2. International law as an enabling and a constraining force

The Lotus case arose from a collision on the high seas between two vessels, the one French (the Lotus) and the other Turkish (the Bozkurt). The event resulted in the death of eight Turkish nationals, and when the Lotus finally arrived in Istanbul, naval authorities seized and initiated criminal proceedings against Lieutenant Demons, its master, along with Hasan Bey, the master of the Bozkurt. The charge was involuntary manslaughter, and the prosecution, which the Turkish authorities refused to halt in spite of repeated protests from the French chargé d'affaires, resulted in Demons receiving a sentence of eighty days’ imprisonment and a fine. Although the public prosecutor filed an appeal, diplomacy intervened to have the two states submit the question of whether Turkey's decision to institute criminal proceedings against Lieutenant Demons contradicted ‘principles of international law’ to the PCIJ by way of special agreement,Footnote ¹⁹ Turkey not yet having joined the League of Nations.Footnote ²⁰

Of the various arguments advanced by French authorities before the Court, the most compelling concerned Article 6 of the Turkish Penal Code of 1926, which extended the jurisdiction of Turkish courts to foreigners arrested in Turkey for offences committed ‘abroad to the prejudice of Turkey or of a Turkish subject’.Footnote ²¹ The French condemned this provision, and the ‘protective principle’ it embodied, as incompatible with international law, contending that nothing in such law permitted jurisdiction of this type. Unless Turkey were capable of demonstrating that international law allowed for the jurisdiction it claimed, the Court would have no choice but to find a violation of Article 15 of the Convention respecting Conditions of Residence and Business and Jurisdiction (Convention of Lausanne) that had been appended to the Treaty of Peace (Lausanne Peace Treaty) of the general Treaty of Lausanne, a provision which tethered the institutional competence of the Turkish judiciary to its adherence to ‘principles of international law’.Footnote ²² Turkey's unsuccessful bid to extend its jurisdictional authority to crimes committed in third states while negotiating the Treaty of Lausanne was deemed to be of significance here.

Turkey's most pertinent counter-arguments made much of the fact that Article 6 had been lifted verbatim from the Italian Penal Code of 1889 and bore a close resemblance to similar provisions in a number of other codes. This, Esat argued, meant that the ‘protective’ model of criminal jurisdiction could not be taken to violate international law and that Turkey was well within its rights in instituting it. Further, the expression ‘principles of international law’ in Article 15 was sufficiently clear on its own terms to preclude consideration of the travaux préparatoires. In fact, France was fundamentally misguided in insisting that Turkey should be required to demonstrate the existence of a permissive international rule, Article 15 meaning one thing and one thing only – that Turkey was entitled to assert its jurisdictional authority in all cases except those in which doing so would flout a well-established ‘principle of international law’. The onus, then, was on France to show that such a ‘principle’ was available, not on Turkey to prove that it was not. And since no such ‘principle’ could actually be located, Turkey was fully justified in asserting jurisdiction over Demons.

Limiting itself to the terms of the special agreement, the Court focused on the question of whether Turkey's assertion of jurisdiction over Demons fell foul of international law.Footnote ²³ It dismissed France's travaux argument by pointing to the lucidity of the Convention's text and went on to hold that Turkey had indeed been entitled to institute criminal proceedings against Demons, as no ‘principle of international law’ potent enough to restrict its jurisdiction to incidents occurring wholly within its own territory could be found.Footnote ²⁴ While it could not be denied that ‘modern’ conceptions of jurisdiction are ‘territorial’ in the sense that states are prohibited from exercising their jurisdictional powers in the territories of other states absent specifically permissive rules derived from custom or convention, it was certainly not true that this, in and of itself, was sufficient to prevent a state from asserting jurisdiction in its own territory with respect to crimes that had taken place outside it. ‘Such a view would only be tenable’, Huber wrote on behalf of the Court's ‘majority’,Footnote ²⁵ ‘if international law contained a general prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory’.Footnote ²⁶ Since no such prohibition existed, Turkey was justified in initiating proceedings against Demons for actions whose catastrophic effects had been felt aboard the Bozkurt, concurrent jurisdiction being the only viable solution to the matter at hand.Footnote ²⁷

