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WOODROW WILSON'S ARBITRAL AWARD IS A VALID AND LEGALLY OBLIGATORY DOCUMENT
By Ara Papian
http://www.armenianlife.com/2011/05/13/wilsondocument/
May 13, 2011
The Armenian Genocide during the World War I and after went down the
history as a crystal-clear example of unpunished crime that reinvented
itself in Nazi extermination of the Jews, the Gypsies and the Slavic
peoples. The annihilation of an entire civilization that occurred
under the apathetic eye of the world at the turn of the XX century
ricocheted right into our lifetime with the destruction of innocent
people in Rwanda, Bosnia and Darfur. The principle of an ignored
crime backfired again.
All Genocides have a common denominator - it is brutal and premeditated
killing of hundreds of thousands and millions of people, huge loses
of cultural values and property. Unfortunately, the Armenian Genocide
has something in particular that makes it deferent and it stands
separately from all other Genocides. In addition to human loses and
destruction of our heritage we lost the most valuable thing that a
nation can possess - we lost our Homeland. The Armenian massacres
and deportations uprooted men, women and children who were living
on their ancestral homeland for several millennia, reducing a once
vibrant region into open graves and ghost towns throughout Anatolia and
Western Armenia. It is a sad fact that today there are less than 60,000
Armenians left in Turkey. After the 1.5 million killed, the remaining
survivors and their descendants are now dispersed throughout the world.
Armenian territorial rights are based upon several international
instruments. The most important of them is the Arbitral Award by the
United States President Woodrow Wilson, done on November 22, 1920,
which by a binding decision and conclusively defined the boundary
between Armenia and Turkey. Because of the time constraint, I will
not go into details of this document. Especially when the full text
of the Arbitral Award in English (more than 240 pages) with detailed
notes and indices will come out in Yerevan at the end of next month -
on May 28. However, it is important to give the general overview of
the Arbitral Award, which we Armenians rightfully consider as the
Bible of our territorial rights.
As you may know, the Republic of Armenia declared her independence on
May 28, 1918. One and half years after this declaration, on January
19, 1920, the Supreme Council of the Allied Powers finally agreed
to recognize the government of the Armenian State on the condition
that the recognition should not prejudge the question of the eventual
frontier.1 The United States recognized the Republic of Armenia on
April 23, 1920, on the same condition. By the way, the United States
refused to recognize the independence of Georgia and Azerbaijan
because of their unlawful claims to Armenian territory.2
On April 26, 1920, the Supreme Council meeting at San Remo requested
the President of the United States two things:
1. The United States assume a mandate over Armenia;
2. The President of the United States to make an Arbitral Decision
to fix the boundary of Armenia with Turkey.3 As you may know, the
Armenian mandate was rejected by Senate vote on June 1, 1920.
Nevertheless, the American answer to the second request was
positive and on May 17, 1920, the Secretary of State informed the
American Ambassador in France that the President had agreed to
act as arbitrator.4 For the implementation of the task, the State
Department began to assemble a team of experts in mid-July 1920 headed
by Professor William Westermann, from Wisconsin University. The state
department put together a committee, entitled: "The Committee upon
the Arbitration of the Boundary between Turkey and Armenia".
As the Treaty of Sevres was signed on August 10, 1920, the boundary
committee began its deliberations. The fact of signing the Treaty
of Sevres is important because the compromis, i.e. the application
for the arbitration, is included in the Treaty as Article 89. It
must be underlined that the status of the compromis has nothing to
do with the status of the main Treaty, thus with ratification or
non-ratification of the Treaty. Therefore, as the State Department
received the authenticated copy of the Treaty on October 18, 1920,
it was sufficient for the President officially to conclude the
arbitration without waiting the ratification of the Treaty of Sevres.
On November 22, 1920,5 Woodrow Wilson signed the final award with
seven enclosed appendices. So under the Arbitral Award of November 22,
1920, the border between Armenia and Turkey was settled conclusively
and without appeal, because, as clearly states The Hague Convention6
(article 54 of the 1899 edition and article 81 of the 1907 edition):7
"The award, duly pronounced and notified to the agents of the parties,
settles the dispute definitively and without appeal." 8
Few words on the content of the Arbitral Award. According to the
Arbitral Award, the title and the rights of the Republic of Armenia
were recognized on the large part of the provinces of Van, Bitlis,
Erzerum and Trebizond. It was less than the half of the territory
on which the Armenian title was recognized by the article 24 of the
Mudros armistice on October 30, 1918. This drastic cutback was due
to far-reaching reduction of native Armenian population, because of
the Armenian Genocide.
Now briefly on the most important issue - the present status of the
Arbitral Award. As indicates the official Manual of the Terminology
of Public International Law of the United Nations, for the arbitral
award to be valid it must meet four criteria:9
Criterion 1: The arbitrators must not have been subjected to any
undue external influence such as coercion, bribery or corruption;
Criterion 2: The production of proofs must have been free from fraud
and the proofs produced must not have contained any essential errors;
Criterion 3: The compromis must have been valid; Criterion 4: The
arbitrators must not have exceeded their powers.
Due to time limits, I will not go into details. However, after
assessing Wilson's Arbitral award against the abovementioned criteria,
it can be declared confidently: The Arbitral Award of Woodrow
Wilson is still a valid and legally obligatory document, because the
indispensable feature of an arbitral award is that it produces an
award that is final and binding. By agreeing to submit the dispute to
arbitration, i.e. signing a compromis, the parties in advance agree
to accept the decision.10 Therefore, in spite of the long-standing
occupation, Turkey does not possess any legal title to the territory
of Wilsonian Armenia. After the arbitral award of the US President,
signed and sealed on November 22, 1920, Turkish presence over there
is not more than an administrative control alike of Turkish status in
Northern Cyprus. Thus, the presence and all acts taken by the Turkish
Republic in the "Wilsonian Armenia" are illegal and invalid, because
the belligerent occupation does not yield lawful rule over a territory.
It is true that international law by itself will not be able to bring
about a solution for the Armenian-Turkish confrontation. Nonetheless,
there is no doubt that international law is the only way to bring
about a just and peaceful resolution, thus a durable and permanent
solution. The main basis for the lawful solution of long-standing
Armenian- Turkish problem are not the infamous Armenian-Turkish
protocols, but the Arbitral Award, done over 90 years ago in the
capital city of this country by 28th President of the United States
of America Woodrow Thomas Wilson.
__________________________________________________ __________________________
Notes
1 G. H. Hackworth, Digest of International Law, Turkishâ~@~PArmenian
Boundary Question, vol. I, Chapters I-V, Washington, 1940, p. 715.
2 (H. Lauterpacht, Recognition in International Law, Cambridge, 1947,
p. 11. Papers Relating to Foreign Relations of the United States,
1920, v. III, Washington, 1936. p.
778.) [hereinafter - FRUS].
3 The Treaties of Peace, 1919â~@~P1923, (Preface by Lt.â~@~PCol.
Lawrence Martin).vol. I, New York, 1924, p. xxxii.
4 Ibid., p. 783.
5 Cukwurah A. O., The Settlement of Boundary Disputes in International
Law, Manchester, 1967, pp. 165-166.
6 The 1899 Convention was ratified by Turkey on July 12, 1907. (The
Hague Court Reports, op. cit., p. cii).
7 This notion was comprised in article # 54 of the 1899 Convention
with slightly deferent wording: "The award, duly pronounced and
notified to the agents of the parties [at variance, puts an end to]
the dispute definitively and without appeal."( The Hague Court Reports,
op. cit., p. lxxxix).
8 Ibid.
9 Manual of the Terminology of Public International Law, op.cit.,
§ 508, pp. 588â~@~P590.
