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Exporting Legality

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Mariya Tait Slys

Chapter III – Extraterritorial Consular Jurisdiction in the Ottoman Empire

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I. On the Ottoman Traditional Normative System

a) Political Structure

  • 1  See generally Stanford Jay Shaw, and Ezel Kural, History of the Ottoman Empire and modern Turkey. (...)
  • 2  ‘A striking exception was the Ottoman Empire. Rather than the area of land within the Ottoman Empi (...)

1The Ottoman Empire was a vast, complex and extraordinarily pluralist polity, with large non-Turkish and non-Muslim populations inhabiting its territories. The origins of the Ottoman Empire date back to the 13th century A.C., when Osman I, the leader of a tribe of Turkish ethnicity defeated the Abbasid caliphate in the Anatolian peninsula.1 The territories under its influence ranged from North Africa, to the Balkans, to the Arab peninsula and to modern Turkey. However, its immense territorial expanse lacked the precise boundaries that were increasingly becoming the norm in Europe. This situation, preceding the 19th century, was most likely due to the absence of a theoretical and practical doctrine akin to that of territorial state sovereignty and modern citizenship. In contrast, the Ottoman conception of a polity and community of law was based on the broader concept of the Umma, the totality ofMuslim believers protected by the Sultan. Consequently, rather than aiming at reaching comprehensive territorial control, the Ottomans presented a conception of rulership that presupposed a vaguer and more osmotic idea of influence and authority.2

  • 3  For an institutional survey of the Ottoman government during the golden age of Suleiman the Magnif (...)
  • 4  ‘Powerful multi-ethnic empires, such as the Ottoman, were quite willing to accord a level of extra (...)

2At the core of its political structure stood the Sultan, considered to be the direct descendent of Mohammed and, therefore, the delegate of God on Earth.3 His prime minister was the Visir, assisted by a number of executive bureaucrats composing the political body of the Divan. Great importance was placed upon military troops, particularly the so-called Janissaries, historically considered to be the main propulsive force of the Empire’s expansion. Mediating between the Empire’s political summit and the reaya,or the common subjects inhabiting its lands, a number of local nobles and religious functionaries were charged with managing administrative issues such as the collection of taxes and the administration of justice. The further one travelled from Istanbul, the seat of government, the greater the level of decentralization. Such decentralization was due to the Empire’s intrinsically pluralistic composition, allowing an astonishing number of religions and ethnicities to coexist while enjoying relative autonomy from the central power.4

b) Law

  • 5  Etymologically, the meaning of the word ‘Ulama’ derives from the term ‘Ulm’, or knowledge.
  • 6  On the traditional Islamic normative order, see Joseph Schacht, An Introduction to Islamic Law. (O (...)
  • 7  See Wael B. Hallaq, A History of Islamic Legal Theories: An Introduction to Sunni Usul al-Fiqh. (C (...)
  • 8  Arguably, this helps explain why today Sharia law may coexist with novel legal disciplines, such a (...)
  • 9  Richard S. Horowitz, ‘International Law and State Transformation in China, Siam, and the Ottoman E (...)

3As a consequence of the religious nature of its foundations, the Ottoman world order traditionally assigned the administration of justice to the Ulema, literally ‘the wise men’ who were learned in the Holy Scriptures.5 The body of laws the Ulema applied was based on the Shariah, the combination of principles directly deduced from the primary sources of Muslim normativity: the Hadith, the Sunna and the Koran.6 Such principles, however, were not directly applicable to quotidian life, as their purpose was to provide general guidance and show the ‘path’ for future legislation. In fact, the Ulemas had to ‘convert’ those principles into a historically-contingent body of legislation adapted to the ‘spirit of the times, in order to implement them concretely.7 This practice provided greater flexibility in the Prophet’s rulings, and aimed at rendering the principles compatible with the processes of the lex ferenda, indispensable in both adapting to and guiding an ever-changing society.8 According to Horowitz, in addition to Islamic law, the Ottoman Empire also greatly relied on local customary law and on the Sultan’s decrees. ‘Customary law in particular’, he argues, ‘was extremely diverse, as the Ottoman rulers did not try to impose Turkish law on non-Turkish Muslim communities, and they allowed religious minorities to continue to use their own legal systems when Muslims were not involved.’9

c) The Treatment of Aliens

  • 10  On the millet system, see Benjamin Braude and Bernard Lewis, Christians and Jews in the Ottoman Em (...)
  • 11  ‘Tolerance in a millet system meant the dominant cultural group, the Muslims of the Ottoman Empire (...)
  • 12  A passage of Koran prescribes:
    ‘Say: O ye Unbelievers!
    I worship not what ye worship,
    And ye are not (...)

