BERN—The Switzerland-Armenia Association
issued a position paper Wednesday criticizing the protocols on
the establishment and development of relations between Turkey
and Armenia.
In the announcement, the
organization fleshes out the contentious points of the protocols
and dangers it poses to Armenia and its national security. It is
significant since Switzerland is mediating the talks between
Turkey and Armenia.
Below is the position paper:
Switzerland – Armenia Association
(SAA) Position Paper on the Protocols for the Establishment and
Development of Diplomatic Relations Between the Republic of
Armenia and the Republic of Turkey Protocols intended to be
ratified by the Parliaments of Armenia and Turkey.
Introduction:
If ratified by the respective Parliaments of the two Republics,
these Protocols will have the value of an international treaty;
they will be legally valid under international law, and the
parties will assume obligations among themselves. It will not be
possible to object to these obligations unless a new treaty,
with different content is ratified.
The following items and
clauses of the Protocols are to be disputed:
I. Protocol on the Establishment
of Diplomatic Relations between the Republic of Armenia and
Republic of Turkey
3rd point:
“Reconfirming their
commitment, in their bilateral and international relations, to
respect and ensure respect for the principles of equality,
sovereignty, non intervention in the internal affairs of other
states, territorial integrity and inviolability of frontiers.”
• Armenia has already
subscribed to these principles by signing the UN Charter at the
time of independence.
• Armenia will no longer
have the right to negotiate for Karabakh. Under international
law, the region of Karabakh is currently, legally part of
Azerbaijan territory. Karabakh runs the enormous risk of no
longer being supported by its mother country (the Republic of
Armenia), thus being left alone in its claim for
self-determination, part of the Principles of Madrid.
• It is unclear as to why
the Protocols expressly cite the principles of sovereignty, non
intervention in the internal affairs of other States,
territorial integrity and inviolability of frontiers, but do not
make any explicit or implicit reference to the principle of the
right of self-determination. This right does not appear in this,
or in any other paragraph within both this Protocol and the one
on the Development of Relations Between the Republic of Armenia
and the Republic of Turkey. In fact, the indirect reference to
it, by citing the Final Act of Helsinki (which includes the
right to self-determination, quoted in point 2 of the same
protocol) does not imply that the Protocol could make reference
to it. It implies that the issue of self-determination cannot be
raised unless the Republic of Azerbaijan agrees to refer to it.
If raised, the right of self-determination under these Protocols
would be subordinate to territorial integrity.
• By not mentioning it
separately, and not asking Turkey for a clear reference to it,
the right to self-determination and the reaffirmation of this
principle which has the value of an “imperative norm of
international law” will loose its prevalence over any other
principle; there is an acquiescence by the signatory, that this
principle does not apply to the subject matter because the
subject is not open for discussion. The reference to the final
Act of Helsinki, whose dogma of territorial integrity prevails,
is nothing more than a direct intention to undermine this
willingness.
• Armenia will no longer
have the right to raise concerns about the possible abuse of
Armenian cultural patrimony in Turkey and as part of its claims
in relation to its historical properties. It is indirect
acknowledgement of the effective legislation applied by Turkey
since the events of 1915 to render ineffective any claim on such
properties.
• Directly related to this
point is that as a signatory of the Protocols in question,
Armenia will no longer have the right to hold Azerbaijan
accountable in front of an international authority for the
destruction of the Khatchkars (Cross-Stones) of Djougha (Nakhitchevan),
the Armenian cemetery in Baku and many other Armenian monuments
on Azerbaijani territory.
• In addition, the
destruction of Armenian monuments and churches in Georgia,
especially in Tiflis and in the Armenian populated Region of
Samtkhe Djavaketi (Djavakhk), will never be subject to
international condemnation. Moreover, by signing these protocols
Armenia will not have the right to defend Armenians in Djavakhk,
this is a direct reference to the Vahak Chakhalian case.
5th point:
“Confirming the mutual
recognition of the existing border between the two countries as
defined by the relevant treaties of international law,”
• This is a direct
reference to the Treaty of Kars (1921) and the Treaty of
Lausanne (1923), but not the Treaty of Sèvres (1920), which was
signed by the Ottoman Empire on August 10, 1920, but has not
been ratified by the Ottoman Parliament. Armenia was not present
during the negotiations leading to the Treaty of Lausanne and
could thus advance the reserve that it did not sign this treaty.
Armenia could also make the point that Soviet Armenia was forced
to sign the Treaty of Kars. It is vital to note that President
Wilson got a Mandate from all of the Powers present in Sèvres in
order to establish the new territorial boundaries for Armenians,
the Kurds and the Turks. The definition of these boundaries did
not depend upon ratification. An international arbitration on
these boundaries has been rendered, and as a judicial
instrument, is still in force. If Armenia signs this Protocol,
it will put an end to the existing judicial controversy and the
Republic of Armenia will permanently loose all of its claims to
land in Turkey.
• The recognition of
borders would put an end to the debate; the victims of the
Armenian Genocide were subject to a massive ethnic cleansing
campaign and are entitled to reparations. Accepting these
boundaries leaves by definition, the question of liability
aside. Responsibility under international law leads by
definition to appropriate reparations; this is what would have
happened with recognition of the Genocide. Here Armenia
recognizes the borders, recognizes the Treaty of Lausanne, and
the crime is left in the hands of a “sub committee”, whose
decisions will not be considered a judgment having relevance
under international law. At best, this committee will recognize
a historical fact. Therefore, Armenian claims of any nature
whatsoever, territorial, legal etc. will be waived and no longer
considered.