10 Ibid., p. 27.
http://www.armenianlife.com/2011/05/13/wilsondocument/
###
OPEN LETTER
to the Foreign Minister of the Republic of Armenia
Mr. Edward Nalbandian
Respected Minister,
On the first of October this year, at the end of the parliamentary
hearings on the pair of unfortunate Armenian-Turkish protocols, you
declared the following in the course of answering the predetermined
questions: "Wilson's decision has no legal implications, as it was
not ratified by the US Senate" (I would like to apologise if your
wording is not reproduced exactly; the meaning, however, is accurate,
I believe). It was most unfortunate that I was not in attendance
at that time. I could not have known beforehand that your responses
would be delayed until the end of the working day & had to leave for
a prior engagement.
But something good has come of this. I am now compelled to respond to
your claim in the form of an open letter. It is not worthy to leave
the words of a Minister unaddressed. You have repeated, word-for-word,
the opinion expressed in Yerevan two weeks ago by your compatriot,
Andranik Mihranian. I had the honour then of clarifying certain things,
& so, would like to repeat my own arguments now.
You, as well as Mr. Mihranian have clearly confused the chronologically
close, yet two very distinct issues - the mandate for Armenia &
the question of Armenia's borders - & have therefore arrived at a
wrong conclusion. Considering the timeliness of the matter, I find
it appropriate to give a brief account of the aforementioned issues.
The mandate for Armenia & the question of Armenia's borders
The Paris Peace Conference ultimately took up the main issues of the
Ottoman Empire in the San Remo session, which took place from the
24th to the 27th of April, 1920. The conference got involved with
clarifying the fate of Armenia as well within this context, by which
the Supreme Council of the Allied Powers officially approached the US
President Woodrow Wilson on the 26th of April, 1920 with two separate
requests: a) for the United States to assume a mandate for Armenia, &
b) for the President of the United States to arbitrate the frontiers
of Armenia. The two issues were completely independent of each other,
& therefore were addressed to separate people or bodies & came under
separate judicial authorities.
For the first - the mandate - the Paris Peace Conference approached
the US as a state. The legal basis for such a request was Article 22
of the Covenant of the League of Nations, according to which member
states of the League of Nations could carry out "tutelage" on behalf
of the League of Nations. Since this issue concerned an obligation
by an international treaty, the President of the United States had to
receive the "Advice & Consent" of the Senate, in accordance with the
US Constitution. & so, the Senate of the US - & not Congress - having
discussed the issue of taking on a mandate for Armenia from the 24th
of May to the 1st of June, 1920, voted against it. The real reason
for this was that the US was not a member of the League of Nations,
& therefore there was no legal basis to carry out any activities on
its behalf.
The second request - arbitrating the frontier of Armenia with
Turkey - did not come under the authority of the Senate, & so that
part of the legislative branch of the United States could not &
in fact never did take up this issue. International arbitration
forms part of international law & is regulated exclusively as per
international public law. Therefore, even a week before the Senate
began to discuss the mandate for Armenia, on the 17th of May, 1920,
President Wilson gave an affirmative answer to the second request,
taking on the responsibility & authority of arbitration to decide the
frontier between Armenia & Turkey. So, whether there would be a Treaty
of Sèvres or not, the legal compromis existed, and, consequently,
the legal arbitration was to take place.
What followed in this regard is relatively better known. Based on
the compromis of San Remo (the 26th of April, 1920), as well as
that of Sèvres (the 10th of August, 1920), US President Woodrow
Wilson granted the arbitral award on the frontiers between Armenia &
Turkey on the 22nd of November, 1920, which was to come into force
in accordance with the agreement immediately & without preconditions.
Two days later, on the 24th of November, the award was conveyed by
telegraph to the Paris Peace Conference & for the consideration of
the League of Nations. The award was accepted as such, but remained
unsettled, because the beneficiary of the award - the Republic of
Armenia - ceased to exist on the 2nd of December, 1920.
The status of Wilson's arbitral award
It is necessary to state, first of all, that any arbitral award,
if it is carried out with due process, does not just have some
theoretical "legal force", but is a binding document to be carried
out without reservations. Moreover, arbitral awards are "final &
without appeal". "The arbitral award is the final & binding decision
by an arbitrator".
The final & non-appealable nature of arbitral awards is codified
within international law. In particular, by Article 54 of the 1899
edition & Article 81 of the 1907 edition of the Hague Convention for
the Pacific Settlement of International Disputes.
It is evident from the aforementioned that arbitral awards a) are
inherently binding & non-appealable decisions, & b) do not require
any ratification or approval from within a state.
And so, by the arbitral award of the President of the United States
Woodrow Wilson, the frontier between Armenia & Turkey has been decided
for perpetuity, being in force to this day & not subject to any appeal.
There is another important issue to consider. Have the authorities &
public bodies of the United States ever expressed any position with
regards to President Wilson's arbitral award deciding the border
between Armenia & Turkey?
The position of the executive branch
The highest executive power of the United States not only recognised
Wilson's arbitral award, but has also ratified it and, therefore,
it has become part of the law of the land of the USA. The President
of the United States Woodrow Wilson & Secretary of State Bainbridge
Colby ratified the award of the arbitrator Woodrow Wilson with
their signatures & The Great Seal of the United States. According
to international law, the personal signature of the arbitrator &
his seal, if applicable, are completely sufficient as ratification
of an arbitral award. Woodrow Wilson could have been satisfied with
only his signature or as well as his presidential seal. In that case,
the award would have been the obligation of an individual, albeit a
president. However, the arbitral award is ratified with the official
state seal & confirmed by the keeper of the seal, the Secretary of
State. The arbitral award of Woodrow Wilson is thus an unqualified
obligation of the USA itself.
The position of the legislative branch
As mentioned above, arbitral awards are not subject to any legislative
approval or ratification. So the Senate, which reserves the right
to take up matters relating to foreign policy according to the
US Constitution, never discussed the arbitral award deciding the
Armenian-Turkish frontier. Nevertheless, in the course of discussing
other matters, the Senate of the US explicitly expressed its position
on this award on at least one occasion.
On the 18th of January, 1927, the Senate rejected the Turkish-American
treaty of the 6th of August, 1923, for three reasons. One of the
reasons was that Turkey "failed to provide for the fulfillment of the
Wilson award to Armenia". Senator William H. King (D-Utah) expressed
himself much more clearly in an official statement on this occasion,
"Obviously it would be unfair & unreasonable for the United States
to recognize & respect the claims & professions of Kemal so long as
he persist in holding control & sovereignty over Wilson Armenia." The
vote in the Senate in 1927 testifies without a doubt to the fact that
Wilson's arbitral award was a ratified award & had legal bearing
in 1927. Nothing from a legal perspective has changed since then,
& it thus remains in force to this day. I would like to especially
emphasise that this aforementioned discussion & vote took place years
after "the relevant treaties ... defin[ing] ... the ...
border" cited in the unfortunate pair of protocols.
Let me also add that the restoration of relations between Turkey &
America (after the WWI) still does not have a basis in any treaty,
& numerous controversial legal questions are left unaddressed in
that matter.
The position of public bodies
The most important public bodies in the USA are the political
parties. The main clauses of party programs are to be found in the
party platforms, which are approved by the general assemblies of
political parties.
The Democratic Party of the US (the party of current President Obama)
has official expressed a position on Wilson's arbitral award on two
occasions, in 1924 & in 1928.
In its 1924 programme, the Democratic Party included a separate clause
of the "Fulfillment of President Wilson's arbitral award respecting
Armenia" as a platform & goal. The 1928 platform went even further,
citing the US as a state and, as per the "promises & engagements"
of the Allied Powers, "We favor the most earnest efforts on the part
of the United States to secure the fulfillment of the promises &
engagements made during & following the World War by the United States
& the allied powers to Armenia & her people." The only "promise &
engagement" of the United States to the Republic of Armenia was &
continues to remain the arbitral award of Woodrow Wilson on the border
between Armenia & Turkey.
