connections between the western regions of the Republic of Azerbaijan and the Nakhichevan Autonomous Republic in order to arrange unobstructed movement of persons, vehicles and cargo in both directions. The Border Guard Service of the Russian Federal Security Service shall be responsible for overseeing the transport connections.
As agreed by the Parties, new transport links shall be built to connect the Nakhichevan Autonomous Republic and the western regions of Azerbaijan.
Closer Analysis
This document, whose terms are reproduced above, is a statement and not an agreement. However, the word “shall,” when it relates to evacuation of some territories or positions, contradicts its political declarative value. As the “treaty” will shortly be enforced, not due to its legal force, but by the will of the parties, it thus leads to transfer of territories to Azerbaijan. It will establish a new factual situation that can only be restored through war.
In addition, there is no reference at all to the Organization for Security and Cooperation in Europe (OSCE) Minsk Group and its negotiation processes. The latter has been tasked with finding a solution for the final status of Artsakh for decades.
Of great importance, there is no mention of future discussions regarding the final status of the territories remaining under NKR administration (as did President Emmanuel Macron of France in his declaration regarding the end of the war.)
If NKR remains an enclave, the lives of its Armenian inhabitants will remain under threat. Due to the continuous and recently reinforced racial hatred, the Armenians will live in danger. What if one of the parties decides to terminate the mandate of the Russian peacekeeping force (Item 4 of the Declaration)? NKR Armenians are condemned to isolation and oppression if there is no Armenian sovereign or secure link between NKR and Armenia. The territory may deplete quite rapidly.
NKR Armenians may be obliged to re-establish themselves in Armenia, despite their ancestral and rural roots, leaving behind the previous generations whose graves dot the land. But, in the long run, this unfair situation sows the seeds of future wars despite the demographic imbalance to the detriment of Armenians.
The statement is more than a cease-fire; it speaks of “regions” in general terms but does not fix territorial delimitations. That vagueness tends to prove that the “statement“ is not enforceable as it is; it requires a proper legal agreement to be concluded, with the borders of the regions concerned.
The agreement is oriented to the advantage of Turkey and Azerbaijan economically, since no compensation is mentioned either for Armenia or for the Russian Federation; The South corridor opens the road for Turkish influence in the Eastern Caucasus and Central Asia.
Armenia does not get anything in exchange for this Turk-Azerbaijani route (Nakhichevan, similarly Armenian in origin, which became an exclave of Azerbaijan, is now wiped clean of its past during its century under their rule, to the point that it is a military outpost of Turkey), not even the opening of borders with Turkey.
And last, but not the least, this agreement does not mention the right to self-determination of the Armenians of Artsakh. Neither the Republic of Armenia, nor the other parties, has the right to decide upon the territorial status of the NKR. This omission of their voice confirms that this statement is at best a political agreement, but not a treaty within the meaning of international law. Armenia had just a mandate to negotiate the cease-fire and the intervention of Russian peacekeeping forces to stop the bloodshed.
Ceasefire or Peace Agreement?
A ceasefire consists of an agreement organizing the cessation of all military activity for a given time in a given space. It can be declared unilaterally or it can be negotiated among the parties to a conflict. It is also sometimes referred to as an armistice, although the two mean slightly different things. An armistice is a military convention which provides for the suspension of hostilities throughout the theatre of war, often for an indefinite period. A ceasefire and an armistice should not be confused with a peace agreement. They do not mean the end of hostilities but constitute a temporary truce. Furthermore, they do not legally end the state of war.
On the contrary a peace agreement clearly puts a definitive end to the war.
The document signed is a mix of ceasefire and peace treaty.
However, this subject matter is of minor importance and not decisive. This argument assumes that there exists in international law legal categories defining “peace treaty” and “ceasefire agreement”, which is not the case. Nothing prevents an accord from being a mixture of the two; this does not affect the legal effect or scope of the agreement.
The fact that there are no final clauses could be interpreted as meaning that it is not a treaty (see for instance ICJ Somalia/Kenya, 2017).
Regarding the statement signed by Armenia, there is by contrast a plausible case to make that there is no indication at all that Armenia considered that the statement is a binding agreement whose entry into force only depends on its signature.