Again, however, what is of significance for the purposes of the present study is not whether the reasoning underlying the final judgment was valid, sound, or even desirable, but the discursive practices through which Esat sought to weave a number of universalistic and particularistic motifs into his pleadings in an effort to buttress Turkey's jurisdictional competence. This effort manifested itself multifariously, with Esat advancing a number of arguments to establish that ‘une restriction de cet attribut essentiel de la souveraineté ne peut être présumée’, this having to be ‘prouvée par celui qui l'allègue’, a conclusion which he would summarize with the classic, almost stoically pithy, expression ‘in dubio pro libertate’.Footnote ²⁸ Consider, for example, these remarks:

The deployment of ‘les nations civilisées’ in the first sentence lends Esat's analysis an unmistakably internationalist flavour, albeit one in which a preponderantly European or Western conception of ‘civilization’ is elevated hegemonically to the status of a normative absolute. The basic idea, of course, is that Turkey, like every other member of the group of ‘nations civilisées’, is perfectly prepared not only to recognize the supremacy of international law but also to accept the judgment of the Court in the event that the French should succeed in convincing it of the existence of a directly applicable ‘principle of international law’. This strikes at the heart of Esat's desire to shift the burden of the argument onto the shoulders of Jules Basdevant, agent for France and future judge of the International Court of Justice, by bringing Turkey fully within the purview of international law. The immediately following sentence strikes a somewhat different chord, however, with Esat once again drawing upon themes of ‘civilization’ in order to counter France's charge that it has violated international law, only this time not for the sake of pushing France to satisfy the evidentiary burden of the case but with the aim of strengthening Turkey's claim to formal equality vis-à-vis every other ‘état civilisé’. After all, Esat is clearly implying, if Turkey is truly to be characterized as an ‘état civilisé’, it must be in possession of no less formidable a claim to sovereign power than any of its counterparts, with no less legitimate a right to defend its prosecutorial jurisdiction than France itself. Interestingly, therefore, the same concept of ‘civilization’ on which Esat relies in order to express Turkey's identification with the international legal system is also used to bolster its ‘droit de souveraineté’, a sovereignty that is sufficiently resilient to compete on a formally equal basis with that of France. The final clause of the last sentence conveys this versatility with admirable concision, emphasizing Turkey's right to be regarded ‘comme tout État civilisé qui vit sous le régime du droit commun international’.

One of the single most impressive illustrations of this move is the following passage, a classic instance of the effort to blend appeals to the normative supremacy of the international legal system with gestures towards the inviolability of sovereign power:

By drawing on the language of reciprocal rights and duties, Esat is able to press for the recognition of the Republic as a thoroughly ‘modern’ and ‘European’ state, one that is willing to submit to the opinion and authority of ‘la civilisation européenne’, while simultaneously laying claim to precisely the same sovereignty of which each member of this ‘civilisation’ is, at least notionally, in possession. Although participation in ‘la civilisation européenne’ endows one with a broad array of state-monopolistic entitlements, arming one with the right to index others’ expectations with respect to one's behaviour to one's own (freely given or withdrawn) consent, it also imposes a corresponding set of obligations, bringing one within the domain of the normative directives of this ‘civilization’. Hence, as before, it is on the basis of the same concept of ‘civilization’ employed for the sake of binding it to the international legal system that Turkey is to be supplied with the kind of mature, self-confident sovereignty requisite for the full exercise of a ‘modern’ state's powers, channelling that distinctively post-Napoleonic craving for self-reliance which the Republic had inherited from its imperial predecessor into a newer, and substantially heartier, vision of national responsibility and international respectability. Turkey's desire to win recognition as a member of – and, in this sense, to acquiesce in its appropriation by – ‘la grande famille des nations’, as evidenced by its willingness to adopt, directly or in modified form, some of the most ‘modernisée’ codes the West has to offer, is balanced by its wish, no less pronounced and no less exacting, to make use of the benefits of such membership to denounce hypocrisy, demand fair and equal treatment in its relations with other sovereigns, and lobby for the acquisition of ‘tous les droits’ associated with this ‘famille’.

Notwithstanding the undeniable power of these passages, Esat's attempt to exploit the double signification of ‘civilization’, the one constraining and the other enabling, reveals itself most clearly in the two arguments on which he placed the greatest rhetorical weight when defending Turkey's decision to seize and prosecute Lieutenant Demons. The first of these aimed to demonstrate that Article 6 of the Turkish Penal Code, in spite of French assertions to the contrary, was in conformity with the basic ‘principles of international law’. The second sought to establish that Article 15 of the Convention of Lausanne did not call for any restriction on the Turkish judiciary aside from necessitating compliance with such law.Footnote ³¹ While these were by no means the only arguments that Esat advanced,Footnote ³² they were certainly the two in which the double logic of ‘civilizational’ rhetoric was operationalized with greatest effect. Before considering these two arguments, however, I will provide a brief discussion of Turkey's experience with the capitulations, its controversial and peculiarly unstable ‘membership’ in the European state system, and the position that it came to adopt during the course of negotiating the Treaty of Lausanne. Neither of Esat's two chief arguments is capable of being appreciated in the absence of an understanding of the broader socio-political forces underlying the reconstitution of the ‘Turkish nation’ during the 1920s.