Respected Minister,
You have stated, that " Armenia is the inheritor of treaties
signed by the USSR" (I apologise again for any inaccuracy in exact
wording). You are incorrect, as the heir to the Soviet Union is the
Russian Federation. Have a look at the composition of the UN Security
Council. The international personality of a state cannot be so torn
apart. When, for example, India was partitioned into India & Pakistan,
the country's personality did not shift. It inherited India, & Pakistan
was forced to create its own international personality, step-by-step,
including signing treaties & establishing relations. When Bangladesh
seceded from Pakistan, the personality of Pakistan was unaffected &
Bangladesh started to create its own international personality.
With the collapse of the USSR, the heir of the international
personality of that state was unequivocally the Russian Federation, &
not Armenia under any circumstances. The newly-created Armenia, as well
as the other newly-independent countries, declared merely the following
in Article 12 of the agreement on the establishment of the Commonwealth
of Independent States: "The parties in high negotiation guarantee
the fulfilment of international obligations arising from treaties &
agreements of the former USSR". That is, the newly-established states
bore certain responsibilities of conduct, but that does not mean
that they became party to treaties signed by the USSR. In that case,
the Republic of Armenia would not need to sign one-by-one or become
party to numerous international conventions, treaties or protocols of
which the Soviet Union was part for years. For example, the Republic of
Armenia joined the Vienna Convention on Diplomatic Relations (1961),
which has come up a lot lately, only on the 23rd of July, 1993,
whereas the USSR (that is to say, the current Russian Federation)
has been party to that convention since the 11th of February, 1964.
The "tabula rasa" principle ("a clean slate") was put in place
when the Soviet Union collapsed. It could not have been otherwise,
because, from the perspective of international law, the countries
of the Southern Caucasus were under occupation, as when Bolshevik
Russia re-conquered Azerbaijan, Armenia & Georgia in 1920-1921,
they were already recognised states. Not only is the Republic of
Armenia not the inheritor of treaties of the USSR ("In general,
no treaty or obligation can have a legal basis for any country,
if the officials of that country were clearly functioning under the
command of a foreign power") but any changes in the territory of the
Republic of Armenia during the years of Soviet Russia (1920-1922),
then the occupation by the USSR (1922-1991), is illegal, as "a cession
of territory during occupation is not effective".
Please accept, Minister, the assurances of my highest consideration.
Ara Papian
Head, "Modus Vivendi" Center
2 October 2009
P.S. Minister, if you disagree with my arguments, I would like to
request an invitation to debate on live television. Silence, that is,
the absence of an invitation, would be perceived as a sign of agreement
with my arguments.
http://www.wilsonforarmenia.org/
###
OPEN LETTER
to the Foreign Minister of the Republic of Turkey
Mr. Ahmet Davutoglu
Respected Minister,
I read with interest the text of your speech of the 21st of October
at the Grand National Assembly of Turkey. My impressions were mixed.
However, I mainly felt that you wished to present what was desirable,
instead of what was real.
To begin with, it was astonishing to hear of "occupation" from the
foreign minister of a country which has itself been occupying 37%
of the territory of Cyprus for more than three decades now, not to
mention three-fourths of my homeland - the Republic of Armenia - for
almost nine decades. I would like to stress that I am not referring
to some abstract "Armenian lands", but solely the territory granted
to the Republic of Armenia through a document of international law,
that is, the arbitral award of US President Woodrow Wilson of the
22nd of November 1920. I shall elaborate on the arbitral award later,
but for now I would simply like to say that, in accordance with
international law, arbitral awards are "definitive and without appeal."
Respected Minister,
While commenting on the fifth clause of protocol on the establishment
of diplomatic relations between the Republic of Armenia and the
Republic of Turkey, you drew the conclusion that the Republic of
Armenia recognises "the existing border" according to the treaties
of Moscow (of the 16th of March 1921) and Kars (of the 13th of
October 1921).
This is a very arbitrary conclusion indeed. The document in question
does not cite the aforementioned so-called treaties. The protocols
refer only to "the relevant treaties of international law".
That is, evidently, the treaties in question must be governed by
international law, at the very least not being in violation of it.
Simultaneously, by referring to "the relevant treaties of
international law" and not simply "international treaties", the
protocol provides a more inclusive definition, and thus brings in
"the instruments of international law" in general, regardless of the
kind of document, as, given the present case, we have a document
known as a "protocol". Accordingly, a "treaty" must be understood
in a way separate from the term for the document, purely as a legal,
written international agreement.
["Treaty" means an international agreement concluded between States
in written form and governed by international law - Article 2.1(a),
Vienna Convention on the Law of Treaties, 1969].
It is evident that "the existing border" mentioned in the protocol
is not the illegal dividing line, which came about as a result of
Bolshevik-Kemalist actions. Ex injuria non oritur jus, illegal acts
cannot create law. "The existing border" implies that which exists in
international law and in accordance with international law. Moreover,
there is no only one such border between Armenia and Turkey: the
border decided by the arbitral award of US President Woodrow Wilson.
The treaties of Moscow and Kars, which you mentioned in your speech,
are not treaties at all from an international law point of view. In
order for them to be considered as treaties, they ought to have been
signed by the plenipotentiary representatives of the lawful governments
of recognised states. Neither the Kemalists, nor the Bolsheviks, to
say nothing of the Armenian Bolsheviks brought to power in Armenia,
fulfilled the above requirement in 1921. Therefore, the act of
signing those treaties was in violation of the basic principles
of international law - jus cogens - at the very moment they were
signed. And according to Article 53 of the Vienna Convention on
the Law of Treaties, 1969, which you yourself cited in your speech,
"A treaty is void if, at the time of its conclusion, it conflicts
with a peremptory norm of general international law."
Do you really believe that two unrecognised, and consequently illegal
self-proclaimed administrations, as the Bolsheviks and Kemalists
were in 1921, could, through a bilateral treaty (of Moscow), nullify
a legally negotiated international document signed by eighteen
recognised states (the Treaty of Sèvres)? Do you believe that the
Molotov-Ribbentrop Pact, for example, is a legal document? I do not
think so, because two countries, namely the USSR and Germany, could
not decide the borders of a third country. Then why do you believe
that two rebel movements, as, I repeat, the Bolsheviks and Kemalists
were in 1921, had the authority to decide in Moscow the borders of
some other country, the Republic of Armenia, even if it were occupied?
Do you really believe that the Armenian Soviet Socialist Republic,
as well as the Georgian and Azerbaijani Soviet Socialist Republic
ever had the capacity to make treaties under international law? Of
course not. Since April of 1920 (for Azerbaijan), December of 1920
(for Armenia) and February of 1921 (for Georgia), these countries
were rendered simply territories of different administrative units
under Russian Bolshevik occupation. In Armenia's case, the Senate
of the United States adopted outright the following by Resolution
#245 on the 3rd of June, 1924: " Turkey joined with Soviet Russia in
the destruction of the Armenian State." If there were no Republic
of Armenia from the 2nd of December 1920, how could it sign an
international treaty in Kars in October of 1921?
It is an indisputable fact of international law that no legal
consequences are held for an occupied country by the acts of the
occupiers, as "a cession of territory during occupation is not
effective." There is no ambiguity in this matter.
The fact that the protocols do not make legal the situation created
as a result of the Armenian Genocide and that they do not recognise
any frontiers was stated outright in the address of the President of
the Republic of Armenia, Serge Sargsyan, on the 10th of October 2009:
"Any sort of relationship with Turkey cannot cast into doubt the
reality of the dispossession and genocide of the Armenian people",
and "The issue of the current frontier between Armenia and Turkey
is subject to a resolution as per prevailing international law. The
protocols say nothing more than that."
