De-territorializing and Re-territorializing Lotus: Sovereignty and Systematicity as Dialectical Nation-Building in Early Republican Turkey
Published online by Cambridge University Press: 01 March 2009
The chief aim of this article is to unearth, explicate, and contextualize the various techniques on which Mahmut Esat, Turkey's agent before the Permanent Court of International Justice in the Lotus case, drew in order to narrate a fresh understanding of Turkish ‘nationhood’ during a period of intense vulnerability for the newly established Republic. The argument advanced by Turkey in this case – that it need not demonstrate the existence of a specific jurisdictional exception in international law in order to proceed with its prosecution of the French captain of the Lotus, a French vessel – has often been dismissed as an example of cynical apologetics. Nevertheless, a close reading of Turkey's pleadings reveals that it was inclined to oscillate between a variety of universalistic and particularistic approaches, Esat litigating the Lotus with an eye to exploiting the schism that lies at the heart of the concept of ‘civilization’ so as to submit Turkey to the normative authority of the international legal system while bolstering its positive power as an independent sovereign state. More specifically, it was by merging two modes of reasoning – the one prizing systematicity, the other prioritizing sovereignty – that Esat sought to construct a new, robustly reconciliatory identity for the ‘Turkish nation’, one that would enable it to embrace its commitment to international order by securing its place in ‘la civilisation contemporaine’ while amplifying the ambit of its autonomy as ‘un état civilisé’.
- Copyright © Foundation of the Leiden Journal of International Law 2009
1 Türkiye'nin Siyasî Hayatında Batılılaşma Hareketleri (2004), 92 (translation mine, emphasis in original). Please note that I have either translated or employed existing translations of all Turkish language materials in that which follows. However, with the exception of those cases in which it was clear that reliance on translations would not impede appreciation of textual nuances, I have left French-language materials in the original.
2 Case of the SS ‘Lotus’ (France v. Turkey), PCIJ Rep. Series A No. 10.
3 Brierly, J. L., ‘The “Lotus” Case’, (1928) 44 Law Quarterly Review 154Google Scholar, at 156, 162.
4 Ibid., at 155. For an analogous assessment of the Turkish position, see R. Portail, L'affaire du ‘Lotus’ devant la Cour permanente de Justice internationale et devant l'opinion publique (1928), 89–92.
5 Verzijl, J. H. W., The Jurisprudence of the World Court: A Case by Case Commentary (1965), I, 83Google Scholar.
6 Ibid., at 97. For similar sentiments see, e.g., de Vabres, H. D., ‘L'affaire du “Lotus” et le droit pénal international’, (1928) 2 Revue de droit international 135Google Scholar, at 165; H. A. Steiner, ‘Fundamental Conceptions of International Law in the Jurisprudence of the Permanent Court of International Justice’, (1936) 30 AJIL 414, at 416. For less condemnatory reviews see, e.g., Berge, W., ‘Conflicts in Respect to Criminal Jurisdiction’, (1930) 24 American Society of International Law Proceedings 34Google Scholar; H. Lauterpacht, The Development of International Law by the International Court (1958), 359–61. For a brief history of the way in which international organizations initially responded to the felt need for a less uncompromising stance on the assertion of jurisdiction over incidents on the high seas, see P. C. Jessup, ‘The Growth of the Law’, (1935) 29 AJIL 495. Their efforts would yield the Convention on the High Seas of 1958, which effectively overruled the PCIJ's decision in the Lotus case. Rosenne, S., The Law and Practice of the International Court, 1920–2005 (2006), III, at 1595Google Scholar.
7 Not surprisingly, he links this move to the Court's invocation of ‘independence’ as a ‘fundamental principle of international law’ in Status of the Eastern Carelia (Finland v. Russia), PCIJ Rep. Series B No. 5, at 27. See O. Spiermann, International Legal Argument in the Permanent Court of International Justice: The Rise of the International Judiciary (2005), 255–6.
