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EmailThe Issues of Legal Validity of Peace Treaties of Armenia and Relating to Armenia
By Vladimir D. Vardanyan
Introduction
Although more than ninety years have passed after the end of the World War I, the issue of legal validity of the early 20th century peace treaties is still very topical for Armenia and Armenians. It becomes more crucial in the framework of further development of Turkish-Armenian relations burdened by the closed land frontier, the unresolved issue of international legal responsibility for the Armenian Genocide, and the ongoing Nagorno-Karabakh conflict and other relevant wrinkled matters. The aforementioned points make it necessary to study the issues of international legal validity and binding force of the early 20th century peace treaties.
The history of the peace treaties—which affected Armenians or were concluded by Armenia—under study started in the early 19th century and lasted until the mid-1920s. These aforementioned peace treaties can be divided into the following categories:
The history of the peace treaties—which affected Armenians or were concluded by Armenia—under study started in the early 19th century and lasted until the mid-1920s. These aforementioned peace treaties can be divided into the following categories:
- Bilateral peace treaties of Russia with the Ottoman Empire, Persia, and its vassal states of the 19th century (the Treaty of Kurekchay of May 14, 1805, the Treaty of Bucharest of May 16, 1812, the Treaty of Gulistan of October 24 (12), 1813, the Treaty of Turkmenchay (Torkaman) of February 10, 1828, and the Treaty of Adrianople of September 2, 1829).
- Multilateral peace treaties of the 19th century concluded in the aftermath of wars between Russia and the Ottoman Empire (the Treaty of Paris of March 30, 1856 and the Treaty of Berlin of July 1 (13) 1878)[1].
-
Post-World War I peace treaties, which can be divided into the following sub-categories:
- Treaties concluded by Armenia (the Treaty of Batum of June 4, 1918, the Treaty of Sèvres of August 10, 1920, the Treaty of Alexandropol of December 2, 1920, and the Treaty of Kars of October 13, 1921).
- Treaties concluded without the participation of Armenia, but nevertheless affecting Armenians (the Treaty of Brest-Litovsk of March 3, 1918, the Treaty of Moscow of March 16, 1921, and the Treaty of Lausanne of July 24, 1923).
Each of the mentioned categories of treaties has unique peculiarities which call for a separate study. Since the investigation of historical peace treaties related to Armenians is beyond the scope of this paper, and hence the paper will discuss them in detail, rather it will emphasize some key points of those treaties—the points that can directly affect the current political situation and international relations of Armenia.
The bilateral treaties of Russia with the Ottoman Empire, Persia, and its vassal states of the early 19th century dealt mostly with the issues of territory, rather than population of those territories, and were reluctant to the issues of protection of any ethnic or religious group, including Armenians. Only separate provisions of some of them indirectly touched upon the issue of population, mainly in the context of the rights of inhabitants of ceded territories to transfer to the territory of the other Contracting Party.[2]
Peace treaties of the second half of the 19th century concluded in the aftermath of the wars between Russia and the Ottoman Empire are the evidence of a noteworthy shift in Public International Law and international relations. This new trend had to do with wide usage of new multilateral diplomacy and, as a result, the creation of a group of multilateral peace treaties, namely the 1856 Treaty of Paris and, especially, the 1878 Treaty of Berlin.
It is worth noting that the Treaty of Paris had only an indirect impact on the Armenian population, just by stating the fact of restoration of “… Town and Citadel of Kars, as well as the other parts of the Ottoman Territory of which the Russian troops are in possession…”[3] to the Ottoman Empire, in accordance with Article III of the Treaty. On the contrary, the Treaty of Berlin had serious influence on the issue of protection of the Armenian population in the Ottoman State. From the international law perspective, this treaty was in a sense revolutionary. For the first time in the Modern Ottoman History, the population of several territories was given international legal protection under Article LXI of the Treaty of Berlin. The provisions of the mentioned article were very essential at that time and are still topical, for it has to do with an important obligation of Turkey towards its Armenian population—the obligation was violated several times by deliberated actions or omission of the Ottoman Central Authorities.
One can readily see that all the mentioned treaties had a crucial impact on the Armenians and affected largely the content of the post-World War I treaties concluded with or without the participation of Armenia. Furthermore, one might claim that these treaties shaped in a way the current Western and Southern Frontiers of Armenia.
The bilateral treaties of Russia with the Ottoman Empire, Persia, and its vassal states of the early 19th century dealt mostly with the issues of territory, rather than population of those territories, and were reluctant to the issues of protection of any ethnic or religious group, including Armenians. Only separate provisions of some of them indirectly touched upon the issue of population, mainly in the context of the rights of inhabitants of ceded territories to transfer to the territory of the other Contracting Party.[2]
Peace treaties of the second half of the 19th century concluded in the aftermath of the wars between Russia and the Ottoman Empire are the evidence of a noteworthy shift in Public International Law and international relations. This new trend had to do with wide usage of new multilateral diplomacy and, as a result, the creation of a group of multilateral peace treaties, namely the 1856 Treaty of Paris and, especially, the 1878 Treaty of Berlin.
It is worth noting that the Treaty of Paris had only an indirect impact on the Armenian population, just by stating the fact of restoration of “… Town and Citadel of Kars, as well as the other parts of the Ottoman Territory of which the Russian troops are in possession…”[3] to the Ottoman Empire, in accordance with Article III of the Treaty. On the contrary, the Treaty of Berlin had serious influence on the issue of protection of the Armenian population in the Ottoman State. From the international law perspective, this treaty was in a sense revolutionary. For the first time in the Modern Ottoman History, the population of several territories was given international legal protection under Article LXI of the Treaty of Berlin. The provisions of the mentioned article were very essential at that time and are still topical, for it has to do with an important obligation of Turkey towards its Armenian population—the obligation was violated several times by deliberated actions or omission of the Ottoman Central Authorities.
One can readily see that all the mentioned treaties had a crucial impact on the Armenians and affected largely the content of the post-World War I treaties concluded with or without the participation of Armenia. Furthermore, one might claim that these treaties shaped in a way the current Western and Southern Frontiers of Armenia.
Provisions of World War I Peace Treaties of Armenia
The 1918 Treaty of Batum as the first International Agreement of Independent Armenia
Historically, the Treaty of Batum of June 4, 1918, was the first international agreement of modern Armenia. Obviously, the newly independent Armenian Republic was under military and political pressure when signing the treaty. That is why most of its provisions were rather a result of ultimatum than compromise or concord. Hence, it cannot be and has never been considered as reciprocal one. Nevertheless, I would like to emphasize several aspects of this treaty which are quite interesting from the International law perspective even today. First of all, despite the general content of its provisions, the Ottoman Empire officially recognized the independence and, thus, the international legal capacity of the Republic of Armenia by the conclusion of the treaty. The Treaty of Batum gave start to the process of international recognition of the Republic of Armenia. In the preamble of the treaty it was established that
“The Imperial Ottoman government on the one hand and the government of Republic of Armenia that declared itself independent, on the other hand mutually having agreed to achieve establishment of relations of friendship and the kind neighborhood between both parties in political, economic and intellectual sphere…”[4].
Evidently, this is the key aspect of reestablishment of the Armenian statehood. Another interesting aspect of that treaty was the establishment of the fact that the border between Armenia and Azerbaijan is unclear and should be determined by the special agreement signed between two parties. In particular, Article III stipulated that
“the Protocol to the Agreement, signed between the government of the Armenian Republic and the government of the Republic of Azerbaijan concerning the definition of their mutual borders should be communicated to the Imperial Ottoman Government.”[5]
This can serve as evidence that even the Ottoman Empire considered the Armenian-Azerbaijani border as undefined and, thus, disputable even in 1918.
The provisions of Article XII of the treaty are also enlightening from the international law perspective. In accordance with the said Article, “Provisions of the general and additional peace treaties concluded in Brest-Litovsk between the Ottoman Empire, its allies and Russia are valid for contracting parties as far as they do not contradict the present Treaty.”[6] Thus, the treaties signed in Brest-Litovsk were implicitly incorporated into the Treaty of Batum and, thus, transformed it into an integral part of the Brest-Litovsk Accords. After the conclusion of the Armistice of Moudros of October 30, 1918 and the Truce of Compiègne on November 11, 1918, and the subsequent Soviet Declaration of Treaty of Brest-Litovsk as null and void of November 13, 1918, it was withdrawn. It should be mentioned that the Brest-Litovsk Treaty was partly declared as null and void in respect of the Ottoman Empire even before its final annulment. In particular, in the Diplomatic Note of G. Checherin, the Peoples’ Commissioner of Foreign Affairs of the RSFSR, to the Ottoman Turkey Ministry of Foreign Affairs of September 20, 1918 on systematic violations of the Treaty of Brest by Turkey and violence against the Christian population of occupied territories, it was declared that:
“During the last half-year the Ottoman Government has continuously violated the Treaty of Brest-Litovsk, despite all the protests of the Soviet Government. Now at last, on top of it all, it seized and awfully defeated one of the main cities [Baku] of the Russian Republic. Hereby, the Ottoman Government has demonstrated that the Treaty of Brest-Litovsk exists no more between Russia and Turkey. The Government of the Russian Federative Soviet Republic had to admit that the acts of the Ottoman Government have practically annulled the established peaceful relations as well as the Treaty of Brest-Litovsk between these two states.”[7]
In any case, the Republic of Armenia refused to ratify the Treaty of Batum and hence, it has never come into force.[8] That is why nowadays this treaty is significant from the international law perspective only in the context of international recognition of Armenia.