4As previously stated, the Ottoman Empire was a pluralistic and multi-ethnic society. Consequently, given the osmotic nature of the Ottoman boundaries, the identification of the category of ‘foreigner’ proved problematic. Before continental travellers ‘exported’ Western ideas in the eighteenth century, the notions of nationality and citizenship did not exist within the Ottoman conception of legal subjectivity. Again, religion and family ties constituted the primary basis of affinity to – or exclusion from – the Turkish community of law. Hence, the Ottomans practiced particular tolerance towards the so-called ‘People of the Book’, namely the Christians and the Israelites, who were allowed to live in self-governing, autonomous communities known as millet.10 In addition to the freedom to practice their religion, both Christians and Israelites enjoyed the autonomy to live in accordance with their customs and to apply their own laws.11 This freedom was likely due to the exclusiveness of the Muslim notion of legality, wherein the unbelievers were considered unworthy of being governed by the principles of the Shariah.12

  • 13  On the system of capitulations, see Thomas Naff, ‘Ottoman Diplomatic Relations with Europe in the (...)
  • 14  See, generally, Alexander Von Miltitz, Manuel des Consules (1840). See also Shih Shun Liu, Extrate (...)
  • 15  Article 2 of the 1535 Treaty stated that the King of France was also ‘Given the right to send to C (...)

5With respect to foreign traders, commercial legations, known as capitulations, regulated their economic and jurisdictional status.13 Initially, the capitulations were voluntary and unilateral concessions the Sultan granted to non-Muslim persons conducting business within his territories. Most importantly, these ‘capitulations’ usually included provisions granting jurisdictional privileges and immunities to foreign citizens involved in litigation amongst themselves. Foreign representatives, often elected among the inhabitants of the millet, could judge both criminal and civil cases among foreigners. Initially, however, ‘private’ entities, such as communities of merchants (e.g. the Hanseatic League), city-states (e.g. Venice) or individuals received capitulatory rights.14 The 1535 unilateral grant issued by Suleiman the Magnificent to Francis I of France is one of the first examples of capitulatory privileges, conceded directly to a sovereign. Article 2 of the Treaty contained the embryo of what would later become extraterritorial consular jurisdiction under publicinternational law, providing the basis for all later European claims to capitulatory treaties.15

II.Establishing Extraterritorial Consular Jurisdiction

a) Codifying ‘Unequal Treaties’

  • 16  ‘Extraterritoriality as a semi-colonial institution was in important respects an adaptation of the (...)
  • 17  By ‘private international law’, I mean the law that a sovereign authority establishes to administe (...)

6Unlike the case of China, extraterritorial consular jurisdiction in the Ottoman Empire was not a novel invention of nineteenth-century imperialistic expansion, but rather the result of the gradual development of the system of capitulations described above.16 However, whereas capitulations were initially understood as unilateral and non-reciprocal privileges the Sultan graciously granted to foreign communities of merchants inhabiting the territories of the Ottoman Empire, a shift towards inter-state bilateral treaties as the main tool of international negotiations occurred in the eighteenth century. Hence, with the consolidation of the principle of territorial sovereignty on the Continent, capitulatory benefits that had once been assigned directly to individuals, cities or commercial entities increasingly became the exclusive competences of their states of origin. Stated differently, the original administration of jurisdictional relations that today would arguably be considered private international law was transferred to the regulatory domain of inter-state, consent-based, public international law.17 One of the first examples of this is the 1740 treaty between France and the Ottoman Sultan Mahmoud, which attempted to comprehensively regulate the status of French nationals and their goods within the territories of the Sublime Porte. More specifically, Article 12 of the instrument states:

  • 18 Capitulations avec la France. En date du 28 mai 1740 (4 Rébi-ul-Eicel 1153). L’Empereur Sultan Mahm (...)

‘S’il arrivait quelque meurtre ou quelque autre désordre entre les Français, leurs ambassadeurs et les consuls en décideront selon leurs us et coutumes, sans qu’aucun de nos officiers puisse les inquiéter à cet égard.’18

  • 19  While, with respect to this point, the reference to criminal cases is clear from the words ‘qualqu (...)
  • 20  The dragomans were the official translators of the Ottoman Empire. See generally Bernard Lewis, Fr (...)
  • 21  Liu presents the opposite view, asserting that the general principle regulating the choice of law (...)

7The notion of extraterritorial consular jurisdiction clearly emerges from this provision: if any dispute between French citizens arose within the jurisdiction of the Ottoman Empire, the exclusive competence for its adjudication was granted to their consular representatives, to be decided according to French law.19 A second, distinct typology of litigation regulated by the treaty included mixed cases between Ottoman subjects, on the one hand, and foreigners on the other. Such disputes had to be presented to the local authorities, but the presence of a French dragoman or/and a consular authority was obligatory.20 In terms of the applicable law, the defendant usually had to be placed under the jurisdiction and, hence, the laws of the plaintiff, in the presence of an official translator, in instances where the victim was an Ottoman subject.21Article 26 of the 1740 Treaty provides supporting evidence:

  • 22  Article 26, Capitulations avec la France. En date du 28 mai 1740 (4 Rébi-ul-Eicel 1153). L’Empereu (...)

