Papian: Armenia And Turkey Are Not Authorized ‘to Define’ the Border

 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.

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17 Comments

  1. Dear Mr. Papian,

    I wish you were the current Minister for Foreeign
    Affairs of the Armenian Republic. A tough negotiator who can show some very stong direction against an opponent who wants to scuttle every possible right of the Armenian people. The current adminitration is very weak and has no policy direction if not guided by the financial glitter awaiting to happen by the opening of borders.

  2. Those of us that are Armenians must take both Republic of Armenia and Republic of Turkey to the International Court for trying set aside The Wilsonian Arbitration Award that all Armenians are the creditor of.

    As Mr. Papian points out the Republic of Armenia is not the assginee of this judgment so that she cannot assign it to any one.

    I believe, the federal court of the United States have subject matter jurisdiction on this Arbitration Award. We must at least try open a class action against these Republics and their agents.

    I pledge $2000.00 for this cause.
    papkenhartunian@gmail.com

  3. Superb analysis Of Sevre treaty and Wilson’s Arbitration. I have never read such an interpretation of the international law.
    This tells us one thing. The government of Armenia together with Diaspora expersts have to form a committee to study all the treaties, and their modern applications.
    Turkey wants Armenia to affirm and Uphold Treaty of Kars; and all we know so far that Armenia is not a signitory to that treaty. We need to study these treaties in detail and start using the International courts, UN courts to enforce and recive what has been ours, and argue against what is being demanded from us. Otherwise; again, we would be going with paper ladles to eat the soup.
    I agree with mr Papken Hartunian, people like Mr. Ara Papian have to be assigned to this committe and funded to investigate further these crucial issues.

  4. This is all well and good, but the Armenian authorities are going full speed ahead with signing the protocols, in case anyone isn’t aware. They are scheduled to be signed on October 13 (perhaps even sooner to throw everyone off-guard, no one can really say what’s going on). So we shouldn’t get our hopes up that Foreign Minister Nalbandyan will approach his Turkish counterpart any time soon to announce that he is not going to sign the protocols because “international law” must be heeded regarding the fifth clause of the first protocol. The Turkish and Armenian authorities don’t care about that obviously, they’re going to sign the protocols, unless they are stopped now, not on October 12 or when they have their pens in hand.
    Once the protocols are signed the above-mentioned arguments will be moot–kiss Western Armenia and anticipated Turkish recognition of the Genocide goodbye forever. Discussions about the Treaty of Kars as well as the Treaty of Sevres will not ever be raised again once the protocols are signed because they won’t be relevant any longer to either party, let’s understand this right now and stop dreaming. This is a make-or-break moment for the Armenian nation and the Armenian Cause. It’s very simple.
    All supporters of the ARF in the diaspora must put tremendous pressure on the party to stop this process by all means necessary. There is no other political party in Armenia representing the diaspora’s voice that can do it.
    Time is running out.

  5. Can the Armenian Weekly please publish Mr. Papian’s credentials at the end of his article as is normally done in most published opinion pieces in serious publications…
    Just a simple 2 line blurb at the end of each opinion piece about the author is not asking too much.
    Who is this man?? Would his qualifications, experiences add value to what he’s written.
    Your readership would greatly value this addedd feature.

  6. Mr. Ara Papian’s comprehensible explanation supports the legitimacy of our legal demands for Wilsonian Armenia, and for the Kars and Ardahan provinces at the least. Our legal rights for those territories, based on international laws, were explained by Shavarsh Toriguian in his book “The Armenian Question and International Law,” published in 1973.

    Based on the current negotiations between Armenia and Turkey to finalize their border, and to allay concerns that such an agreement would deprive the Armenian people of their lands, a government in exile should be established to represent the Armenian government that was illegally forced out and its territories occupied. International laws are clear on the illegality of forceful occupation of another legitimate country, as was Armenia.

  7. Mr. Murad Meneshi is correct. We must establish a government in exile. I have been advacating the same idea for some time already. My problem with all of us is that we just talk. Let us do something about this. We have money and man power. All we need is a group of people to organize and take on the project.

