President Serge Sarkisian quietly submitted the Armenia-Turkey protocols to the Constitutional Court on Nov. 19, without a public announcement.
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 Oct. 10, after both sides publicly committed on Aug. 31 to “make their best efforts” to ratify the protocols in a “timely” manner.
Given the fact that Turkish Foreign Minister Ahmet Davutoglu had already introduced the protocols to the Turkish Parliament on Oct. 21, the timing of Sarkisian’s submission to the Constitutional Court may have been prompted by his wish to avoid accusations of foot-dragging by Turkish Prime Minister Recep Tayyip Erdogan during his Washington visit on Dec. 6. Indeed, over the weekend, a Turkish official accused Armenia of not taking any steps to ratify the protocols. The 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 they would wait for Turkey to ratify them first. Moreover, Turkish leaders have repeatedly linked the ratification of the protocols to the resolution of the Karabagh (Artsakh) conflict, thus making it questionable that the protocols would be ratified at all.
The Constitutional Court’s website indicates that after the submission of a case to the court, the first step is to assign 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 the date of submission to announce its decision. The 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 will not rubber-stamp the government’s position on the protocols. Some members of the press have questioned the appropriateness of the Constitutional Court’s chair, Gagik Harutyunyan, accompanying Sarkisian on his recent overseas “consulting tour,” trying to convince Diaspora Armenians that the protocols are in Armenia’s best interest.
Given the critical nature of the proposed protocols and their long-term impact on Armenia’s national interests, it is expected that the Constitutional Court will 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 will approve them after adding several clarifications and interpretations, which will be part and parcel of the agreement submitted to Parliament. Such clarifications will 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 the formation of a historical sub-commission that could question the facts of the Armenian Genocide.
The Constitutional Court may also consider 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 Sarkisian’s meeting with over 60 Armenian community leaders in Los Angeles on Oct. 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, fail to open its border with Armenia within the stipulated 60-day timeframe, or if it closed the border after opening it. Significantly, 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.