‘Si quelqu’un avait un différend avec un marchand français, et qu’ils se portassent chez le cadi, ce juge n’écoutera point leur procès, si le drogman français ne se trouve présent, et si cet interprète est occupé pour lors à quelque affaire pressante, on différera jusqu’à ce qu’il vienne; mais aussi les Français s’empresseront de le représenter, sans abuser du prétexte de l’absence de leur drogman. Et s’il arrive quelque contestation entre les Français, les ambassadeurs et les consuls en prendront connaissance et en décideront, selon leurs us et coutumes, sans que personne puisse s’y opposer.’22

8A third category of cases concerned disputes existing exclusively between foreigners of different nationalities. As a general principle, the Ottoman justice system refrained from intervening, and allowed the foreign representatives to adjudicate jointly and directly unless the foreigners voluntarily decided to submit the case to the Ottoman officials. Again, the above-mentioned instrument between France and Sultan Mahmoud clearly illustrates the point:

  • 23  Article 52, Ibid.

Article 52 – ‘S’il arrive que les consuls et les négociants français aient quelques contestations avec les consuls et les négociants d’une autre nation chrétienne, il leur sera permis, du consentement et à la réquisition des parties, de se pourvoir par-devant leurs ambassadeurs qui résident à ma Sublime Porte  (Note  XXIII),  et tant que le demandeur et le défendeur ne consentiront pas à porter ces sortes de procès par-devant les pacha, cadi, officiers ou douaniers, ceux-ci ne pourront pas les y forcer ni prétendre en prendre connaissance.’23

9The 1740 treaty between France and the Ottoman Sultan had a pioneering function in so far as it provided the general framework and legal guide for other European and American states conducting business within the Sublime Porte’s domains interested in securing the rights of their nationals therein. As a matter of fact, shortly afterward, Denmark concluded its capitulatory treaty with Turkey, Article 10 of which stated:

  • 24 Capitulations commerciales avec le Danemark. Fait à Constantinople le 14 octobre 1740 (15 Zilkadè 1 (...)

‘Les procès et différends qui pourraient naître entre les Danois et les gens dépendant d’eux, seront examinés et décidés par devant le Ministre ou consul danois selon les lois et constitutions du Danemark, et il ne sera pas permis aux juges ou cours de justice du Sublime Empire de s’en mêler.’24

10Similarly, Prussian nationals received immunity from local jurisdiction in 1761, under Article 5 of the Capitulations ou Traité d’Amitié et de Commerce avec la Prusse, which prescribed:

  • 25 Capitulations ou traité d’amitié et de commerce avec la Prusse. Fait à Constantinople le 23 Mars 17 (...)

‘S’il arrivait quelque dispute entre les Prussiens et leurs sujets, le ministre ou les consuls prussiens décideront l’affaire d’après leurs lois; et tant que les Prussiens ne demandent pas eux-mêmes à être jugés par la justice ottomane, les juges et gouverneurs de la Sublime Porte ne pourront s’ingérer par force à vouloir les juger.’ 25

  • 26  For the exact references to every single treaty, see Shih Shun Liu, Extraterritoriality: Its Rise (...)
  • 27  Accordingly, Liu emphasizes how, in addition to the Ottoman Empire, extraterritorial consular juri (...)
  • 28  See the discussion below on the internal opposition to extraterritorial consular jurisdiction.

11Following the example of France, Denmark and Prussia, a considerable number of other states, including Great Britain, the Netherlands, Austria-Hungary, Sweden, Italy, Russia, Spain, Persia, Belgium, Portugal, Greece and, a few decades later, the United States, Brazil, and Mexico, rapidly negotiated capitulatory rights with the Ottoman Empire.26 The number and diffusion of instruments granting extraterritorial privileges to foreigners within the Ottoman Empire was sufficiently consistent that it arguably rose to the level of constituting a sort of regional customary international law.27 Whereas the range of state practice is clear from the examples provided above, the considerable duration of this institution, as well as the strong opposition to its abolishment from the majority of European and American states, provide convincing opinio juris as to its status as customary law. 28

  • 29  See Capitulations avec la France. En date du 28 mai 1740 (4 Rébi-ul-Eicel 1153). L’Empereur Sultan (...)

12It is, however, important to note that, originally, the capitulatory treaties did not constitute direct instances of Western legal interference in the Empire’s domestic normative order although such concessions and jurisdictional immunities were of a non-reciprocal nature. Rather, they were perceived as direct continuations of the gracious capitulations deriving from the Sultan’s magnanimity, and aimed at strengthening friendly relations with foreign powers. In fact, it is hardly believable that a weak or subjugated party to a treaty could be described therein as: ‘Moi, qui par l’excellence des faveurs infinies du Très-Haut, et par l’éminence des miracles remplis de bénédictions du chef des prophètes, suis le sultan des glorieux sultans; l’empereur des puissants empereurs; le distributeur des couronnes aux Khosroés qui sont assis sur les trônes; l’ombre de Dieu sur la terre’,as Sultan Mahmoud refers to himself in the preface to the 1740 Capitulatory Treaty with France.29

  • 30 At the same time, capitulations were limited to reign of a given sultan and had to be renewed with (...)
  • 31  ‘As it was the Turkish theory that treaties should not last longer than the lifetime of a single s (...)
  • 32  As it will be discussed later, this was one of the major arguments employed by the Ottoman Empire (...)
  • 33  When, for instance, in 1881 the Ottoman Empire edited a circular informing all foreign embassies o (...)

