A Predictable Fait Accompli in Yerevan

Team Keghart Editorial, 12 January 2010 
 
As expected, the Constitutional Court of Armenia has upheld the constitutionality of the Protocols. Now the documents will be forwarded to the parliament of Armenia for ratification, and then President Serzh Sargsyan will have a final say.

Several Protocols-related matters are particularly worrisome. Although the Protocols are not ordinarily dealt as treaties, in this instance they are being accorded all the fanfare and prestige of a treaty, thus making it even more difficult to either bypass their provisions or abrogate them by a subsequent administration. Usually Protocols are dealt as "letters of agreement", which are much less restrictive in parameters.

Whether the Protocols represent Armenian national interests (Armenia, Diaspora or Western Armenia) remains a moot point and is prone to discussion.

Team Keghart Editorial, 12 January 2010 
 
As expected, the Constitutional Court of Armenia has upheld the constitutionality of the Protocols. Now the documents will be forwarded to the parliament of Armenia for ratification, and then President Serzh Sargsyan will have a final say.

Several Protocols-related matters are particularly worrisome. Although the Protocols are not ordinarily dealt as treaties, in this instance they are being accorded all the fanfare and prestige of a treaty, thus making it even more difficult to either bypass their provisions or abrogate them by a subsequent administration. Usually Protocols are dealt as "letters of agreement", which are much less restrictive in parameters.

Whether the Protocols represent Armenian national interests (Armenia, Diaspora or Western Armenia) remains a moot point and is prone to discussion.

Article 11 of the Declaration of Independence, dated August 23, 1990, states, "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 measured wording does not explicitly mention our legitimate land claims from Turkey. Hence, those who have forwarded the thesis that the Protocols violate the intent of the Declaration of Independence are at least partially wrong.

As to constitutionality, there are only two main articles in the constitution that are relevant to the case, while the second is remotely related:

"Chapter 1:  The Foundations of Constitutional Order
Article 9
The foreign policy of the Republic of Armenia shall be conducted in accordance with the principles and norms of the international law, with the aim of establishing good neighborly and mutually beneficial relations with all states.

According to the above article it can be posited that the intent of the Protocols is to establish "neighborly and mutually beneficial relations".

"Article 100
The Constitutional Court shall, in conformity with the procedure defined by law:
2) prior to the ratification of international treaties determine the compliance of the commitments stipulated therein with the Constitution."

This is remotely relevant, and unfortunately–as said earlier–the Protocols have been elevated to the status of treaties.

The only solace for those who object to the constitutionality is dependent on how the preamble of the constitution is interpreted (bolded by Keghart).
 
"The Armenian People, recognizing as a basis the fundamental principles of the Armenian statehood and national aspirations engraved in the Declaration of Independence of Armenia, having fulfilled the sacred message of its freedom loving ancestors for the restoration of the sovereign state, committed to the strengthening and prosperity of the fatherland, to ensure the freedom, general well being and civic harmony of future generations, declaring their faithfulness to universal values, hereby adopts the Constitution of the Republic of Armenia."

Here too, the constitution does not make land claims. There is only a vague reference to "national aspirations" and "restoration of the sovereign state"

Thus, it should not come as a surprise that the Court upheld the constitutionality of the Protocols.

The answer to land claims and what descendents of Genocide survivors define "national aspirations" lie elsewhere. Only through re-organization of the Diaspora, and making use of all its potentials, can the Diaspora hope to achieve what it aspires, in tandem with what Armenia as a state can do.
 

Fortunately, such positive developments are blossoming in various Armenian communities and organizations around the globe. The upcoming 12 months could determine whether Diaspora-driven initiatives regarding our legitimate land claims are on the right track.  To quote a wise Armenian saying, "If you have fingernails, scratch your own head”  Yeghounk ounis, kloukhet kere.
 

Yes, we do have fingernails–no thanks to Serzh Sargsyan and Co.

Recent Editorials of Team Keghart
New Diaspora Organization Deserves Your Support
Beware of Turkish Diplomats Bearing Gifts

Let’s Play Fair

A Better Way to Aid Citizens of Armenia
US Armenian Lobby’s Clout an Exaggeration
Hayeren Khosink… Yev Krenk  
“All the Taboos … Will Be Broken”

Sidebar to the editorial
Court’s Verdict Anti Constitution
By Ara Papian
3 comments
  1. Too Little – Too Late!!
    Team Keghart,

    Whilst you are all scratching your heads, the regime is marching on with its sell-out of Armenia’s genocide, etc. with Turkey and shortly (before 24th April) the sell-out of Karabakh.

