By Ara Papian
In the fifth clause of the protocol “on the establishment of diplomatic relations between the Republic of Armenia and the Republic of Turkey,” the parties agree “to define the existing border.”
In this regard, it is necessary to take up a very important question, even if strange at first glance: whether the Republic of Armenia and the Republic of Turkey are in fact within their authority according to international law “to define the existing border.”
From the perspective of international law, any international multilateral agreement, no matter how it ends up, be it a treaty, an agreement, protocol, etc., can be altered (amended, modified, suspended, terminated, or nullified) only with the participation and agreement of all parties to the given document. This principle, in terms of treaties, is codified in Articles 39-41 of the Vienna Convention on Treaties (1969).
The “definition” of the Armenian segment of the border of the former USSR as the border between Armenia and Turkey, from a legal point of view, implies a change in the border , because the de jure Armenia-Turkey border is very different from the Soviet-Turkish border. This de jure, and thus the only legal border, was “defined” by a multilateral treaty, and consequently “to define the existing border” is in reality a change in frontiers and, in this case, falls outside of bilateral relations for the following reason.
After suffering ignominious defeat in World War I, on Oct. 30, 1918, the Ottoman Empire signed the Mudros Armistice. Legally speaking, this armistice was an “unconditional surrender, i.e. unqualified capitulation,” and so the entire sovereignty of Turkey was transferred to the victors until a peace treaty was signed. That is to say, the victorious Allies were to subsequently decide which part of the Ottoman Empire was to come under the sovereignty of a Turkish state and to what degree.
From 1919-20, the Paris Peace Conference took place to discuss the conditions of the peace treaties. In April 1920, the San Remo session took up the fate of the Ottoman Empire. Naturally, one of the most important questions was the future of Armenia. Therefore, on April 26, the Supreme Council of the Allied Powers officially approached the president of the United States, Woodrow Wilson, “to arbitrate the frontiers of Armenia” as per an arbitral award.
Two factors in this previous paragraph need further clarification:
a) The Supreme Council of the Paris Peace Conference was authorized and functioning on behalf of all the Allied Powers. That is, the compromis for the arbitration deciding Armenia’s border, and consequently the unqualified acceptance of obligations by the award to be made on that basis, was made on behalf of all the Allied Powers. During World War I, more than 30 states formed part of the Allied Powers, and, counting the British Empire, the Third French Republic, the kingdoms of Japan and Italy, with all their dependent territories, it came to almost a hundred countries.
b) The border with the Republic of Armenia, as opposed to other borders with Turkey, was to be decided not by a peace treaty, but through arbitration. From a legal perspective, this is an extremely important detail, because treaties can always be modified, suspended, or terminated “upon the agreement of the parties,” whereas arbitral awards are “final and without appeal,” as well as binding. That is, arbitration cannot be altered or repealed, as opposed to treaties. Besides which, arbitration and treaties are carried out with opposite procedures. While in treaties, the agreement is first reached and only then a corresponding legal document put in place, arbitration begins with signing the compromis on unqualified acceptance of the future agreement, after which only the award is granted.
And so, as a consequence of the aforementioned compromis on April 26, President Wilson officially took on the arbitration of the Armenian-Turkish border in writing on May 17, 1920 and began to carry out the required work. It is necessary to point out here that this was almost three months before the Treaty of Sèvres was signed (Aug. 10, 1920) and so, the arbitration process commenced independent of the signing of that peace treaty and this compromis which is mentioned in it as Article 89.
In summary, one may draw this clear conclusion: The border between Turkey and the Republic of Armenia was decided based on the arbitral award that came out of two independent compromis (San Remo and Sèvres). The award was granted on Nov. 22, 1920, to come into effect that same day. Two days later, on Nov. 24, the ruling was officially conveyed to Paris by telegraph. This arbitral award has never been appealed, and is in effect to this day. The award was legal and lawful. It functions independent of the Treaty of Sèvres. The compromis included in the Treaty of Sèvres as Article 89 was and continues to be an additional, but not the basic compromis.
And so, the border between Armenia and Turkey has been decided by a multilateral instrument of international law, an arbitral award, to which almost a hundred countries are party today.
After all this, let us return to the real question at hand: Upon what basis of international law do the authorities of the Republic of Armenia and the Republic of Turkey wish to dismiss their own international obligations by transgressing an inviolable international decision, the arbitral award, through a bilateral protocol?
Additionally one must bear in mind that international law does not take into account in principle any procedure or precedent for modification or annulment (nullification of the legality) of an arbitral award that has legally come into effect. Refusal by the losing party to comply with the award is not in itself equivalent to a lawful annulment. The plea of nullity is not admissible at all and this view is based upon Article 81 of the Hague Convention of 1907, and the absence of any international machinery to declare an award null and void.