Clear and simple.
Now let us see what this "prevailing international law" is exactly,
according to which "the issue of the current frontier between Armenia
and Turkey is subject to a resolution."
In order to understand this, one must return to the not-too-distant
past, during that short period of time, when the international
community recognised the Republic of Armenia as a state. When,
on the 19th of January 1920, the Supreme Council of the Paris Peace
Conference, that is, the British Empire, France and Italy, recognised
the Republic of Armenia, it was done so with a certain condition,
that the borders of the Republic of Armenia were to be determined
soon afterwards. The US also recognised the Republic of Armenia with
that same condition on the 23th of April 1920.
When it came to the borders of the Republic of Armenia, naturally,
the most important was the question of the ArmeÂnia-Turkey frontier.
And so, at the San Remo session of the Paris Peace Conference,
alongside other issues, this particuÂlar question was discussed
during the 24th to the 27th of April, 1920, and, on the 26th of
April, the US President Woodrow Wilson was officially requested
to arbitrate the frontiers of Armenia. On the 17th of May, 1920,
President Wilson accepÂted and took on the duties and authority as
the arbiter of the frontier between Armenia and Turkey. I would like
to espeÂcially emphasise that this was almost three months before
the Treaty of Sèvres was signed (which took place on the 10th of
August, 1920). Whether the Treaty of Sèvres would come to pass or
not, the compromis of a legal arbiter existed, and consequently, the
arbitral award deciding the border between Armenia and Turkey would
take place. It is another matter that the Treaty of Sèvres consisted
of an additional compromis. It is necessary to note that the validity
of the compromis only requires the signatures of the authorised
representatives and that no ratification is required for compromis.
Accordingly, based upon the compromis of San Remo (of the 26th of
April, 1920), as well as that of Sèvres (of the 10th of August,
1920), US President Woodrow Wilson carried out his arbitral award
on the borders between Armenia and Turkey on the 22nd of November,
1920, which was to be enforced thereupon and without reservations in
accordance with the agreement (compromis).
Two days later, on the 24th of November, the award was officially
conveyed by telegraph to the Paris Peace Conference for the
consideration of the League of Nations. The award was accepted as
such, but remained unsettled, because the beneficiary of the award -
the Republic of Armenia - ceased to exist on the 2nd of December 1920.
The issue of the current status of Wilson's arbitral award
It is necessary to state, first of all, that any arbitral award is
a binding document to be carried out without reservations. Moreover,
arbitral awards are "final and without appeal". "The arbitral award
is the final and binding decision by an arbitrator".
The final and non-appealable nature of arbitral awards is codified
within international law. In particular, by Article 54 of the 1899
edition and Article 81 of the 1907 edition of the Hague Convention
for the Pacific Settlement of International Disputes. And so, by
the arbitral award of the President of the United States Woodrow
Wilson, the frontier between Armenia and Turkey has been decided for
perpetuity, being in force to this day and not subject to any appeal.
Therefore, when the fifth clause of the protocol on the establishment
of diplomatic relations between the Republic of Armenia and the
Republic of Turkey mentions "the mutual recognition of the existing
border between the two countries as defined by the relevant treaties
of international law", then that can only take into consideration
the border defined by the only legal document in force to this day,
the arbitral award of US President Woodrow Wilson. There is no other
legal document "of international law", as the protocol says.
There is another important issue to consider here. Have the authorities
and public bodies of the USA ever expressed any position concerning
President Wilson's arbitral award deciding the border between Armenia
and Turkey?
The position of the executive branch
The highest executive power of the United States not only recognised
Wilson's arbitral award, but has also ratified it and, therefore,
it has become part of the law of the land of the United States. The
President of the United States Woodrow Wilson and Secretary of State
Bainbridge Colby ratified the award of the arbitrator Woodrow Wilson
with their signatures and The Great Seal of the United States.
According to international law, the personal signature of the
arbitrator and his seal, if applicable, are completely sufficient as
ratification of an arbitral award. Woodrow Wilson could have been
satisfied with only his signature or as well as his presidential
seal. In that case, the award would have been the obligation of an
individual, albeit a president. However, the arbitral award is ratified
with the official state seal and confirmed by the keeper of the seal,
the Secretary of State. The arbitral award of Woodrow Wilson is thus
an unqualified obligation of the United States of America itself.
The position of the legislative branch
Arbitral awards are not subject to any legislative approval or
ratification. They are governed by international public law.
Therefore, the Senate, which reserves the right to take up matters
relating to foreign policy according to the US Constitution, never
directly discussed the arbitral award deciding the Armenian-Turkish
frontier. Nevertheless, in the course of discussing other matters,
the Senate of the United States explicitly expressed its position on
this award on at least one occasion.
On the 18th of January 1927, the Senate rejected the Turkish-American
treaty of the 6th of August 1923, for three reasons. One of the
reasons was that Turkey "failed to provide for the fulfilment of the
Wilson award to Armenia". Senator William H. King (D-UT) expressed
himself much more clearly in an official statement on this occasion,
"Obviously it would be unfair and unreasonable for the United States to
recognize and respect the claims and professions of Kemal so long as he
persist in holding control and sovereignty over Wilson Armenia." The
vote in the Senate in 1927 testifies without a doubt to the fact that
Wilson's arbitral award was a ratified award and had legal bearing
in 1927. Nothing from a legal perspective has changed since then,
and it thus remains in force to this day.
The position of public bodies
The most important public bodies in the United States are political
parties. The main clauses of party programmes are to be found in
party platforms, which are approved by the general assemblies of
political parties.
The Democratic Party of the US (the party of current President Obama
and Secretary of State Clinton) has official expressed a position on
Wilson's arbitral award on two occasions, in 1924 and in 1928.
In its 1924 programme, the Democratic Party included a separate
clause of the "Fulfilment of President Wilson's arbitral award
respecting Armenia" as a platform and goal. The 1928 platform went
even further, referring to the US as a state and, as per the "promises
and engagements" of the Allied Powers, "We favour the most earnest
efforts on the part of the United States to secure the fulfilment
of the promises and engagements made during and following the World
War by the United States and the allied powers to Armenia and her
people." The only "promise and engagement" of the United States to
the Republic of Armenia was and continues to remain the arbitral
award of Woodrow Wilson on the border between Armenia and Turkey.
Respected Minister,
As opposed to the current generation of Americans and Europeans, we
know the Turks well, and we therefore do not harbour any illusions. I
believe that you, in turn, know us well, and must therefore bear
no illusions of your own. If you Turks believe that by arm-twisting
Armenia you can force anything upon the Armenian people, you are much
mistaken. Our history is proof of quite the contrary.
We - the Armenians and the Turks - are condemned together to find
mutually acceptable solutions. Such solutions may come in many
forms, but one thing must be clear, that they have to benefit the
establishment of a stable peace for the entire region, the development
of a diverse economy, the creation of a co-operative atmosphere, while
serving as well the realisation of certain interests of global powers
and their greater inclusion in regional issues. And so, that solution
must be such that it dispels the security concerns of the Armenian
side, while providing conditions of sustained economic growth and
development for the Republic of Armenia, as well as guaranteeing the
preservation of Armenian cultural values. Simultaneously, the solution
must not go against the core interests of Turkey, and the proposal
must be appreciable by the Turkish side as a dignified solution to
the given circumstances.
Respected Minister,
We are willing to co-operate, but do not take that as a sign of
weakness and do not force us to raise a white flag of surrender. That
will never occur.
Accept, Minister, the deepest assurances of my consideration.