Analysis of the Provisions of the 1920 Treaty of Sèvres relating to Armenia
The Paris Peace Conference reanimated the expectation of the Armenian Republic to conclude the reciprocal peace treaty with the Ottoman Empire which could have led to the creation of a unified independent Armenia. As a result of the Paris peace process, the Treaty of Sèvres was signed by the Supreme and Associated Powers with the Ottoman Empire on August 10, 1920. It is noteworthy that the treaties signed in the framework of the Paris Peace Conference—the Treaty of Trianon, the Treaty of Neuilly-sur-Seine, the Treaty of Versailles, and the Treaty of Saint-Germain-en-Laye—had many similarities and were aimed at the creation of a new system of international security and stability, the so-called Versailles System. Nowadays the Treaty of Sèvres is still important from the perspective of the recognition of Armenia, the legal responsibility for the Armenian Genocide, and the legal force of the Wilson Arbitration.
The Treaty of Sèvres is a bilateral agreement signed between the Ottoman Empire and a Collective Party consisting of a group of Allied and Associated Powers, including Armenia. In accordance with Article 433, paragraph 2 of the treaty, it was supposed to be ratified. By signing the Treaty of Sèvres, the states had just adopted its text without undertaking any international obligations. Until now, there has been no ratification of the mentioned treaty by any of its States Signatories. Thus, one can conclude that the Treaty of Sèvres is an international agreement which has never entered into force. In other words, the treaty contains several international legal obligations that have no binding force for any State Signatory, including the Republic of Armenia. Theoretically, it can still come into force if States Signatories of the Treaty decide to give it binding force by ratification. Obviously, it is not an easy task, since some of its Signatories became extinct (such as Hedjaz and Czechoslovakia) and Successor States should act on behalf of them. In addition, it is often difficult to prove State Succession of the mentioned states in respect of international treaties of their predecessors. Nevertheless, it is neither a draft of a treaty nor a denounced treaty. One may call it “a forgotten treaty.”
As it is well known, in the Joint Declaration of May 24, 1915, Russia, France, and Great Britain considered the massacre of Armenians as the “crime against humanity and civilization.”[9] The Entente Powers tried to realize provisions of the said Declaration in the Treaty of Sèvres. Article 230 of the Treaty of Sèvres stipulated:
“The Turkish Government undertakes to hand over to the Allied Powers the persons whose surrender may be required by the latter as being responsible for the massacres committed during the continuance of the state of war on territory which formed part of the Turkish Empire on August 1, 1914.
The Allied Powers reserve to themselves the right to designate the tribunal which shall try the persons so accused, and the Turkish Government undertakes to recognize such tribunal.
In the event of the League of Nations having created in sufficient time a tribunal competent to deal with the said massacres, the Allied Powers reserve to themselves the right to bring the accused persons mentioned above before such tribunal, and the Turkish Government undertakes equally to recognize such tribunal.”[10]
Unfortunately, no international criminal tribunal as envisaged in Article 230 has been ever established. Notwithstanding the fact that the Treaty of Sèvres has never entered into force, the text of the treaty remains eloquent evidence of the international recognition of the crime of “massacres” against the Armenian population of Turkey.[11] According to some researchers, the Treaty of Lausanne abandoned the demand for international trial and punishment of the Ottoman Turks for the genocide against Armenians, since the Declaration of Amnesty was signed along with the adoption of the Treaty of Lausanne. That is why no claim to Turkey on the grounds of the responsibility for the Armenian Genocide can arise.[12] I would like to dispose these allegations by recalling that the Declaration of Amnesty (regardless of its lawfulness) has to do with the punishment of individuals only and does not touch upon the international responsibility of states, which differs from the individual liability.
Another key aspect of the Treaty of Sèvres is connected with the Wilson Arbitration. In accordance with Article 89 of the Treaty of Sèvres:
“Turkey and Armenia as well as the other High Contracting Parties agree to submit to the arbitration of the President of the United States of America the question of the frontier to be fixed between Turkey and Armenia in the vilayets of Erzurum, Trebizond, Van and Bitlis, and to accept his decision thereupon, as well as any stipulations he may prescribe as to access for Armenia to the sea, and as to the demilitarization of any portion of Turkish territory adjacent to the said frontier.”[13]
Some researchers have tried to separate this Article as well as the whole process of the Wilson Arbitration from the very context of the Treaty of Sèvres. In accordance with the Law of Treaties, the Wilson Arbitration should be considered an integral part of the Treaty of Sèvres and, thus, will come into force as soon as the Treaty comes into force.[14]
Let us now touch upon the relationship between the Treaty of Sèvres and the Treaty of Lausanne. Although Turkish propaganda declares that the Treaty of Sèvres was annulled by the conclusion of the Treaty of Lausanne, there is no direct link between these treaties. I should confess that I completely disagree with the experts arguing that the Treaty of Lausanne has disposed the Treaty of Sèvres. In my opinion, these treaties cannot be deemed as prior and posterior. The principle lex posteriori derogat legi priori does not apply here, as there is no competition between them. There are at least three basic aspects witnessing that the Treaty of Lausanne cannot alter the Treaty of Sèvres. First of all, these treaties have different sets of participants.[15] Second, they have different scope and regulate different subjects. And third, there is no mention of declaring the Treaty of Sèvres as null and void in the text of the Treaty of Lausanne. As it is well known, the Kemalist Movement did not recognize the Treaty of Sèvres and initiated the War of Independence, which led to its total rejection.
The 1920 Treaty of Alexandropol between the Republic of Armenia and the Grand National Assembly of Turkey
The Treaty of Alexandropol of December 2, 1920 was, in fact, the last international agreement of the First Republic of Armenia and the first international agreement of the Grand National Assembly of Turkey. It was the first treaty signed by the Kemalist Turkish Government with an internationally accepted state. At the same time, it called for recognition of the Republic of Armenia by the future Republican Turkey.
It should be mentioned that the structure of that treaty, its wording, and contents is rather closer to a preliminary peace or ceasefire agreement than to a full-fledged international treaty. One of the main shortcomings of the treaty is the lack of full powers of the Armenian Delegation to sign it. After signing the agreement with Soviet Russia, the Dashnaktsakan Government had no legitimate authority to sign any treaty or agreement on behalf of the Republic of Armenia. The position of the official Turkish propaganda that Armenia had rejected the Treaty of Sèvres by signing the Treaty of Alexandropol does not fully reflect the reality. The problem is that the Treaties of Sèvres and Alexandropol are non-ratified international agreements, which have not come into force. That is why I assert that this treaty can impose no international obligation to any Party, at least from the International Law perspective. In any case, even if we dissemble the procedural shortcomings of that treaty (lack of full powers, threat of use of force, foreign occupation, etc.), it still remains that this treaty has never come into force[16] and, hence, it is not binding upon the Signatory States. It was obvious that the treaty was abortive even at the day of its signature. After the establishment of Soviet rule in Armenia (and afterwards in Georgia), Kemalist Turkey tried to elaborate new international agreements with Soviet Russia (de facto Occupying Power) and Transcaucasian Republics on the mentioned matters, which were embodied in the 1921 Treaties of Moscow and Kars.
The 1921 Treaties of Moscow and Kars
The Treaty of Friendship between Turkey, the Socialist Soviet Republic of Armenia, the Azerbaijan Socialist Soviet Republic, and the Socialist Soviet Republic of Georgia (hereinafter the Treaty of Kars) is one of the most controversial documents of modern history and international relations of the Republic of Armenia. Just as the aforementioned international agreements of the early 20th century (such as the 1918 Treaty of Batum, the 1920 Treaty of Alexandropol, and the 1921 Treaty of Moscow), this treaty also raises serious doubts with regard to its validity.
The analysis of the provisions of the treaty enables to state clearly that many of its vital provisions have never been implemented and, thus, became the dead letter of law. One can state with confidence that no treaty provision regarding Armenia (except that of the border issues) has been implemented. For instance, Article XIV of the Treaty of Kars stipulated that “The Contracting Parties agree to conclude, within the period of six month from the signature of the present Treaty, special arrangements with regard to the refugees of the wars of 1918 and 1920.[17]” There is no evidence of implementing such arrangements. The situation here is similar to the provisions set forth in Article XIX of the treaty. According to the latter “[t]he Contracting Parties agree to conclude consular conventions within the period of three months from the signature of the present Treaty.”[18] It is well known that no such Convention has been concluded between Armenia and Turkey.[19] Even nowadays, Turkey rejects the idea of establishing diplomatic or consular relations with Armenia without preconditions. It is remarkable that, in accordance with Article XX, paragraph 2 of the Treaty of Kars, the aforementioned two Articles along with Articles VI, XV, XVI and XVIII shall “…enter into force immediately after the signature of the Treaty” while other provisions of the Treaty “… shall enter into force immediately after the exchange of the acts of ratification.”[20] In other words, these provisions are binding even without the fact of ratification of the treaty.