13Furthermore, a major guarantee against foreign abuses, in the Turkish mind, consisted, initially, of the opinion that treaties could not last longer than the lifetime of a single sultan.30 The modern principle of a sovereign’s duty to continue the international obligations of its predecessor was alien to the traditional Ottoman conception of international relations. Each sultan in succession had to renew capitulations, generally with minor modifications.31  Consequently, if the successor believed that foreigners of a certain nation had exploited their capitulatory rights, he could ultimately decline to renew the treaty in retaliation.32  It was only by the end of the eighteenth century that Euro-American powers first began to directly oppose this practice, claiming that as it was contained in instruments of a bilateral nature extraterritorial consular jurisdiction could not be abolished unless the explicit consent of both parties was granted.33 Hence, foreign extraterritorial rights gradually crystallized as an intrinsic, almost natural prerogative of Western states, and treaties granting their concession were renewed independently of successive sultans.

b) Proliferation of Foreign and Mixed Courts

  • 34  See Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman E (...)

14The nineteenth-century growth of imperialism on the Continent, the post-Industrial Revolution surplus of products on European markets and the corresponding increase of foreign business in the Levant led to a parallel proliferation of foreign and mixed courts within the territories of the Ottoman Empire. Their legitimacy to adjudicate foreign and mixed cases derived from the capitulatory treaties. When discussing the web of often overlapping jurisdictions the Western presence added to the already highly pluralistic Ottoman internal legal order, Kayaoğlu referred to five different typologies of tribunals.34 First of all were the Islam Courts, which held jurisdiction over Muslims in civil, commercial and criminal cases and were generally administered by the Ulema. Next came the so-called Communal Courts, which adjudicated civil, criminal and commercial cases within the autonomous foreign minorities of the old millets. Thirdly, in accordance with the capitulatory treaties, Consular Courts obtained exclusive jurisdiction over their nationals. Mixed Courts, on the other hand, claimed jurisdiction over mixed cases of a mostly commercial and civil nature, and where presided over by foreign consuls and the Ottoman Ministry of Commerce . Finally, Secular Courts, also known as Nizamiye Mahkemeleri, had competence over Muslims in commercial and criminal matters; they reported directly to the Ministry of Justice.

  • 35  See Eliana Augusti, ‘From Capitulations to Unequal Treaties: The Matter of an Extraterritorial Jur (...)
  • 36 Ibid.
  • 37  See Lucius Ellsworth Thayer, ‘The Capitulations of the Ottoman Empire and the Question of their Ab (...)
  • 38  Ibid: 223.

15Consequently, it was possible that several local and foreign courts, referring to an even greater number of competing legal orders, would adjudicate the same dispute. An example of such an overlap was the 1820 establishment, in Istanbul, of a Mixed Judicial Committee to try foreigners of different nationalities.35 A decision of the Court of Appeal of Aix-en-Provence, pronouncing in favour of consular tribunals as the exclusive holders of jurisdiction over disputes involving French nationals, reversed the practice.36 Similarly, in 1848, an Act of the U.S. Congress introduced provisions for the exercise of extraterritorial jurisdiction by the United States Consular Courts.37 At approximately the same time in 1857, the British Supreme Court in Istanbul was established, and subsequently, complemented by His British Majesty’s Supreme Court for the Dominions of the Sublime Ottoman Porte in Alexandria.38 Overall, the majority of states that negotiated capitulatory rights with Turkish sultans quickly established their own courts and tribunals, or transferred the protection of their nationals to other Western consular missions. In doing so, they added additional pieces to the already complex legal and jurisdictional puzzle of the Ottoman Empire.

  • 39  Quoted in Shih Shun Liu, Extraterritoriality: Its Rise and Decline. (New York: AMS Press, 1969). 3 (...)

16 For the first half of the nineteenth century, the Sublime Port assumed a relatively tolerant attitude towards the mushrooming of foreign courts, since allowing their institution was consistent with the general Turkish attitude of tolerance towards internal legal pluralism. However, the gradual assimilation of foreign legal notions – such as the territorial nature of jurisdiction – that Western legal experts exported to the Ottoman Empire along with their courts, sharpened the perception of a multiplicity of jurisdictions as offensive to the newly-discovered Ottoman territorial sovereignty. As early as 1856, during the Paris Conference negotiations, the Ottoman representative Ali Pasha argued that extraterritorial consular jurisdiction was becoming an increasingly abusive system, as it contributed to the creation of ‘a multiplicity of governments in the Government’, thus significantly complicating the implementation of judicial reforms.39

  • 40  ‘Initially, the ability to use these consular courts was limited to cases involving no Muslims. Ev (...)
  • 41  ‘The sole question, therefore, before this court is, has His British Majesty’s Supreme Court in th (...)