3. Enveloped by/enraptured with/enraged at the West

It is well known that late Ottoman efforts to facilitate sustained economic growth and maintain the kind of social cohesion needed to keep secessionist nationalism at bay were hamstrung by the capitulatory agreements into which the Empire had entered with various Western states. Originally nothing more than unilateral pledges (ahdnameler) by the sultan to ensure that non-Muslim foreigners could reside and do business on Ottoman territory, these agreements were introduced with the intention of streamlining relations with the Empire's political allies and trading partners by granting a number of extraterritorial privileges to their nationals and ‘protégés’.Footnote ³³ Interestingly, it is the first Ottoman–French agreement, apparently concluded between Sultan Süleyman I and King Francis I in 1535, that has traditionally been regarded as the locus classicus of the Ottoman capitulatory regime, and its seventh renewal, concluded in 1740 between King Louis XV and Sultan Mahmud I, appears to have been the first such document to bind Istanbul's hand in perpetuo.Footnote ³⁴ The Ottoman chancery made a point of retaining the condescending tenor of the agreements well into the eighteenth century, routinely presenting them to the sultan's subjects as imperial directives – ‘concessions gracieuses’, as some commentators have put itFootnote ³⁵ – issued from a position of material and symbolic superiority for the purpose of furthering commerce, cementing political alliances, and integrating non-Muslim communities.Footnote ³⁶ After this period, however, references to foreign sovereigns came increasingly to be couched in overtly amicable terms, with the 1740 capitulation itself emphasizing the French king's status as a ‘très-magnifique, très-honoré, sincère et ancien ami’ of the Sublime Porte.Footnote ³⁷

As is often the case, this discursive shift betrayed a realignment of prevailing power dynamics. In addition to privileges of a personal character, such as the freedom to practise a religion of one's choice and the freedom to travel freely throughout the Empire, most capitulatory agreements provided for a considerable number of economic (e.g. tax exemptions and control over customs regulations) and juridical (e.g. consular courts wielding jurisdiction in cases involving disputes between foreigners) privileges.Footnote ³⁸ A set of concessions as wide-ranging and tightly networked as this was bound to play into the hands of predatory forces, and this, of course, is exactly what occurred with the politico-economic consolidation of post-mercantilist Europe, as a result of which the capitulations began to be used as a means of penetrating hitherto inaccessible markets and absorbing textiles and other commodities from hinterland producers under conditions of minimal supervision.Footnote ³⁹ Simply put, as ‘privileges granted in the early period of Turkish reign became rights’ during the course of the eighteenth century,Footnote ⁴⁰ the Ottoman Empire was transformed into ‘a virtual open and free market for Europe’.Footnote ⁴¹ This development was made all the more problematic on account of the practice of extending distinct legal status to the Empire's dominant non-Muslim minorities, which eventually came to be recognized as semi-autonomous ‘nations’ (milletler) endowed with a considerable measure of internal sovereignty.Footnote ⁴² By facilitating the rapid expansion of commercial ties between European merchants and the Empire's steadily growing non-Muslim proto-bourgeoisie, the crystallization and enlargement of the millet system engendered resentment within the Turkish-Muslim ruling elite, which reacted by cultivating an increasingly chauvinistic nationalistic consciousness of its own.Footnote ⁴³ Thus, while originally reflective of the military supremacy of the Ottomans and the comparatively modest contribution of European trade to their treasury, the capitulatory concessions and the ethno-denominational institutions of governance with which they were affiliated ultimately came to serve as instruments of domination and sectarianism, exacerbating tensions between the Empire's constituent groups and establishing themselves as perhaps the single most galvanizing forces of mobilization for Turkish nationalist movements.Footnote ⁴⁴