6th point:
(…) Reiterating their
commitment to refrain from pursuing any policy incompatible with
the spirit of good neighborly relations.” (…)
• This point is a direct
intention, and Turkey’s aim, to definitively block international
recognition of the Armenian Genocide. Furthermore, this point
would be used against any claim or issue Armenia should make
concerning the destiny of Armenian cultural and architectural
patrimony in Turkey, bilaterally or under international law.
Although indirectly, this point could be used against Armenia’s
role in the Karabakh conflict, given the close ties between
Turkey and Azerbaijan.
II. Protocol on the Development of Relations Between the
Republic of Armenia and the Republic of Turkey
6th point:
“Reiterating their
commitment to the peaceful settlement of regional and
international disputes and conflicts on the basis of the norms
and principles of international law,”
• The Karabakh conflict is directly implied here as is the issue
of Armenian Genocide reparations. Clear reference is made to the
Karabakh conflict, and implies that the Republic of Armenia is
no longer entitled to support, help, or contribute to the
defense of the Republic of Karabakh.
• Karabakh: what are the
criteria under international law for defining the legitimacy of
a region within an existing country, giving that region its
independence? As mentioned previously, under international law
the right of self-determination prevails over any other
principle, including that of territorial integrity. However, by
signing these Protocols where such criterion is not included, is
a clear indication that this principle is to be excluded from
this issue; it would therefore be impossible for the Republic of
Armenia to make any reference to it, in relation to the conflict
at stake.
• Reparations: As long as:
Turkey will not sign a document recognizing the Genocide, or an
international criminal court does not condemn Turkey (as
successor of the Ottoman Empire) for the Armenian Genocide, the
General Assembly of the United Nations will have no reason to
condemn it; as a consequence, there will be no instrument under
international law to pursue Turkey — as legal successor of the
Ottoman Empire, for this crime (even only to require that moral
reparations be met).
• Directly related to the
former is a decision of a court case in the United States on 20
August 2009, where the absence of such an instrument, as well as
the absence of legal recognition by the U.S. Government that the
Armenian Genocide occurred, was fundamental in the ruling by a
federal appeals court. The ruling found that Armenian American
descendants of the victims of the 1915-18 massacres by Ottoman
Turks, are not permitted to sue foreign insurance companies for
unpaid claims. Amazingly, the appeals court did not take then US
President Ronald Reagan’s speech commemorating and recognizing
the Armenian Genocide in 1981 into consideration, and did not
take into consideration both joint resolutions passed by the US
House of Representatives in 1975 and 1984, textually recognizing
the Armenian Genocide. However, the recognition of this crime by
more than 20 national Parliaments and five Governments (France,
Greece, Argentina, Uruguay and Canada), the Swiss Supreme Court
in condemning the denialist Dogu Perincek, and the Whitaker
Report (on the prevention and punishment of the crime of
genocide, approved by the UN Sub-Commission on the Prevention of
Discrimination and the Protection of Minorities) is tangible
evidence of heightened sensibility and international law in this
sense.
2nd agreement, 2nd
paragraph:
“Implement a dialogue
on the historical dimension with the aim to restore mutual
confidence between the two nations, including an impartial and
scientific examination of the historical records and archives to
define existing problems and formulate recommendations;”
• This item is one of the
most controversial points in this Protocol, and puts Armenia at
great risk with respect to its relations with the Diaspora:
Armenia does not have the right to speak on behalf of the entire
Nation, which includes the Diaspora (this point in the Protocol
specifies “Nations” and not Countries, and holds true for the
remainder of the text).
• The SAA does not concur
with following phrase in the Protocol: “to define existing
problems”. Is the Genocide an existing problem that needs to be
redefined? Or is the problem in fact that the Genocide has not
yet been recognized by the Republic of Turkey? Or is it that
relations between the two Nations cannot move forward because of
the unresolved issue of the Genocide? Mutual confidence between
Armenia and Turkey on the “historical dimension” cannot be
restored but by Turkish recognition of the Armenian Genocide.
Affirming that an “impartial and scientific examination” is
needed leaves the assumption that such work did not take place
before the drafting of this Protocol — such an intention is
flagrantly untrue.
• The conclusions by a
Sub-Commission on the “historical dimension” will not be a
binding resolution for Turkey; only recommendations are
foreseen. Given Turkey’s track record, it would be highly
unlikely that the Republic of Turkey will take any
responsibility for the Armenian Genocide based on simple
recommendations. Worthy of particular note however is that if
the Protocols are ratified, it will be the first time that the
Republic of Turkey has participated in a commission, at an
international level in relation to the 1915 events. The
following is certain: the commission’s conclusions will have no
impact or effect under international law; the objective of the
commission being explicitly defined, is to study “the historical
dimension”. The SAA finds it evident that the commission shall
not be allowed to deviate from this objective, nor entitled to
conclude in a manner different from that of mere historical
appreciation.
Bern, 8 September 2009
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