Russo-Turkish Treaty From an International Legal Perspective

Ara Papian

BY ARA PAPIAN

March 16 marks yet another anniversary for the so-called Russo-Turkish so-called treaty of Moscow (of the 16th of March, 1921). It is truly an anniversary, as it was from that treaty that the treaty of Kars (of October 13, 1921) was derived, by which, according to the poor understanding of some, the border between Armenia and Turkey was decided.

Dozens of books and hundreds of articles have been written on the Treaty of Moscow. However, as strange as it may sound, an examination of the document has never been carried out from an international law perspective, in order to decide upon its validity.

According to an official UN guide and manual, “International treaties are agreements between subjects of International Law—creating, amending or terminating their mutual rights and obligations”(Manual of Public International Law, (ed. by Max Sorensen), New York, 1968, p. 38.). This is also codified by the Vienna Convention on Treaty Law (1969).

Article 2.1.a of the convention describes a treaty as “an international agreement concluded between States in written form and governed by international law.” That is, correspondence to international law bears strongly on the legality of a treaty.

Accordingly, it is necessary that each party to the treaty be an authorized representative of the legitimate government of an internationally-recognized state.

As noted in the preamble to the treaty of Moscow, the document was signed between “the government of the Russian Socialist Federative Soviet Republic and the government of the Grand National Assembly of Turkey.” As the status of any treaty is derived from the legal status of its signatories, it is therefore necessary to, first of all, determine each party’s legal status as of the March 16, 1921.

The Status of the Russian Socialist Federative Soviet Republic In 1921
At the time of the signing, there was no recognized state known as the “Russian Socialist Federative Soviet Republic” and, consequently, there was no such subject of international law. Naturally, its government did not have any authority to sign any international treaty. The RSFSR, under the guise of the USSR, eventually received legitimate international recognition, but only in 1924, with its acceptance by Great Britain (on the February 1, 1924) (Survey of International Affairs 1924, (Comp. by Arnold J. Toynbee), London, 1926, p. 491). All the “recognitions” until that time did not bring about any legal consequences, because they were, for their part, in the name of not-recognized countries or self-proclaimed governments.

For a recognition to be considered legal, it must be carried out in turn by a legally-recognized subject of international law (Moore J.B., Digest of International Law, Washington, 1906, v. I, p. 73.). For example, the Soviet government recognized the Baltic states in 1920, but such a recognition was not accepted by the Allied Powers based on the fact that the Soviet government was not itself legally recognized (Papers Relating to the Foreign Relations of the United States, 1920, v. III, p. 462. (The Secretary of State (Colby) to the Ambassador in Great Britain (Davis), August 2, 1920, p. 461-3).

This approach was confirmed with a judicial ruling. In the case of RSFSR vs. Cibrario (1923), a US court declined the appeal of the Soviet government, since it was not recognized ( Hudson M.O., Annual Digest of Public International Law, Cambridge, 1931-1932, Case No. 28.). A similar ruling on the same basis was made by the Supreme Court of Sweden in the case of Soviet Government vs. Ericsson (1921) (Hudson M.O., Annual Digest of Public International Law, Cambridge, 1931-1932, Case No. 28.).

The aforementioned and dozens of other court rulings and formal decisions by governments serve to reconfirm the principle of international law that, without recognition, governments do not legally exist. Consequently, no legal activities (such as signing treaties, granting or revoking citizenship, participating in a judicial proceeding, etc.) may be carried out by such (Ti-Chiang Chen, The International Law of Recognition, London, 1951, p. 138.).

The status of the Grand National Assembly of Turkey in 1921
What is written above on the Soviet authorities and government is, in essence, entirely applicable to the so-called government of the “Grand National Assembly of Turkey,” on whose behalf the Turkish side signed the treaty of Moscow. It is noteworthy that even the Kemalists had no aspirations to declare themselves authorized representatives of Turkey in the presence of legitimate governments.

They did not sign treaties as “Turkey” or “the government of Turkey,” but as the “government” of a body known as “the Grand National Assembly of Turkey.” The Turkish Grand National Assembly had the status of an NGO in modern parlance, consisting of former parliamentarians, military personnel, and bureaucrats who had all lost their offices.