Ara Papian
Head, "Modus Vivendi" Center
Ambassador Extraordinary and Plenipotentiary of the Republic of
Armenia to Canada 2000-2006
23 October 2009
http://www.wilsonforarmenia.org/
By Ara Papian
http://www.armenianlife.com/2011/05/13/wilsondocument/
May 13, 2011
The Armenian Genocide during the World War I and after went down the
history as a crystal-clear example of unpunished crime that reinvented
itself in Nazi extermination of the Jews, the Gypsies and the Slavic
peoples. The annihilation of an entire civilization that occurred
under the apathetic eye of the world at the turn of the XX century
ricocheted right into our lifetime with the destruction of innocent
people in Rwanda, Bosnia and Darfur. The principle of an ignored
crime backfired again.
All Genocides have a common denominator - it is brutal and premeditated
killing of hundreds of thousands and millions of people, huge loses
of cultural values and property. Unfortunately, the Armenian Genocide
has something in particular that makes it deferent and it stands
separately from all other Genocides. In addition to human loses and
destruction of our heritage we lost the most valuable thing that a
nation can possess - we lost our Homeland. The Armenian massacres
and deportations uprooted men, women and children who were living
on their ancestral homeland for several millennia, reducing a once
vibrant region into open graves and ghost towns throughout Anatolia and
Western Armenia. It is a sad fact that today there are less than 60,000
Armenians left in Turkey. After the 1.5 million killed, the remaining
survivors and their descendants are now dispersed throughout the world.
Armenian territorial rights are based upon several international
instruments. The most important of them is the Arbitral Award by the
United States President Woodrow Wilson, done on November 22, 1920,
which by a binding decision and conclusively defined the boundary
between Armenia and Turkey. Because of the time constraint, I will
not go into details of this document. Especially when the full text
of the Arbitral Award in English (more than 240 pages) with detailed
notes and indices will come out in Yerevan at the end of next month -
on May 28. However, it is important to give the general overview of
the Arbitral Award, which we Armenians rightfully consider as the
Bible of our territorial rights.
As you may know, the Republic of Armenia declared her independence on
May 28, 1918. One and half years after this declaration, on January
19, 1920, the Supreme Council of the Allied Powers finally agreed
to recognize the government of the Armenian State on the condition
that the recognition should not prejudge the question of the eventual
frontier.1 The United States recognized the Republic of Armenia on
April 23, 1920, on the same condition. By the way, the United States
refused to recognize the independence of Georgia and Azerbaijan
because of their unlawful claims to Armenian territory.2
On April 26, 1920, the Supreme Council meeting at San Remo requested
the President of the United States two things:
1. The United States assume a mandate over Armenia;
2. The President of the United States to make an Arbitral Decision
to fix the boundary of Armenia with Turkey.3 As you may know, the
Armenian mandate was rejected by Senate vote on June 1, 1920.
Nevertheless, the American answer to the second request was
positive and on May 17, 1920, the Secretary of State informed the
American Ambassador in France that the President had agreed to
act as arbitrator.4 For the implementation of the task, the State
Department began to assemble a team of experts in mid-July 1920 headed
by Professor William Westermann, from Wisconsin University. The state
department put together a committee, entitled: "The Committee upon
the Arbitration of the Boundary between Turkey and Armenia".
As the Treaty of Sevres was signed on August 10, 1920, the boundary
committee began its deliberations. The fact of signing the Treaty
of Sevres is important because the compromis, i.e. the application
for the arbitration, is included in the Treaty as Article 89. It
must be underlined that the status of the compromis has nothing to
do with the status of the main Treaty, thus with ratification or
non-ratification of the Treaty. Therefore, as the State Department
received the authenticated copy of the Treaty on October 18, 1920,
it was sufficient for the President officially to conclude the
arbitration without waiting the ratification of the Treaty of Sevres.
On November 22, 1920,5 Woodrow Wilson signed the final award with
seven enclosed appendices. So under the Arbitral Award of November 22,
1920, the border between Armenia and Turkey was settled conclusively
and without appeal, because, as clearly states The Hague Convention6
(article 54 of the 1899 edition and article 81 of the 1907 edition):7
"The award, duly pronounced and notified to the agents of the parties,
settles the dispute definitively and without appeal." 8
Few words on the content of the Arbitral Award. According to the
Arbitral Award, the title and the rights of the Republic of Armenia
were recognized on the large part of the provinces of Van, Bitlis,
Erzerum and Trebizond. It was less than the half of the territory
on which the Armenian title was recognized by the article 24 of the
Mudros armistice on October 30, 1918. This drastic cutback was due
to far-reaching reduction of native Armenian population, because of
the Armenian Genocide.
Now briefly on the most important issue - the present status of the
Arbitral Award. As indicates the official Manual of the Terminology
of Public International Law of the United Nations, for the arbitral
award to be valid it must meet four criteria:9
Criterion 1: The arbitrators must not have been subjected to any
undue external influence such as coercion, bribery or corruption;
Criterion 2: The production of proofs must have been free from fraud
and the proofs produced must not have contained any essential errors;
Criterion 3: The compromis must have been valid; Criterion 4: The
arbitrators must not have exceeded their powers.
Due to time limits, I will not go into details. However, after
assessing Wilson's Arbitral award against the abovementioned criteria,
it can be declared confidently: The Arbitral Award of Woodrow
Wilson is still a valid and legally obligatory document, because the
indispensable feature of an arbitral award is that it produces an
award that is final and binding. By agreeing to submit the dispute to
arbitration, i.e. signing a compromis, the parties in advance agree
to accept the decision.10 Therefore, in spite of the long-standing
occupation, Turkey does not possess any legal title to the territory
of Wilsonian Armenia. After the arbitral award of the US President,
signed and sealed on November 22, 1920, Turkish presence over there
is not more than an administrative control alike of Turkish status in
Northern Cyprus. Thus, the presence and all acts taken by the Turkish
Republic in the "Wilsonian Armenia" are illegal and invalid, because
the belligerent occupation does not yield lawful rule over a territory.
It is true that international law by itself will not be able to bring
about a solution for the Armenian-Turkish confrontation. Nonetheless,
there is no doubt that international law is the only way to bring
about a just and peaceful resolution, thus a durable and permanent
solution. The main basis for the lawful solution of long-standing
Armenian- Turkish problem are not the infamous Armenian-Turkish
protocols, but the Arbitral Award, done over 90 years ago in the
capital city of this country by 28th President of the United States
of America Woodrow Thomas Wilson.
__________________________________________________ __________________________
Notes
1 G. H. Hackworth, Digest of International Law, Turkishâ~@~PArmenian
Boundary Question, vol. I, Chapters I-V, Washington, 1940, p. 715.
2 (H. Lauterpacht, Recognition in International Law, Cambridge, 1947,
p. 11. Papers Relating to Foreign Relations of the United States,
1920, v. III, Washington, 1936. p.
778.) [hereinafter - FRUS].
3 The Treaties of Peace, 1919â~@~P1923, (Preface by Lt.â~@~PCol.
Lawrence Martin).vol. I, New York, 1924, p. xxxii.
4 Ibid., p. 783.
5 Cukwurah A. O., The Settlement of Boundary Disputes in International
Law, Manchester, 1967, pp. 165-166.
6 The 1899 Convention was ratified by Turkey on July 12, 1907. (The
Hague Court Reports, op. cit., p. cii).
7 This notion was comprised in article # 54 of the 1899 Convention
with slightly deferent wording: "The award, duly pronounced and
notified to the agents of the parties [at variance, puts an end to]
the dispute definitively and without appeal."( The Hague Court Reports,
op. cit., p. lxxxix).
8 Ibid.
9 Manual of the Terminology of Public International Law, op.cit.,
§ 508, pp. 588â~@~P590.
