Baku’s Demand for Armenia to Amend Constitution Lacks Legal Credibility

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The latest obstacle to finalizing a peace agreement between Armenia and Azerbaijan is Baku’s demand that Armenia first amend its Constitution, specifically the preamble, which states: 

The Armenian People, recognizing as a basis the fundamental principles of Armenian statehood and national aspirations enshrined in the Declaration of Independence of Armenia, having fulfilled the sacred behest of its freedom-loving ancestors for the restoration of the sovereign state, committed to the strengthening and prosperity of the fatherland, to ensure the freedom, general well-being and civic harmony of future generations, declaring their allegiance to universal values, hereby adopts the Constitution of the Republic of Armenia. 

Azerbaijan claims the preamble contains territorial claims against it, thereby obstructing a potential peace deal. This argument hinges on the fact that the preamble of the Armenian Constitution references the Armenian Declaration of Independence (a separate document), which in turn mentions the December 1, 1989 decision by the Armenian SSR Supreme Council and the Artsakh National Council on the “Reunification of the Armenian SSR and the Mountainous Region of Karabakh.” Azerbaijan contends that these references in the Armenian Constitution constitute a claim to Azerbaijani territory.

In response, Armenia’s representatives and some commentators have pointed out that the draft peace agreement contains some type of “conflicting provisions” clause. This means that if the peace agreement’s provisions conflict with Armenia’s national laws, the peace agreement’s provisions take priority. In June, the Armenian Foreign Ministry described it as a provision “stipulat[ing] that the parties cannot use their domestic legislation for not complying with the document.” 

While the concept is generally correct, such “conflicting provisions” clause cannot resolve conflicts between a peace agreement and the Armenian Constitution (which includes the preamble). Under Article 6 of Armenia’s Constitution, the Constitution is supreme over all other laws, including a peace treaty. A conflict between a peace treaty and the Constitution would very well render the conflicting parts of the peace treaty unconstitutional and legally void. 

Therefore, when it comes to the preamble, the focus should not be on a “conflicting provisions” clause but on whether the preamble has any legal force capable of creating a conflict with a peace agreement. It does not. Hence, Azerbaijan’s argument is deeply flawed.

While a preamble generally expresses the purpose and intent of the people who enacted the constitution, it does not confer or limit rights or powers. One way we know this is by looking at what other countries have said about the enforceability of a preamble. The U.S. Supreme Court decided this issue in 1905. While its decision is not binding on Armenia, it is instructive and compelling, particularly given it comes from a country with one of the longest-standing written constitutions in the world. Also, Armenia’s Constitution is similar to the U.S. Constitution; both have a preamble, followed by articles (or chapters, in Armenia’s case) that create branches of government and prescribe their powers.

In Jacobson v. Commonwealth of Massachusetts, (1905), Henning Jacobson was criminally charged by Massachusetts after refusing to comply with a state vaccination regulation that required all inhabitants of Cambridge, Massachusetts to be vaccinated against smallpox. 

Jacobsen refused the vaccination and argued, in part, that the requirement violated his rights secured by the preamble of the U.S. Constitution, which states: 

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. 

Jacobsen argued that the vaccination requirement violated the preamble’s “Blessings of Liberty” secured to the People of the United States. The U.S. Supreme Court rejected the argument “without extended discussion.” In a single paragraph, the high court explained: “Although the preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the government of the United States, or on any of its departments. Such powers embrace only those expressly granted in the body of the Constitution, and such as may be implied from those so granted. Although . . . one of the declared objects of the Constitution was to secure the blessings of liberty to all under the sovereign jurisdiction and authority of the United States, no power can be exerted to that end by the United States, unless, apart from the preamble, it be found in some express delegation of power, or in some power to be properly implied therefrom.” 

While the preamble of Armenia’s Constitution references the Declaration of Independence, it does no substantive work. Nothing in the text of Armenia’s Constitution contains territorial claims against Azerbaijan or any other country. Chapter 1 sets forth the foundations of Armenia’s constitutional order. Chapter 2 provides fundamental human and civil rights and freedoms. Chapters 3 through 6 grant powers to the various branches of government. Chapter 7 empowers local self-government. And Chapter 8 discusses adoption and amendments. 

The Armenian Constitution’s preamble cannot legally prevent a peace deal, just as any other non-binding historical document expressing a people’s collective intent or purpose cannot legally prevent a peace deal. The U.S. Declaration of Independence speaks of the “repeated injuries and usurpations” of the King of Great Britain and declares that “all political connection between [the people of the Colonies] and the State of Great Britain, is and ought to be totally dissolved.” This was an expression of collective intent. That the U.S. now has political connections with Great Britain is not unconstitutional. Similarly, it certainly is the case that the necessary majority of people who enacted the Armenian Constitution in 1995, or its amendments, desired that Artsakh be unified with Armenia. However, amending the Constitution’s preamble to remove reference to the Declaration of Independence does not change that historical fact or remove any legal obstacles to peace. 

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