These treaty provisions are not the only unimplemented ones. There are other provisions of the treaty that also remain on paper. For example, according to the Article XVII of the Treaty:
“[i]n order to ensure the continuance of relations between their countries, the Contracting Parties agree to take, in a common agreement, all the measures necessary to maintain and develop as quickly as possible railway, telegraphic, and other communications, as well as to assure free transit of persons and commodities without any hindrance. It is understood, however, that the entry and departure of travelers and commodities will be governed by the full application of all the regulations established in this regard by each of the Contracting Parties.”[21]
It is notorious that the Turkish-Armenian land frontier has been unilaterally sealed by Turkey since April 1993. That is why it is virtually impossible to assure free transit of persons and commodities without hindrance between the two countries. The only railway line connecting Armenia to Turkey does not operate at all. These facts are not only evidence of non-implementation of that Article, but also of its grave violation. This violation can seriously affect the validity of the whole treaty, the very purpose of which is not only delimitation of the border, but also establishment of friendly relationships between the Contracting Parties.
The most important aspect of invalidity of the Treaty of Kars has to do with its relations to the 1921 Treaty of Moscow. The very linkage between these two treaties seriously affects the validity of the former. Thus, in accordance with Article I of the Treaty of Kars,
“[t]he Government of the Grand National Assembly of Turkey and the Governments of the Socialist Soviet Republics of Armenia, Azerbaijan, and Georgia consider as null and void the treaties concluded between the Governments which have previously exercised sovereign rights over territory actually forming part of the territory of the Contracting Parties and concerning the above-mentioned territories, as well as the treaties concluded with third states concerning the Transcaucasian Republics. It is understood that the Turkish-Russian Treaty signed in Moscow on March 16, 1921 (1337) will be exempted from the terms of this Article.”[22]
Under this provision, the Transcaucasian Republics were virtually obliged to recognize the validity of the treaty concluded between Turkey and Soviet Russia—the treaty, which was signed in the absence of the Transcaucasian Republics but, nevertheless, imposed several obligations on them. In particular, Article XV of the Treaty of Moscow stipulated that
“Russia shall undertake the necessary steps in respect to the Transcaucasian Republics with a view to secure the compulsory recognition of the provisions of the Present Treaty which directly concern them in the agreements which would be concluded by those Republics with Turkey.”[23]
One may claim that in violation of provisions of the general public international law, Turkey and Russia imposed obligations on third states (namely, on Armenia, Azerbaijan, and Georgia) previously de jure or de facto recognized by them.[24] This fact clearly contradicts the 1969 Vienna Convention on Law of Treaties, the vast majority of the provisions of which is of customary nature. Thus, in accordance with Article 34 of the Convention (‘General rule regarding third States’) “A treaty does not create either obligations or rights for a third State without its consent.”[25] Provisions of Article 35 of the Convention (‘Treaties providing for obligations for third States’) stipulate that “An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing.”[26]
The 1969 Vienna Convention came into force in January 7, 1980, in accordance with article 84(1)[27]—after the conclusion of the Treaties of Moscow and Kars—and, therefore, its provisions cannot apply to the latter. However, even before the conclusion of the Vienna Convention, the UN International Law Commission stated clearly that the mentioned rule
“… appears originally to have been derived from Roman law in the form of the well-known maxim pacta tertiis nec nocent nec prosunt – agreements neither impose obligations nor confer rights upon third parties. In international law, however, the justification for the rule does not rest simply on this general concept of the law of contract but on the sovereignty and independence of States. There is abundant evidence of the recognition of the rule in State practice and in the decisions of international tribunals, as well as in the writings of jurists.”[28]
The considered provision of the Treaty of Moscow witness that the Transcaucasian States were forced to sign and ratify the Treaty of Kars. This is obviously a grave breach of general international law provisions, especially those concerning the sovereign equality, prohibition of threat or use of force, and the intervention to matters that are essentially within the domestic jurisdiction of a state.
Some researchers use the mentioned breaches to invoke the rebus sic stantibus clause to challenge the validity of the Treaty of Kars.[29] Unfortunately, they often mistakenly refer to Article 62 of the Vienna Convention on the Law of Treaties, which
“contemplates revolutionary new situations such as the dramatic alterations wrought by the dissolution of the Soviet Union when it provides that a fundamental change of the circumstances prevailing when a treaty was concluded is a ground for its termination or suspension, even if it is otherwise valid. Applicable treaty law is clear that the sovereignty restored to the countries formerly within the Soviet Union and the behavior of Turkey toward Armenia in particular constitutes ’fundamental changes in circumstances’ which permit the termination of the treaties.”[30]
In any case, one cannot agree with them because of two main reasons. First of all, the Republic of Turkey is not a Party to the said Convention. Second, in accordance with Article 62, paragraph 2 (even if we assume that it is of a customary nature), “A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty… if the treaty establishes a boundary…”[31] As mentioned above, one of the basic goals of the Treaty of Kars was the establishment of the boundary. That is why the general international law provision on fundamental change of circumstances cannot apply to the Treaty of Kars.
Historically, the Treaty of Batum of June 4, 1918, was the first international agreement of modern Armenia. Obviously, the newly independent Armenian Republic was under military and political pressure when signing the treaty. That is why most of its provisions were rather a result of ultimatum than compromise or concord. Hence, it cannot be and has never been considered as reciprocal one. Nevertheless, I would like to emphasize several aspects of this treaty which are quite interesting from the International law perspective even today. First of all, despite the general content of its provisions, the Ottoman Empire officially recognized the independence and, thus, the international legal capacity of the Republic of Armenia by the conclusion of the treaty. The Treaty of Batum gave start to the process of international recognition of the Republic of Armenia. In the preamble of the treaty it was established that
“The Imperial Ottoman government on the one hand and the government of Republic of Armenia that declared itself independent, on the other hand mutually having agreed to achieve establishment of relations of friendship and the kind neighborhood between both parties in political, economic and intellectual sphere…”[4].
Evidently, this is the key aspect of reestablishment of the Armenian statehood. Another interesting aspect of that treaty was the establishment of the fact that the border between Armenia and Azerbaijan is unclear and should be determined by the special agreement signed between two parties. In particular, Article III stipulated that
“the Protocol to the Agreement, signed between the government of the Armenian Republic and the government of the Republic of Azerbaijan concerning the definition of their mutual borders should be communicated to the Imperial Ottoman Government.”[5]
This can serve as evidence that even the Ottoman Empire considered the Armenian-Azerbaijani border as undefined and, thus, disputable even in 1918.
The provisions of Article XII of the treaty are also enlightening from the international law perspective. In accordance with the said Article, “Provisions of the general and additional peace treaties concluded in Brest-Litovsk between the Ottoman Empire, its allies and Russia are valid for contracting parties as far as they do not contradict the present Treaty.”[6] Thus, the treaties signed in Brest-Litovsk were implicitly incorporated into the Treaty of Batum and, thus, transformed it into an integral part of the Brest-Litovsk Accords. After the conclusion of the Armistice of Moudros of October 30, 1918 and the Truce of Compiègne on November 11, 1918, and the subsequent Soviet Declaration of Treaty of Brest-Litovsk as null and void of November 13, 1918, it was withdrawn. It should be mentioned that the Brest-Litovsk Treaty was partly declared as null and void in respect of the Ottoman Empire even before its final annulment. In particular, in the Diplomatic Note of G. Checherin, the Peoples’ Commissioner of Foreign Affairs of the RSFSR, to the Ottoman Turkey Ministry of Foreign Affairs of September 20, 1918 on systematic violations of the Treaty of Brest by Turkey and violence against the Christian population of occupied territories, it was declared that:
“During the last half-year the Ottoman Government has continuously violated the Treaty of Brest-Litovsk, despite all the protests of the Soviet Government. Now at last, on top of it all, it seized and awfully defeated one of the main cities [Baku] of the Russian Republic. Hereby, the Ottoman Government has demonstrated that the Treaty of Brest-Litovsk exists no more between Russia and Turkey. The Government of the Russian Federative Soviet Republic had to admit that the acts of the Ottoman Government have practically annulled the established peaceful relations as well as the Treaty of Brest-Litovsk between these two states.”[7]
In any case, the Republic of Armenia refused to ratify the Treaty of Batum and hence, it has never come into force.[8] That is why nowadays this treaty is significant from the international law perspective only in the context of international recognition of Armenia.
