PAPIAN: ARMENIA AND TURKEY ARE NOT AUTHORIZED ‘TO DEFINE’ THE BORDER
By Ara Papian

papian-armenia-and-turkey-are-not-authorized-to-de fine-the-border/
September 22, 2009

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.

From: Emil Lazarian | Ararat NewsPress