Can Armenia-Turkey protocols be ratified separately?

A possible soft-exit strategy for rapprochement process

by Hovhannes Nikoghosyan

Published: Tuesday February 23, 2010

"Armenian and Turkish leaders held their only meeting at the World Economic Forum in Davos, Switzerland in January 2009. Armenian president’s office

Washington - The Armenian-Turkish-Swiss trilateral joint statement agreed on April 2 and issued on April 22 underscored the commitment by ruling elites of two nations to normalization of relations by addressing core issues of misunderstanding.

Despite widespread pessimism over the rapprochement, initialed protocols were published on September 1, 2009 and the two documents were signed in Zurich on October 10 2009, with mediation from the United States.

The protocols have since been sent to parliaments for ratification. In Armenia they also went through Constitutional Court, which issued a legal blessing on January 12.

It would seem that all that is needed now is political will to take the last step in legislatures to ratify the documents. But having gone all this way, the sides are now discussing exit strategies.

Considering that the Armenian-Turkish process has been driven by a series of "midnight" decisions, there may well be more such progress assuming no extraordinary military-political crises occur.

Since the Constitutional Court ruling, Turkey together with her lesser ally Azerbaijan appear to be diplomatically isolated. Turkish efforts to link Nagorno Karabakh settlement with the normalization issue have not been successful. While they recognize the linkage between those two issues, Armenian officials say that they should be mutually reinforcing rather than conditioning one another.

In this light, the only counter-argument Turkey can raise in order to force the United States to back its position is Turkey's alleged indispensability as NATO ally in Middle East. (On the other hand, few remember that Turkish economy is dependent upon World Bank and IMF for the country's government to commit any real anti-Western moves.)

Since the beginning of the process parties have been changing their rhetoric quite often. Turkish side has been harsh by default, but their deeds not always reflect the actual steps, in a positive sense.

On the contrary, Armenian president Serge Sargsyan's rhetoric has gone from positive and optimistic in the beginning, to "if we don't try we don't win"-like justifications more recently. President Sargsyan's initiative to amend the legal background for recalling the signature under the protocols was thought to prepare the exit strategy.

Draft amendments to Armenia's Law on International Treaties now have been put on the agenda of the Parliament. A new (draft) Article 38.1 will entitle the president to recall or suspend the signature under the international treaty practically at any stage of contracting or ratification.

Nearly simultaneously with the amendments on rescission, the protocols were also submitted for ratification. Being so close to ratification, the protocols my remain unratified indefinitely.

Technically, since both president Sargsyan and Turkish leader Prime Minister Recep Tayyip Erdogan hold majorities in the parliaments, the ratification process initially was thought to be functional.

But as Mr. Erdogan suggested he could not guarantee a successful outcome and, moreover, did not expect one unless there was "progress" on Karabakh talks.

By contrast, the Armenian president has guaranteed a successful vote if Turkey agreed to ratify first. Most recently, some of the ruling party MPs even suggested proceeding with ratification before Turkey, which showed certain disagreement in the ruling party in Yerevan.

But if it does come to ratification, will the protocols be ratified together, or one-by-one?

When I put this question to Vigen Sargsyan, Armenian president's foreign policy aide who recently spoke at the Center for Strategic and International Studies (CSIS) in Washington, argued it was not feasible to proceed with the one protocol in the absence of another. The protocols are interlinked and their separate ratification would harm the essence and substance of the agreements, making it impossible to make further progress.

All the same, that does not necessarily mean that the protocols could not be considered separately.

In fact, to this day it has not been explained why there are two protocols instead of one, single, integrated document about the whole complex of issues.

The protocol on diplomatic relations speaks about exchanging diplomatic missions and only "the decision to open the common border", which has no time limits for implementation and is not formulated in a legally binding manner.

All the sub-commissions and the border opening with specific timeframes are embodied in the second protocol on development of relations.

It may well be that the recent Turkish criticism of the Armenian Constitutional Court's decision on January 12, charging Armenia with undermining the spirit of the protocols may be followed by Ankara moving to ratify only one of the two protocols.

International law, more specifically the Vienna Convention on the Law of Treaties (1969), foresees no mechanisms (unless mentioned in the actual texts of treaties) regarding ratification of the signed agreements in a timely manner, except for the good faith and political goodwill of the states. And the protocols themselves do not set out any order for ratification.

The second protocol says that both documents "shall enter into force on the same day, i.e. on the first day of the first month following the exchanges of instruments of ratification". Armenia's Constitutional Court added its interpretation that "either protocol cannot acquire legal force or take effect without the other".

Nevertheless, theoretically they can be ratified separately, whenever the parties have enough political will for each, and only when both are ratified they can enter into force.

Certainly, the Armenian side's main interest is to have the border with Turkey open rather than to establish yet another diplomatic mission. (Even without diplomatic relations, an Armenian diplomat has been working in Istanbul via the Black Sea Economic Cooperation organization.)