OPEN LETTER

OPEN LETTER
http://www.wilsonforarmenia.org/
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.

OPEN LETTER

to the Foreign Minister of the Republic of Turkey

Mr. Ahmet Davutoglu

Download PDF of English version


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 Arme­nia-Turkey frontier. And so, at the San Remo session of the Paris Peace Conference, alongside other issues, this particu­lar 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 accep­ted and took on the duties and authority as the arbiter of the frontier between Armenia and Turkey. I would like to espe­cially 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

Edward Nalbandian