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ARMENIAN - TURKISH BORDER
http://www.lragir.am/engsrc/comments-lraho s15262.html
10:44:25 - 22/09/2009
Armenia and Turkey are not authorised "to define" the border
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 border (1) 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 Allies (2) 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 authorised 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 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 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 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
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 which came out of two independent compromis (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 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 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 (5).
http://www.lragir.am/engsrc/comments-lraho s15262.html
10:44:25 - 22/09/2009
Armenia and Turkey are not authorised "to define" the border
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 border (1) 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 Allies (2) 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 authorised 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 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 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 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
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 which came out of two independent compromis (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 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 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 (5).