Desire to do away with the capitulations gathered pace steadily from the mid-nineteenth century onwards. The Committee of Union and Progress (İttihat ve Terakki Cemiyeti, known to most contemporaneous Western sources as the ‘Young Turks’ or ‘Jeunes-Turcs’) attempted to abrogate them unilaterally in 1914, but this did not succeed in gaining the formal approval of any of the relevant Western powers save for Austria and Germany, the Empire's two strongest allies during the First World War.Footnote ⁴⁵ Mustafa Kemal's ‘National Forces’ (Kuva-i Milliye) made the elimination of the capitulatory regime a non-negotiable condition for the cessation of hostilities, Article 6 of their founding charter, the ‘National Pact’ (Misak-ı Milli) of 28 January 1920, proclaiming that ‘complete independence and liberty in the matter of assuring the means’ of its development constituted ‘a fundamental condition’ of the Turkish people's ‘life and continued existence’.Footnote ⁴⁶ In addition to drawing the Kemalist vision of national self-determination close to, if not altogether in line with, the Bolsheviks’ call for an anti-imperialist coalition of nationally organized proletarians,Footnote ⁴⁷ this position served as Turkey's principal bargaining stance during the Lausanne negotiations. In fact, it was for nothing less than the abolition of the capitulatory agreements that İsmet Paşa (later İsmet İnönü) pressed with the greatest vigour in his role as chief negotiator at Lausanne. Not only had the capitulations been unilateral from the very outset, lacking the endurance and reciprocality of treaties, İsmet argued, but a fundamental change had occurred in the circumstances which had given rise to them, entitling Turkey to cast them aside even in the event that they were to be characterized as treaties.Footnote ⁴⁸ This combination of textual analysis with a classic rebus sic stantibus argument was supplemented with a critique of the capitulations as anachronistic.Footnote ⁴⁹ Europeans had long fixed the abolition of these agreements, if not in earnest then at least in form, to the amelioration of the Turkish legal system, but little concrete action had been taken to relieve the Turks of the increasingly anomalous position in which they found themselves, even after they had begun to revise their legal codes and revamp their adjudicative practices.Footnote ⁵⁰ ‘As the deficiencies in our judicial organisation have now been remedied’, İsmet declared, ‘and as on the other hand the Capitulations are provisions absolutely incompatible with the sovereignty of a State, their abrogation ought not to become the subject of any dispute’.Footnote ⁵¹

Interestingly, it is in the very same year that İsmet was standing firm on the issue of the capitulations that one finds Ziya Gökalp, chief theoretician of Turkish nationalism and intellectual godfather to much of the Kemalist elite, writing that ‘a nation condemned to every political interference by Capitulations is meant to be a nation outside of European civilization’, comparing Turkey's situation in unfavourable terms with that of post-Meiji Japan, which had managed to transform itself into a ‘European power’ without being stripped of its ‘religion and national identity’.Footnote ⁵² The implicit reliance on a twofold rhetoric of ‘civilization’ that one discerns here – the wish to be viewed as a fully ‘civilized’ state, coupled with the willingness to abide by the normative precepts of ‘civilization’ – was crucial, as Turkey's desire to abrogate the capitulations had long been linked – and not loosely or coincidentally, but in the most intimate and organic of terms – to its status as a partial, or incomplete, ‘member’ of the European state system. Turkey gained formal ‘admission’ into this system in 1856 with the Treaty of Paris. The preamble to this treaty addressed the need to preserve the integrity and independence of the Ottoman Empire through ‘garanties efficaces et réciproques’,Footnote ⁵³ and Article 7 accorded it the right ‘à participer aux avantages du droit public et du concert Européens’,Footnote ⁵⁴ the operative assumption being that this would restrict Russia's reach in the Black Sea and preserve the Ottomans’ hold over a Balkans increasingly given to visions of pan-Slavic unity, while ensuring that steps would be taken to forestall the persecution of non-Muslim minorities within the Empire by transferring Russia's role as their ‘protector’ to west European states.Footnote ⁵⁵ Further, Article 32 precluded any renewals or replacements of the capitulations in force prior to the Crimean War without the consent of the relevant Western powers,Footnote ⁵⁶ thereby endowing them with the status of international treaties with which Istanbul was obligated, legally no less than morally, to comply.Footnote ⁵⁷ (That the sultan was compelled to issue a decree renewing the Empire's pledge to observe norms of non-discrimination and declaring its intention to undertake a comprehensive programme of pro-Western financial reforms one month prior to the signing of the Treaty of Paris adds yet another wrinkle to the story.Footnote ⁵⁸) Not without a hint of irony, then, it was in the very same moment that the Empire's ‘entry’ into the European state system was being celebrated that it came to fasten itself ever more firmly to the capitulations.