Such organizations have existed and still do exist in many countries of the world, including in Armenia. The group headed by Mustafa Kemal Ataturk had no legal basis in international law to represent the Turkish state. There is no doubt that, at least until November, 1922, until the departure of Sultan Mehmet VI from Turkey, it was the government of the sultan which reserved the right to carry out acts as per international law on behalf of Turkey, and only the sultan had the power to authorize anyone to act in the name of the country, according to Article 7 of the constitution of the Ottoman Empire (O’Connell D.P., State Succession in Municipal Law and International Law, v. I, Cambridge, 1967, p. 211.).

The Kemalist movement generally arose and proceeded out of violating the Ottoman constitution as well as international law, namely, the rebellion against the state’s legitimate authority the Sultan-Caliph and also going against the Armistice of Moudros (of the 30th of October, 1918). In 1921, Mustafa Kemal was simply a criminal on the run.

For that very reason, the highest clergyman of the empire, the Sheikh-ul-Islam, proclaimed a fatwa condemning Mustafa Kemal to death on April 11, 1920. The Turkish military court also sentenced him to death on the May 11 of that same year. The sentence was confirmed by the sultan on the May 24, 1920. The criminal proceedings against Kemal and the Kemalists concluded on May 24, 1923, with a corresponding proclamation (Amnesty Declaration and Protocol, signed 24 July 1923).

What is more, the clauses on Armenia in the treaty of Moscow consist of yet another violation of international law, as “treaties can only pertain to the parties to the treaty and cannot create any obligations or rights for any third parties not party to the treaty without the agreement of the third party” (Branimir M. Jankovic, Public International law, New York, 1984, p. 302.).

This principle is also codified in Article 34 of the Vienna Convention on Treaty Law: “A treaty does not create either obligations or rights for a third State without its consent.”
Thus, in accordance with the aforementioned, the treaty of Moscow—which is illegal and invalid—could not include or impose any obligations on the Republic of Armenia, much less determine the border of Armenia and Turkey (article 1 in treaty) or hand over Nakhichevan to Azerbaijan as a protectorate (article 3 of the treaty), as the treaty of Moscow was signed in clear violations of centuries-old mandatory and inalienable peremptory norms.

And, as codified by Article 53 of the Vienna Convention on Treaty Law, “A treaty is void, if at the time of its conclusion, it conflicts with a peremptory norm (jus cogens) of general international law.”

March, 2007

Ara Papian is the head of the Modus Vivendi Center, a think-thank operating in Armenia.

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20 Comments

  1. Zaven said:

    Desperately trying to resuscitate a morbid treaty in order to legitimize injustice.
    Why am I not surprised to see Turkey and Russia collaborating in this scheme?

    Bravo Baron Papian.
    When are you running for office of our beloved Armenia?

    • Heghapokhagan said:

      We should “Sue them in World Court” and reclaim justified lands with retribution!!

    • Berge Jololian said:

      Fairness or Legality is relevant to Power. If you are powerful than it is legal.

  2. Reality is here to say Hi said:

    Last time I checked Armenia still had a bad economy and a weak army and selling its air to Russia and the west if they were to buy it, with Russia defending our borders, while all Armenians drive around in BMW’s in their adopted countries and write angry comments on Asbarez. it seems we still have faith in the Tooghte Sherep after all these years.

  3. george j. mahroukian said:

    Read the article Krikor jannnnnnnnnnnnnnnnnnn………………………………….

  4. truth said:

    Armenia should at least send a diplomatic not of protest to Moscow regarding Erdogans`s provocations !

  5. Samvel said:

    There is no legal basis to it whatsoever.
    The problem is that for 90 years + we have been doing nothing istead of doing as baltic states did – denounced the treaty of Molotov-Ribbentropp (which was as a matter of fact just copy of Ataturk-Lenin Treaty).
    We do have a Right. Irrefusable Right to Justice. Russia and Turkey should have a right to have a relations and jump into each others beds (it’s their choice anyway), but not on our expence.
    To neutralize Russia and Turkey at once – denounce the Kars Treaty and demand from Turkey and Russia, to take from their “treaty” every single article about Armenia off …
    It is much easier than trying to convince them to do the “right thing” – they will never do so. “The right thing” for them means completely opposite to what all civilized world thinks and knows.
    Again, it is much more important than one can think – neitralization of russo-turkish cowardness and neutralization of most of the oil-run political minds in the West, who will be more carefull to shake the hands of the bloody regimes. At least they will be set back with their appetites.
    Ara Papyan is one of very few who concentrates on the legalities and documents not the emotions. He is a professional and writes a lot of articles. I am happy to see one of them in Asbarez.com

    • Heghapokhagan said:

      We should “Sue them in World Court” and reclaim justified lands with retribution!!

