Papian: On the decision of the Constitutional Court of the Republic of Armenia
By Ara Papian
The Constitutional Court of the Republic of Armenia came to a decision on the unfortunate pair of Armenia-Turkey protocols. As it was predicted, it declared, “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 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[*] 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 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.
Ara Papian is the head of the Modus Vivendi Centre.
[*] [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.
As a fellow Canadian of Armenian decent your intellect, judgment and shrewdness Baron Papian are commendable and reassuring.
Your demonstrated leadership is much appreciated as the battle for our people’s rights continues.
Please do write again.
Dr. Papyan is 100% right and his analysis is quite direct, logical, correct, and spiritual. It is nice to have such a great personality, like Dr. Papian is, among Armenians. That is of course the good news. The bad news (also a very old news) is that Dr. Gagik Sahakyn of the Armenian Constitutional Court is a traitor, a terrorist type traitor. He wants to show the society that he is doing the right thing; though most Armenians in Armenia and in Diaspora know that Dr. Sahakyan is a spy in anything he has being doing and he is doing. In Mr. Kocharyan terminology, Mr. Sahakyan is a fox. The most important fact is that both fox skin and bear skin are expensive and they do have their price.
Sahakyan was not determining whether or not the Protocols are good for Armenia — he was determining whether or not they are legal…that is the only thing he set out to do.
Granted, he is a corrupt crony in the pockets of the regime-in-power, but I think traitor is not the correct word.
Now to quote our beloved Harut Sassounian:
“Two opposition parties have asked the Constitutional Court of Armenia, the highest court of the land, to review the legitimacy of the February 19 presidential elections. All sides should respect the judgment of the Court, even if they disagree with it”
To TorontoHye: Please refrain from taking Papian at his face value. Not that his observations are incorrect, but that he, too, is a trumpeter of certain political forces in Armenia. People who knew him closely from his years in Armenia’s public service remember that he wouldn’t do or say anything that would go against the ruling cliques under former or current presidents, because at that time he held profitable government positions. Once he jumped off, he started breast-beating. While on the surface his arguments are well-founded, for those who know him as a person he is just another self-centered megalomaniac, one of those with patriotic bravado on the outside, but to an essential degree focused narrowly on promoting personal image-building.
May the oligarch stooges all go to Jahenem and quickly.
To George Isayan: Mr. Isayan, I could say one thing, that I now very well Mr. Payan, and I will tell you, that he is not with any political party, nor supports any of them!
Secondly, Mr. Isayan, I hope, that every well known Armenian like Ara Papyan, will do as he does and we will succeed in our DEMANDS FOR JUSTICE and HAY DAT!
Third point, I don’t think you have done for Armenia 1% of what Mr. Ara Papyan have done. Do something for Armenia as an Armenian and then someone will at list say,that probably you are right! Prior to that, please, don’t tell anything against any one, because that behavior have a clinical name “Jealousy over other person’s success”. As an Ambassador of Armenia in Canada, Mr. Papyan work very Hard to make sure, that Canadian Government and Members of Parliament will vote for Armenian Genocide recognition in 2006!!!
Mr. Ara Papyan is not only speaking against these unfortunate protocols, if you can see, clearly he is speaking for OUR RIGHTS OF ARMENIAN TERRITORIES, which is illegally usurped by turkey, georgia and azebaijan, and he is a HUGE ADVOCATE for Armenian Genocide recognition and HAY DAT! I know also very well, that in Armenia speaking out loud about all of these issues like he does is the same as speaking against entire CORRUPT oligarchic government of Armenia!!!
I’m PROUD TO KNOW a person like him, and be ARMENIAN. I hope every Armenian will be politically correct like him, to not let our enemy states BARK on Armenian regardless we like him or not. In my humble opinion, Armenians should stick together, and not be jelause of other Armenian Success and SUPPORT EACH OTHER like organized jewry does!!!
To Gagik: I appreciate your passion in revering Papian, but you must have misread my post. On two occasions I’ve mentioned that ‘his observations were correct’ and ‘his arguments were well-founded’. I only referred to his personal features that people who knew him from his years of public service have pointed to. Specifically, that during his service in, as you said (and correctly so), ‘corrupt oligarchic government of Armenia,’ he rarely had spoken or acted against it because he understood that he’d lose lucrative positions he had held at the time. As for Genocide recognition by Canada, at his times as ambassador it was an official government policy of Armenia to pursue the issue of international recognition of Genocide and ambassadors, as conductors of government policy, were entrusted to fulfill it. We now know that influential Canadian Dashnaks were major driving force in pressing their government to pass the resolution. As for percentage of who did what for Armenia, there are many more hidden Armenians, my friend, who tend to avoid breast-beating, publicity, and image-making, and contribute to our cause calmly and without sick ambitions or hope for any reward. And, also as a part of your misreading of my post, I referred to ‘political forces’ not ‘political parties’ the voice of which Papian from time to time delivers to the world. Not being enlisted in a political party doesn’t necessarily mean that one cannot act on orders from certain political forces. I hope you’d agree.
Apres George jan. Well said.