Can Armenia-Turkey protocols be ratified separately?
A possible soft-exit strategy for rapprochement process
by Hovhannes Nikoghosyan
Published: Tuesday February 23, 2010
icle/2010-02-23-can-armenia-turkey-protocols-be-ra tified-separately&pg=2
Washington – The Armenian-Turkish-Swiss trilateral joint statement
agreed on April 2 and issued on April 22 underscored the commitment by
ruling elites of two nations to normalization of relations by
addressing core issues of misunderstanding.
Despite widespread pessimism over the rapprochement, initialed
protocols were published on September 1, 2009 and the two documents
were signed in Zurich on October 10 2009, with mediation from the
United States.
The protocols have since been sent to parliaments for ratification. In
Armenia they also went through Constitutional Court, which issued a
legal blessing on January 12.
It would seem that all that is needed now is political will to take
the last step in legislatures to ratify the documents. But having gone
all this way, the sides are now discussing exit strategies.
Considering that the Armenian-Turkish process has been driven by a
series of "midnight" decisions, there may well be more such progress
assuming no extraordinary military-political crises occur.
Since the Constitutional Court ruling, Turkey together with her lesser
ally Azerbaijan appear to be diplomatically isolated. Turkish efforts
to link Nagorno Karabakh settlement with the normalization issue have
not been successful. While they recognize the linkage between those
two issues, Armenian officials say that they should be mutually
reinforcing rather than conditioning one another.
In this light, the only counter-argument Turkey can raise in order to
force the United States to back its position is Turkey’s alleged
indispensability as NATO ally in Middle East. (On the other hand, few
remember that Turkish economy is dependent upon World Bank and IMF for
the country’s government to commit any real anti-Western moves.)
Since the beginning of the process parties have been changing their
rhetoric quite often. Turkish side has been harsh by default, but
their deeds not always reflect the actual steps, in a positive sense.
On the contrary, Armenian president Serge Sargsyan’s rhetoric has gone
from positive and optimistic in the beginning, to "if we don’t try we
don’t win"-like justifications more recently. President Sargsyan’s
initiative to amend the legal background for recalling the signature
under the protocols was thought to prepare the exit strategy.
Draft amendments to Armenia’s Law on International Treaties now have
been put on the agenda of the Parliament. A new (draft) Article 38.1
will entitle the president to recall or suspend the signature under
the international treaty practically at any stage of contracting or
ratification.
Nearly simultaneously with the amendments on rescission, the protocols
were also submitted for ratification. Being so close to ratification,
the protocols my remain unratified indefinitely.
Technically, since both president Sargsyan and Turkish leader Prime
Minister Recep Tayyip Erdogan hold majorities in the parliaments, the
ratification process initially was thought to be functional.
But as Mr. Erdogan suggested he could not guarantee a successful
outcome and, moreover, did not expect one unless there was "progress"
on Karabakh talks.
By contrast, the Armenian president has guaranteed a successful vote
if Turkey agreed to ratify first. Most recently, some of the ruling
party MPs even suggested proceeding with ratification before Turkey,
which showed certain disagreement in the ruling party in Yerevan.
But if it does come to ratification, will the protocols be ratified
together, or one-by-one?
When I put this question to Vigen Sargsyan, Armenian president’s
foreign policy aide who recently spoke at the Center for Strategic and
International Studies (CSIS) in Washington, argued it was not feasible
to proceed with the one protocol in the absence of another. The
protocols are interlinked and their separate ratification would harm
the essence and substance of the agreements, making it impossible to
make further progress.
All the same, that does not necessarily mean that the protocols could
not be considered separately.
In fact, to this day it has not been explained why there are two
protocols instead of one, single, integrated document about the whole
complex of issues.
The protocol on diplomatic relations speaks about exchanging
diplomatic missions and only "the decision to open the common border",
which has no time limits for implementation and is not formulated in a
legally binding manner.
All the sub-commissions and the border opening with specific
timeframes are embodied in the second protocol on development of
relations.
It may well be that the recent Turkish criticism of the Armenian
Constitutional Court’s decision on January 12, charging Armenia with
undermining the spirit of the protocols may be followed by Ankara
moving to ratify only one of the two protocols.
International law, more specifically the Vienna Convention on the Law
of Treaties (1969), foresees no mechanisms (unless mentioned in the
actual texts of treaties) regarding ratification of the signed
agreements in a timely manner, except for the good faith and political
goodwill of the states. And the protocols themselves do not set out
any order for ratification.
The second protocol says that both documents "shall enter into force
on the same day, i.e. on the first day of the first month following
the exchanges of instruments of ratification". Armenia’s
Constitutional Court added its interpretation that "either protocol
cannot acquire legal force or take effect without the other".
Nevertheless, theoretically they can be ratified separately, whenever
the parties have enough political will for each, and only when both
are ratified they can enter into force.
Certainly, the Armenian side’s main interest is to have the border
with Turkey open rather than to establish yet another diplomatic
mission. (Even without diplomatic relations, an Armenian diplomat has
been working in Istanbul via the Black Sea Economic Cooperation
organization.)
But the Armenian side might agree to separation of protocols and thus
preservation of the normalization process should Turkey offer firm
guarantees about a reasonable timeframe for border opening, say before
the end of the first term of Sargsyan presidency in February 2013.
Alternatively, should Turkey fail to ratify the protocols, Armenia
might rescind the protocols postponing ratification until after
Turkish general elections due in 2011, and possibly also after the
next Armenian presidential elections.