Analysis of the Provisions of the 1920 Treaty of Sèvres relating to Armenia
The Paris Peace Conference reanimated the expectation of the Armenian Republic to conclude the reciprocal peace treaty with the Ottoman Empire which could have led to the creation of a unified independent Armenia. As a result of the Paris peace process, the Treaty of Sèvres was signed by the Supreme and Associated Powers with the Ottoman Empire on August 10, 1920. It is noteworthy that the treaties signed in the framework of the Paris Peace Conference—the Treaty of Trianon, the Treaty of Neuilly-sur-Seine, the Treaty of Versailles, and the Treaty of Saint-Germain-en-Laye—had many similarities and were aimed at the creation of a new system of international security and stability, the so-called Versailles System. Nowadays the Treaty of Sèvres is still important from the perspective of the recognition of Armenia, the legal responsibility for the Armenian Genocide, and the legal force of the Wilson Arbitration.
The Treaty of Sèvres is a bilateral agreement signed between the Ottoman Empire and a Collective Party consisting of a group of Allied and Associated Powers, including Armenia. In accordance with Article 433, paragraph 2 of the treaty, it was supposed to be ratified. By signing the Treaty of Sèvres, the states had just adopted its text without undertaking any international obligations. Until now, there has been no ratification of the mentioned treaty by any of its States Signatories. Thus, one can conclude that the Treaty of Sèvres is an international agreement which has never entered into force. In other words, the treaty contains several international legal obligations that have no binding force for any State Signatory, including the Republic of Armenia. Theoretically, it can still come into force if States Signatories of the Treaty decide to give it binding force by ratification. Obviously, it is not an easy task, since some of its Signatories became extinct (such as Hedjaz and Czechoslovakia) and Successor States should act on behalf of them. In addition, it is often difficult to prove State Succession of the mentioned states in respect of international treaties of their predecessors. Nevertheless, it is neither a draft of a treaty nor a denounced treaty. One may call it “a forgotten treaty.”
As it is well known, in the Joint Declaration of May 24, 1915, Russia, France, and Great Britain considered the massacre of Armenians as the “crime against humanity and civilization.”[9] The Entente Powers tried to realize provisions of the said Declaration in the Treaty of Sèvres. Article 230 of the Treaty of Sèvres stipulated:
“The Turkish Government undertakes to hand over to the Allied Powers the persons whose surrender may be required by the latter as being responsible for the massacres committed during the continuance of the state of war on territory which formed part of the Turkish Empire on August 1, 1914.
The Allied Powers reserve to themselves the right to designate the tribunal which shall try the persons so accused, and the Turkish Government undertakes to recognize such tribunal.
In the event of the League of Nations having created in sufficient time a tribunal competent to deal with the said massacres, the Allied Powers reserve to themselves the right to bring the accused persons mentioned above before such tribunal, and the Turkish Government undertakes equally to recognize such tribunal.”[10]
Unfortunately, no international criminal tribunal as envisaged in Article 230 has been ever established. Notwithstanding the fact that the Treaty of Sèvres has never entered into force, the text of the treaty remains eloquent evidence of the international recognition of the crime of “massacres” against the Armenian population of Turkey.[11] According to some researchers, the Treaty of Lausanne abandoned the demand for international trial and punishment of the Ottoman Turks for the genocide against Armenians, since the Declaration of Amnesty was signed along with the adoption of the Treaty of Lausanne. That is why no claim to Turkey on the grounds of the responsibility for the Armenian Genocide can arise.[12] I would like to dispose these allegations by recalling that the Declaration of Amnesty (regardless of its lawfulness) has to do with the punishment of individuals only and does not touch upon the international responsibility of states, which differs from the individual liability.
Another key aspect of the Treaty of Sèvres is connected with the Wilson Arbitration. In accordance with Article 89 of the Treaty of Sèvres:
“Turkey and Armenia as well as the other High Contracting Parties agree to submit to the arbitration of the President of the United States of America the question of the frontier to be fixed between Turkey and Armenia in the vilayets of Erzurum, Trebizond, Van and Bitlis, and to accept his decision thereupon, as well as any stipulations he may prescribe as to access for Armenia to the sea, and as to the demilitarization of any portion of Turkish territory adjacent to the said frontier.”[13]
Some researchers have tried to separate this Article as well as the whole process of the Wilson Arbitration from the very context of the Treaty of Sèvres. In accordance with the Law of Treaties, the Wilson Arbitration should be considered an integral part of the Treaty of Sèvres and, thus, will come into force as soon as the Treaty comes into force.[14]
Let us now touch upon the relationship between the Treaty of Sèvres and the Treaty of Lausanne. Although Turkish propaganda declares that the Treaty of Sèvres was annulled by the conclusion of the Treaty of Lausanne, there is no direct link between these treaties. I should confess that I completely disagree with the experts arguing that the Treaty of Lausanne has disposed the Treaty of Sèvres. In my opinion, these treaties cannot be deemed as prior and posterior. The principle lex posteriori derogat legi priori does not apply here, as there is no competition between them. There are at least three basic aspects witnessing that the Treaty of Lausanne cannot alter the Treaty of Sèvres. First of all, these treaties have different sets of participants.[15] Second, they have different scope and regulate different subjects. And third, there is no mention of declaring the Treaty of Sèvres as null and void in the text of the Treaty of Lausanne. As it is well known, the Kemalist Movement did not recognize the Treaty of Sèvres and initiated the War of Independence, which led to its total rejection.
The 1920 Treaty of Alexandropol between the Republic of Armenia and the Grand National Assembly of Turkey
The Treaty of Alexandropol of December 2, 1920 was, in fact, the last international agreement of the First Republic of Armenia and the first international agreement of the Grand National Assembly of Turkey. It was the first treaty signed by the Kemalist Turkish Government with an internationally accepted state. At the same time, it called for recognition of the Republic of Armenia by the future Republican Turkey.
It should be mentioned that the structure of that treaty, its wording, and contents is rather closer to a preliminary peace or ceasefire agreement than to a full-fledged international treaty. One of the main shortcomings of the treaty is the lack of full powers of the Armenian Delegation to sign it. After signing the agreement with Soviet Russia, the Dashnaktsakan Government had no legitimate authority to sign any treaty or agreement on behalf of the Republic of Armenia. The position of the official Turkish propaganda that Armenia had rejected the Treaty of Sèvres by signing the Treaty of Alexandropol does not fully reflect the reality. The problem is that the Treaties of Sèvres and Alexandropol are non-ratified international agreements, which have not come into force. That is why I assert that this treaty can impose no international obligation to any Party, at least from the International Law perspective. In any case, even if we dissemble the procedural shortcomings of that treaty (lack of full powers, threat of use of force, foreign occupation, etc.), it still remains that this treaty has never come into force[16] and, hence, it is not binding upon the Signatory States. It was obvious that the treaty was abortive even at the day of its signature. After the establishment of Soviet rule in Armenia (and afterwards in Georgia), Kemalist Turkey tried to elaborate new international agreements with Soviet Russia (de facto Occupying Power) and Transcaucasian Republics on the mentioned matters, which were embodied in the 1921 Treaties of Moscow and Kars.
The 1921 Treaties of Moscow and Kars
The Treaty of Friendship between Turkey, the Socialist Soviet Republic of Armenia, the Azerbaijan Socialist Soviet Republic, and the Socialist Soviet Republic of Georgia (hereinafter the Treaty of Kars) is one of the most controversial documents of modern history and international relations of the Republic of Armenia. Just as the aforementioned international agreements of the early 20th century (such as the 1918 Treaty of Batum, the 1920 Treaty of Alexandropol, and the 1921 Treaty of Moscow), this treaty also raises serious doubts with regard to its validity.
The analysis of the provisions of the treaty enables to state clearly that many of its vital provisions have never been implemented and, thus, became the dead letter of law. One can state with confidence that no treaty provision regarding Armenia (except that of the border issues) has been implemented. For instance, Article XIV of the Treaty of Kars stipulated that “The Contracting Parties agree to conclude, within the period of six month from the signature of the present Treaty, special arrangements with regard to the refugees of the wars of 1918 and 1920.[17]” There is no evidence of implementing such arrangements. The situation here is similar to the provisions set forth in Article XIX of the treaty. According to the latter “[t]he Contracting Parties agree to conclude consular conventions within the period of three months from the signature of the present Treaty.”[18] It is well known that no such Convention has been concluded between Armenia and Turkey.[19] Even nowadays, Turkey rejects the idea of establishing diplomatic or consular relations with Armenia without preconditions. It is remarkable that, in accordance with Article XX, paragraph 2 of the Treaty of Kars, the aforementioned two Articles along with Articles VI, XV, XVI and XVIII shall “…enter into force immediately after the signature of the Treaty” while other provisions of the Treaty “… shall enter into force immediately after the exchange of the acts of ratification.”[20] In other words, these provisions are binding even without the fact of ratification of the treaty.
