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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
juridical1 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.
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