17Such considerations were exacerbated by the factual assessment that foreign courts had progressively extended their jurisdiction over mixed cases involving an Ottoman defendant.  Thus, in this manner, the foreign courts directly contradicted the general capitulatory principle, according to which the defendant had to follow the forum of the plaintiff.40  A good example of this is the case known as Rex v. Lawson, in which a British consular court was asked to adjudicate a criminal case involving a Turkish plaintiff and an English defendant. In asserting that His British Majesty's Supreme Court for the Dominions of the Sublime Ottoman Porte did, indeed, have jurisdiction to hear the case, Judge Grain ruled that although customary practice suggested Turkish tribunals should hear mixed cases brought by Ottoman plaintiffs, he saw no reason ‘to assume that privileges acquired by treaties have been annulled by reason of this custom being carried on’.41

c) Legitimizing Extraterritoriality, Barbarizing Ottoman Legality

  • 42  When, by diplomatic note in 1914, Turkey asked for the end of extraterritorial consular jurisdicti (...)
  • 43  As a matter of fact, during the same decades the first capitulations were instituted, France was e (...)
  • 44  Supporting the allegation that the 1940 Treaty between France and the Ottoman Empire primarily aim (...)

18In retrospect, considering the history of the capitulatory system in the Ottoman Empire, the English adage ‘give someone an inch, and he’ll take a mile’ appears to be unfortunately proven true. The subjects of Western powers increasingly abused the generous jurisdictional concessions the Turkish sultans granted to foreign traders.  Moreover, as Western powers insisted that jurisdictional concessions were an integral part of the Empire’s binding obligations under public international law, Turkey could not appeal for their abrogation with any hope of success.42  A natural, though certainly complex, question is why the Sublime Port agreed to embed capitulatory rights in the form of bilateral, positive treaties in the first place. Perhaps the Sultan hoped to satisfy the French desire to codify long-lasting customs, developed over the course of the eighteenth century, into positivist legal instruments.43 Or perhaps, the historical experience of capitulations and the acceptance of legal pluralism as benign to the Empire led the sultans to believe that the transfer of jurisdictional concessions into positive treaties was a relatively innocuous step. Long-standing custom favouring the concession of capitulations also certainly played a major role in the materialization of unequal treaties.44

  • 45 See Report from Hornby to Earl of Malmesbury. London: National Archives FO 881/981 (1858: 27).

19However, only in the nineteenth century did the discourse surrounding the raison d’être of extraterritorial consular jurisdiction begin to shift towards the alleged lawlessness and uncivilized nature of Ottoman law. The ‘Orientalization’ of indigenous notions of justice and legality was of primary importance in furthering the notion that the trial of foreign nationals in accordance with local law would lead to disastrous results. Hence, in contrast to its original status as a gracious concession, extraterritoriality was increasingly understood as a necessary safeguard to protect the ‘civilized part of mankind’ from the barbarity of Ottoman customs. In support of this view, the British special reporter on extraterritoriality in the Levant, Sir Edmund Hornby, asserted that, within the Ottoman legal system ‘nobody knows the law, which is about to be applied; it is to be found nowhere, because, indeed, it exists nowhere, until the judge twists a sentence in the Koran, or a clause in the Code de Commerce, or dovetails the one into the other.’45 Half a century later, not much had changed in European legal ‘experts’’ perception of normativity in the Levant:

  • 46  ‘But, as a rule, custom based on the religious law, coupled with exaggerated reverence for the ori (...)

‘The rigidity of the Sacred Law has been at times slightly tempered by well-meaning and learned Moslems who have tortured their brain in devising sophisms to show that the legal principles and social system of the seventh century can, by some strained and intricate process of reasoning, be consistently and logically made to conform with the civilized practices of the twentieth century.’46

  • 47  See Turan Kayaoglu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman E (...)
  • 48  See Henry Morgenthau, Ambassador Morgenthau’s Story. (Gomidas Institute, 2000). 114–117.

20The ‘civilized practices’ referred to by Lord Cromer consisted of the adoption of a legal order similar to that of Western legal systems. It included the adoption of positivist codes of law, the exorcism of the Muslim legal system from religion, a clear separation between the judicial and the administrative powers, well- (and possibly Western-) educated judges, and guaranties on foreign property and investment rights.47  In response to the increasing Turkish insistence that extraterritorial consular jurisdiction be abolished, Western powers repeatedly claimed that the Ottoman domestic legal order had not yet reached the necessary degree of ‘modernity’ and ‘progressivity’.  When describing the situation in Constantinople at the time of an early and unsuccessful attempt to abolish capitulatory rights, the U.S. Ambassador to Turkey, Henry Morgenthau, stated that the feeling amongst the foreign communities ‘was the panic which the mere suggestion of abrogation produced on the foreign population. The idea of becoming subject to Turkish laws and perhaps being thrown into Turkish prisons made their flesh creep, and with good reason!’48

  • 49  On the birth of  nineteenth-century Ottoman nationalism, see Şerif Mardin, The Genesis of Young Ot (...)