10 Ibid., p. 27.
http://www.armenianlife.com/2011/05/13/wilsondocument/
###
OPEN LETTER
to the Foreign Minister of the Republic of Armenia
Mr. Edward Nalbandian
Respected Minister,
On the first of October this year, at the end of the parliamentary
hearings on the pair of unfortunate Armenian-Turkish protocols, you
declared the following in the course of answering the predetermined
questions: "Wilson's decision has no legal implications, as it was
not ratified by the US Senate" (I would like to apologise if your
wording is not reproduced exactly; the meaning, however, is accurate,
I believe). It was most unfortunate that I was not in attendance
at that time. I could not have known beforehand that your responses
would be delayed until the end of the working day & had to leave for
a prior engagement.
But something good has come of this. I am now compelled to respond to
your claim in the form of an open letter. It is not worthy to leave
the words of a Minister unaddressed. You have repeated, word-for-word,
the opinion expressed in Yerevan two weeks ago by your compatriot,
Andranik Mihranian. I had the honour then of clarifying certain things,
& so, would like to repeat my own arguments now.
You, as well as Mr. Mihranian have clearly confused the chronologically
close, yet two very distinct issues - the mandate for Armenia &
the question of Armenia's borders - & have therefore arrived at a
wrong conclusion. Considering the timeliness of the matter, I find
it appropriate to give a brief account of the aforementioned issues.
The mandate for Armenia & the question of Armenia's borders
The Paris Peace Conference ultimately took up the main issues of the
Ottoman Empire in the San Remo session, which took place from the
24th to the 27th of April, 1920. The conference got involved with
clarifying the fate of Armenia as well within this context, by which
the Supreme Council of the Allied Powers officially approached the US
President Woodrow Wilson on the 26th of April, 1920 with two separate
requests: a) for the United States to assume a mandate for Armenia, &
b) for the President of the United States to arbitrate the frontiers
of Armenia. The two issues were completely independent of each other,
& therefore were addressed to separate people or bodies & came under
separate judicial authorities.
For the first - the mandate - the Paris Peace Conference approached
the US as a state. The legal basis for such a request was Article 22
of the Covenant of the League of Nations, according to which member
states of the League of Nations could carry out "tutelage" on behalf
of the League of Nations. Since this issue concerned an obligation
by an international treaty, the President of the United States had to
receive the "Advice & Consent" of the Senate, in accordance with the
US Constitution. & so, the Senate of the US - & not Congress - having
discussed the issue of taking on a mandate for Armenia from the 24th
of May to the 1st of June, 1920, voted against it. The real reason
for this was that the US was not a member of the League of Nations,
& therefore there was no legal basis to carry out any activities on
its behalf.
The second request - arbitrating the frontier of Armenia with
Turkey - did not come under the authority of the Senate, & so that
part of the legislative branch of the United States could not &
in fact never did take up this issue. International arbitration
forms part of international law & is regulated exclusively as per
international public law. Therefore, even a week before the Senate
began to discuss the mandate for Armenia, on the 17th of May, 1920,
President Wilson gave an affirmative answer to the second request,
taking on the responsibility & authority of arbitration to decide the
frontier between Armenia & Turkey. So, whether there would be a Treaty
of Sèvres or not, the legal compromis existed, and, consequently,
the legal arbitration was to take place.
What followed in this regard is relatively better known. Based on
the compromis of San Remo (the 26th of April, 1920), as well as
that of Sèvres (the 10th of August, 1920), US President Woodrow
Wilson granted the arbitral award on the frontiers between Armenia &
Turkey on the 22nd of November, 1920, which was to come into force
in accordance with the agreement immediately & without preconditions.
Two days later, on the 24th of November, the award was conveyed by
telegraph to the Paris Peace Conference & for the consideration of
the League of Nations. The award was accepted as such, but remained
unsettled, because the beneficiary of the award - the Republic of
Armenia - ceased to exist on the 2nd of December, 1920.
The status of Wilson's arbitral award
It is necessary to state, first of all, that any arbitral award,
if it is carried out with due process, does not just have some
theoretical "legal force", but is a binding document to be carried
out without reservations. Moreover, arbitral awards are "final &
without appeal". "The arbitral award is the final & binding decision
by an arbitrator".
The final & non-appealable nature of arbitral awards is codified
within international law. In particular, by Article 54 of the 1899
edition & Article 81 of the 1907 edition of the Hague Convention for
the Pacific Settlement of International Disputes.
It is evident from the aforementioned that arbitral awards a) are
inherently binding & non-appealable decisions, & b) do not require
any ratification or approval from within a state.
And so, by the arbitral award of the President of the United States
Woodrow Wilson, the frontier between Armenia & Turkey has been decided
for perpetuity, being in force to this day & not subject to any appeal.
There is another important issue to consider. Have the authorities &
public bodies of the United States ever expressed any position with
regards to President Wilson's arbitral award deciding the border
between Armenia & Turkey?
The position of the executive branch
The highest executive power of the United States not only recognised
Wilson's arbitral award, but has also ratified it and, therefore,
it has become part of the law of the land of the USA. The President
of the United States Woodrow Wilson & Secretary of State Bainbridge
Colby ratified the award of the arbitrator Woodrow Wilson with
their signatures & The Great Seal of the United States. According
to international law, the personal signature of the arbitrator &
his seal, if applicable, are completely sufficient as ratification
of an arbitral award. Woodrow Wilson could have been satisfied with
only his signature or as well as his presidential seal. In that case,
the award would have been the obligation of an individual, albeit a
president. However, the arbitral award is ratified with the official
state seal & confirmed by the keeper of the seal, the Secretary of
State. The arbitral award of Woodrow Wilson is thus an unqualified
obligation of the USA itself.
The position of the legislative branch
As mentioned above, arbitral awards are not subject to any legislative
approval or ratification. So the Senate, which reserves the right
to take up matters relating to foreign policy according to the
US Constitution, never discussed the arbitral award deciding the
Armenian-Turkish frontier. Nevertheless, in the course of discussing
other matters, the Senate of the US explicitly expressed its position
on this award on at least one occasion.
On the 18th of January, 1927, the Senate rejected the Turkish-American
treaty of the 6th of August, 1923, for three reasons. One of the
reasons was that Turkey "failed to provide for the fulfillment of the
Wilson award to Armenia". Senator William H. King (D-Utah) expressed
himself much more clearly in an official statement on this occasion,
"Obviously it would be unfair & unreasonable for the United States
to recognize & respect the claims & professions of Kemal so long as
he persist in holding control & sovereignty over Wilson Armenia." The
vote in the Senate in 1927 testifies without a doubt to the fact that
Wilson's arbitral award was a ratified award & had legal bearing
in 1927. Nothing from a legal perspective has changed since then,
& it thus remains in force to this day. I would like to especially
emphasise that this aforementioned discussion & vote took place years
after "the relevant treaties ... defin[ing] ... the ...
border" cited in the unfortunate pair of protocols.
Let me also add that the restoration of relations between Turkey &
America (after the WWI) still does not have a basis in any treaty,
& numerous controversial legal questions are left unaddressed in
that matter.
The position of public bodies
The most important public bodies in the USA are the political
parties. The main clauses of party programs are to be found in the
party platforms, which are approved by the general assemblies of
political parties.
The Democratic Party of the US (the party of current President Obama)
has official expressed a position on Wilson's arbitral award on two
occasions, in 1924 & in 1928.
In its 1924 programme, the Democratic Party included a separate clause
of the "Fulfillment of President Wilson's arbitral award respecting
Armenia" as a platform & goal. The 1928 platform went even further,
citing the US as a state and, as per the "promises & engagements"
of the Allied Powers, "We favor the most earnest efforts on the part
of the United States to secure the fulfillment of the promises &
engagements made during & following the World War by the United States
& the allied powers to Armenia & her people." The only "promise &
engagement" of the United States to the Republic of Armenia was &
continues to remain the arbitral award of Woodrow Wilson on the border
between Armenia & Turkey.