    Too Little – Too Late!!

  2. Sassounian’s Article – Constitutional Court’s Decision

    Constitutional Court Limits Protocols’ Damage to Armenian National Interests
    By Harut Sassounian, Publisher, The California Courier, 21 January 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!

  3. Turkey Cries ‘Preconditions’ in Response to Court Ruling
    By Asbarez Staff on Jan 19th, 2010

    Turkish Foreign Minister Ahmet Davutoglu

    ANKARA, YEREVAN (Combined Sources)—In response to last week’s ruling by Armenia’s Constitutional Court, the Turkish Foreign Ministry Tuesday issued an announcement condemning Armenia for setting “unacceptable” preconditions on the Armenia-Turkey protocols.

    In a statement issued late Monday, Turkey’s foreign ministry said “It has been observed that this [Constitutional Court] decision contains preconditions and restrictive provisions which impair the letter and spirit of the Protocols.”

    “The said decision undermines the very reason for negotiating these Protocols as well as their fundamental objective. This approach cannot be accepted on our part,” continued the Turkish statement.

    “Turkey, in line with its accustomed allegiance to its international commitments, maintains its adherence to the primary provisions of these Protocols,” added the statement.

    “We expect the same allegiance from the Armenian Government,” the Turkish Ministry said in a statement,” concluded the brief statement.

    On January 12, Armenia’s Constitutional Court upheld the constitutionality of the protocols, adding however, that the documents cannot have any connection with the ongoing Nagorno-Karabakh conflict resolution process or impede Armenia of its pursuit of international recognition of the Armenia Genocide. To reinforce the latter point, the Court referenced Article 11 of Armenia’s Declaration of Independence, which states: “The Republic of Armenia stands in support of the task of achieving international recognition of the 1915 Genocide in Ottoman Turkey and Western Armenia.”

    Official Yerevan was quick to react with Foreign Minister Eduard Nalbandian saying that he will personally phone his Turkish counterpart Ahmet Davutoglu to “express my bewilderment and clarify where exactly the Turkish side sees preconditions and just how the decision by Armenia’s Constitutional Court contradicts the fundamental objectives of the protocols.”

    Nalbandian also suggested that the Turkish government was looking for excuses to delay the process and add further preconditions on the protocols.

    Despite countless arguments by the Armenian President and foreign minister that Armenia has entered this process without preconditions, Turkey has repeatedly linked the normalization of relations between the two countries with the resolution of the Nagorno-Karabakh conflict in favor of Azerbaijan.

    As recently as late last week, Turkish Prime Minister Recep Tayyip Erdogan said that the protocols would not be ratified until a resolution to the Karabakh conflict is reached. These remarks came after his meeting with Russian Prime Minister Vladimir Putin who bluntly said that the processes were separate and could not be interconnected. The same position was expressed by Russian Foreign Minister Sergei Lavrov last week during his official visit to Yerevan.

    The Armenian Revolutionary Federation, which has spearheaded vocal opposition to the protocols both in Armenia and the Diaspora, rejected Turkey’s statement. The party’s political director Giro Manoyan told reporters Tuesday that with its statement Turkey proved, once again, that, aside from its own interpretations, it rejects any other explanation of the protocols.

    Manoyan warned that after this announcement by Turkey, Armenian authorities should not attempt to weaken the Armenian high court’s position.

    “It is imperative for the Armenian authorities to not seek to weaken the Armenian Constitutional Court’s decision,” said Manoyan explaining, “The Armenian government must continue the process in the spirit of the court ruling.”

    In a statement issued by the ARF following the Court ruling, the party expressed its continued rejection of the protocols, but added that the Constitutional Court provisions referenced above provide an opportunity for revisions in the next phase of the ratification process.

    “We have launched a process of normalization in relations with Armenia and in good faith taken steps that include the signing of the protocols,” Foreign Ministry spokesman Burak Ozugergin told the Hurriyet Daily News & Economic Review. “We have often expressed our views about what the necessary conditions are for the maintenance of peace and stability in the Caucasus.”

    The Turkish government submitted the protocols to Parliament, but they have not been submitted for ratification because they depend on the progress in the Nagorno-Karabakh conflict, added Hurriyet in its news report on the matter.

    Burcu Gultekin Punsmann, a Caucasus expert at the Turkish think tank TEPAV, said the diplomatic agreements were a product of consensus between the states concerned and argued that the Armenian constitutional court’s reasoning was putting limits on points for which the sides had already reached an agreement, reported the Hurriyet.

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