Not surprisingly, the Ottomans’ ‘admission’ into the European state system, however tentative and makeshift, would not go without criticism. Lorimer, for one, lamented the extension of ‘the rights of civilisation to barbarians who have proved to be incapable of performing its duties’.Footnote ⁵⁹ The third edition of Oppenheim's seminal treatise would later observe that Turkey's ‘position as a member of the Family of Nations was anomalous, because her civilisation fell short of that of the Western States’, going on to explain that ‘it was for that reason that the so-called Capitulations were still in force, and that other anomalies still prevailed’.Footnote ⁶⁰ This was crucially important, as the concept of ‘civilization’ defined the cultural conditions of engagement with the processes through which international legal norms were generated, refined, and disseminated.Footnote ⁶¹ Far from being fixed, however, the meaning of the term ‘civilization’ – a staple of nineteenth- and early twentieth-century international legal discourse that was introduced into Turkish in 1834Footnote ⁶² – seems to have been rather amorphous. In fact, there was exceedingly little in the way of an explicitly articulated ‘standard’ of ‘civilization’ available at the time of the Treaty of Paris, this coming to the fore only in the final decades of the nineteenth century and then only in response to the need (characteristically positivistic, as some would argue) to distinguish that which was ‘civilized’ in the ‘strict’ or ‘proper’ sense of the term from that which could not be so characterized, a need that was felt with particular urgency as Europe's awareness – and, to a significant degree, construction – of cultural difference in its relations with non-European peoples became progressively acute.Footnote ⁶³ Turkey's position in this regard was notoriously unstable – recognized as a sovereign state but not yet as an authentic participant in ‘international society’, granted ‘admission’ into the European state system but only conditionally and largely for reasons of realpolitik, Ottoman Turkey was at once ‘civilized’ and the very antithesis of ‘civilization’, at once intrinsic to the international legal order spawned by post-Renaissance Europe and that against which Europe's distinctive self-understanding as the embodiment of perfected ‘civilization’ continued to be elaborated.Footnote ⁶⁴

Both the capitulatory regime and the rhetoric of ‘civilization’ left their mark on the terms of the Treaty of Lausanne. Western powers were ‘compensated’ for the elimination of the capitulations when Turkey agreed to promulgate newer, more ‘modern’ legal codes. Articles 37 to 44 of the Lausanne Peace Treaty required that Turkey supply its non-Muslim citizens – a designation which, in practice, was effectively restricted to Greeks, Armenians, and Jews, the Ottoman Empire's three principal milletler – with all the entitlements of its Muslim citizens.Footnote ⁶⁵ This much the Kemalists were prepared to undertake, as it coincided with their own commitment to attenuate Ottoman traditions of legal pluralism and adopt many of the West's legal and administrative innovations so as to ‘catch up’ with, and eventually ‘overtake’, the exemplars of ‘contemporary civilization’ (muasır medeniyet).Footnote ⁶⁶ So much so, in fact, that they allowed ‘a number of European legal counsellors’ selected from a list drafted by the PCIJ to be posted for a certain period in Istanbul and Izmir for the sake of participating in legislative commissions, observing the operation of Turkish courts, and preparing reports for the Turkish minister of justice when needed – all ‘with a view to the institution of such reforms as may be rendered advisable by the development of manners and civilization’.Footnote ⁶⁷ What the Kemalists were not willing to do, however, was to allow the most visible elements of the extraterritorial consular regime enshrined in the capitulations to be preserved. To be sure, some of the Treaty of Lausanne's provisions betrayed the continuing influence of the capitulations: in addition to the ‘counsellors’, there was, for instance, Article 16 of the Convention of Lausanne, which placed matters of personal status involving non-Muslim nationals of the Allied Powers within the jurisdiction of their respective countries’ courts.Footnote ⁶⁸ This does little, however, to alter the fact that the most noticeable features of the regime were eliminated by virtue of Article 28 of the Lausanne Peace Treaty, which formalized ‘the complete abolition of the capitulations in Turkey in every respect’.Footnote ⁶⁹

It may be true that Lausanne's resonance owed much to the fact that ‘the Turks, who had been humiliated many times before and compelled to yield to threats and bluster, now had the delicious satisfaction not merely of resisting the European Powers but ultimately of imposing their own terms’.Footnote ⁷⁰ It is no less true, however, that these terms were derived from the discursive arsenal of international law, with Turkey going to great lengths to combine its aggressive defence of national sovereignty with generalized appeals to the coherence of the international legal system.Footnote ⁷¹ And it is these two manoeuvres – the one grounded in sovereignty, the other indexed upon systematicity – which one sees at work in the two arguments that Esat developed before the PCIJ.

