COURT’S VERDICT ANTI CONSTITUTION
By Ara Papian, Former Ambassador of RoA in Canada

Modus Vivendi Centre
12 January 2010

The Constitutional Court of the Republic of Armenia came to a decision
on the unfortunate pair of Armenia-Turkey protocols. As seen as being
bound to happen, it was declared that ‘the obligations codified in
the protocols are in accord with the Constitution of the Republic
of Armenia’. Of course, there could have been another declaration,
which would have been more desirable. I maintain my position, that
the protocols contradict the Constitution of the Republic of Armenia,
and the processes of their authentication and signing have been in
violation of the corresponding laws and regulations currently in
place in the Republic of Armenia.

The deed is now done, however, and so the most important question
arises: what must we do? One thing remains, to take a deep breath and
carry on the struggle. The decision in question of the Constitutional
Court provides even more opportunities for that struggle, as the
legal opinion of the Constitutional Court is not absolute and without
qualification, but has certain clear interpretations and reservations.

Of course, it would take much longer and much greater detail for
an analysis to lay out the leeway in its entirety. Nevertheless,
it is clear at first glance itself that such leeway exists. For
example, the Constitutional Court codifies in its legal opinion
that the protocols are only ‘mutual’ and that they ‘bear exclusively
a bilateral inter-state character’. It is thus clearly stated that
Armenia-Turkey relations are separate from Armenia-Azerbaijan relations
or relations between Turkey and the Armenian Diaspora. Or, what I
find most significant, ‘international treaties can have juridical [1]
force with regards to the Republic of Armenia … only while taking
into account their validity based on international law’. That is
to say, the Constitutional Court has codified that, for example,
if the treaties of Alexandropol, Moscow or Kars are void as per
international law – and there can be no doubt on the matter that
they are – then those treaties cannot ‘have juridical force with
regards to the Republic of Armenia’, and the frontiers described
in them consequently cannot act as legal bases for "the existing
border". Accordingly, by the legal opinion of the Constitutional
Court of the Republic of Armenia, the protocols cannot and do not
render legal the treaties of Alexandropol, Moscow or Kars, as well
as the consequences of other possible unlawful legal instruments
that are void from the perspective of international law. Put simply,
the Constitutional Court of the Republic of Armenia has provided an
interpretation for the application of one of the basic and general
principles of law with regards to the unfortunate protocols, namely
jus ex injuria non oritur, illegal acts cannot create law.

The Constitutional Court has also found that the clauses of the
protocols ‘cannot be interpreted and applied such that they contradict
the clauses of the preamble to the Constitution of the Republic of
Armenia and the demands of the eleventh clause of the declaration of
independence of Armenia’. I would like to recall that, according to
the clause in question, "The Republic of Armenia stands in support of
the task of achieving international recognition of the 1915 Genocide
in Ottoman Turkey and Western Armenia".

The decision of the Constitutional Court is a very important and
legally-defined step in the process of expressing the conduct of the
Republic of Armenia when it comes to international treaties.

Nevertheless, it forms part of the domestic process and has almost no
significance in international law. In most countries, constitutional
or other levels of courts have no role to play in foreign relations.

In order for the opinion declared by the Constitutional Court of the
Republic of Armenia to have any legal force in international law,
it must be included as an official reservation, forming part of the
corresponding decision of the legislature of the Republic of Armenia.

The National Assembly must consider without question that the decision
in question of the Constitutional Court is based on certain legal
positions, and that the decision contains clear reservations and
interpretations. Thus, the legislature of the Republic of Armenia
is obliged to reflect in its discussions and, moreover, to at least
include in its decision, all the reservations and interpretations
expressed by the Constitutional Court.

Even after considering all this, I do not believe that ratifying
the Armenia-Turkey protocols would be in favour of the interests of
the Republic of Armenia and of the Armenian people. The best way out
would be the general rejection of those protocols. Why are we creating
problems for ourselves, that we may heroically overcome them later? Is
the spirit of Comrade Panchouni still thriving among us? He would say,
‘Close the door, I’ll come in through the window’. Let us not close
the open door today, so that we are not forced to come in through
the window tomorrow.

[1] [Instead of the Armenian "iravabanakan"] I would prefer using
the term ‘legal’ ["iravakan"], as the "juridical" is with regards
to jurisprudence, that is, with the science of law, while something
"legal" refers to rights and laws.