The Meaning of Sèvres after a Century

By Henry Theriault

The Armenian Weekly

This 100th anniversary of the Treaty of Sèvres has focused much Armenian attention on it. But, does the Treaty of Sevres have relevance today? If so, in what way?

One answer is to ask whether the treaty still has legal force. It was not ratified by Turkey or Armenia, but can it still be considered in force for the Republic of Turkey, the successor state of the Ottoman Empire that signed the treaty? Some taking up this question assert that it is. For instance, Michael Sosikian, in a July 27, 2020 Asbarez commentary entitled, “Sèvres Treaty Supersedes Any Other, Especially Lausanne,” offered an argument for why the treaty is still legally binding, even if it was not ratified by Turkey or Armenia. The crux of his case is that the Sèvres Treaty, unlike the Lausanne Treaty, was signed by “High Contracting Parties,” and according to the 1969 Vienna Convention on the Law of Treaties, this makes it binding regardless of ratification. Unfortunately, the Vienna Convention contains a clause indicating that it is non-retroactive. It thus cannot apply to Sèvres. That does not mean other angles are not possible, and commentators have suggested other lines of reasoning, such as the fact that Armenia was not a party to the Treaty of Lausanne.

Yet, no matter what the approach, the non-ratification of Sèvres remains a powerful impediment to any claims of its direct legal enforceability today. That does not mean, however, that the provision of particular importance to Armenians, Article 89, does not have legal implications. Article 89 states:

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 Erzerum, 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 demilitarisation of any portion of Turkish territory adjacent to the said frontier.

While this article, of course, has no more legal force than the treaty as a whole, Ara Papian has argued that this does not mean the Arbitral Award that came out of the Sèvres process is not a legally enforceable document. On the contrary, the Arbitral Award determined by the group set up by President Wilson and given his official seal is in fact legally binding. This is a highly interesting argument, which turns on the independence of the Arbitral process, once it was entered into, from the treaty. In other words, the treaty article refers to a process that was in fact carried out despite the fact that the treaty never came into force. By the facts that (1) Turkey agreed in the treaty negotiations to the Arbitral process and (2) the Arbitral process was actually completed, Turkey is bound by the Arbitral Award even if this is not because the Treaty of Sèvres is binding.

This is a strong argument, but can still be countered by arguing that in fact the Arbitral Award cannot be separated from the Treaty of Sèvres. The separation of treaty from the Arbitral process is supported by the fact that the United States was not a party to the Treaty of Sèvres.  Thus, the Arbitral process was in this sense independent from the treaty. But, one might reason that the facts that the treaty negotiations generated the Arbitral process and that the latter would never have occurred without the former means that the Arbitral Award is derivative of the treaty. At the same time, this is not conclusive, as it is possible for the derivative to have legal force even if the document resulting from the negotiations that gave rise to it do not. In fact, one might assert that, because the Arbitral process arose from the negotiations rather than beginning only after the treaty was signed, the process was independent of the final treaty, even if the matter is confused by the fact that the treaty includes an agreement to accept the Arbitral Award decision.

Even if the issue could be settled in favor of the present legal applicability of the Arbitral Award, it is not clear that would mean anything. Indeed, the very question about the legal enforceability of the award or the treaty might be the wrong question to ask in the first place. After all, bitter experience has taught many groups that legal rights are only meaningful if there is a power willing to enforce them. For instance, the US government signed and ratified hundreds of treaties with Native American political entities during its first century, yet many, if not all, of these treaties have been violated with impunity by the United States since. Why would the situation of Armenians be any different?

The problem is magnified for genocide victim groups. Victim groups might survive to be part of a treaty negotiation, but they will be in that negotiation as a weak party. Not only are the group’s numbers much fewer than they would have been without genocide victimization, but its resources, political position, military strength and general security are all greatly diminished. And, in the negotiations, it is facing a party made strong by resource absorption and relative demographic domination (which is increased in cases where children have been transferred from the victim to the perpetrator group, as is often the case). The provisions that benefit the victim group might be included because of force applied from outside on the perpetrators, but when that force is removed – as it typically is – then so is the motivation for the perpetrator group to honor those provisions. In such a case, only if the perpetrator group is truly repentant and has gone through a rehabilitative process is it likely to honor agreements with the victim group.

What is worse is that the terms of such agreements are often what is necessary for the victim group to return to some level of viability after the destruction of genocide or a similarly debilitating harm. A vicious downward spiral results:

1. A group is weakened by genocide.
2. The group negotiates with the perpetrators in order to secure basic supports for its reconstitution.
3. The perpetrators fail to abide by the agreement reached because their power-differential with the victim group is strong enough to allow them to do this.
4. The failure to secure the needed items called for in the disregarded treaty result in a further weakening of the victim group.
5. The even weaker victim group is in an even weaker position from which to advocate for the perpetrator’s meeting its agreed-upon responsibilities.
6. Over time, this spiral tends toward the ultimate disappearance of the victim group.

But this legal weakness is precisely what gives the Treaty of Sèvres and the associated Arbitral Award their ethical and potential political force. The Arbitral Award was not developed out of an abstract concept of justice or a desire for revenge against Turkey. On the contrary, it was carefully designed based on a detailed analysis of what land was needed for agricultural, natural resource, commercial, ethnic cohesion and other dimensions of support for the reconstitution of the nearly destroyed Armenian people. It was, thus, very intentionally an attempt to repair the damage done by the portion of the Armenian Genocide that occurred during World War I, at least to the point where the survival and future viability of the Armenian people would be probable, if not to the point of its pre-genocide size and extent. Turkey’s refusal to accept the Arbitral Award and, in fact, military conquest of those parts of it still held by Armenians in 1920 was not the defense of the Turkish nation, as those in the Turkish (ultra)nationalist movement, heirs of the Young Turks (and often former Young Turks) tried to convince themselves and the world. On the contrary, this refusal and conquest were continuations of the Armenian Genocide as an effort to completely and permanently consolidate its gains in wealth, power and Armenian vulnerability and unviability.