These treaty provisions are not the only unimplemented ones. There are other provisions of the treaty that also remain on paper. For example, according to the Article XVII of the Treaty:
“[i]n order to ensure the continuance of relations between their countries, the Contracting Parties agree to take, in a common agreement, all the measures necessary to maintain and develop as quickly as possible railway, telegraphic, and other communications, as well as to assure free transit of persons and commodities without any hindrance. It is understood, however, that the entry and departure of travelers and commodities will be governed by the full application of all the regulations established in this regard by each of the Contracting Parties.”[21]
It is notorious that the Turkish-Armenian land frontier has been unilaterally sealed by Turkey since April 1993. That is why it is virtually impossible to assure free transit of persons and commodities without hindrance between the two countries. The only railway line connecting Armenia to Turkey does not operate at all. These facts are not only evidence of non-implementation of that Article, but also of its grave violation. This violation can seriously affect the validity of the whole treaty, the very purpose of which is not only delimitation of the border, but also establishment of friendly relationships between the Contracting Parties.
The most important aspect of invalidity of the Treaty of Kars has to do with its relations to the 1921 Treaty of Moscow. The very linkage between these two treaties seriously affects the validity of the former. Thus, in accordance with Article I of the Treaty of Kars,
“[t]he Government of the Grand National Assembly of Turkey and the Governments of the Socialist Soviet Republics of Armenia, Azerbaijan, and Georgia consider as null and void the treaties concluded between the Governments which have previously exercised sovereign rights over territory actually forming part of the territory of the Contracting Parties and concerning the above-mentioned territories, as well as the treaties concluded with third states concerning the Transcaucasian Republics. It is understood that the Turkish-Russian Treaty signed in Moscow on March 16, 1921 (1337) will be exempted from the terms of this Article.”[22]
Under this provision, the Transcaucasian Republics were virtually obliged to recognize the validity of the treaty concluded between Turkey and Soviet Russia—the treaty, which was signed in the absence of the Transcaucasian Republics but, nevertheless, imposed several obligations on them. In particular, Article XV of the Treaty of Moscow stipulated that
“Russia shall undertake the necessary steps in respect to the Transcaucasian Republics with a view to secure the compulsory recognition of the provisions of the Present Treaty which directly concern them in the agreements which would be concluded by those Republics with Turkey.”[23]
One may claim that in violation of provisions of the general public international law, Turkey and Russia imposed obligations on third states (namely, on Armenia, Azerbaijan, and Georgia) previously de jure or de facto recognized by them.[24] This fact clearly contradicts the 1969 Vienna Convention on Law of Treaties, the vast majority of the provisions of which is of customary nature. Thus, in accordance with Article 34 of the Convention (‘General rule regarding third States’) “A treaty does not create either obligations or rights for a third State without its consent.”[25] Provisions of Article 35 of the Convention (‘Treaties providing for obligations for third States’) stipulate that “An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing.”[26]
The 1969 Vienna Convention came into force in January 7, 1980, in accordance with article 84(1)[27]—after the conclusion of the Treaties of Moscow and Kars—and, therefore, its provisions cannot apply to the latter. However, even before the conclusion of the Vienna Convention, the UN International Law Commission stated clearly that the mentioned rule
“… appears originally to have been derived from Roman law in the form of the well-known maxim pacta tertiis nec nocent nec prosunt – agreements neither impose obligations nor confer rights upon third parties. In international law, however, the justification for the rule does not rest simply on this general concept of the law of contract but on the sovereignty and independence of States. There is abundant evidence of the recognition of the rule in State practice and in the decisions of international tribunals, as well as in the writings of jurists.”[28]
The considered provision of the Treaty of Moscow witness that the Transcaucasian States were forced to sign and ratify the Treaty of Kars. This is obviously a grave breach of general international law provisions, especially those concerning the sovereign equality, prohibition of threat or use of force, and the intervention to matters that are essentially within the domestic jurisdiction of a state.
Some researchers use the mentioned breaches to invoke the rebus sic stantibus clause to challenge the validity of the Treaty of Kars.[29] Unfortunately, they often mistakenly refer to Article 62 of the Vienna Convention on the Law of Treaties, which
“contemplates revolutionary new situations such as the dramatic alterations wrought by the dissolution of the Soviet Union when it provides that a fundamental change of the circumstances prevailing when a treaty was concluded is a ground for its termination or suspension, even if it is otherwise valid. Applicable treaty law is clear that the sovereignty restored to the countries formerly within the Soviet Union and the behavior of Turkey toward Armenia in particular constitutes ’fundamental changes in circumstances’ which permit the termination of the treaties.”[30]
In any case, one cannot agree with them because of two main reasons. First of all, the Republic of Turkey is not a Party to the said Convention. Second, in accordance with Article 62, paragraph 2 (even if we assume that it is of a customary nature), “A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty… if the treaty establishes a boundary…”[31] As mentioned above, one of the basic goals of the Treaty of Kars was the establishment of the boundary. That is why the general international law provision on fundamental change of circumstances cannot apply to the Treaty of Kars.
The Republic of Armenia and the Early 20th Century Peace Treaties
State Position on the issue of international treaties signed, ratified or acceded before the Declaration of Independence
On August 23, 1990, the Supreme Soviet of the Armenian Soviet Socialist Republic adopted the Declaration of Independence of Armenia pronouncing “the beginning of the process of establishing of independent statehood.”[32] Paragraph 2 of the Declaration stipulates that “the Republic of Armenia is a sovereign state, endowed with the supremacy of state authority, independence and plenipotentiary power. Only the constitution and laws of the Republic of Armenia are valid for the whole territory of the Republic of Armenia.”[33] Paragraph 6 of the Declaration addresses foreign policy issues and stipulates that:
“[a]s the subject of international law, the Republic of Armenia conducts an independent foreign policy; it establishes direct relations with other states, national-state units of the USSR, and participates in the activity of international organizations.”[34]
Unfortunately, the Declaration is very cursory with respect to the issue of State
Succession of Armenia, especially regarding the relations of the First Armenian Republic and the modern Republic of Armenia. The only phrase indirectly witnessing that the modern Republic of Armenia is a State Successor of the First Armenian Republic is a provision of the Preamble, setting forth that it pursues development of “the democratic traditions of the independent Republic of Armenia established on May 28, 1918.”[35]
In addition, the Declaration is reluctant to the issue of the international obligations of Armenia. The only provisions concerning the international legal obligations of the Republic of Armenia are the paragraphs of the Preamble mentioning “the principles of the Universal Declaration on Human Rights and the generally recognized norms of international law.”[36]
The July 5, 1995 Constitution of the Republic of Armenia indirectly incorporated the provisions of the Declaration of Independence into the Constitution, stating in the Preamble that, “The Armenian People, recognizing as a basis the fundamental principles of Armenian statehood and the national aspirations engraved in the Declaration of Independence of Armenia…. adopts the Constitution of the Republic of Armenia.”[37] The provisions of the Declaration of Independence on the relationships between the First Republic of Armenia and the contemporary Republic of Armenia, recognition of the Armenian Genocide, and other issues were obliquely incorporated in the Constitution and, thus, became issues indirectly regulated by Constitutional Law of the Republic of Armenia. Anyhow, neither the Declaration of Independence nor the Constitution of the Republic of Armenia contains any provisions on the intention of the Republic of Armenia to succeed to any international treaty concluded before the Declaration of Independence in 1991—either by the First Republic of Armenia, the Soviet Armenia, or the Soviet Union as such.
This calls for clarification. Immediately after the collapse of the Soviet Union, the issue of the extension of the former Soviet Union’s international agreements to the former Soviet Republics on the basis of State Succession arose. The Russian Federation, as a state continuing the international legal identity of the former Soviet Union, succeeded to all the international agreements of the latter. Meanwhile, all the other CIS countries, including the Republic of Armenia, rejected such a form of state succession and applied the tabula rasa (clean slate) doctrine to the international legal obligations.[38] According to this doctrine, a newly independent state has no obligations under the international agreements of the Predecessor State. The analysis of the state practice of the Republic of Armenia in the field of conclusion of international treaties since the Declaration of Independence on September 21, 1991 witnesses that during the last 18 years Armenia has not deliberately succeeded to any bilateral or multilateral treaty and has not considered itself bound by such treaties.
The issues of Possible Ratification or Confirmation of the early 20th century international treaties by the National Assembly of the Republic of Armenia
In summary, one may say that from the International Law perspective, Armenia faces a strange situation, since none of the early 20th century international peace treaties (i.e., the Treaty of Sèvres, the Treaty of Kars, etc.) could be considered fully valid nowadays. As mentioned above, the Treaty of Sèvres has never come into force but simultaneously has never been declared as null and void. At the same time, the 1921 Treaty of Kars, which was ratified by Soviet Armenia even before the establishment of the Soviet Union, has not been officially confirmed by the Republic of Armenia.
