Under Armenian law, all international agreements have to be submitted to the Constitutional Court, prior to their consideration by Parliament for ratification. The Protocols were signed by the Armenian and Turkish Foreign Ministers on October 10, after both sides publicly committed on August 31 to “make their best efforts” to ratify the Protocols in a “timely” manner.
Given the fact that Foreign Minister Ahmet Davutoglu had already introduced the Protocols to the Turkish Parliament on October 21, the timing of Pres. Sarkisian’s submission to the Court may have been prompted by his wish to avoid accusations of foot-dragging by Prime Minister Recep Erdogan during his Washington visit on December 6. Indeed, over the weekend, a Turkish official accused Armenia of not taking any steps to ratify the Protocols. Hurriyet newspaper quoted a Senior Turkish Diplomat as stating: “I do not think that one could press Turkey at this moment when Armenia has still not submitted them to Parliament.”
Forwarding the Protocols to the Constitutional Court, however, does not necessarily mean that Armenian officials intend to ratify them quickly, since they had announced that they are going to wait for Turkey to ratify them first. Moreover, Turkish leaders have repeatedly linked the ratification of the Protocols to the resolution of the Karabakh (Artsakh) conflict, thus making it questionable if the Protocols would be ratified at all.
The Armenian Constitutional Court’s website indicates that after submission of a case to the Court, the first step is assigning one of its judges to conduct a preliminary review within 15 days, which could be extended by 10 days. In all, the Court has 90 days from date of submission to announcing its decision. The Constitutional Court’s mandate specifies that its decision will not be based on whether the Protocols are in compliance with the Constitution, but on whether the obligations deriving from such an international agreement are in conformity with the Constitution.
Given the lack of public trust in Armenia’s courts in general, most Armenians, especially those who oppose the Protocols, are highly skeptical that the Constitutional Court would not rubber stamp the government’s position on these Protocols. Some members of the press questioned the appropriateness of Gagik Harutyunyan, the Constitutional Court’s Chair, accompanying Pres. Sarkisian on his recent overseas “consulting tour,” trying to convince Diaspora Armenians that the Protocols were in Armenia’s best interest.
Given the critical nature of the proposed Protocols and their long-term impact on Armenia’s national interest, it is expected that the Constitutional Court would approach this case with the utmost seriousness and responsibility. While most Armenians would prefer that the Court disapprove the Protocols, it is more likely that it would approve them after adding several clarifications and interpretations that would be part and parcel of the agreement prior to submission to Parliament. Such clarifications would hopefully minimize the detrimental effects of the Protocols and not allow Turkey to misinterpret the agreement, particularly references to international treaties that may preclude future Armenian claims, and formation of a historical sub-commission that could question the facts of the Armenian Genocide.
Another important issue that the Constitutional Court may consider is adding a provision that would give the Armenian government the right to unilaterally abrogate this agreement, should Turkey violate any of its provisions after ratification.
During Pres. Sarkisian’s meeting with over 60 Armenian community leaders in Los Angeles on October 4, I suggested that the Armenian government add a formal reservation to the Protocols, giving itself the right to consider the agreement null and void, should Turkey, after ratification, not open the border with Armenia within the stipulated 60-day timeframe or if it closed the border after opening it. Significantly, Pres. Sarkisian publicly agreed with my suggestion and committed himself to adding such a provision.
Since it appears that the Armenian government is intent on going through with these Protocols despite all objections, the Constitutional Court and the Armenian Parliament should attempt to minimize the damage they are sure to cause to the country’s national interests by adding specific reservations and clarifications prior to their eventual ratification.