8 Ibid., at 253–4. See also O. Spiermann, ‘Judge Max Huber at the Permanent Court of International Justice’, (2007) 18 EJIL 115, at 129–32.
9 In doing so, Esat was relying, tacitly if not avowedly, on the late Ottoman tradition of employing ‘civilizational’ rhetoric for the sake of bolstering Istanbul's prestige and authority while holding European powers to account on the basis of their own normative claims. Aydin, C., The Politics of Anti-Westernism in Asia: Visions of World Order in Pan-Islamic and Pan-Asian Thought (2007), 19, 31Google Scholar.
10 For classic analyses of the interaction between international law's two most dominant patterns of argumentation, the one ‘hard’, ‘subjective’, and consent-dependent, and the other ‘soft’, ‘objective’, and ‘justice’-oriented, see D. Kennedy, International Legal Structures (1987); and M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (1989).
11 See supra notes 3 and 4. Even Spiermann, so critical of the imputation of positivism to the Court's judgment, falls prey to this platitude, claiming flatly that Turkey, unlike France, repudiated the need for ‘a mechanism for resolving clashes between them’. See O. Spiermann, ‘Lotus and the Double Structure of International Legal Argument’, in de Chazournes, L. Boisson and Sands, P. (eds.), International Law, the International Court of Justice and Nuclear Weapons (1999), 131, at 144Google Scholar.
12 For noted examples of this approach – ‘critical discourse analysis’, if you like – in international legal scholarship, see Berman, N., ‘The Nationality Decrees Case, or, Of Intimacy and Consent’, (2000) 13 LJIL 265CrossRefGoogle Scholar; K. Knop, Diversity and Self-Determination in International Law (2002), ch. 4.
13 ‘Discours prononcé par Mahmout Essat Bey’, in The ‘Lotus’ Case: Documents Relating to Judgment No. 9 (1927), 102, at 102.
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15 Mustafa Reşid Paşa, Grand Vezier during the Tanzimat reforms of the mid-nineteenth century, would go so far as to claim that ‘it is always to France that we turn’, as ‘she has prompted our reforms’. Raccagni, M., ‘The French Economic Interests in the Ottoman Period’, (1980) 11 International Journal of Middle East Studies 339, at 341CrossRefGoogle Scholar. See also M. Burrows, ‘“Mission Civilisatrice”: French Cultural Policy in the Middle East, 1860–1914’, (1986) 29 Historical Journal 109.
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18 Ş. Halıcı, Yeni Türkiye Devleti'nin Yapılanmasında Mahmut Esat Bozkurt (1892–1943) (2004), 364–5.
22 Treaty with Turkey and Other Instruments Signed at Lausanne July 24, 1923, (1924) 18 AJIL Sup. 1, at 72.
25 The Court had actually been divided evenly, i.e. 6–6, with Huber's vote proving decisive on account of his status as president. This led some to question the influence of ad hoc judges on its decisions. See, e.g., J. F. Williams, ‘L'affaire du “Lotus”’, (1928) 35 RGDIP 361, at 374–5; Hudson, M. O., The Permanent Court of International Justice, 1920–1942 (1972), 360Google Scholar.
31 For brief recitals of both arguments, see ibid., at 104.
32 Other arguments related to the applicability of the relevant precedents and the question as to where the ‘effects’ of the offence were to be localized for the purposes of an analysis of ‘la loi du pavillon’, ibid., at 104–5, 121–34. See also ‘Mémoire présenté par le Gouvernement de la République turque’, in ‘Lotus’ Case: Documents, supra note 13, at 224, at 240–2; ‘Contre-mémoire présenté par le Gouvernement de la République turque à la Cour permanente de Justice internationale’, in ‘Lotus’ Case: Documents, supra note 13, at 287, at 305–18.
33 See de Groot, A. H., ‘The Historical Development of the Capitulatory Regime in the Ottoman Middle East from the Fifteenth to the Nineteenth Centuries’, (2003) 22 Oriente Moderno 575Google Scholar, at 578–80; Eldem, E., ‘Capitulations and Western Trade’, in Faroqhi, S. N. (ed.), The Cambridge History of Turkey (2006), III, 283, at 293–7Google Scholar.