    I am ready to contribute time, skills and money.
    papkenhartunian@gmail.com
    JD
    “..a government in exile should be established to represent the Armenian government

  8. Ara Papian
    Head of the Modus Vivendi Research Center
     
         
    Ara Papian was the Ambassador Extraordinary and Plenipotentiary of the Republic of Armenia to Canada (2000-2006). Prior to his appointment to Canada, he was the Spokesman and Head of Public Affairs Department of the Ministry of Foreign Affairs.
    Ara Papian successfully graduated from the Department of Oriental Studies of Yerevan State University (1984) and completed postgraduate degree course of studies in Armenian History at Yerevan State University (1989). He graduated from the Diplomatic Academy of the Russian Federation (1994, Moscow), from NATO Defense College (1998, Rome) and   completed a course in Public Diplomacy in (1999, Wilton Park, UK)
    Ara Papian was born in Yerevan, in 1961.       
    He is fluent in Armenian, Russian, English, Persian.
    Ara Papian is married, with two sons.

  9. I am compelled to repeat myself because it seems my words were ignored based on the subsequent comments, and because I am passionate about this issue being a diasporan Armenian living in Armenia.

    Armenian citizens who need work, in the regions primarily, will get it only when industries are developed on Armenian soil. I think this is something everyone can agree with. With this current border we maintain our self-determination and self-dependence. We are staying Armenian. The Armenian economy boomed with a closed border–this is a fact. Armenia has never had it so good. Our country’s economy will continue to expand, even with this closed border, that I am certain of. Our transportation routes though Georgia are easily traveled and reliable, so no worries there. We can also agree here that the border can change if we (the entire Armenian people, not just the Diaspora) demand it to, which we are not serious about doing for reasons I have never understood.

    If diasporans or natives of Armenia are banking on Turkish businessmen to invest here assuming the protocols are ratified and the border opens because that is what the country needs, then let’s stop discussions about land reparations, the return of lands under Turkish control to Armenia (or a “Wilsonian Armenia,” whatever that is supposed to mean), Genocide recognition by Turkey, justice, and the necessity to form an “Armenian government in exile” to deal with such issues. None of those things will ever happen if the protocols are signed and the current border opens because those ideals will no longer have any meaning; no one will care–no international courts, foreign governments and especially Turkey. Let’s be realistic about this please and stop dreaming. Armenian statehood, economic viability and culture is on the line. We have to comprehend this. October 13 is only a few weeks away.

    We need to focus on what is at stake right now, in the moment, and not some abstract concept based on Papyan’s article (which is insightful). Let’s stop the protocols from being signed then regroup to decide once and for all what we– Armenians both in the Diaspora and in Armenia–want, then demand it, together as one nation, not two divided by mountains and oceans. But we have to do it today!

  10. Chris, I agree with your conclusion. However, Mr. papian’s article is not about abstract concepts. It is about future viability of Armenian Nation. Without Western Armenia the Armenia cannot sustain as a viable state.

    Those who care about Armenians must unite and create a power that could protect the Armenian rights.

