Coll 17/15(1) 'Perso-Iraq Relations: Persia-Iraq frontier; Persia's claim in the Shatt-el-Arab' [‎192r] (394/961)

The 1913 text also fixes, in certain sections of the land frontier, a line which is in no
way in keeping with the natural and geographical character of the territory. Without
here going into details which would unduly complicate the present statement, it will be
sufficient to say that the new line is very different from that of the “ status quo of 1848
In any case, both on the river and on land, the 1913 line effects a considerable shifting
of the territorial position.
According to the Constitutional Laws of Persia, however (Articles 22 and 24 of the
Constitution of August 5th, 1906, and Article 3 of the Supplement to the Constitutional
Laws of October 7th, 1907 : Annex VIII), no change or rectification of the boundaries
of the State can take place without the legislative approval of the Mejliss, and, indeed,
the frontiers of the State can only be modified in virtue of a law, following the example
of the Belgian and French Constitutions. But the Constantinople Protocol was not approved
by the Mejliss ; hence the condition essential for its validity, not only under municipal
law, but, on the basis of municipal law, under international law, is lacking.
The same condition was required at that date by the Ottoman Empire (Annex IX).
It was not fulfilled, which suggests that, whatever the Iraqi Government may say, the
Ottoman Government did not regard the frontier-line fixed by the 1913 Protocol, and,
on the basis of that Protocol, by the Delimitation Commission of 1914, as valid and final.
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III.
In virtue of the 1913 Protocol, and hence on an entirely invalid basis, a Commission
consisting of representatives of Persia, the Ottoman Empire, Great Britain and Eussia
proceeded to a delimitation of the frontier on the ground. It began its work in the south
at the mouth of the Shatt-al-Arab in the Persian Gulf The historical term used to describe the body of water between the Arabian Peninsula and Iran. , and thence proceeded northwards.
In the southern and central portion of the frontier, the delimitation was effected
to the advantage of the Ottoman Empire, and its representatives of course made no
objection. In the northern part, the Ottoman Commissioners refused to take part in the
delimitation of the frontier in a certain area ; they even refused to evacuate and hand
over to Persia numerous localities which, according to the 1914 line, had to be detached
from the Ottoman Empire. Moreover, during the Commission’s work and immediately
afterwards, Ottoman troops occupied or even reoccupied certain areas which had been
assigned to Persia by the 1913 Protocol (Annex X). Thus the Ottoman Empire in practice
treated as non-existent the Protocol of 1913 and the 1914 line, which, indeed, were legally
null and void. Nevertheless, notwithstanding the 1913 Protocol’s claim (Articles 4 and 5)
to render compulsory and final that part of the frontier regarding which a sovereign award
had been given by the British and Bussian Commissioners, it is one of the highest principles
of equity and logic, which the Parties cannot disregard in virtue of any valid convention
(and still less in virtue of an invalid one), that the tracing of a frontier-line forms a single
and essentially indivisible operation. If the Protocol which fixes the frontier is disregarded,
owing to the failure of one of the Contracting,Parties to observe it, in respect of a certain
part of the line, it must also be disregarded in respect of other parts. _ >
Hence it must be concluded that the 1913 Protocol and the 1914 delimitation relied
on by the Iraqi Government must be deliberately rejected. They must be rejected,
( 1 ) because they take as starting-point a treaty which was itself non-existent at the
when the Teheran Agreement of 1911 referred to it ; (2) because, in concluding the 1913
Protocol, which already gravely departs from the provisions and stipulations of the
Teheran Agreement of 1911 providing for arbitration in case of disagreement, rules
of the mediation procedure, the main features of which had just been fixed at The Hague
in agreements signed by all the Parties, were openly disregarded ; (3) because, on the pre ex -
of a treaty between Persia and the Ottoman Empire, an agreement was in reality concluae
between Great Britain and Eussia, accompanied on the Shatt-al-Arab by a direct agreemen
concluded in London between Great Britain and the Sublime Porte and by t e impropei
conclusion of a bilateral understanding in the British capital in the middle of nego la ions
which were to take place at Constantinople between all the Parties ; ( 4 ) because, as y,
one of the Parties, the Ottoman Empire, immediately failed to carry out, m a giea m y
respects, the Act of 1913 fixing the frontier — a failure which, even if partial, mvoiveu me
total lapse of the Act owing to its indivisible character.
To all the causes of nullity deduced from general contract law must iastly be added tlie
decisive reason that the case in question concerned a public law contract su
by constitutional law, here forming part of international law, to conditions o
and international validity which were not fulfilled either by Persia oi >y
Empire.
IV.
The same argument, which leads the Imperial Government to regard as null and void
the delimitation of the frontier in 1914, was adopted by the new Turkish Re P ,
latter declared officially that the “ Protocol of 1913 cannot be regarded as a valid political
instrument, since it has not been given the form indispensable for its * 1 y a ri Tf an
say, it was neither approved by the Ottoman Chamber of Deputies noi ra i m y
the Chief of the Executive, ait the time. This Protocol has according y i