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36 K.-H. Ziegler, ‘The Peace Treaties of the Ottoman Empire with European Christian Powers’, in R. Lesaffer (ed.), Peace Treaties and International Law in European History: From the Late Middle Ages to World War One (2004), 338, at 344–5, 347.
37 de Testa, I., Recueil des traités de la Porte ottomane avec les puissances étrangères (1864), I, at 187Google Scholar.
39 For a comprehensive but critical study see Eldem, supra note 33. World systems theory has proved to be invaluable for conceptualizing the socio-political ramifications of the Empire's incremental assimilation into global economic networks. See, e.g., Wallerstein, I., Decdeli, H., and Kasaba, R., ‘The Incorporation of the Ottoman Empire into the World-Economy’, in İslamoğlu-İnan, H. (ed.), The Ottoman Empire and the World-Economy (1987), 88Google Scholar.
42 F. Ahmad, ‘The Late Ottoman Empire’, in Kent, supra note 16, at 22. The affinity between the status of foreigners and those belonging to such ‘nations’ should not, however, be exaggerated: M. H. van den Boogert, The Capitulations and the Ottoman Legal System: Qadis, Consuls and Beraths in the 18th Century (2005), 55–6.
43 See Göçek, F. M., ‘The Decline of the Ottoman Empire and the Emergence of Greek, Armenian, Turkish, and Arab Nationalisms’, in Göçek, F. M. (ed.), Social Constructions of Nationalism in the Middle East (2002), 15Google Scholar; Karpat, K. H., ‘Millets and Nationality: The Roots of the Incongruity of Nation and State in the Post-Ottoman Era’, in Braude, B. and Lewis, B. (eds.), Christians and Jews in the Ottoman Empire: The Functioning of a Plural Society (1982), I, 141Google Scholar.
44 Simpson captures this transformation masterfully, down to the mourning and melancholia of its characteristically ‘tragic’ narrative. See G. Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (2004), 244–5.
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47 The similarity is anything but coincidental, as Bolshevik Russia was second only to Afghanistan in extending de jure recognition to the Ankara government and its abrogation of the capitulations, doing so on 16 March 1921 in an effort to move Kemal towards an explicitly Leninist line. Sousa, supra note 34, at 350. Though later strained, relations between Kemalist and Bolshevik policymakers were far from distant at the time, the deeply overstretched nationalists succeeding in repulsing the British-sponsored Greek invasion of Anatolia only with substantial Soviet support in arms and capital. S. Yerasimos, Türk-Sovyet İlişkileri: Ekim Devriminden ‘Millî Mücadele'ye (1979).
48 ‘Memorandum read by the Turkish Delegate at the Meeting of December 2, 1922, of the Commission on the Régime of Foreigners’, in Lausanne Conference on Near Eastern Affairs (1922–1923): Records of Proceedings and Draft Terms of Peace (1923), 471, at 478–9. This document is a translation of the French original.
51 Ibid., at 474. This position initially met with stiff resistance, İsmet cabling back to Ankara on the occasion of the conference's preliminary consideration of his call for the elimination of the capitulatory regime with news that Lord Curzon had declared that he saw little likelihood of achieving peace if the Allies were expected to satisfy conditions of this sort. ‘No. 226: Hey'et-i Vekîle Riyâsetine’, in B. N. Şimşir (ed.), Lozan Telgrafları: Türk Diplomatik Belgelerinde Lozan Barış Konferansı (1990), I, 291.
52 ‘Towards Western Civilization’, in N. Berkes (ed.), Turkish Nationalism and Western Civilization: Selected Essays of Ziya Gökalp (1959), 268, at 277.
53 General Treaty for the Re-Establishment of Peace between Austria, France, Great Britain, Prussia, Sardinia and Turkey, and Russia, signed at Paris, 30 March 1856, (1969) 114 The Consolidated Treaty Series 409, at 410.