21The above-mentioned examples clearly reveal an evolutionary, civilization-based notion of legality, wherein Western positivist legal norms constituted both the final goal and the meter of judgment. Accordingly, a purportedly objective scale of civilizational and legal development served to justify the differential treatment of foreigners in the course of the nineteenth and early twentieth centuries. For the majority of Western lawyers, the idea of allowing their co-nationals be tried in accordance with the ‘barbarian’ customs of the Ottomans was simply inconceivable. Therefore, an increasingly vehement discourse regarding the ostensibly lawless and inferior nature of law in the Levant was created and diffused. Such a narrative deeply influenced the American and Continental perceptions of law in the Middle and Far East. At the same time, not only did the feeling of an intrinsic necessity to maintain capitulatory immunities consolidate but it also shaped the self-perception that the Orient, and its leaders, had of themselves. Unsurprisingly, then, the emergence of nationalist elites agitating for rapid modernization and westernization coincided with the decades in which the debates on extraterritoriality and the alleged deficiency of Ottoman law reached their peak.49 The perception of inferiority, however, to emerge from the broader cognitive notion of difference, always requires a term of comparison. The question thus becomes who sets the standards of whatmay be considered (legal) progress and civilization?

III. Abolishing Extraterritoriality, Exporting Positivist Legality

a) Internal Opposition to Extraterritorial Consular Jurisdiction

  • 50  Curiously, the causus belli of the Crimean War was the Russian pretention to accord stronger juris (...)
  • 51  Article 7 – ‘Sa Majesté le roi de Sardaigne, Sa Majesté l’Empereur d’Autriche, Sa Majesté l’Empere (...)
  • 52  Stephen D. Krasner, Sovereignty: Organized Hypocrisy. (Princeton University Press, 1999).

22With the gradual assimilation of the notion of territorial jurisdiction as a necessary and constitutive element of modern state sovereignty, on the one hand, and foreigners’ increasing abuse of the original capitulatory treaties, on the other, the Ottoman rulers developed an aversion to extraterritorial consular jurisdiction. This distaste was exacerbated by the 1856 Treaty of Paris, which regulated the conclusion of the Crimean War between the Ottoman Empire and Russia.50 It is often asserted that the Treaty of Paris represented the formal entry of the Ottoman Empire into the Concert of Europe specifically, and the system of public international law previously reserved to the relatively narrow club of Christian, civilized nations, more generally.51 Notwithstanding the European governments’ solemn promise of non-intervention in Turkish domestic affairs and a general statement of commitment to consider the Sublime Porte as a formally equal subject in international law, Ottoman sovereignty indeed appeared to be a form of  ‘organized hypocrisy’ when it came to the issue of the abolition of extraterritoriality.52

  • 53  ‘During the session of March 25 [of the Paris Congress], the question of abolition was brought up (...)

23The Turkish representative to the conference vehemently argued that foreign nationals and their consular representatives were abusing the capitulatory privileges, thus considerably obstructing the regular administration of Ottoman justice. In support of the abolishment of extraterritorial consular jurisdiction, Ali Pasha of the Turkish delegation substantively argued that: (1) it led to an unmanageable multiplicity of laws and jurisdictions; (2) a considerable number of Western judges were partial, and tended to sympathize with their co-nationals; (3) such judges deliberately and excessively delayed verdicts; (4) lacking adequate enforcement measures, such verdicts often went unexecuted; (5) the general  prohibition on search foreigners’ persons and domiciles for evidence compounded the situation; (6) foreign witnesses often refused to appear; (7) an increasing number of Ottoman subjects engaged in ‘jurisdiction shopping’ by claiming foreign nationality; (8) foreign courts often tried mixed criminal cases, contrary to the original provisions of the capitulations; (9) foreigners often went unpunished; and, finally, (10) that capitulatory privileges were unilateral concessions and, as such, subject to the Ottoman abrogation.53

  • 54  Ibid. See also Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, th (...)
  • 55  See Liu, Ibid: 86.