4. The perils of protection

As mentioned above, Article 6 of the Turkish Penal Code of 1926 allowed for jurisdiction to be extended to nationals of foreign states arrested in Turkey for offences committed abroad but ‘to the prejudice of Turkey or of a Turkish subject’.Footnote ⁷² Esat saw this provision as occupying a middle ground between the two extremes of ‘territorial’ and ‘universal’ criminal jurisdiction, making room for the possibility of concurrent jurisdiction in cases like Lotus by refusing to allow competence to be tethered to or divorced from strictly territorial considerations.Footnote ⁷³ Exceptionally forceful, at times even downright vitriolic, in his advocacy of Article 6, Esat attempted to defeat France's claim that it constituted a violation of international law by pursuing a double strategy premised on the articulation of an aggressive, quasi-absolutist account of Turkey's ‘droit de souveraineté’ and the compilation of a list of states which adhered to one or another version of the ‘protective principle’.

Consider Turkey's pleadings. On the one hand, Esat observes, if Turkey is really in possession of the kind of fully fledged sovereignty to which every ‘état civilisé’ is entitled, where this is understood to mean that its constituent juridico-political structures need not go in search of external sources of validation in order to secure their legitimacy, it seems clear that it must also wield the power to choose freely from among the various modes of criminal jurisdiction to which it has access, at least so long as none of these is found to contravene international law. In other words, since Turkey commands just as authoritative a ‘droit de souveraineté’ as any other member of the group of ‘nations civilisées’, and since there is no justifiable reason to believe that the ‘protective principle’ violates customary international law or any potentially applicable treaties,Footnote ⁷⁴ it ‘peut librement choisir entre le système de protection et le système de territorialité’.Footnote ⁷⁵ It is only natural that Esat should charge France with hypocrisy on this point:

Simply put, given the absence of evidence to the effect that the ‘protective’ model of criminal jurisdiction runs against the grain of international law, there is no need for Turkey to point to ‘une règle permissive du droit des gens’, its sovereignty permitting it to select that model of jurisdiction which ‘conforme à sa situation spéciale et à ses intérêts sociaux’ to the greatest degree.Footnote ⁷⁷

On the other hand, that Esat goes out of his way to supply a list of states which subscribe to some variant of the ‘système de protection’ testifies to his desire to plant Turkey firmly within the core of ‘la civilisation contemporaine’.Footnote ⁷⁸ In addition to Turkey itself, this rather sizable group (‘pays de législation protectionniste en matière pénale’, he dubs them) includes Austria, Belgium, Greece, Hungary, Italy, Norway, Sweden, and Switzerland in Europe alone, with Argentina, Brazil, China, Guatemala, Japan, Mexico, and Venezuela rounding out the global picture.Footnote ⁷⁹ Esat feels sufficiently comfortable with the idea that these states, amounting to ‘un nombre considérable’ when totalled,Footnote ⁸⁰ embody the spirit and letter of ‘civilization’ to pose the question (‘merely rhetorical’, of course) as to whether they are ‘classés parmi les nations non civilisées’.Footnote ⁸¹ What's more, he points out, very few, if any, states actually subscribe to the ‘territorial’ model of jurisdiction, at least not in the rigid, uncompromising form advocated by Basdevant.Footnote ⁸² Far from standing in opposition to ‘un principe international établi et en vigueur’,Footnote ⁸³ then, the ‘protective’ model of criminal jurisdiction falls within the purview of ‘la civilisation contemporaine’ just as much as its ‘territorial’ rival: ‘à notre avis, aussi bien les États qui ont adopté le système de protection que ceux qui ont accepté le système territorial sont des organismes politiques qui ont contribué au même titre à la civilisation contemporaine’.Footnote ⁸⁴ Of course, the fact that ‘le Code pénal turc est la reproduction exacte de ce Code pénal italien et il est en vigueur en Turquie depuis le 1er juin 1926’ is by no means irrelevant here,Footnote ⁸⁵ and something on which Giulio Diena, the Italian jurist whose expert opinion is included in the Turkish contre-mémoire, dwells at some length. Of particular consequence is Diena's contention that the internal connection between the Italian and Turkish provisions precludes rejection of one in the absence of a concomitant repudiation of the other. ‘Devra-t-on en conclure’, he asks, ‘que l'Italie, à cause de l'article 6 de son Code pénal (dont, comme nous l'avons vu, l'article 6 du Code pénal turc n'est que la reproduction), devra être rangée parmi les nations barbares?’Footnote ⁸⁶