  11. Concerning Chris’s comments, I agree with him, but here is a more precise picture of what is happening on the ground (or rather the front-line). Look at the minimum wage comparison tables between Turkey and Armenia, you will observe that Turkish employees get 5 times the salary of their counterpart in Armenia. In the eastern borders of current Turkey (i.e. historic Western Armenia) there is a need for cheap energy resources, and while the economy is very bad, it is still much better than that of Armenia. In Armenia, we have an abundance of energy because of our nuclear plant(s). The agricultural produces are at least 6 times cheaper than that of Turkey’s (even in the current bad economic situation). There are a hundred more details, for which I have no space here in this comment to point out (perhaps I should write a book about it).
    Given these sample information, the current Armenian government is taking a bet that since the labor is cheaper in Armenia, there will be lots of jobs pouring into the Republic once the borders are opened. Moreover there will be very little export of human power into Turkey, because this wage gab will not be used (with the exception of high level specialists). Therefore, this will open several hundred thousands of jobs inside Armenia. The other main issue is the nuclear energy, which will be exported to Turkey (as electricity), and that will bring a large revenue to the state.
    So as you can see, the economic situation is quite simplistic for the current Armenian government, or at least it is simple enough to describe it to the population. And believe me, the population will certainly like this good news, and that is why we have not heard much opposition in Armenia concerning the Protocols.
    But this picture is not so precise, because economic factors are never constant. I have even tried this myself by opening a business in Armenia, which lasted for almost 9 years, with a lose of 1.2 million USD directly from my pocket (note that this is not a complain, my lose is my sacrifice for my Fatherland, and I will sacrifice more, even with my life if need be). The problem is very elementary, the wages may be low now, but when comparing 2.8 million Armenia population with more than 80 million of Turkey, the low wage will vanish in less than 6 months (after the ratification and opening of the borders). This means that all these new jobs will vanish in less than 6 months (they will all be unemployed again), and I am not talking about all these local Armenia businesses getting a deliberate deathly blows by their respective competitors in Turkey.
    What about the energy export issue. Well, since the expenses in Turkey are at a higher standard, they will be a better customer for Armenian energy companies than the local Armenian population. In this way, the cost of the energy will eventually increase in Armenia, because the abundance will be no more.
    So let us summarize the situation for a farmer in Armenia. First, he will get a job, with 5 times the minimum wage in Armenia, after several months, he will realize that the food cost has risen because of his salary raise. Also, the energy cost will rise as well. This will nullify the salary gain that came from the Turkey-Armenia Border opening. Then very soon, he will be unemployed, while the energy expense will maintain its inflated value. This will be the end of local Armenian farmers, as well as other labor sections.
    So, my question is to Chris, what really is a realistic demand and what is a dream?
    Here is another view on what is happening at the information war level. For almost 85 years, we are demanding a recognition of the Genocide to the world (including Turkey). At the early stage, we started with a full demand, in which we wanted our lands back and the recognition of the Genocide. Over these 85 years, people like you have pointed that returning the lands are not realistic demands, and therefore we were pushed to the corner, where all we demanded was for the world to just come on the stage and just pronounce the word “GENOCIDE”. It’s so simple, just the three vowel word: GE-NO-CIDE, But to our surprising “infallible” logic, even this was rejected. And now what is more ironic, is that Turkey is coming up with a grand information war, which I think will baffle your very logic Chris, because what they came up with is the mother of all dreams. They constructed a monument in Kars, which is erected as a memory of more than a million Turks that were killed by the “Ruthless Armenians”. So, correct me if I am wrong, is this a dream of a dream that I am seeing, or maybe after 60 years from now, I will be in my grave remembering that it was I, and only I the Armenian that massacred all the world with the Turks in it.
    Mr Chris, there are no such things as dreams, there are only hearts and brains that strive to continue the fight for life. Therfore, aim high and fight, or forever rest in peace.

  12. Haro, the answers to all your questions can be found in my previous comments if you read them carefully enough.
    Let me reiterate that if the Armenian nation wants to make legitimate, lawful claims to historic Armenian lands occupied by Turkey, the protocols cannot be signed and ratified. Once they are ratified they will be legally binding and will take legal precedence over previously signed treaties. If the Armenian authorities sign the protocols they are also signing away claims to those lands. It’s very simple.
    For more insight into my logic, read my blog, Footprints. Seems you’ve already visited it and didn’t like what I wrote there, either. Good luck.

  13. Chris, read my comment more carefully, I start my comment with “I agree with him…”
    I don’t say things just for the sake of saying it. If I did not agree with you, I would have said “Your flat wrong”, which I did not say.
    The problem is that most of your statements are indeed very true, bad unfortunately your conclusion or rather the solution is wrong (i.e. does not hold with your own arguments). The problem in Armenia is not a war solely of the economy/business or military level. The real problem is at the information war and Ազգի Դաստիարակութիւն level. We have been so far listening to the “now solution”s and as a result we have become a minimalist nation even when (as you have pointed out) we won the war. We have been pursuing the Genocide Recognition for presidents to just say the word “G”. If we are not going to win ever, then let us not lose as cowards, demand the full demand, what will you possibly lose more.
    Finally, this article is not trying to resolve the situation based on the October time-line. In my comment, I am stating that there is a high probability that the Protocol will be signed, but whether it would ratified, I am not sure. Based on the population mobility in Armenia it will be too late. Given all these how should we act if we do not bring demand and hope to the people.
    Again, my point is very simple, if we want to demand anything, we should demand everything that we must, not just the half. Especially when the demand will never be answered. Also, remember that like Newtons third law, even political movements have their equal and opposite reactions. When people rise and demand, they also learn and get stronger.
    P.S. Your link doesnot work, correct it so that I can see what’s going on in your blog.

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