CONSTITUTIONAL COURT LIMITS PROTOCOLS’ DAMAGE TO ARMENIAN NATIONAL INTERESTS

Panorama.am
16:53 19/01/2010

After months of bickering among Armenians the world over about
the Armenia-Turkey Protocols, the Constitutional Court of Armenia
on January 12 pronounced its judgment on whether the obligations
stipulated by the Protocols comply with the constitution.

The Court’s task would have been relatively easier, if it were to
simply deal with the legal aspects of the Protocols which would have
required a yes or no decision followed by a brief explanation. Yet the
fact that the Court’s verdict was eight pages long and contained scores
of clarifications, interpretations, explanations, and restrictions,
indicated that the Justices of the Court had to walk a tightrope
between safeguarding Armenia’s relations with major foreign powers
and minimizing the potential damage the Protocols could cause to the
Armenian national interest.

Since the Court was apparently reluctant to reject outright these
badly-negotiated and poorly-worded Protocols, it did the next
best thing: accept the Protocols after placing a large number of
restrictions on their legal interpretation and implementation. Thus,
the Court’s decision partially vindicates all those who have been
expressing their serious reservations regarding the negative aspects
of the Protocols.

Here are some of the main interpretations and limitations that the
Court placed on the Protocols: 1) The Court made all clauses of the
Protocols conditional on the implementation of two main obligations:
"establish diplomatic relations" and "open the common border." The
Justices thus made these two actions a necessary prerequisite for
the fulfillment of all other obligations to be undertaken by Armenia
and Turkey.

2) The Court narrowly interpreted the "open the common border"
clause of the Protocols, indicating that Armenia was simply making a
commitment "to resolve legal-organizational and institutional issues
connected to safeguarding the normal operation of border checkpoints."

Significantly, the Court used the term "checkpoint" rather than
"border," thereby indirectly refusing to accord legal recognition
to Armenia’s present boundary with Turkey. Since it was Turkey that
closed the border, it alone is responsible for re-opening it.

Armenia’s obligation, on the other hand, is limited to simply making
the necessary administrative arrangements to permit passage through
a checkpoint.

3) The Court ruled that only those international treaties that have
been ratified under the constitution of the present Republic of
Armenia could be considered legally valid. The clear implication is
that border issues regulated by treaties pre-dating the Republic’s
existence cannot be considered valid. This interpretation contradicts
frequent Turkish declarations that the Protocols reconfirm Armenian
territorial concessions to Turkey, specifically referencing the 1921
Treaty of Kars. Indeed, the Court pointedly downplayed the overall
significance of these Protocols by mandating that all future treaties
that establish and further develop relations between Armenia and
Turkey require its specific approval.

4) The Court countered the text of the Protocols which included
specific language about multilateral obligations, by asserting that
the documents in question were "exclusively of a bilateral interstate
nature." The Justices thus precluded Turkey from interfering in
the Karabagh (Artsakh) negotiations and making the improvement
of Armenia-Turkey relations conditional on the resolution of that
conflict.

5) The Court took issue with Turkish statements that the aim of
the historical commission envisaged by the Protocols is to review
the facts of the Armenian Genocide. The Justices clearly stated
that the provisions of the Protocols could not contradict the
preamble of the constitution which includes a reference to Armenia’s
Declaration of Independence. Article 11 of the Declaration stated:
"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 key question now is what happens next?

At a minimum, the Constitutional Court has limited some of the
damaging aspects of the Protocols by ruling that any laws emanating
from the Protocols, after parliamentary ratification, cannot violate
the constitution of the Republic of Armenia.

Of course, it would be far more preferable if the Parliament were to
reject these Protocols outright. Regrettably, this is unlikely, as
the Parliament is dominated by pro-government deputies. If rejection
is not a possibility, the President of Armenia and the Parliament
should at least consider specific reservations or changes to these
Protocols in line with the Constitutional Court’s decision.

Failing that, Armenians who oppose the Protocols must pin their last
hope on the Turkish Parliament’s insistence that it would not ratify
the Protocols until Armenia withdraws from Artsakh. Should the Turkish
Parliament not ratify the Protocols, it would be highly ironic if
Armenians had to rely on Turkish actions in order to protect their
national interest!

By Harut Sassounian Publisher, The California Courier