54 Ibid., at 414. For commentary see H. M. Wood, ‘The Treaty of Paris and Turkey's Status in International Law’, (1943) 37 AJIL 262; Onuma, Y., ‘When was the Law of International Society Born? – An Inquiry of the History of International Law from an Intercivilizational Perspective’, (2000) 2 Journal of the History of International Law 1, at 35–9CrossRefGoogle Scholar.
55 As the Duke of Argyll observed, ‘the substitution of an European for a Russian protectorate over the subjects of the Porte is no mere inference from a single clause in the Treaty of Paris, but was a fundamental part of the whole policy of the Allies’. G. D. C. Argyll, The Eastern Question: From the Treaty of Paris 1856 to the Treaty of Berlin 1878, and to the Second Afghan War (1879), I, at 21.
58 See Davison, R. H., ‘Turkish Attitudes Concerning Christian–Muslim Equality in the Nineteenth Century’, (1954) 59 American Historical Review 844, at 850, 857Google Scholar; Eldem, E., ‘Ottoman Financial Integration with Europe: Foreign Loans, the Ottoman Bank and the Ottoman Public Debt’, (2005) 13 European Review 431, at 433Google Scholar.
59 Lorimer, J., The Institutes of the Law of Nations: A Treatise of the Jural Relations of Separate Political Communities (1883), I, 102Google Scholar. Such sentiments would continue to exert a significant influence over international legal scholarship for quite some time, employed by the likes of Seferiades well into the 1920s. T. Skouteris, ‘The Vocabulary of Progress in Interwar International Law: An Intellectual Portrait of Stelios Seferiades’, (2005) 16 EJIL 823, at 850–3.
60 Oppenheim, L., International Law: A Treatise (1920), I, at 34Google Scholar. For commentary on Oppenheim's views on the composition of ‘international society’ and ‘Family of Nations’, see B. Kingsbury, ‘Legal Positivism as Normative Politics: International Society, Balance of Power and Lassa Oppenheim's Positive International Law’, (2002) 13 EJIL 401, at 412.
62 Baykara, T., Osmanlılar'da Medeniyet Kavramı ve Ondokuzuncu Yüzyıla Dair Araştırmalar (2000), 29Google Scholar. See also the entry for ‘Medeniyyet’, in C. E. Bosworth, E. van Donzel, and C. Pellat (eds.), The Encyclopaedia of Islam: New Edition (1991), VI, at 968.
63 For two attempts to link the distinction between European/‘civilized’ and non-European/‘uncivilized’ in nineteenth-century international legal discourse to positivism, see G. W. Gong, The Standard of ‘Civilization’ in International Society (1984), 41–5, 47–53; A. Anghie, Imperialism, Sovereignty and the Making of International Law (2005), 37, ch. 2 generally. For more cautious discussions see Kennedy, D., ‘International Law and the Nineteenth Century: History of an Illusion’, (1996) 65 Nordic Journal of International Law 385CrossRefGoogle Scholar; M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (2001), 130–2.
64 See I. B. Neumann, Uses of the Other: ‘The East’ in European Identity Formation (1999), ch. 2.
66 See, e.g., Kemal, M., ‘Ankara Hukuk Fakültesinin Açılışında (5.XI.1925)’, in Parla, T. (ed.), Türkiye'de Siyasal Kültürün Resmî Kaynakları (1995), III, 292, at 293Google Scholar.
68 Shades of the capitulations could also be felt in Arts. 46–57 of the Lausanne Peace Treaty, which concerned the distribution of the Ottoman public debt, and the Commercial Convention which was annexed to the Peace Treaty and required, inter alia, that Turkey abolish a variety of barriers on the import and export of goods. Ibid., at 16–23, 72, 74–84. See also Hudson, M. O., ‘Law Reform in Turkey’, (1927) 13 American Bar Association Journal 5, at 6–7Google Scholar; K. Boratav, Türkiye'de Devletçilik (2006), 33–4.