In sum, there were two modes of reasoning at work in Esat's defence of the ‘système de protection’, the one aiming to ensure that Turkey would be viewed as belonging to – and therefore bound by the imperatives of – the international legal system and the other capitalizing on the principles of formal equality and reciprocity informing this system in order to make the strongest possible case for the augmentation of its jurisdictional sovereignty. Given the wide-ranging ramifications of the capitulatory regime, it comes as no surprise that Esat would be inclined to consider – or, at least, to present – the French assault on the ‘protective principle’ as a thinly veiled attempt to reintroduce institutions of consular decentralization, depriving the Turkish judiciary of its authority and the ‘Turkish nation’ of its barely three-year-old politico-economic independence through a sophistical sleight of hand. After all, if it is true that the consular regime enshrined in the capitulations was ‘the result of the survival into the twentieth century of a middle age conception’ of legal jurisdiction premised upon the ‘legal fiction of ex-territoriality’,Footnote ⁸⁷ then the advent of ‘modernity’, marked, among other things, by the preparation and promulgation of Western-style legal codes, clearly called for the elimination of such extraterritorial practices. Such was Esat's sensitivity on this issue that at one point he argued that ‘le bon sens et la logique prouvent que la nouvelle Turquie, pour qui l'abolition des Capitulations était une question d'honneur et d'existence nationale, n'aurait pas demandé et obtenu cette abolition pour accepter qu'on y substituât une situation pire’.Footnote ⁸⁸ Whether ‘sincere’ or intended for ‘mere effect’, the force of this reaction reveals much about the Kemalists’ motivations for instituting ‘le système de protection’, which they regarded as an extension of their commitment to cast aside the capitulations and craft a new, assertive but agreeable, confident but co-operative, national identity. In this respect it is well worth noting that the final chapter of Esat's doctoral dissertation, devoted exclusively to an examination of the capitulatory regime, displayed much the same bipartite logic as that just outlined. While Esat felt little anxiety arguing that ‘chaque Etat étant libre de s'organiser et de se développer de la manière qui lui convient’ and ‘les autres Etats ne sauraient lui imposer les formes d'organisation qu'ils jugent nécessaire’, he could not bring himself to deny that willingness to conform ‘aux principes du Droit International public européen’ remained the single most significant precondition for gaining access to ‘le concert des Etats civilisés’ and securing the right to participate in ‘la jouissance complète des privilèges du Droit International public’.Footnote ⁸⁹ That he would go on to appeal to an expansive, distinctly non-territorial conception of criminal jurisdiction in an effort to actualize Turkey's emancipation from the extraterritoriality of the capitulatory regime before the PCIJ may well strike one as paradoxical, but is hardly surprising when considered against the background of Turkey's aspiration to ‘modern’ statehood.

5. An independent judiciary

It is only on the basis of an understanding of Esat's approach to ‘le système de protection’ that one can begin to gain an appreciation of the importance that he attached to the second of the two arguments to which I made reference above – that respecting Article 15 of the Convention of Lausanne and the need to keep it from being subjected to ‘une plus grande déformation’ in the hands of Basdevant.Footnote ⁹⁰ As already mentioned, Article 15 concerned the institutional competence of the Turkish judiciary, requiring ‘all questions of jurisdiction’ arising between Turkey and the other contracting states to be determined ‘in accordance with the principles of international law’.Footnote ⁹¹

Esat argues for a strict interpretation of this provision, throwing his weight behind the proposition that it does not require any supplementary analysis, the intentions of the parties being ascertainable and its terms being exceedingly ‘nets’ and ‘formels’.Footnote ⁹² His aim is to establish that the French position with respect to Article 15 – that consideration of Lausanne's travaux reveals that Turkey originally attempted to extend its jurisdiction to crimes committed in third states and that the provision must therefore be read in the light of its failure to do so – simply circumnavigates the clarity of the Convention of Lausanne, nullifying the conventional rule that one must remain loyal to the express terms of legal texts to the greatest extent possible before having recourse to ancillary or alternative sources. ‘Avec le système d'interprétation employé dans le Mémoire français’, he quips, ‘il serait toujours possible de soutenir le contraire de ce qu'un traité énonce dans les termes les plus formels’.Footnote ⁹³ Indeed, he notes at one point, it was precisely on account of their shared understanding of Article 15, precisely because they ‘n'ont pas douté un seul instant que le sens de l'article en question ne fût pas autre chose que les principes du droit international généralement admis et en vigueur’,Footnote ⁹⁴ that the two parties were able to take the question as to whether Turkey was entitled to exercise jurisdiction over Demons to the PCIJ in the first place. That Article 15 necessitates such strictness becomes even clearer when read in conjunction with Article 28 of the Lausanne Peace Treaty, which abolished the basic elements of the capitulations decisively and without leaving any room for substantial misunderstanding.Footnote ⁹⁵ Indeed, such is the severity of the French position, Esat contends, that the effective outcome of its acceptance by the Court – the wholesale evisceration of ‘le système de protection’ – would yield ‘une situation inférieure à celle que lui créaient les Capitulations sous le régime de l'empire déchu’.Footnote ⁹⁶

