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