In [juris]prudence, Davit Khachatryan explores the international legal order from Armenia’s vantage point, examining how states, courts, treaties and legal principles shape the world Armenia inhabits. The column looks beyond the headlines to unpack what international law actually says, how it is used and contested, and why it matters for Armenia.
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International law knows one Republic of Armenia: the state that emerged in 1991 and took its seat at the United Nations in March 1992. It has known that state through constitutional amendments, a lost war, a displaced population, and a reversal of foreign policy, and it will know the same state after the next constitution.
I am writing on the eve of September 21, and I want to put the celebration aside for a moment. We talk about independence as an achievement, something accomplished once and thereafter owned. It is not. A state is what it does and omits, what it represents and refuses to represent, and each of those is a live account rather than a settled one.
Last month, the government told parliament that a Fourth Republic had been founded, that it is a reality, that the program which won the June election is now the country’s official state ideology, and that the new constitution should drop its reference to the 1990 Declaration of Independence. Only one of those two accounts bears on what Armenia owes and is owed, and it is not the one delivered from the floor of parliament. That rule is not Armenian. It was settled a century ago, in a quarrel over a ship.
Sovereign Enough
In March 1921, a steamer called the Wimbledon was stopped at the mouth of the Kiel Canal, carrying munitions to Poland, then at war with Soviet Russia. Germany was neutral in that war and refused her passage. However, the Treaty of Versailles, imposed on Germany two years earlier, required the canal to stay open to the ships of every nation at peace with it, and made no exception for wars Germany would rather sit out. Britain, France, Italy and Japan took the matter to the Permanent Court of International Justice, the first standing court where one state could be made to answer another.
Germany argued that being compelled to let the munitions through would mean it had given up a right forming an essential part of its sovereignty. The Court agreed that a treaty obligation restricts how sovereign rights may be exercised, and refused the leap from restriction to abandonment. On the contrary: entering the obligation in 1919 and performing it in 1921 were both exercises of German sovereignty, since the right of entering into international engagements is itself an attribute of sovereignty.
Statehood is not a possession. It is a relationship, maintained in what a state does with others and in what others must do with it. By the time Germany signed at Versailles, the Kaiser had abdicated, the monarchy was abolished, and a republic governed in its place. None of that changed what Germany owed under international law. This article is about the Armenian instance. Everything below turns on that distinction: between the state itself and the way it is governed.
One Republic
Obligations do not lapse when a government changes. The state is the person. The government is the principal organ through which the person acts. Organs change, lawfully or otherwise, and the person remains, carrying whatever its organs did in its name. The Republic, then, is less an event than a condition maintained: not something that happened in 1991 but something being done continuously since, by whoever holds the institutions.
Whether Armenians call the present arrangement the Third Republic or the Fourth or the Eleventh is domestic periodization, and it belongs to the same family of self-description as the French naming their constitutional eras. France has had five republics, two empires and a monarchy restored twice, and international law has known one France throughout, bound by what those regimes did in its name. Even Vichy, which France declared null and treated as though it had never existed, ended up engaging state responsibility for what was done in its name, though it took until 2002 for a French court to say so plainly.
This matters now, because Armenia is preparing a new constitution. Part of the case for it is domestic. Part of it is that Azerbaijan has made the removal of the reference to the 1990 Declaration a condition of signing the peace agreement, on the ground that the Declaration carries a claim to Nagorno-Karabakh. The constitutional text may therefore change, and the question is what, if anything, changes with it.
Nor will the international community read the amendment as the arrival of a different country, or as the settlement of anything. Removing the reference to the 1990 Declaration is meant to close a question. It will not. Baku pressed for this because pressing worked. A concession that arrives on request teaches the requesting party to ask again. There is no reason to expect the pressure to stop at the constitution, and there is no version of the law in which the “Fourth Republic” owes less than the “Third Republic” did. Should Baku read the amendment the other way, as wiping out what Armenia is owed, it will be making the same mistake from the opposite side.
What the State Will Be Held To
States hold obligations the way persons do. Most often they take them on by entering into treaties and conventions. There are also unilateral declarations, which bind a state without any treaty. In the 1970s, France was carrying out nuclear tests in the atmosphere over the Pacific. Australia and New Zealand sued at the International Court of Justice (ICJ) to stop them. While the case was pending, the French president and several ministers announced publicly that the tests would end. The Court held that these announcements were themselves legally binding. A state that says something publicly, intending to be taken at its word, is held to it.
Then there is acquiescence. A state that stays silent when it was expected to object may be taken to have agreed, and the position it never contested hardens against it over the years. Once a treaty exists, how the parties actually speak and behave under it counts as evidence of what it means. Lawyers call this subsequent practice. Last, there is estoppel, which prevents a state from contradicting a position that others have relied on to their cost.