As with Article 6, though, what drives Esat is the thematic interpenetration of sovereignty and systematicity. Assessed on its own terms rather than being interpreted against the background of the Lausanne negotiations’ minutes,Footnote ⁹⁷ Article 15 furnishes Esat with the opportunity to run two, mutually distinct but reciprocally reinforcing, arguments – the one pointing in the direction of international law's binding force, the other underlining the agency of the autonomous state. Take the following passage, a particularly elegant manifestation of Esat's ambitions and sensitivities:

For Esat, the abrogation of the capitulatory regime signals Turkey's submission to the international legal system as well as its acquisition of the capacity to engage with all other states ‘sur un pied d’égalité complète’. His decision to conjoin ‘civilisés’ and ‘indépendants’ is especially revealing, allowing him to make the point that Turkey derives its sovereignty from the normatively constraining power of the international legal structures which inspire ‘civilisation’ without jettisoning the countervailing notion that such sovereignty, and the independence intrinsic to it, lays the groundwork for these structures. If Turkey is truly on a level playing field with all other states, or at least those that may justifiably be labelled ‘civilisés et indépendants’,Footnote ⁹⁹ this is so because its sovereignty flows from the recognition it receives from its immersion in the normative structures of international legal order. Conversely, if it really is the case that Turkey belongs to this order, then it must also be the case that it is entitled to hold its own against aggression and assimilation, commanding just the same rights and freedoms, just the same powers and privileges, as any of its friends and foes, in full force and ‘sans aucune restriction ou différence’. The combination of these two drives lends Esat's analysis a remarkably nimble, not to mention crafty, sense of fluidity, confirming the hybridity of his distinctively universalistic-cum-particularistic mode of reasoning. As he puts it in another passage, ‘la compétence judiciaire turque n'est autre que celle des États civilisés qui participent au bénéfice du droit commun international’.Footnote ¹⁰⁰

Another, even more illuminating, example of this form of argumentation is provided by Esat's assertion that

On the one hand, Turkey's refusal to countenance even the slightest dilution of the meaning of Article 15 and the tenacity with which it clings to the institutional authority of its judiciary are presented as corollaries of a general observance of ‘le droit international aux États civilisés de l'Europe’, a broad-based identification with ‘la communauté des États et des Nations relevant de la civilisation contemporaine’. On the other hand, it is on account of its desire to keep company with those states which it deems ‘relevant de la civilisation contemporaine’ that Turkey is disposed to consider the question of judicial independence from the perspective of its national ‘honneur’ and ‘indépendance’, these being regarded as properties inhering in the very essence of such ‘civilisation’. Although set along different trajectories, the two lines of reasoning are part and parcel of the same discursive constellation, playing on two facets of a common conception of ‘civilization’.

By underscoring the importance of Turkey's commitment to ‘principles of international law’, Article 15 allowed for the recruitment of considerations of sovereignty as well as systematicity, permitting Esat to highlight Turkey's fidelity to the normative dimensions of ‘la civilisation contemporaine’ while demanding treatment as a genuinely ‘civilisé’ state. Esat made full use of this opportunity, reinforcing Turkey's international legal personality and furnishing it with a revitalized sense of its own agency. Such a sense would simply not have been amenable to cultivation without a narrow reading of Article 15 and a concomitantly broad interpretation of Turkey's ‘droit de souveraineté’. In effect, Turkey, like any other state, would have been paralysed – ‘condamnée à l'inaction’ or, better still, ‘réduite à l'inertie et à la stagnation’ – if compelled to justify each and every one of its actions and omissions by reference to a specific rule of international law.Footnote ¹⁰²