Exclusion from the Minsk Process
The Minsk format has been clearly recognized by all parties to the conflict, mediating countries and international organizations (OSCE, UN, EU, PACE, etc.) the exclusive format for the settlement of the dispute. The ceasefires were another example of this acceptance (there were three previous cease-fires negotiated successively in Moscow, Paris, and Washington, by the co-chairs of the Minsk Group). This agreement contradicts all the principles settled on by the Minsk Group co-chairs, namely those of territorial integrity and self-determination principles.
Azerbaijan itself has always insisted on the three principles fixed in the 1996 OSCE Lisbon Summit: “territorial integrity of the Republic of Armenia and the Azerbaijan Republic; legal status of Nagorno-Karabakh defined in an agreement based on self-determination which confers on Nagorno-Karabakh the highest degree of self-rule within Azerbaijan; guaranteed security for Nagorno-Karabakh and its whole population, including mutual obligations to ensure compliance by all the Parties with the provisions of the settlement.”
Signatory Power
It is significant that the signature constitutes the first means of expressing consent to be bound cited by Article 11 of the Vienna Convention. In addition, under Article 12: “1. The consent of a State to be bound by a treaty is expressed by the signature of the representative of that State: “(A) when the treaty provides that the signature will have that effect; “(B) where it is otherwise established that the negotiating States had agreed that the signature would have that effect; or “(C) when the intention of the State to give that effect to the signature appears from the full powers of its representative or was expressed during the negotiation; “2. For the purposes of paragraph 1: “(A) the initialing of a text constitutes a signature of the treaty when it is established that the negotiating States had so agreed;
No mention is made in the statement about all those required provisions to validate the consent of the Armenian State.
The determination of the competent authority to negotiate is a matter for the constitutional law of each state and it is the authority which is invested by the state constitution that has the power to appoint and provide plenipotentiaries with full powers. It is usually the Executive that is conferred these full powers.
However, the question is not relevant here since, in international law, the signature of the Prime Minister (head of state) engages the Republic of Armenia, but again from a pure political perspective, and not a legal perspective.
Indeed, the ICJ relied on Article 7 of the Vienna Convention to recall that “[c] in accordance with international law, there is no doubt that any head of state is presumed to be able to act on behalf of the State in its international relations (see ICJ, Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina)Application of the Genocide Convention).
Legal Validity of Treaty
In the present case, the validity of the Treaty may be in question from a constitutional standpoint in Armenia if it may be proven that the exception prescribed in the article 46 of the Vienna Convention of the Law of Treaties is applicable.
Article 46 (Provisions of internal law regarding competence to conclude treaties) writes: “1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.”
The treaty according to the constitution of Armenia must be ratified by the Parliament and then be referred to the Constitutional Court for a control of constitutionality.
The Item 1 of Article 116 of the Republic of Armenia Constitution (Ratification, Suspension or Revocation of International Treaties) writes: “The National Assembly shall ratify, suspend and revoke international treaties: (1) which concern the basic rights and freedoms of the human being and the citizen, as well as obligations thereof; (2) which have a political or military nature…”.
Moreover the item 3 of this article writes that “International treaties contradicting the Constitution may not be ratified.”
And last, if it were to be considered a valid treaty, the circumstances of the signature of the “statement” would question its validity. It must be reminded that it was signed by Armenia for urgent humanitarian reasons. The pressure exerted by Russia and Azerbaijan and the threat of continued military operations, in other words under coercion by the other parties to the statement, cannot be regarded as Armenia’s free consent to sign the statement; moreover, the conditions of this statement were imposed by the other party as a consequence of the full violation of article 2 (items 2 and 3) of the United Nations Charter, which prohibit the use of force for international disputes.
As a conclusion, the circumstances of the obtaining of signature from Armenia, the non-respect of the right to self-determination of Nagorno-Karabakh Armenians, as well as the missing final clauses in the document tend to question the binding effect of the statement.
Constitutionality of the Statement
Article 168 of the Constitution stipulates the Powers of the Constitutional Court. The Constitutional Court, as prescribed by the Law on the Constitutional Court, shall (3) prior to the ratification of an international treaty, determine the compliance of the commitments enshrined therein with the Constitution.
Meanwhile this unconstitutionality won’t cancel the fact that Armenia engaged itself internationally and must respect its duties if it cannot be proven that article 46 of Vienna Convention on the Law of Treaties is applicable.
Yerevan, 14 November 2020