70 P. M. Brown, ‘From Sèvres to Lausanne’, (1924) 18 AJIL 113, at 115.
71 Indeed, one later Turkish jurist would write that İnönü ‘based all his demands there on international law and defended and carried his thesis of equality on the strength of the principles of international law’. C. Bilsel, ‘International Law in Turkey’, (1944) 38 AJIL 546, at 549.
73 ‘Mémoire’, supra note 32, at 237–40. For contemporaneous discussions of the various options available to states, see H. Walther, L'affaire du ‘Lotus’ ou de l'abordage hauturier en droit pénal international (1928), 132–7; Henry, N., ‘Le “Lotus” à la Cour de La Haye’, (1928) 2 Revue de droit international 65, at 91–5Google Scholar.
79 Ibid., at 117; ‘Contre-mémoire’, supra note 32, at 302. Indeed, one commentator would go so far as to declare that ‘it is clear that in some form or other nearly every country claims this jurisdiction to a small or large extent’. Berge, G. W., ‘The Case of the S. S. “Lotus”’, (1927–8) 26 Michigan Law Review 361, at 377–8CrossRefGoogle Scholar.
85 ‘Discours prononcé’, supra note 13, at 117. For an astute analysis of Turkey's ‘reception’ of Italian law, see R. A. Miller, Legislating Authority: Sin and Crime in the Ottoman Empire and Turkey (2005), chs. 8, 9.
87 Pears, E., ‘Turkish Capitulations and the Status of British and Other Foreign Subjects Residing in Turkey’, (1905) 21 Law Quarterly Review 408, at 410, 424Google Scholar.
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99 At one point, largely as a result of his effort to use French case law to bind his interlocutor into a guilt-ridden confession of self-contradictoriness with respect to the use of travaux for the interpretation of treaty texts, Esat explicitly counts France among the ‘pays les plus civilisés’, the only other state to which he extends this title being Britain. Ibid., at 111. Viewing Britain and France as the twin exemplars of ‘civilized nationhood’ had, of course, been highly common for quite some time: see, e.g., Grewe, W. G., The Epochs of International Law (2000), 448, 450–1Google Scholar.
103 See, e.g., Örücü, E., ‘The Impact of European Law on the Ottoman Empire and Turkey’, in Mommsen, W. J. and de Moor, J. A. (eds.), European Expansion and Law: The Encounter of European and Indigenous Law in 19th- and 20th-Century Africa and Asia (1992), 39, at 51–4Google Scholar; B. Aral, ‘An Inquiry into the Turkish “School” of International Law’, (2005) 16 EJIL 769. A fine example of such parochialism is provided by Esat himself, who, in one of his more recalcitrant moods, argued that ‘Western civilization, like every other civilization, is a totality; it makes no room for distinctions. It must be received in its entirety, or not at all’. Atatürk İhtilali (1995), 120 (translation mine).
104 So proud was he of his performance before the PCIJ that Esat would go on to adopt the surname ‘Bozkurt’, thenceforth coming to be known as ‘Mahmut Esat Bozkurt’. Akzambak, M., Atatürk’ün Devrimci Adalet Bakanı Mahmut Esat Bozkurt (2005), I, at 238–9Google Scholar.
106 Consider, for instance, the Chilean/Latin American and Nigerian/African perspectives: L. Obregón, ‘Noted for Dissent: The International Life of Alejandro Álvarez’, (2006) 19 LJIL 983; M. Toufayan, ‘When British Justice (in African Colonies) Points Two Ways: On Dualism, Hybridity, and the Genealogy of Juridical Negritude in Taslim Olawale Elias’, (2008) 21 LJIL 377.
107 Indeed, Turkey's engagement with ‘civilizational’ discourse owes much to the Ottomans’ attempt to check Western interventionism by positioning themselves at the centre of the Islamic ummah while diverting orientalist charges of ‘fanaticism’ and ‘backwardness’ towards their Arab provinces. Makdisi, U., ‘Ottoman Orientalism’, (2002) 107 American Historical Review 768CrossRefGoogle Scholar.