The territory of “Wilsonian Armenia” is not due Armenians today because of the legalities of a treaty signed 100 years ago; it is due them because this territory was awarded precisely as a way to repair the damage of a genocide, however partially and inadequately. That genocidal killing of Armenians continued in Turkey into at least 1923. That not only means that the Arbitral lands are even less relative to the damage suffered by Armenians, but it also demonstrates that the conquest of this land and denial of the Arbitral Award were perpetrated as part of an overall continuation of the genocide. It is not simply denial, but denial of reparations, that was the ultimate phase of the Armenian Genocide.

And that reparations have not yet been made means that the Arbitral Award remains due to Armenians. This is not in an abstract way, but with the same concrete necessity of 100 years ago. If through heroic efforts of Armenians the world over, as well as positive interventions by third parties and, strange as it might seem, some good fortune, Armenians still survive as a group despite the continuing and even increasing long-term effects of the Genocide, these effects are plain in a number of ways.

The recent tragic explosion in Lebanon highlights once again the vulnerability of Armenians in a number of the countries in which they sought refuge after the Genocide. However many Armenians have been able to retain and continue to develop their identity in Lebanon. The civil war and other violence and features of the society harmed the community greatly and drove many to leave behind resources and flee to other places, only to start again. It is even worse when considering Syria. After years of relative stability in that country, despite a lack of genuine rights, the war in Syria and ascendance of the “Islamic State” were a disaster for Armenians caught in the crossfire and becoming targets of the “Islamic State’s” demented anti-non-Muslim genocidal machine. Most, if not all, suffered, and many fled to difficult lives as refugees. Such is the tenuous, vulnerable lot of Armenians in many places in the world.

Azerbaijan’s recent attack on Armenia reveals another dimension of Armenian need. Setting Turkey’s failure to go through a rehabilitative development as part of a general reparative process and the implications for that country’s continued aggressive policies and actions toward Armenia and Armenians, which include not only supporting but fanning the fanaticism of Azerbaijan’s leaders and ethno-nationalist base (the very fact that Azerbaijan has the wealth and power to feel emboldened to attack Armenians in Artsakh, let alone the Armenian Republic) is the direct result of the denial of reparations 100 years ago. Not only does that mean that Armenia today has much less land that it would have, making it militarily vulnerable and economically much weaker and politically less relevant, but the population that would have grown had the survivors of the Genocide been allowed to retain an independent republic with sufficient land in 1920 would have been much larger than today’s perhaps two million. In 1991, historian Richard Hovannisian estimated that the population would have been on the order of 20 million by that time, even given the destruction of the Genocide, a population of 20 million on a larger territory with access to the sea and would not be the inviting target it is today. The implications for its relations with other countries, from Russia and Turkey (which would be less formidable than it is, as well) to Iran and Georgia, are obvious. It simply cannot be overstated: reparations make nearly all the difference in the post genocide trajectory of victim groups.

Armenia’s terrible emigration problem is not entirely derived from the Genocide. Certainly, decades of Soviet rule that devolved into corrupt authoritarianism was a key factor, though of course that begs the question of whether that culture of corruption and authoritarianism ever would have taken root had Armenia not been dismembered and its rump forced into the Soviet Union. But, the massive economic expropriations of the Genocide that have been a large part of the basis of the entire Turkish economy have left Armenians financially and resource poor. The lack of land that was supposed to be guaranteed through the Arbitral Award is the crucial compounding factor that inhibits economic recovery. And that in turn drives emigration.

Turkey and Azerbaijan’s blockade is a compounding factor in these difficulties and is only effective because of the reduced land of Armenia and its lack of sea access.

Even contemporary environmental challenges in Armenia are in part caused by the failure to implement the Arbitral Award. It is the economic desperation just described that has made the Amulsar mine possible. Like a poor parent who sells a kidney on the black market in order to raise the money needed to temporarily feed their children, the people of the Armenian Republic are being forced (by other Armenians, no less) to accept the probability of irreparable environmental damage, including poisoning of water sources and the certainty of a fundamental and permanent chemical altering of the very nature of the ancient Armenian homeland and removal of minerals that are the birthright of all Armenians as long as Armenians are on that land. Because of the desperate economic conditions that have resulted from the lack of land sufficient for agricultural and natural resource needs, the blockade, Azerbaijan’s military aggression and the costs of defending against it, and so on, Armenians today face the permanent disfigurement of their land and the poisoning of their water in exchange for short-term and unproven economic benefits promised by the corporate lords exploiting that desperation.

It is with the foregoing in mind that we can recognize the true relevance of the Treaty of Sèvres and the associated Arbitral Award in 2020 and beyond. It is the clear, concrete delineation of a key part of the reparations Armenians need to mitigate to some extent the continuing harms of the Armenian Genocide. It is the model, the goal, that needs to be held up every time the Armenian Genocide is mentioned, every time the Turkish government or its proxies deny it. If the Ottoman Empire and Turkish Republic sought to settle the “Armenian Question” through the Armenian Genocide, it needs to be made clear that the resulting “Armenian Genocide Question” can only be resolved through the lands that were to be guaranteed by the Arbitral Award. That Turkey refused to do this has nothing to do with any purported lack of legal applicability of the Treaty of Sèvres of a century ago. It is entirely due to Turkey’s refusal to be accountable for the Armenian Genocide today. And that is clear evidence of a commitment to the same motivations that drove the Genocide itself.