All four are in play for Armenia. For most of our history, the law happened to us. Others discussed Armenia, negotiated over it, drew its borders, and produced the categories through which Armenian questions were understood. That slightly changed recently. In September 2021, Armenia sued at the ICJ over the treatment of ethnic Armenians. A week later, Azerbaijan filed the mirror case. Both are now at the merits, with pleadings timetabled into 2027. Azerbaijan did not stop there. It has built a portfolio of four claims: the mirror case at the Hague; an interstate application at the European Court of Human Rights, where both states have had applications running against each other since 2020; and two arbitrations at the Permanent Court of Arbitration, one alleging that Armenia damaged the environment of the territories it left, the other over energy assets.
All of which is about to be dropped. The draft of the peace treaty with Azerbaijan, initialed in Washington last August, provides that both sides withdraw their claims from international bodies. The exchange is presented as symmetrical, and it is not. Azerbaijan’s claims were filed to be given up. Ours was filed to be won. The second exchange is no better. In September 2023, the Armenians of Nagorno-Karabakh were forcibly displaced from their homes. That created a right of return, and two months later the Court ordered Azerbaijan to ensure it: people who had left after September 19 and wished to go back were to be able to do so safely and without obstruction. That order was provisional. The Court found the right of return plausible enough to protect while the case runs.
Azerbaijan built the same claim in reverse. Azerbaijanis who left Armenia decades ago, it says, hold the right to return to what it calls “Western Azerbaijan,” meaning this Republic. The claim was not made to be won. It was made so that ours would have a price. And Armenia has adopted it. In December, the Prime Minister proposed a joint roadmap to set aside both issues together, the return of the Armenians of Nagorno-Karabakh and the return of Azerbaijanis to so-called “Western Azerbaijan.” Presenting the government’s program to parliament last month, he went further: for peace to last, talk of return must end on both sides at once. Not a party, not a faction: Armenia, because what a prime minister announces from the floor of parliament is the Republic speaking. The position now advanced is that the two claims answer each other and can be settled together, which is precisely the outcome Baku built the mirror to obtain. We have supplied the equivalence ourselves, in public, on the record, at the moment when the record is what everything will be read against.
Like It Or Not
Which brings me back to the government that told parliament a republic had been founded. The political program that won in June is now the official state ideology. The new constitution should drop its reference to the 1990 Declaration. “Real Armenia,” we are told, is what is left when the rest is put down.
I oppose almost all of it. The burial of the Nagorno-Karabakh question is a legal error before it is a political one. But the objection cannot be that the state has been stolen, or that sovereignty has been given away, or that whoever signs is acting outside the Republic and can therefore be disowned. None of that is available. The organ acts, and the person is bound. The rule behind that is called attribution, and it is set out in the Articles on State Responsibility, drafted by the International Law Commission over decades and now mostly treated as a statement of the law in force. The conduct of state organs counts as the state’s own: a ministry, the parliament, a court, a prime minister. It makes no difference that domestic law gave the organ no such power, or forbade it outright. An organ that exceeds its authority still binds the state, a rule that exists precisely so that governments cannot disown their own people after the fact.
The institutions are operated by the people who won the election, and the institutions are the Republic. So the rest of us carry what they do, and so will whoever comes after us. Accession to the Eurasian Economic Union in 2015 was the Republic’s accession, not one cabinet’s. The peace agreement is one item on a longer list. A constitutional amendment, demanded and now being prepared. The dissolution of the Minsk Group, demanded and done. The withdrawal of the cases, demanded and agreed. The equation of “Western Azerbaijan” with Nagorno-Karabakh, demanded and, from the floor of the Armenian parliament, supplied.
Moreover, when the peace agreement is signed, the interstate cases go with it. Armenia has proceedings running against Azerbaijan at the ICJ and at the European Court of Human Rights, over the treatment of Armenians, the prisoners, and what was done to a population that no longer lives where it lived. Azerbaijan’s mirror claims, built to offset ours, go with them, which confirms that pressure works. Baku has drawn that conclusion at every turn, and so far it has not been wrong.
For the Record
I have argued two things that sit badly together. This government speaks for the Republic, so what it does is the Republic’s and therefore mine. And it is making a mistake the Republic will carry for a long time. I do not intend to resolve the discomfort. It is the ordinary position of anyone who opposes the government of his own state and does not pretend the state is somewhere else.
What follows from it is narrow. If the acts cannot be disowned, what is left is the record. That is what this column is for: international law read through Armenia, and Armenia read through international law. I wear no rose-colored glasses. This field is unevenly applied, arrives late, and is shaped by those who need it least, and I will say so as often as it is true. But the conclusion drawn here, that international law therefore does not matter, is the most expensive mistake in our public thinking. It has cost us cases we could have brought, arguments we could have made, and positions we gave away for nothing because we had decided in advance that none of it counted.
Positions harden when nothing contradicts them. A claim given up in silence is given up completely. A claim given up over objection, argued properly, by people who know how such things are argued, is given up differently. It stays legible. Someone will go looking one day, a lawyer or a court or a government, for whether the Republic of Armenia ever held another view of the right of return, and on what grounds it held it. What that person finds will have been written now, by whoever took the trouble to write it.
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Davit Khachatryan specializes in International law and has three LLM degrees, one from Armenia’s State Pedagogical University in Civil Law, followed by a degree from Uppsala University in Investment Treaty Arbitration, and the most recent from the Swedish Defence University in International Operational Law.
