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  • Signing An Illegal Step

    SIGNING AN ILLEGAL STEP

    http://www.lragir.am/engsrc/comments-lrahos1 5421.html
    10:54:09 - 06/10/2009

    Statement on the legal status of the protocols, on the establishment of
    diplomatic relations between the Republic of Armenia and the Republic
    of Turkey and on the development of relations between the Republic
    of Armenia and the Republic of Turkey

    The following is defined in the second clause of Article 2 of the law
    of the Republic of Armenia on international treaties (of the 22nd of
    February, 2007): "By this law, any written agreement is considered to
    be an international treaty of the Republic of Armenia, be it in the
    form of a treaty, agreement, convention, memorandum, protocol or as
    a document of any other name, or which has been expressed with the
    exchange of official notes or letters."(unofficial translation)

    In my opinion, such wording has provided much broader commentary
    on the concept of a treaty than is prevalent in international
    public law (cf. Article 2 of the Vienna Convention on the Law of
    Treaties). Nevertheless, seeing as the aforementioned definition
    is different from, but not opposed to, international law, taking
    it into consideration as such, let us examine the protocols on the
    establishment of diplomatic relations between the Republic of Armenia
    and the Republic of Turkey and on the development of relations between
    the Republic of Armenia and the Republic of Turkey.

    According to the definition as per the law of the Republic of
    Armenia on international treaties above, a protocol between states
    is an international treaty. Therefore, the passing of a protocol is
    "the conclusion of necessary procedures as provided [by the law]"
    (Article 8, clause 1; unofficial translation). That is to say, the
    passing of such a protocol is a chain of regulated, consecutive stages
    and is required by law for its provisions to be completely fulfilled
    without error.

    The law of the Republic of Armenia as cited provides for the following
    preparatory stages for treaties, that is, the protocols, in this case:

    Stage 1. The initiative to sign an international treaty

    In order to commence the process of passing the Armenian-Turkish
    protocols, it would be necessary as a first step to have the written
    orders of the President (Article 8, clause 5).

    Stage 2. Pushing forward with the initiative to sign an international
    treaty

    As the ministry with the corresponding purview, the Ministry of Foreign
    Affairs would be obligated to prepare a statement on the appropriate
    nature of signing an Armenian-Turkish protocol and drafts of such
    a protocol (Article 9, clause 1), to be presented to the President
    (Article 9, clause 2.1).

    Stage 3. Starting the process of signing an international treaty

    In this stage, the President, having received drafts of the protocols,
    would express his position in a letter to the Foreign Ministry. If the
    position were in the affirmative, the Foreign Ministry would start
    the process of getting agreement within the state on the drafts of
    the protocols within ten days of receiving the President's written
    agreement. That is, written documentation pertaining to the protocols
    would be sent to all state bodies having prerogatives to do with the
    matter at hand, along with the drafts (Article 10, clause 2).

    Stage 4. Agreement on the drafts of the international treaty and
    proposals and criticism with regards to the international treaty

    The state bodies involved - and, in our case, that would be all
    the ministries, as well as around twenty or so other agencies -
    upon receiving the documentation and draft protocols, would present
    in writing to the state body with the legal purview (the Ministry
    of Foreign Affairs) proposals and criticisms pertaining to areas of
    operation within their own jurisdiction, within fifteen days at the
    most (Article 12, clauses 1 and

    2)

    Stage 5. Summation of opinions on the draft international treaty

    The state body with the legal purview - the Foreign Ministry in this
    case - would review or amend the draft of the international treaty
    upon receiving the opinions of the state bodies with prerogatives on
    the matters of the treaty (Article 14, clause 1.1).

    Stage 6. Agreement on the text of the international treaty with the
    opposite party

    The law of the Republic of Armenia as cited has the provision that
    the text of the given international treaty of the Republic of Armenia
    would be agreed upon with the opposite party by authentication or
    through some other means provided for by law (Article 18, clause
    1). In our case, it is through authentication. It is essential to
    emphasise that the given international treaty could be authenticated
    by the Republic of Armenia only after the completion of the process
    as defined for the preparation and authentication of the draft treaty
    (Article 18, clause 2).

    Conclusion. Considering the fact that the protocols in question have
    not undergone "the conclusion of necessary procedures" as provided
    by this law, as well as the fact that the authentication of the
    protocols has been carried out without due process as defined by law
    for authentication, therefore the authentication of the protocols
    on the establishment of diplomatic relations between the Republic
    of Armenia and the Republic of Turkey and on the development of
    relations between the Republic of Armenia and the Republic of Turkey
    is void, and thus the protocols themselves are not subject to being
    signed. Signing them would be an illegal act.

    Ara Papian Head of the Modus Vivendi Centre 5 October, 2009
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