SIGNING AN ILLEGAL STEP

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10:54:09 – 06/10/2009

Statement on the legal status of the protocols, on the establishment of
diplomatic relations between the Republic of Armenia and the Republic
of Turkey and on the development of relations between the Republic
of Armenia and the Republic of Turkey

The following is defined in the second clause of Article 2 of the law
of the Republic of Armenia on international treaties (of the 22nd of
February, 2007): "By this law, any written agreement is considered to
be an international treaty of the Republic of Armenia, be it in the
form of a treaty, agreement, convention, memorandum, protocol or as
a document of any other name, or which has been expressed with the
exchange of official notes or letters."(unofficial translation)

In my opinion, such wording has provided much broader commentary
on the concept of a treaty than is prevalent in international
public law (cf. Article 2 of the Vienna Convention on the Law of
Treaties). Nevertheless, seeing as the aforementioned definition
is different from, but not opposed to, international law, taking
it into consideration as such, let us examine the protocols on the
establishment of diplomatic relations between the Republic of Armenia
and the Republic of Turkey and on the development of relations between
the Republic of Armenia and the Republic of Turkey.

According to the definition as per the law of the Republic of
Armenia on international treaties above, a protocol between states
is an international treaty. Therefore, the passing of a protocol is
"the conclusion of necessary procedures as provided [by the law]"
(Article 8, clause 1; unofficial translation). That is to say, the
passing of such a protocol is a chain of regulated, consecutive stages
and is required by law for its provisions to be completely fulfilled
without error.

The law of the Republic of Armenia as cited provides for the following
preparatory stages for treaties, that is, the protocols, in this case:

Stage 1. The initiative to sign an international treaty

In order to commence the process of passing the Armenian-Turkish
protocols, it would be necessary as a first step to have the written
orders of the President (Article 8, clause 5).

Stage 2. Pushing forward with the initiative to sign an international
treaty

As the ministry with the corresponding purview, the Ministry of Foreign
Affairs would be obligated to prepare a statement on the appropriate
nature of signing an Armenian-Turkish protocol and drafts of such
a protocol (Article 9, clause 1), to be presented to the President
(Article 9, clause 2.1).

Stage 3. Starting the process of signing an international treaty

In this stage, the President, having received drafts of the protocols,
would express his position in a letter to the Foreign Ministry. If the
position were in the affirmative, the Foreign Ministry would start
the process of getting agreement within the state on the drafts of
the protocols within ten days of receiving the President’s written
agreement. That is, written documentation pertaining to the protocols
would be sent to all state bodies having prerogatives to do with the
matter at hand, along with the drafts (Article 10, clause 2).

Stage 4. Agreement on the drafts of the international treaty and
proposals and criticism with regards to the international treaty

The state bodies involved – and, in our case, that would be all
the ministries, as well as around twenty or so other agencies –
upon receiving the documentation and draft protocols, would present
in writing to the state body with the legal purview (the Ministry
of Foreign Affairs) proposals and criticisms pertaining to areas of
operation within their own jurisdiction, within fifteen days at the
most (Article 12, clauses 1 and

2)

Stage 5. Summation of opinions on the draft international treaty

The state body with the legal purview – the Foreign Ministry in this
case – would review or amend the draft of the international treaty
upon receiving the opinions of the state bodies with prerogatives on
the matters of the treaty (Article 14, clause 1.1).

Stage 6. Agreement on the text of the international treaty with the
opposite party

The law of the Republic of Armenia as cited has the provision that
the text of the given international treaty of the Republic of Armenia
would be agreed upon with the opposite party by authentication or
through some other means provided for by law (Article 18, clause
1). In our case, it is through authentication. It is essential to
emphasise that the given international treaty could be authenticated
by the Republic of Armenia only after the completion of the process
as defined for the preparation and authentication of the draft treaty
(Article 18, clause 2).

Conclusion. Considering the fact that the protocols in question have
not undergone "the conclusion of necessary procedures" as provided
by this law, as well as the fact that the authentication of the
protocols has been carried out without due process as defined by law
for authentication, therefore the authentication of the protocols
on the establishment of diplomatic relations between the Republic
of Armenia and the Republic of Turkey and on the development of
relations between the Republic of Armenia and the Republic of Turkey
is void, and thus the protocols themselves are not subject to being
signed. Signing them would be an illegal act.

Ara Papian Head of the Modus Vivendi Centre 5 October, 2009