As for the legal validity of the Treaty of Sèvres, the States Signatories can, in principle, ratify this treaty now. It should be mentioned, however, that it is not an easy task, since some of the States Signatories cease to exist (Hedjaz, Czechoslovakia, the Kingdom of Serbs, Croats and Slovenes [Yugoslavia]) and it might be difficult to establish whether the Treaty is binding for their Successor States. But since the Treaty of Sèvres is a bilateral treaty, it can come into force only after its ratification by both Parties, namely the Republic of Turkey (the State Successor of the Ottoman Empire) on the one hand, and the Principal Allied and Associated Powers on the other. Even if we assume that all the Allied and Associated Powers ratify the Treaty, it is hard to believe that Turkey will someday do the same. The Treaty of Sèvres will always be a ghost threatening Turkish Statehood, despite its hypothetically possible ratification or renunciation by the Republic of Armenia.
The issue of the validity of the Treaty of Kars is more complicated. In order to clarify the issue, it is necessary to investigate the historical development of the Armenian legislation on international treaties. In September 25, 1991, immediately after the Declaration of Independence, the Supreme Soviet of the Republic of Armenia adopted the Constitutional Law on the Foundations of Independent Statehood. Article 13 thereto established that “the Republic of Armenia is governed by international legal acts in its foreign policy and regulates its relations with other states on the basis of international agreements.”[39] On March 18, 1992, the Law on Treaty-making, Ratification, and Annulment of International Treaties of the Republic of Armenia was adopted by the Supreme Soviet of the Republic of Armenia. The law contained no provision on State Succession with respect to international treaties. On July 5, 1995, the Constitution of the Republic of Armenia was adopted. Article 6 of the Constitution stipulated that “[i]nternational treaties concluded on behalf of the Republic of Armenia apply only after ratification.”[40] The amended Constitution of the Republic of Armenia stipulates that “[t]he international treaties shall come into force only after being ratified or approved.”[41] It is noteworthy that despite the implementation of the tabula rasa doctrine, the acting Law on the International Treaties of Armenia adopted by the National Assembly on February 22, 2007 stipulates a special provision concerning State Succession. Article 41 (“Succession to international treaties”), paragraph 1 of the said law sets forth that “the procedures on accession of the Republic of Armenia to international treaties entered into force stipulated in Chapter 5 of the present Law shall apply to the recognition of succession to an international treaty.”[42] At the same time, paragraph 4 of the mentioned Article establishes that “to become a Party to an international treaty through succession the National Assembly shall ratify and the President of the Republic shall approve it.”[43] It also stipulates that after the Adoption of the Decision of the National Assembly in succession to an international treaty via ratification in accordance with procedures established in International Law, the Ministry of Foreign Affairs shall declare the succeeded treaty as binding for the Republic of Armenia.
Now, since the Republic of Armenia has never ratified the October 13, 1921 Treaty of Kars and has never affirmed that it is binding for Armenia in accordance with International Law or the Armenian National Legislation, it is, therefore, not a constituent part of the legal system of the Republic of Armenia.
At the same time, this conclusion cannot and should not be deemed as a direct encroachment on the current Armenian-Turkish border. The international community has recognized the borders of the Republic of Armenia with Iran and Turkey, as well as the “external” frontiers of the other former Soviet Republics within the marches of the former USSR. Nonetheless, even if the status quo presentum of the current Turkish-Armenian border is maintained, the Treaty of Kars, I believe, could not be confirmed, since it contains a number of provisions that are inconsistent with the fundamental principles of contemporary public international law. The international relationships of the Republic of Armenia and Turkey, including border delimitation, establishment of diplomatic and consular relations, communication, and other relevant issues, should not be regulated by a treaty which has been concluded long before the adoption of the UN Charter, before the creation of a contemporary system of international security and before the development of modern set of principles of General Public International Law. A treaty concluded by state entities that have ceased to exist and/or have been transformed into several independent states—based on the norms and principles of the so-called classic international law providing no dispute resolution mechanism—with substantive provisions that have been repeatedly and continuously violated in respect of Armenia since the declaration of its independence, cannot be the basis for the establishment of friendly relations between two nations.
On August 23, 1990, the Supreme Soviet of the Armenian Soviet Socialist Republic adopted the Declaration of Independence of Armenia pronouncing “the beginning of the process of establishing of independent statehood.”[32] Paragraph 2 of the Declaration stipulates that “the Republic of Armenia is a sovereign state, endowed with the supremacy of state authority, independence and plenipotentiary power. Only the constitution and laws of the Republic of Armenia are valid for the whole territory of the Republic of Armenia.”[33] Paragraph 6 of the Declaration addresses foreign policy issues and stipulates that:
“[a]s the subject of international law, the Republic of Armenia conducts an independent foreign policy; it establishes direct relations with other states, national-state units of the USSR, and participates in the activity of international organizations.”[34]
Unfortunately, the Declaration is very cursory with respect to the issue of State
Succession of Armenia, especially regarding the relations of the First Armenian Republic and the modern Republic of Armenia. The only phrase indirectly witnessing that the modern Republic of Armenia is a State Successor of the First Armenian Republic is a provision of the Preamble, setting forth that it pursues development of “the democratic traditions of the independent Republic of Armenia established on May 28, 1918.”[35]
In addition, the Declaration is reluctant to the issue of the international obligations of Armenia. The only provisions concerning the international legal obligations of the Republic of Armenia are the paragraphs of the Preamble mentioning “the principles of the Universal Declaration on Human Rights and the generally recognized norms of international law.”[36]
The July 5, 1995 Constitution of the Republic of Armenia indirectly incorporated the provisions of the Declaration of Independence into the Constitution, stating in the Preamble that, “The Armenian People, recognizing as a basis the fundamental principles of Armenian statehood and the national aspirations engraved in the Declaration of Independence of Armenia…. adopts the Constitution of the Republic of Armenia.”[37] The provisions of the Declaration of Independence on the relationships between the First Republic of Armenia and the contemporary Republic of Armenia, recognition of the Armenian Genocide, and other issues were obliquely incorporated in the Constitution and, thus, became issues indirectly regulated by Constitutional Law of the Republic of Armenia. Anyhow, neither the Declaration of Independence nor the Constitution of the Republic of Armenia contains any provisions on the intention of the Republic of Armenia to succeed to any international treaty concluded before the Declaration of Independence in 1991—either by the First Republic of Armenia, the Soviet Armenia, or the Soviet Union as such.
This calls for clarification. Immediately after the collapse of the Soviet Union, the issue of the extension of the former Soviet Union’s international agreements to the former Soviet Republics on the basis of State Succession arose. The Russian Federation, as a state continuing the international legal identity of the former Soviet Union, succeeded to all the international agreements of the latter. Meanwhile, all the other CIS countries, including the Republic of Armenia, rejected such a form of state succession and applied the tabula rasa (clean slate) doctrine to the international legal obligations.[38] According to this doctrine, a newly independent state has no obligations under the international agreements of the Predecessor State. The analysis of the state practice of the Republic of Armenia in the field of conclusion of international treaties since the Declaration of Independence on September 21, 1991 witnesses that during the last 18 years Armenia has not deliberately succeeded to any bilateral or multilateral treaty and has not considered itself bound by such treaties.
The issues of Possible Ratification or Confirmation of the early 20th century international treaties by the National Assembly of the Republic of Armenia
In summary, one may say that from the International Law perspective, Armenia faces a strange situation, since none of the early 20th century international peace treaties (i.e., the Treaty of Sèvres, the Treaty of Kars, etc.) could be considered fully valid nowadays. As mentioned above, the Treaty of Sèvres has never come into force but simultaneously has never been declared as null and void. At the same time, the 1921 Treaty of Kars, which was ratified by Soviet Armenia even before the establishment of the Soviet Union, has not been officially confirmed by the Republic of Armenia.
As for the legal validity of the Treaty of Sèvres, the States Signatories can, in principle, ratify this treaty now. It should be mentioned, however, that it is not an easy task, since some of the States Signatories cease to exist (Hedjaz, Czechoslovakia, the Kingdom of Serbs, Croats and Slovenes [Yugoslavia]) and it might be difficult to establish whether the Treaty is binding for their Successor States. But since the Treaty of Sèvres is a bilateral treaty, it can come into force only after its ratification by both Parties, namely the Republic of Turkey (the State Successor of the Ottoman Empire) on the one hand, and the Principal Allied and Associated Powers on the other. Even if we assume that all the Allied and Associated Powers ratify the Treaty, it is hard to believe that Turkey will someday do the same. The Treaty of Sèvres will always be a ghost threatening Turkish Statehood, despite its hypothetically possible ratification or renunciation by the Republic of Armenia.
