LIKE THEY WERE NEGOTIATED

Lragir.am
26/01/10

On Philip Gordon, the decision of the Constitutional Court and the
rule of law

Numerous opinions have been expressed following the decision (on the
12th of January, 2010) of the Constitutional Court of the Republic of
Armenia on the Armenia-Turkey protocols. I believe, as I have already
had the chance to say, that the decision was extremely significant.

Although the decision itself does not resolve any issues in terms of
international law, nevertheless, the legal position of the decision –
which is mandatory for all, including the legislative and executive
branches – creates serious tools for damage control with regards to the
potential dangers of the protocols. Accordingly, everything henceforth
depends on the level of abidance to the law of the president and the
National Assembly of the Republic of Armenia.

One finds, in all this, a very interesting statement by the US
Assistant Secretary of State Philip Gordon: "We view the court
decision as a positive step forward in the ratification process of
the normalization protocols between Turkey and Armenia. The court
decision permits the protocols, as they were negotiated and signed,
to move forward towards parliamentary ratification, and does not
appear to limit or qualify them in any way".

I believe that the most important and just as problematic idea
in this paragraph is the phrase, "as they were negotiated and
signed". The problem is just that; the parties do not subscribe to
the same interpretation of the very same paragraphs, expressions, or
even words. Their interpretations are often not only fundamentally
different, but also contradictory. It is enough to compare the
statements on the same questions about the protocols by the president
and foreign minister of the Republic of Armenia and by the prime
minister and foreign minister of Turkey for it to be clear that
the parties do not see eye-to-eye on the issues at hand, and it
is therefore impossible to generalise, "as they were negotiated
and signed".

And for this very reason the decision in question of the Constitutional
Court of the Republic of Armenia is very significant.

It is nothing short of the legal interpretation of the Armenian party
on the issues taken up in the protocols, based on the Constitution
and laws of the Republic of Armenia, as well as international law.

I agree with Mr. Gordon, that the decision of the Constitutional Court
of the Republic of Armenia does not hinder the ratification of the
protocols. The Constitutional Court of the Republic of Armenia has
decided that the object and purpose of the protocols – to establish
diplomatic relations and to open the border – and also the obligations
arising from them, do not violate the Constitution and laws of the
Republic of Armenia. The Constitutional Court simply clarifies the
Armenian side’s position on other issues included in the protocols,
giving legal expression to the interpretations of the Armenian party
to those issues.

Here one must remind Mr. Gordon of a few facts. Firstly, the decision
of the Constitutional Court of the Republic of Armenia is a final
ruling which is in force. Secondly, the decision of the Constitutional
Court of the Republic of Armenia is a non-negotiable and binding
document for all citizens of the Republic of Armenia, including the
president and foreign minister of the Republic of Armenia, as well as
deputies of the National Assembly, just as any decision by the Supreme
Court of the United States would apply to all Americans. Thirdly,
the decision of the Constitutional Court is a complete document as
a whole, where the legal position has just as much legal force as
the conclusion.

And so, taking into account, to begin with, the requirements of
the law on the Constitutional Court of the Republic of Armenia, as
well as the positive reaction by the Americans to the decision of
the Constitutional Court of the Republic of Armenia, the president
of the Republic of Armenia is obliged to present the protocols in
question for ratification to the National Assembly alongwith the
legal position as per the decision of the Constitutional Court of
the Republic of Armenia, having thus added them in as reservations.

It is mandatory for the president of the Republic of Armenia to
demonstrate by his own example that he abides by the laws of the land.

And the Americans are obliged to demonstrate in turn that they respect
rule of law in general, and not just American law.

Ara Papian Head of the Modus Vivendi Centre 25 January, 2010