Respected Minister,
You have stated, that " Armenia is the inheritor of treaties
signed by the USSR" (I apologise again for any inaccuracy in exact
wording). You are incorrect, as the heir to the Soviet Union is the
Russian Federation. Have a look at the composition of the UN Security
Council. The international personality of a state cannot be so torn
apart. When, for example, India was partitioned into India & Pakistan,
the country's personality did not shift. It inherited India, & Pakistan
was forced to create its own international personality, step-by-step,
including signing treaties & establishing relations. When Bangladesh
seceded from Pakistan, the personality of Pakistan was unaffected &
Bangladesh started to create its own international personality.
With the collapse of the USSR, the heir of the international
personality of that state was unequivocally the Russian Federation, &
not Armenia under any circumstances. The newly-created Armenia, as well
as the other newly-independent countries, declared merely the following
in Article 12 of the agreement on the establishment of the Commonwealth
of Independent States: "The parties in high negotiation guarantee
the fulfilment of international obligations arising from treaties &
agreements of the former USSR". That is, the newly-established states
bore certain responsibilities of conduct, but that does not mean
that they became party to treaties signed by the USSR. In that case,
the Republic of Armenia would not need to sign one-by-one or become
party to numerous international conventions, treaties or protocols of
which the Soviet Union was part for years. For example, the Republic of
Armenia joined the Vienna Convention on Diplomatic Relations (1961),
which has come up a lot lately, only on the 23rd of July, 1993,
whereas the USSR (that is to say, the current Russian Federation)
has been party to that convention since the 11th of February, 1964.
The "tabula rasa" principle ("a clean slate") was put in place
when the Soviet Union collapsed. It could not have been otherwise,
because, from the perspective of international law, the countries
of the Southern Caucasus were under occupation, as when Bolshevik
Russia re-conquered Azerbaijan, Armenia & Georgia in 1920-1921,
they were already recognised states. Not only is the Republic of
Armenia not the inheritor of treaties of the USSR ("In general,
no treaty or obligation can have a legal basis for any country,
if the officials of that country were clearly functioning under the
command of a foreign power") but any changes in the territory of the
Republic of Armenia during the years of Soviet Russia (1920-1922),
then the occupation by the USSR (1922-1991), is illegal, as "a cession
of territory during occupation is not effective".
Please accept, Minister, the assurances of my highest consideration.
Ara Papian
Head, "Modus Vivendi" Center
2 October 2009
P.S. Minister, if you disagree with my arguments, I would like to
request an invitation to debate on live television. Silence, that is,
the absence of an invitation, would be perceived as a sign of agreement
with my arguments.
http://www.wilsonforarmenia.org/
###
OPEN LETTER
to the Foreign Minister of the Republic of Turkey
Mr. Ahmet Davutoglu
Respected Minister,
I read with interest the text of your speech of the 21st of October
at the Grand National Assembly of Turkey. My impressions were mixed.
However, I mainly felt that you wished to present what was desirable,
instead of what was real.
To begin with, it was astonishing to hear of "occupation" from the
foreign minister of a country which has itself been occupying 37%
of the territory of Cyprus for more than three decades now, not to
mention three-fourths of my homeland - the Republic of Armenia - for
almost nine decades. I would like to stress that I am not referring
to some abstract "Armenian lands", but solely the territory granted
to the Republic of Armenia through a document of international law,
that is, the arbitral award of US President Woodrow Wilson of the
22nd of November 1920. I shall elaborate on the arbitral award later,
but for now I would simply like to say that, in accordance with
international law, arbitral awards are "definitive and without appeal."
Respected Minister,
While commenting on the fifth clause of protocol on the establishment
of diplomatic relations between the Republic of Armenia and the
Republic of Turkey, you drew the conclusion that the Republic of
Armenia recognises "the existing border" according to the treaties
of Moscow (of the 16th of March 1921) and Kars (of the 13th of
October 1921).
This is a very arbitrary conclusion indeed. The document in question
does not cite the aforementioned so-called treaties. The protocols
refer only to "the relevant treaties of international law".
That is, evidently, the treaties in question must be governed by
international law, at the very least not being in violation of it.
Simultaneously, by referring to "the relevant treaties of
international law" and not simply "international treaties", the
protocol provides a more inclusive definition, and thus brings in
"the instruments of international law" in general, regardless of the
kind of document, as, given the present case, we have a document
known as a "protocol". Accordingly, a "treaty" must be understood
in a way separate from the term for the document, purely as a legal,
written international agreement.
["Treaty" means an international agreement concluded between States
in written form and governed by international law - Article 2.1(a),
Vienna Convention on the Law of Treaties, 1969].
It is evident that "the existing border" mentioned in the protocol
is not the illegal dividing line, which came about as a result of
Bolshevik-Kemalist actions. Ex injuria non oritur jus, illegal acts
cannot create law. "The existing border" implies that which exists in
international law and in accordance with international law. Moreover,
there is no only one such border between Armenia and Turkey: the
border decided by the arbitral award of US President Woodrow Wilson.
The treaties of Moscow and Kars, which you mentioned in your speech,
are not treaties at all from an international law point of view. In
order for them to be considered as treaties, they ought to have been
signed by the plenipotentiary representatives of the lawful governments
of recognised states. Neither the Kemalists, nor the Bolsheviks, to
say nothing of the Armenian Bolsheviks brought to power in Armenia,
fulfilled the above requirement in 1921. Therefore, the act of
signing those treaties was in violation of the basic principles
of international law - jus cogens - at the very moment they were
signed. And according to Article 53 of the Vienna Convention on
the Law of Treaties, 1969, which you yourself cited in your speech,
"A treaty is void if, at the time of its conclusion, it conflicts
with a peremptory norm of general international law."
Do you really believe that two unrecognised, and consequently illegal
self-proclaimed administrations, as the Bolsheviks and Kemalists
were in 1921, could, through a bilateral treaty (of Moscow), nullify
a legally negotiated international document signed by eighteen
recognised states (the Treaty of Sèvres)? Do you believe that the
Molotov-Ribbentrop Pact, for example, is a legal document? I do not
think so, because two countries, namely the USSR and Germany, could
not decide the borders of a third country. Then why do you believe
that two rebel movements, as, I repeat, the Bolsheviks and Kemalists
were in 1921, had the authority to decide in Moscow the borders of
some other country, the Republic of Armenia, even if it were occupied?
Do you really believe that the Armenian Soviet Socialist Republic,
as well as the Georgian and Azerbaijani Soviet Socialist Republic
ever had the capacity to make treaties under international law? Of
course not. Since April of 1920 (for Azerbaijan), December of 1920
(for Armenia) and February of 1921 (for Georgia), these countries
were rendered simply territories of different administrative units
under Russian Bolshevik occupation. In Armenia's case, the Senate
of the United States adopted outright the following by Resolution
#245 on the 3rd of June, 1924: " Turkey joined with Soviet Russia in
the destruction of the Armenian State." If there were no Republic
of Armenia from the 2nd of December 1920, how could it sign an
international treaty in Kars in October of 1921?
It is an indisputable fact of international law that no legal
consequences are held for an occupied country by the acts of the
occupiers, as "a cession of territory during occupation is not
effective." There is no ambiguity in this matter.
The fact that the protocols do not make legal the situation created
as a result of the Armenian Genocide and that they do not recognise
any frontiers was stated outright in the address of the President of
the Republic of Armenia, Serge Sargsyan, on the 10th of October 2009:
"Any sort of relationship with Turkey cannot cast into doubt the
reality of the dispossession and genocide of the Armenian people",
and "The issue of the current frontier between Armenia and Turkey
is subject to a resolution as per prevailing international law. The
protocols say nothing more than that."