  6. Lusik said:

    Fukushima Daiichiuclear nuclear plant disaster will sweep away this document.

    Russia tries to sell its nuclear plant billions-worth projects to Turkey and to buy a permission for a gas pipelines through Turkey part of Black Sea for the South-Stream project. Isn’t it tough combination today?

    The entire world revisits its politics on energy resources. Expect tectonic developments ahead in world economics, and politics as a result.

  7. Avetis said:

    It’s a waste of time listening to Ara Papyan’s legalese. We are wasting more than enough time and money over genocide recognition matters in utterly corrupt viper’s nests like Washington and now this? Might makes right. That simple. If you folks want Western Armenia returned, than do everything possible to make sure Armenia grows strong. Laws are made by the powerful to control the weak.

  8. AntiTCDB said:

    Ever wonder why over the last 20 years the Armenian State has not gone to the ICJ to get a ruling on the Moscow/kars treaties, the Wilson Arbitration and present the legal case of the Armenian Genocide? On all three issues it’s a slam dunk or shooting fish in a barrel win for Armenia and the turks know it. So how come not a peep from Armenia? Answer: turkish officials have told Armenian leaders that they will happily destroy Armenia in 4 hours right after Armenia goes to the ICJ. Turks can not even allow the legal proceedings to start. Just a push and a shove and Armenia would be no more and once it’s done no one will lift a finger not Russia, not America nor the EU. So Armenia exists at turkey’s pleasure.

    • Դրօ said:

      Armenia serves as a buffer-zone for Russia against NATO intrusion. I don’t think Russia would allow itself to be surrounded by NATO by letting Turkey squander the only ally it has in the region.

    • gary said:

      It’s in Russia’s interest to keep Turkey from doing that. Russia doesn’t want Turkey invading Armenia and creating a pan-Turkic empire–including all the Stans. This would create a powerful Turkish empire that would encircle Russia. That is why there are Russian troops there.
      That could create WW3.

    • manooshag said:

      Ara Papian, your honest dedication, patriotism and efforts are exemplary and welcome. So, as I understand, the Grand National Assembly of Turkey and with Russian Socialist Federative Soviet Republic (two fancy titles) but neither one authorized to sign any international treaties such as Treaty of Kars,(without inclusion of Armenia) which both signed October 13, 1921 – agreeing to agree! (The USSR was formed in 1924). So a meeting of two non entities – agreeing to agree to nothing. WOW! Sounds just like all the agreements that a Turkey pursues today – as with Israelis (on again/off again) still. Actually, a Turkey recalls signing onto this ‘nothing’ – but can’t remember their Genocide of the Armenian nation… eliminating a whole people, nation of the Christian Armenians – to steal a homeland/culture of 4,000 years for Turks.
      Manooshag

  9. Edward Demian said:

    The parties to this treaty will never renounce it. Turkey for obvious reasons, and Russia because it is not advantageous to them. Not yet. When the oil is finished, and the billions of dollars Azerbaijian squandered on armaments, lie rusting in the snow, than Russia wil favor Armenia. All the Armenians have to do is stall for time. In the meantime, the government of Armenia needs to take this Case to the international court of Justice, at the Hague. Obtain a jugement and take that to the United Nations General Assembly and challenge United States to perform its International obligation as Armenias Guarantor of the Wilsonian award. The West is in a trick bag now. As it espouses and values the RULE OF LAW most of all, not morality, ethical conduct or anything else. Western Civilization is held together by the notion of Personal and Property rights, and the law protecting that and all. Challenge the Western powers on the basis of its laws, and you get results. Therefore, when the US submitted that Draft Treaty, and signed it and the League of nations approved it, it took on the obligation to implement it. The US has not been able to do that before, because of the Bolshevic occupation of Russian Armenia. Russians were not standing up for Armenia, and Western Armenia was no more. There was no State to speak for the Armenians. Just as there is no State to speak for the Kurds. You notice that nothing is happening for the Kurds? The point is: Armenia can speak for Western Armenia, or even take on the mantle as the protectorate, of the minorities in Turkey and other places. It needs no armies to do that. It needs moral curage.

    • Mher said:

      This is all well and good, but you’re hugely mistaken on Rule of Law being the foremost idea in Western culture. It has and always will be MONEY that is the most significant factor in Western politics. If you want someone to do something for you, make it profitable for them to do it.

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