24Clearly, the admission of the Ottoman Empire to the Concert of Europe greatly reinforced its rulers’ perception that foreign jurisdictional immunities were unjust and contradicted the modern notions of territorial sovereignty under public international law. At that time, capitulations were not abolished on the grounds that the Empire’s internal legal system was not ‘ready’. Further judicial reforms were urged, and a multilateral conference on extraterritorial consular jurisdiction – i.e. the Istanbul Conference on Extraterritoriality – was promised, but never held.54 A second major – and unsuccessful – attempt to abolish the capitulatory system occurred in October 1881, when the Turkish Ministry of Foreign Affairs issued a circular to European and American foreign embassies. All embassies rejected the circular on the basis that the Sultan did not have the authority to annul the existing treaties unilaterally without the consent of all parties concerned.55

  • 56  ‘In Turkey, after the Ottoman regime took advantage of World War I to abrogate the capitulations, (...)
  • 57  ‘The Imperial Ottoman government, animated by a spirit of hospitality and sympathy toward the subj (...)
  • 58  The response to the Turkish communication insisted ‘that the Capitulatory regime is not an autonom (...)

25On the eve of the outbreak of WWI, however, the Ottoman Empire saw a concrete opportunity to terminate Unequal Treaties, attempting to negotiate their abolition in exchange for its support for, or neutrality towards, the side of the Allies.56 At that time, the Empire issued another official declaration condemning the abuses of foreign legal privileges and asking for their complete abolishment.57Nevertheless, similar to 1881, the Anglo-American response was once again negative, asserting that the basis of the Ottoman declaration constituted a unilateral act and was, as such, null and void. 58 One month later Turkey joined the Austro-German coalition, and officially declared war on the Allies.

b) Negotiating the End of Extraterritoriality: Turkey and the Lausanne Conference

  • 59  ‘At the beginning of the European War, Germany and Austria-Hungary offered as the price of Turkish (...)
  • 60  Ibid.
  • 61  For the text of the treaty, see Jacob Coleman Hurewitz, Diplomacy in the Near and Middle East: 191 (...)

26In 1917, shortly before its final defeat, Germany repaid Turkey for its alliance during the war when it signed a treaty putting a definitive end to its extraterritorial privileges in the Levant. The instrument provided that Germans in Turkey and Turks in Germany should enjoy the same treatment as the natives with respect to the legal and judicial protection of their persons and property.59 Shortly thereafter, following the German example, Austria renounced its capitulatory rights through a similar instrument. 60 In 1921, post-revolutionary Russia also abrogated its historical jurisdictional immunities, on the basis that ‘the Government of the U.S.S.R. considers the capitulatory regime to be incompatible with the free national development and with the sovereignty of any country; and it regards all the rights and acts relating in any way to this regime as annulled and abrogated.’61

  • 62  For a detailed account of the Lausanne Conference’s negotiations with regard to the termination of (...)
  • 63  On the collapse of the Ottoman Empire and on the birth of modern Turkey, see generally Stanford Ja (...)
  • 64  See Documents Diplomatiques, Conférence de Lausanne. Vol. 1. (Paris : Imprimerie nationale, 1923). (...)

27The final abolishment of extraterritorial consular jurisdiction in Turkey, however, occurred in 1923, as one of many results of a multilateral peace conference following the conclusion of WWI. The Lausanne Conference, held between November 22, 1922 and February 4, 1923, and presided over by the Italian Marquis Garroni, created a Special Commission on the Regime of Foreigners in Turkey.62 The most important question to be addressed within the Special Commission was the ultimate compatibility of Turkish sovereignty and extraterritoriality. Western powers were extremely reluctant to renounce their citizens’ immunities in what had been the Ottoman Empire.63 Nevertheless, the Turkish representative to the Conference, Ismet Pasha, repeatedly insisted on the necessity of abolishing the capitulations, ‘because of their incompatibility with modern conceptions of law, and because of the manner in which they infringed on the sovereignty of the State’.64  

28While partially supporting the Turkish position, the president of the Commission, quite pragmatically, recognized that further guarantees on the security of aliens in the Middle East, as well as on their property and investment, were needed in order to terminate the capitulatory regimes. Consequently, he stated:

  • 65  In Lausanne Conference on Near Eastern Affairs, 1922–1923: Records of Proceedings and Draft Terms (...)

29 ‘It must be recognized that even under the new regime, Turkish justice has not yet been able to give proof of its worth, and also that Turkey is still subject to laws, some of which are based on religious laws, while others are admitted by Turkey herself to be capable of reform, since they do not harmonize with the requirements of modern international relations’65

  • 66  Ibid: 467–503.

30In sum, the conditions required by the Commission were: (1) the provision of convincing guarantees on the judicial treatment of foreigners in Turkey; (2) the implementation of further legal reforms based on the European model of justice and legality; (3) the employment of foreign judges and, possibly, allowing them to try first instance cases involving aliens; (4) the participation of foreign legal experts in Turkish legal reforms; and, finally, (5) reserving the executive jurisdiction on cases involving foreigners exclusively to foreign judges (6).66

  • 67  See Shih Shun Liu, Extraterritoriality: Its Rise and Decline. (New York: AMS Press, 1969): 95.
  • 68  ‘The much-debated declaration was also signed in the form accepted on June 4 by the Turkish delega (...)
  • 69  Ibid.