Clear and simple.
Now let us see what this "prevailing international law" is exactly,
according to which "the issue of the current frontier between Armenia
and Turkey is subject to a resolution."
In order to understand this, one must return to the not-too-distant
past, during that short period of time, when the international
community recognised the Republic of Armenia as a state. When,
on the 19th of January 1920, the Supreme Council of the Paris Peace
Conference, that is, the British Empire, France and Italy, recognised
the Republic of Armenia, it was done so with a certain condition,
that the borders of the Republic of Armenia were to be determined
soon afterwards. The US also recognised the Republic of Armenia with
that same condition on the 23th of April 1920.
When it came to the borders of the Republic of Armenia, naturally,
the most important was the question of the ArmeÂnia-Turkey frontier.
And so, at the San Remo session of the Paris Peace Conference,
alongside other issues, this particuÂlar question was discussed
during the 24th to the 27th of April, 1920, and, on the 26th of
April, the US President Woodrow Wilson was officially requested
to arbitrate the frontiers of Armenia. On the 17th of May, 1920,
President Wilson accepÂted and took on the duties and authority as
the arbiter of the frontier between Armenia and Turkey. I would like
to espeÂcially emphasise that this was almost three months before
the Treaty of Sèvres was signed (which took place on the 10th of
August, 1920). Whether the Treaty of Sèvres would come to pass or
not, the compromis of a legal arbiter existed, and consequently, the
arbitral award deciding the border between Armenia and Turkey would
take place. It is another matter that the Treaty of Sèvres consisted
of an additional compromis. It is necessary to note that the validity
of the compromis only requires the signatures of the authorised
representatives and that no ratification is required for compromis.
Accordingly, based upon the compromis of San Remo (of the 26th of
April, 1920), as well as that of Sèvres (of the 10th of August,
1920), US President Woodrow Wilson carried out his arbitral award
on the borders between Armenia and Turkey on the 22nd of November,
1920, which was to be enforced thereupon and without reservations in
accordance with the agreement (compromis).
Two days later, on the 24th of November, the award was officially
conveyed by telegraph to the Paris Peace Conference for the
consideration of the League of Nations. The award was accepted as
such, but remained unsettled, because the beneficiary of the award -
the Republic of Armenia - ceased to exist on the 2nd of December 1920.
The issue of the current status of Wilson's arbitral award
It is necessary to state, first of all, that any arbitral award is
a binding document to be carried out without reservations. Moreover,
arbitral awards are "final and without appeal". "The arbitral award
is the final and binding decision by an arbitrator".
The final and non-appealable nature of arbitral awards is codified
within international law. In particular, by Article 54 of the 1899
edition and Article 81 of the 1907 edition of the Hague Convention
for the Pacific Settlement of International Disputes. And so, by
the arbitral award of the President of the United States Woodrow
Wilson, the frontier between Armenia and Turkey has been decided for
perpetuity, being in force to this day and not subject to any appeal.
Therefore, when the fifth clause of the protocol on the establishment
of diplomatic relations between the Republic of Armenia and the
Republic of Turkey mentions "the mutual recognition of the existing
border between the two countries as defined by the relevant treaties
of international law", then that can only take into consideration
the border defined by the only legal document in force to this day,
the arbitral award of US President Woodrow Wilson. There is no other
legal document "of international law", as the protocol says.
There is another important issue to consider here. Have the authorities
and public bodies of the USA ever expressed any position concerning
President Wilson's arbitral award deciding the border between Armenia
and Turkey?
The position of the executive branch
The highest executive power of the United States not only recognised
Wilson's arbitral award, but has also ratified it and, therefore,
it has become part of the law of the land of the United States. The
President of the United States Woodrow Wilson and Secretary of State
Bainbridge Colby ratified the award of the arbitrator Woodrow Wilson
with their signatures and The Great Seal of the United States.
According to international law, the personal signature of the
arbitrator and his seal, if applicable, are completely sufficient as
ratification of an arbitral award. Woodrow Wilson could have been
satisfied with only his signature or as well as his presidential
seal. In that case, the award would have been the obligation of an
individual, albeit a president. However, the arbitral award is ratified
with the official state seal and confirmed by the keeper of the seal,
the Secretary of State. The arbitral award of Woodrow Wilson is thus
an unqualified obligation of the United States of America itself.
The position of the legislative branch
Arbitral awards are not subject to any legislative approval or
ratification. They are governed by international public law.
Therefore, the Senate, which reserves the right to take up matters
relating to foreign policy according to the US Constitution, never
directly discussed the arbitral award deciding the Armenian-Turkish
frontier. Nevertheless, in the course of discussing other matters,
the Senate of the United States explicitly expressed its position on
this award on at least one occasion.
On the 18th of January 1927, the Senate rejected the Turkish-American
treaty of the 6th of August 1923, for three reasons. One of the
reasons was that Turkey "failed to provide for the fulfilment of the
Wilson award to Armenia". Senator William H. King (D-UT) expressed
himself much more clearly in an official statement on this occasion,
"Obviously it would be unfair and unreasonable for the United States to
recognize and respect the claims and professions of Kemal so long as he
persist in holding control and sovereignty over Wilson Armenia." The
vote in the Senate in 1927 testifies without a doubt to the fact that
Wilson's arbitral award was a ratified award and had legal bearing
in 1927. Nothing from a legal perspective has changed since then,
and it thus remains in force to this day.
The position of public bodies
The most important public bodies in the United States are political
parties. The main clauses of party programmes are to be found in
party platforms, which are approved by the general assemblies of
political parties.
The Democratic Party of the US (the party of current President Obama
and Secretary of State Clinton) has official expressed a position on
Wilson's arbitral award on two occasions, in 1924 and in 1928.
In its 1924 programme, the Democratic Party included a separate
clause of the "Fulfilment of President Wilson's arbitral award
respecting Armenia" as a platform and goal. The 1928 platform went
even further, referring to the US as a state and, as per the "promises
and engagements" of the Allied Powers, "We favour the most earnest
efforts on the part of the United States to secure the fulfilment
of the promises and engagements made during and following the World
War by the United States and the allied powers to Armenia and her
people." The only "promise and engagement" of the United States to
the Republic of Armenia was and continues to remain the arbitral
award of Woodrow Wilson on the border between Armenia and Turkey.
Respected Minister,
As opposed to the current generation of Americans and Europeans, we
know the Turks well, and we therefore do not harbour any illusions. I
believe that you, in turn, know us well, and must therefore bear
no illusions of your own. If you Turks believe that by arm-twisting
Armenia you can force anything upon the Armenian people, you are much
mistaken. Our history is proof of quite the contrary.
We - the Armenians and the Turks - are condemned together to find
mutually acceptable solutions. Such solutions may come in many
forms, but one thing must be clear, that they have to benefit the
establishment of a stable peace for the entire region, the development
of a diverse economy, the creation of a co-operative atmosphere, while
serving as well the realisation of certain interests of global powers
and their greater inclusion in regional issues. And so, that solution
must be such that it dispels the security concerns of the Armenian
side, while providing conditions of sustained economic growth and
development for the Republic of Armenia, as well as guaranteeing the
preservation of Armenian cultural values. Simultaneously, the solution
must not go against the core interests of Turkey, and the proposal
must be appreciable by the Turkish side as a dignified solution to
the given circumstances.
Respected Minister,
We are willing to co-operate, but do not take that as a sign of
weakness and do not force us to raise a white flag of surrender. That
will never occur.
Accept, Minister, the deepest assurances of my consideration.
Ara Papian
Head, "Modus Vivendi" Center
Ambassador Extraordinary and Plenipotentiary of the Republic of
Armenia to Canada 2000-2006
23 October 2009
http://www.wilsonforarmenia.org/