Armenia and Turkey Are Not Authorized `To Define’ The Border

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By Contributor on Sep 25th, 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’.

Let me clarify the idea behind the question. 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 border1, 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 the First World War, on the 30th
of October, 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 Allies2 were to
subsequently decide which part of the Ottoman Empire was to come under
the sovereignty of a Turkish state and to what degree.

During 1919-1920, 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 the 26th
of April, 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. 3

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
compromise 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 the First World War, more than thirty 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 being binding.4 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 compromise on unqualified acceptance of the
future agreement, after which only the award is granted.

And so, as a consequence of the aforementioned compromise on the 26th
of April, US President Woodrow Wilson officially took on the
arbitration of the Armenian-Turkish border in writing on the 17th of
May, 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 (the 10th of August, 1920) and so, the
arbitration process commenced independent of the signing of that peace
treaty and this compromise 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 which came out of two independent compromise (San Remo, 26 April
1920, and Sèvres, 10 August 1920). The award was granted on the
22nd of November, 1920, to come into effect that same day. Two days
later, on the 24th of November, the ruling was officially conveyed to
Paris by telegraph. This Arbitral Award has never been appealed, it is
in effect to this day. The award was legal and lawful. It functions
independent of the Treaty of Sèvres. The compromise included in the
Treaty of Sèvres as Article 89 was and continues to be an
additional, but not the basic compromise.

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 which 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.