Court’s Verdict Anti Constitution

By Ara Papian, Former RoA Ambassador to 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.

By Ara Papian, Former RoA Ambassador to 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.
 
 
 

2 comments
  1. ARF Issues Statement on Protocols Court Ruling

    YEREVAN (ARF Press Office)—The Armenian Revolutionary Federation’s governing Bureau on Wednesday issued a statement on the January 11 decision by Armenia’s Constitutional Court to uphold the legality of the government’s controversial normalization agreements with Turkey. We present the translated text of the statement.

    Fellow compatriots

    On January 12, 2010 the Constitutional Court of the Republic of Armenia examined the constitutionality of the responsibilities undertaken by the Armenian side according to the signed Armenian-Turkish protocols.

    Thus began the process of ratifying the Protocols that endanger out national interests and contradict the founding principles of our state, as stipulated in the Constitution.

    The ARF had, from the start, rejected the three main points in the protocols which it considered to be preconditions aiming at: undermining the international recognition of the Armenian Genocide; legitimizing the current border between Armenia and Turkey; and linking the normalization of the relations between Armenia and Turkey with the resolution of the Nagorno-Karabakh conflict in Azerbaijan’s favor.

    We were, and still are, convinced that the signed protocols contradict with Armenia’s constitution to a degree sufficient to provide the Constitutional Court with valid legal basis to consider the protocols unconstitutional.

    While, unfortunately that didn’t occur, we are convinced that the mounting resentments expressed in Armenia and the Diaspora against the protocols is yielding results. First, as the decision reached by the Constitutional Court also indicates, the signing of the protocols is the result of the poor performance of Armenia’s Foreign Minister. Second, the Constitutional Court has indicated that the establishment of relations with Turkey should be strictly diplomatic in nature, and has accepted the opening of the border between Armenia and Turkey. Moreover the Constitutional Court did refer to the expressed concerns regarding the protocols and has provided enough legal basis for Armenia to express reservations regarding some of the points in the protocols.

    The Constitutional Court specifically passed a decision that the protocols are considered to be a bilateral agreement between Armenia and Turkey and that the Republic of Armenia could not speak on behalf of a third party, in this case Nagorno-Karabakh.

    On the issue of the Genocide, any responsibilities that Armenia should undertake based on the provisions of the protocols can not contradict the preamble of Armenia’s constitution and the 11th point of Armenia’s declaration of independence which explicitly mentions that the Republic of Armenia will support the international recognition of the Genocide of Armenians in the Ottoman Empire and in Western Armenia.

    As far as defining the border between Armenia and Turkey is concerned, the protocols do not have any legal premise to delineate those boundaries. Hence this is still an open issue, and one that could be resolved solely based on a future inter-state agreement.

    Having the Constitutional Court’s decision, the ARF is convinced that the decision could diffuse the dangers expressed in the protocols if at the time of the ratification, the reservations expressed by the Constitutional Court become an integral part of the ratified protocols.

    Fellow compatriots,

    We consider that the decision reached by the Constitutional Court is the successful end product of a struggle that has brought together the efforts of the ARF, other political and social groups as well as the whole nation. However the challenge still, lies ahead. We have to increase our efforts exponentially and force the authorities of Armenia to bring this process to a conclusion

    Our final goal is to normalize Armenian –Turkish relations without undermining the interests of the nation and the state and specifically without giving any concessions from the rightful demands of generations of our people.

    Armenian Revolutionary Federation
    January 12, 2010

     
  2. The Buck Stops With Mr. President
    "The signing of the protocols is the result of the poor performance of Armenia’s Foreign Minister"( ARF Statements on protocols court ruling, Asbarez January 13, 2010)                    =============================================================

    Sir, it seems for you "Հաւը միայն մէկ վոտք ունի".

    Again and again you insist that "The signing of the protocol is the result of the poor performance of Armenia’s Foreign Minister",  and repeatedly you’re asking only for Mr. Nalbandyan’s resignation, while the principal responsibility rests with President  Sargsyan.

    We wonder and don’t understand why you People bypass "khnami" President Sargsyan and put all the blame on his Foreign Minister?

    "THE BUCK STOPS WITH PRESIDENT SARGSYAN NOT MR. NALBANDYAN"!!

    Respectfully,
    Dr. Babajanian
    (independent)
    USA

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