The issue of the validity of the Treaty of Kars is more complicated. In order to clarify the issue, it is necessary to investigate the historical development of the Armenian legislation on international treaties. In September 25, 1991, immediately after the Declaration of Independence, the Supreme Soviet of the Republic of Armenia adopted the Constitutional Law on the Foundations of Independent Statehood. Article 13 thereto established that “the Republic of Armenia is governed by international legal acts in its foreign policy and regulates its relations with other states on the basis of international agreements.”[39] On March 18, 1992, the Law on Treaty-making, Ratification, and Annulment of International Treaties of the Republic of Armenia was adopted by the Supreme Soviet of the Republic of Armenia. The law contained no provision on State Succession with respect to international treaties. On July 5, 1995, the Constitution of the Republic of Armenia was adopted. Article 6 of the Constitution stipulated that “[i]nternational treaties concluded on behalf of the Republic of Armenia apply only after ratification.”[40] The amended Constitution of the Republic of Armenia stipulates that “[t]he international treaties shall come into force only after being ratified or approved.”[41] It is noteworthy that despite the implementation of the tabula rasa doctrine, the acting Law on the International Treaties of Armenia adopted by the National Assembly on February 22, 2007 stipulates a special provision concerning State Succession. Article 41 (“Succession to international treaties”), paragraph 1 of the said law sets forth that “the procedures on accession of the Republic of Armenia to international treaties entered into force stipulated in Chapter 5 of the present Law shall apply to the recognition of succession to an international treaty.”[42] At the same time, paragraph 4 of the mentioned Article establishes that “to become a Party to an international treaty through succession the National Assembly shall ratify and the President of the Republic shall approve it.”[43] It also stipulates that after the Adoption of the Decision of the National Assembly in succession to an international treaty via ratification in accordance with procedures established in International Law, the Ministry of Foreign Affairs shall declare the succeeded treaty as binding for the Republic of Armenia.
Now, since the Republic of Armenia has never ratified the October 13, 1921 Treaty of Kars and has never affirmed that it is binding for Armenia in accordance with International Law or the Armenian National Legislation, it is, therefore, not a constituent part of the legal system of the Republic of Armenia.
At the same time, this conclusion cannot and should not be deemed as a direct encroachment on the current Armenian-Turkish border. The international community has recognized the borders of the Republic of Armenia with Iran and Turkey, as well as the “external” frontiers of the other former Soviet Republics within the marches of the former USSR. Nonetheless, even if the status quo presentum of the current Turkish-Armenian border is maintained, the Treaty of Kars, I believe, could not be confirmed, since it contains a number of provisions that are inconsistent with the fundamental principles of contemporary public international law. The international relationships of the Republic of Armenia and Turkey, including border delimitation, establishment of diplomatic and consular relations, communication, and other relevant issues, should not be regulated by a treaty which has been concluded long before the adoption of the UN Charter, before the creation of a contemporary system of international security and before the development of modern set of principles of General Public International Law. A treaty concluded by state entities that have ceased to exist and/or have been transformed into several independent states—based on the norms and principles of the so-called classic international law providing no dispute resolution mechanism—with substantive provisions that have been repeatedly and continuously violated in respect of Armenia since the declaration of its independence, cannot be the basis for the establishment of friendly relations between two nations.
Conclusion
In the period between 1917 and 1923, at least seven bilateral and multilateral peace treaties either immediately signed by Armenia or directly or indirectly concerning Armenia and Armenians were concluded. Most of them, like the Treaty of Batum or the Treaty of Brest Litovsk, were short-lived being either declared as null and void or ipso facto annulled as such.
From the International Law perspective, Armenia today faces quite a strange situation where none of the early 20th century international peace treaties could be considered fully valid. The Treaty of Sèvres has not come into force but, at the same time, has been never declared as null and void. The 1921 Treaty of Kars was never ratified by Soviet Armenia, even before the establishment of the Soviet Union, and has never been officially confirmed by the Republic of Armenia.
The analysis of the state practice of the Republic of Armenia in the field of international treaties since the declaration of its independence on September 21, 1991 witnesses that during last 18 years Armenia has sequentially followed the tabula rasa doctrine—in other words, it has not tacitly succeeded to any bilateral or multilateral treaty and has not declared that it considers itself bound by such treaties. Thus, it is obvious that the Republic of Armenia has never ratified the Treaty of Kars of October 13, 1921. It is also obvious that the Republic of Armenia has never affirmed that the Treaty of Kars is binding upon Armenia in accordance with International Law or the Armenian National Legislation. Therefore, the Treaty of Kars is not a constituent part of the legal system of the Republic of Armenia.
It is strongly believed that only the conclusion of a new reciprocal bilateral treaty between Armenia and Turkey, fully corresponding to the norms and principles of contemporary Public International Law and providing for a mutually acceptable dispute resolution mechanism, would allow for the establishment of an atmosphere of confidence, security, and stability in the whole region.
From the International Law perspective, Armenia today faces quite a strange situation where none of the early 20th century international peace treaties could be considered fully valid. The Treaty of Sèvres has not come into force but, at the same time, has been never declared as null and void. The 1921 Treaty of Kars was never ratified by Soviet Armenia, even before the establishment of the Soviet Union, and has never been officially confirmed by the Republic of Armenia.
The analysis of the state practice of the Republic of Armenia in the field of international treaties since the declaration of its independence on September 21, 1991 witnesses that during last 18 years Armenia has sequentially followed the tabula rasa doctrine—in other words, it has not tacitly succeeded to any bilateral or multilateral treaty and has not declared that it considers itself bound by such treaties. Thus, it is obvious that the Republic of Armenia has never ratified the Treaty of Kars of October 13, 1921. It is also obvious that the Republic of Armenia has never affirmed that the Treaty of Kars is binding upon Armenia in accordance with International Law or the Armenian National Legislation. Therefore, the Treaty of Kars is not a constituent part of the legal system of the Republic of Armenia.
It is strongly believed that only the conclusion of a new reciprocal bilateral treaty between Armenia and Turkey, fully corresponding to the norms and principles of contemporary Public International Law and providing for a mutually acceptable dispute resolution mechanism, would allow for the establishment of an atmosphere of confidence, security, and stability in the whole region.
[1] The bilateral Preliminary Peace Treaty of San Stefano of February 19 (March 3), 1878 is rather an exclusion than a rule in the general context of multilateral peace treaties of the second half of the 19th century.
[2] For example, in accordance with Article VII of the Treaty of Bucharest: “The Mohammedan population of territories ceded to the Russian Emperor Court, who may occurred there for reason of war as well as inhabitants of other places, who stay at the ceded territories during the war may, If wish, move to the regions of the Sublime Porte with their families and belongings and stay there forever under its rule… Such permission would be also given to those inhabitants of the mentioned ceded territories, who has possessions there and now stay at the regions of the Sublime Porte” For the original Russian text, see Vneshnyaya politika Rossii XIX I nachala XX veka, (Ser. 1. T. 6. M., 1962), 406–417.
[3] English text of the treaty cited from H. Azatyan, “Vital Agreements for Armenia, Yerevan,” Gitutyun (2004): 37.
[4] H. Azatyan, “Vital Agreements for Armenia, Yerevan,” Gitutyun (2004): 61.
[5] Ibid.
[6] The Treaty of Batum, June 4, 1918. For the original Russian text see Kh. Badalyan, "Germano-turetskie okkupanty v Armenii v 1918g” (Yerevan: 1962), 172-178.
[7] Note of G. Checherin, the Peoples Commissioner of Foreign Affairs of the RSFSR, to the Ottoman Turkey Ministry of Foreign Affairs of September 20, 1918, on systematic violations of the Treaty of Brest by Turkey and violence against the Christian population of occupied territories. See MID SSSR, Dokumenty vneshney politiki SSSR. Gospolitizdat. (Moscow: 1957), 490-492. Cited from Ju. G. Barsegov, Genocid armyan: otvetstvennost’ Turtsii i obyazatelstva mirovogo soobshestva. Dokumenty i kommentariy. t. 2. ch. 1 (Moscow: 2005), 26-27.
[8] Ju. G. Barsegov, Genocid armyan: otvetstvennost’ Turtsii i obyazatelstva mirovogo soobshestva. Dokumenty i kommentariy. t.2. ch. 2 (Moscow: 2005), 219.
[9] The Joint Declaration by France, Great Britain, and Russia, May 24, 1915. See Israel W. Charny, Encyclopedia of Genocide (Santa Barbara, Calif.: ABC-CLIO, 1999. Vol. I), 82.
[10] The Treaty of Sèvres of August 10, 1920. Text cited from The Treaties of Peace 1919-1923, Vol. II (New York: Carnegie Endowment for International Peace, 1924). For further discussion on the responsibility for the Armenian Genocide and the Treaty of Sèvres, see Ju. G. Barsegov, Genocid armyan: otvetstvennost’ Turtsii i obyazatelstva mirovogo soobshestva. Dokumenty i kommentariy. t.2. ch. 2 (Moscow: 2005), 248-251.
