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THE "REASONABLE" IS QUITE UNREASONABLE
Lragir.am
11/01/10
When it comes to discussing a possible timeframe for the ratification
of the unfortunate Armenia-Turkey protocols, certain officials who
claim to be politicians have declared with self-satisfied voices
that the process of normalisation (according to them) must take place
"within a reasonable timeframe". Accordingly, the question necessarily
arises: is there a clearly-defined limit to "a reasonable timeframe"
in international law?
The term "reasonable timeframe" has, albeit of seldom use, but
nevertheless a certain application in public international law. For
example, Articles 5 and 6 of the European Convention on Human Rights
guarantee the trial "within a reasonable time" of individuals in
custody or under arrest ("Everyone arrested or detained ... shall be
entitled to trial within a reasonable time or release pending trial" -
Article 5.3 ; "Everyone is entitled to a fair and public hearing within
a reasonable time" - Article 6.1).[1] It is clear that such wording is
sufficiently flexible to provide the possibility of the aforementioned
multi-lateral document to be more inclusive and applicable in various
judicial systems. However, any mention of "reasonable times" in
bilateral agreements, where only mutual obligations are codified,
does not make any sense and is undesirable.
Even more so when one considers the centuries-old tradition of the
Turks to deny their domestic obligations and renege on their own
promises, such a move would be generally unacceptable in relations
with them.
A well-known contemporary Belgian legal specialist, Olivier Corten,
rightfully considers the "profound ambiguity" of the term "reasonable"
to be its main characteristic.[2] That is, the usage of such a deadline
in international relations does not bring in any clarification in the
application of a bilateral document. In the Tunisia vs. Libya case
over their continental shelf, the UN International Court of Justice
provided the following commentary on this question of interest to us:
"what is reasonable and equitable in any given case must be depend
on its circumstances".[3] Thus, the highest tribunal of the UN has
clearly stated that the term "reasonable" is strictly relative and
that there cannot be a universal and outright understanding of it in
public international law.
And so, if, for the Armenian side, a "reasonable" timeframe would
logically be, say, three months, then with just as much logic the
Turkish side could have a "reasonable" timeframe of three years.
Ara Papian Head of the Modus Vivendi Centre 4 January, 2010
[1] Basic Documents in International Law, (ed. Ian Brownlie), Oxford,
1989, p. 323.
[2] Oliver Corten, The Notion of "Reasonable" in International
Legal Discourse, Reason and Contradictions, The International and
Comparative Law Quarterly, (Cambridge University Press), vol. 48,
No. 3 (Jul. 1999), p. 613.
[3] Continental Shelf (Tunisia/Libyan Arab Jamahiriya) I.C.J. Re. 1982,
para. 60.
Lragir.am
11/01/10
When it comes to discussing a possible timeframe for the ratification
of the unfortunate Armenia-Turkey protocols, certain officials who
claim to be politicians have declared with self-satisfied voices
that the process of normalisation (according to them) must take place
"within a reasonable timeframe". Accordingly, the question necessarily
arises: is there a clearly-defined limit to "a reasonable timeframe"
in international law?
The term "reasonable timeframe" has, albeit of seldom use, but
nevertheless a certain application in public international law. For
example, Articles 5 and 6 of the European Convention on Human Rights
guarantee the trial "within a reasonable time" of individuals in
custody or under arrest ("Everyone arrested or detained ... shall be
entitled to trial within a reasonable time or release pending trial" -
Article 5.3 ; "Everyone is entitled to a fair and public hearing within
a reasonable time" - Article 6.1).[1] It is clear that such wording is
sufficiently flexible to provide the possibility of the aforementioned
multi-lateral document to be more inclusive and applicable in various
judicial systems. However, any mention of "reasonable times" in
bilateral agreements, where only mutual obligations are codified,
does not make any sense and is undesirable.
Even more so when one considers the centuries-old tradition of the
Turks to deny their domestic obligations and renege on their own
promises, such a move would be generally unacceptable in relations
with them.
A well-known contemporary Belgian legal specialist, Olivier Corten,
rightfully considers the "profound ambiguity" of the term "reasonable"
to be its main characteristic.[2] That is, the usage of such a deadline
in international relations does not bring in any clarification in the
application of a bilateral document. In the Tunisia vs. Libya case
over their continental shelf, the UN International Court of Justice
provided the following commentary on this question of interest to us:
"what is reasonable and equitable in any given case must be depend
on its circumstances".[3] Thus, the highest tribunal of the UN has
clearly stated that the term "reasonable" is strictly relative and
that there cannot be a universal and outright understanding of it in
public international law.
And so, if, for the Armenian side, a "reasonable" timeframe would
logically be, say, three months, then with just as much logic the
Turkish side could have a "reasonable" timeframe of three years.
Ara Papian Head of the Modus Vivendi Centre 4 January, 2010
[1] Basic Documents in International Law, (ed. Ian Brownlie), Oxford,
1989, p. 323.
[2] Oliver Corten, The Notion of "Reasonable" in International
Legal Discourse, Reason and Contradictions, The International and
Comparative Law Quarterly, (Cambridge University Press), vol. 48,
No. 3 (Jul. 1999), p. 613.
[3] Continental Shelf (Tunisia/Libyan Arab Jamahiriya) I.C.J. Re. 1982,
para. 60.