[11] See Alfred de Zayas, “Memorandum on the Genocide against the Armenians 1915-1923 and the application of the 1948 Genocide Convention,” p. 2. Available at http://eafjd.eu/IMG/pdf/dezayas_report.pdf
[12] See, for instance, Gunduz Aktan, “The Armenian Problem and International Law” in The Armenians in the Late Ottoman Period, ed. Turkkaya Ataov (Ankara: Turkish Historical Society for The Council of Culture, Arts and Publications of The Grand National Assembly of Turkey, 2001), 265-266.
[13] The Treaty of Sèvres of August 10, 1920.
[14] It is due mentioning that some researchers consider the Wilson Arbitration as a separate political process beyond the scope of the Treaty of Sèvres. See, in particular, Ju. G. Barsegov, Genocid armyan: otvetstvennost’ Turtsii i obyazatelstva mirovogo soobshestva. Dokumenty i kommentariy. t.2. ch. 2 (Moscow: 2005), 244-251 and Ara Papyan, Hayots pahanjatirutyan iravakan himunqnery (hodvatsneri joghovatsu) [Legal Basis of Armenian Demands] (Yerevan: 2007), 5-9, 51-61.
[15] The Treaty of Sèvres was signed by the British Empire, France, Italy, Japan (the Principal Allied Powers), Armenia, Belgium, Greece, the Hedjaz, Poland, Portugal, Romania, the Serb-Croat-Slovene State, Czechoslovakia (the Allied Powers), and Turkey. The Treaty of Lausanne was signed by the British Empire, France, Italy, Japan, Greece, Romania, the Serb-Croat-Slovene State, and Turkey.
[16] Although the Treaty of Alexandropol did not explicitly stipulate that it should be ratified to come into force, nevertheless it implicitly stipulates the requirement of ratification. In particular Article 18 set forth that “[r]atified copies of the Treaty would be exchanged in Angora within one month…” See the English text of the Treaty of Alexandropol in Richard G. Hovannisian, The Republic of Armenia, Vol. IV: Between Crescent and Sickle - Partition and Sovietization (Berkeley: University of California Press, 1996), 394-396.
[17] Treaty of Friendship between Turkey, the Socialist Soviet Republic of Armenia, the Azerbaijan Socialist Soviet Republic, and the Socialist Soviet Republic of Georgia, October 23, 1921. The English text is available at: Armenian News Network/Groong. “Treaty of Kars.” http://groong.usc.edu/treaties/kars.html (accessed March 9, 2009). For the original Russian text, see “Dokumenty vneshney politiki SSSR, t.4,” (Moscow: 1960).
[18] Ibid.
[19] Most probably Soviet (either Russian or Transcaucasian) consular representations in Turkey and vice versa acted without any conventional obligation. Only on February 7, 1924, an exchange of notes between the governments of the USSR and Turkey on the consular offices took place in Ankara and established the international legal basis for their further activities. For further discussion, see “K 80-oy godovshine sozdaniya Turetskoy Respubliki. Pervie shagi v rossiysko-turetskikh otnosheniyakh.” http://www.turkey.mid.ru/20-30gg.html (accessed March 9, 2009). The Consular Convention between USSR and Turkey was signed only on April 27, 1988. The Russian text of the Convention is available at: BestPravo.ru. “Consular Convention between the USSR and Turkey.” http://www.bestpravo.ru/fed1991/data02/tex13326.htm (accessed March 9, 2009).
[20] Treaty of Friendship between Turkey, the Socialist Soviet Republic of Armenia, the Azerbaijan Socialist Soviet Republic, and the Socialist Soviet Republic of Georgia October 23, 1921.
[21] Ibid.
[22] Ibid.
[23] Treaty of Friendship and Fraternity between the Government of the Russian Socialist Federative Soviet Republic and the Government of the Grand National Assembly of Turkey, March 16, 1921. Original Russian text quoted in “Dokumenty vneshney politiki SSSR,” (Moscow, 1959), 597-604.
[24][24][24][24] It is noteworthy that despite this pronounced contradiction between the Treaty of Moscow and provisions of contemporary Public International Law, the Russian Federation is deemed to be bound by the said treaty and considered the latter as the valid one. It is not by chance that the Treaty of Moscow was reiterated in the Joint Declaration on moving to a new stage of relations between the Russian Federation and the Republic of Turkey and the further deepening of friendship and multidisciplinary partnership of February 13, 2009, adopted in Moscow by the Presidents of the Russian Federation and the Republic of Turkey in the framework of the official visit of Abdullah Gul in Russia. The Preamble of the Declaration state clearly the following: “The President of the Russian Federation and the President of the Republic of Turkey after completion of official negotiations, taken place in Moscow…. Referring to the Treaty of Friendship and Fraternity between the Government of the Russian Socialist Federative Soviet Republic and the Government of the Grand National Assembly of Turkey of March 16, 1921, which is one of the important documents reflecting the spirit of mutual friendship and solidarity.” The Russian official text of the Declaration is available at http://www.kremlin.ru/text/docs/2009/02/212886.shtml.
[25] “Convention on the Law of Treaties” in Treaty Series, vol. 1155 (Vienna: United Nations, 1969), 331.
[26] Ibid. Emphasis mine.
[27] The Republic of Armenia has acceded to the 1969 Vienna Convention on May 17, 2005 while the Republic of Turkey is not a Party thereto. See Multilateral Treaties Deposited with the Secretary-General http://treaties.un.org/Pages/ViewDetailsIII.aspx?&src=TREATY&mtdsg_no=XX...
[28] “Report of the of the International Law Commission on the work of its Eighteenth Session, 4 May - 19 July 1966, Official Records of the General Assembly, Twenty-first Session, Supplement No. 9 (A/6309/Rev.1),” extract from the Yearbook of the International Law Commission, vol. II (1966): 226.
[29] “Addressing Turkey and its blockade of Armenia: the Double-Edged Sword of the Treaties of Kars and Moscow” in Occasional Paper Number One, Armenian Center for National and International Studies (Autumn 1994): 3-4.
[30] Ibid.
[31] “Convention on the Law of Treaties” in Treaty Series, vol. 1155 (Vienna: United Nations, 1969), 331.
[32] The Ministry of Foreign Affairs of the Republic of Armenia Official Site. “Declaration of Independence of Armenia, August 23, 1990.” http://www.armeniaforeignministry.com/arm/doi/main.html (accessed March 9, 2009). For the original Armenian text, see Hayastani Hanrapetutyan Geraguyn Khorhurdi Teghekagir [Supreme Council Bulletin of the Republic of Armenia] (1990).
[33] Ibid.
[34] Ibid.
[35] Ibid.
[36] Ibid.
[37] It is notworthly that one of Turkey’s concerns is directly connected with the provisions of the Declaration of Independence where the phrases “Western Armenia” and “the Armenian Genocide” were used. In accordance with Paragraph 11 thereto: “[t]he Republic of Armenia stands in support of the task of achieving international recognition of the 1915 Genocide in Ottoman Turkey and Western Armenia.” As mentioned above, the Preamble of the Armenian Constitution makes specific references to the Declaration of Independence. Another Turkish concern immediately connected with Article 13.2 of the Constitution was the depiction of Mount Ararat in the Armenian Coat of Arms. For further discussion, see Nathalie Tocci, “The Case for Opening the Turkish-Armenian Border: Study for the Foreign Affairs Committee of the European Parliament” (Trans European Policy Studies Association, July 2007), 6-7.
[38] In a letter written for the purposes of clarification of the practice of Armenia in respect to its international treaties, Mr. Yuri Chanchuryan, when addressing the representative of the Ministry of Foreign Affairs of the Republic of Armenia, explained that, “The Republic of Armenia does not succeed the Soviet Union regarding international treaties and has no practice of succession. Our country follows a constitutional procedure of accession to multilateral treaties, the essence of which is that for the Republic of Armenia, they come into force through decisions of the National Assembly or presidential decrees.” (Letter of October 10, 1996 to Professor Dr. Ylanda Gamarra, University of Zaragosa). Martti Koskenniemi and Pierre Michel Eisemann, La succession d'Etats: la codification à l'épreuve des faits [State Succession: Codification Tested Against the Facts] (Martinus Nijhoff Publishers, 2000): 76.
[39] The Constitutional Law on the Foundations of Independent Statehood of the Republic of Armenia. For the original Armenian text, see Hayastani Hanrapetutyan Geraguyn Khorhurdi Teghekagir [Supreme Council Bulletin of the Republic of Armenia] (1991).
[40] The Constitutional Court of the Republic of Armenia. “The Constitution of the Republic of Armenia (1995).” http://www.concourt.am/english/constitutions/const1995.htm (accessed May 9, 2009).
[41] National Assembly of the Republic of Armenia. “The Constitution of the Republic of Armenia (with Amendments).” http://www.parliament.am/parliament.php?id=constitution&lang=eng (accessed May 9, 2009).
[42] The Law on the International Treaties of the Republic of Armenia, February 22, 2007. For the original Armenian text see Hayastani Hanrapetutyan Pashtonakan Teghekagir [Official Bulletin of the Republic of Armenia], (September 2000) 119.
[43] Ibid.