31Understandably, the Turkish delegation perceived such requirements as a de facto continuation of extraterritorial consular jurisdiction and a direct encroachment on the sovereignty and independence of its government. Consequently, in February 1923, Ismet Pasha left Lausanne in protest, leading to a temporary collapse of the negotiations.67 A few months before the conclusion of the treaty, however, a compromise was reached, and Turkey agreed to employ Western legal advisers, nominated by the Permanent Court of International Justice, to assist its jurists in the drafting and implementation of further legal reforms.68  Such experts had no judicial function, and were appointed only for a limited number of years. The Sublime Porte’s successors also conceded that determinations relating to the personal status of foreigners in issues of marriage, divorce, judicial separation, etc., may be regulated by foreign laws in their national tribunals.69

  • 70  Article 28 – ‘Each of the High Contracting Parties hereby accepts, in so far as it is concerned, t (...)
  • 71  See Convention (IV) Respecting Conditions of Residence and Business and Jurisdiction. The British (...)
  • 72  See Article 15, Ibid. Article 16 of the instrument specified that, as promised by the Turkish dele (...)

32The Treaty of Lausanne was signed on July 24, 1923 and, after a long and controversial history, the capitulatory system and attendant jurisdictional privileges granted to foreign nationals in the Ottoman Empire finally came to an end. Article 28 of the Treaty expressed the acceptance by the High Contracting Parties of ‘the complete abolition of the Capitulations in Turkey in every respect’.70 On the same day, a special convention regulating the conditions of residence, business and jurisdiction of European nationals in Turkey was signed between the British Empire, France, Italy, Japan, Greece, Romania and the Serb-Croat-Slovene State, and the newborn Turkish Republic.71 Article 15 of the instrument prescribed that ‘subject to the provisions of Article 16, all questions of jurisdiction shall, as between Turkey and the other contracting Powers, be decided in accordance with the principles of international law’, whereas Article 17 of the same document reflected the Turkish commitment to ensure foreigners and their property ‘protection in accordance with international law and the principles and methods generally adopted in other countries’.72

  • 73  ‘Turkish historiography argues that the nationalist victory under Mustafa Kemal (later Mustafa Kem (...)
  • 74  According to Kayaoğlu, Churchill wrote to Prime Minister Lloyd George on the possibility of war wi (...)
  • 75  On the rise of the Wilsonist ideology see generally George W Egerton, ‘Ideology, Diplomacy, and In (...)

33But why did the Euro-American governments ultimately accept the abolition of extraterritoriality? How were they able to overcome their historically sceptical, and often disdainful, attitude towards legal norms in the Middle East? And why at that time, in Lausanne in 1923? Although such questions are still open to debate, the growth of Turkish military power has been convincingly put forward as a possible answer. In fact, just a few years before the negotiations at Lausanne, the young official Mustafa Kemal Atatürk led the Turks to a clear victory in the war against Greece – supported by Great Britain – thereby demonstrating the considerable prowess of the Turkish conventional forces.73 Furthermore, the majority of continental armies had been demobilized at the conclusion of WWI. As a result, the Allies may have concluded that initiating another war for the maintenance of extraterritoriality was ‘not worth the candle’.74 Ismet Pasha’s resolute stance during the negotiations, and his categorical refusal to exceed a certain threshold of concessions, certainly also played an important role. Finally, the general shift within Western governments, following the institution of the League of Nations and the promulgation of Wilson’s ‘Fourteen Points’, towards a policy of non-intervention also contributed to the termination of Unequal Treaties.75

34That said, it is most likely the alleged improvement in Turkish ‘legal civilization’, as well as its direct commitment to implement further legal reforms based on the European model, that tipped the scale in favour of the abolition of extraterritorial consular jurisdiction. In other words, once Turkey adapted its internal legal order to Western models of positivist, secularized legality, the European and American governments saw no problem in abolishing extraterritoriality – whose primary justification had been the alleged barbarity of the Ottoman laws and practices. This point is further developed in the ensuing paragraphs.

c) Abolishing Extraterritoriality, Exporting Legality: The Positivist Legacy of Extraterritorial Consular Jurisdiction

  • 76  For major advocates of this view see Esin Örücü, ‘The Impact of European Law on the Ottoman Empire (...)
  • 77  ‘According to cultural arguments, the Ottoman Empire was not a member of the international society (...)

35The theory that the rise and fall of extraterritorial consular jurisdiction in the Ottoman Empire, as well as China, played an enormous role in pushing those polities towards a gradual ‘positivization’ of their legal systems is the central argument of this thesis. All the pronouncements made by Western governments and legal experts as to the alleged inferiority and backwardness of Turkish law did not fall into a vacuum but, on the contrary, pushed and shaped massive legal reforms within Turkey.76 Ironically, at the very moment of the abolishment of the increasingly abusive system of capitulations – aimed at freeing Turkish sovereignty from Western legal interference – Turkey initiated a massive process of ‘Westernization’, entering the club of ‘civilized’ nations.77  In other words, ‘fighting’ extraterritoriality acted as the catalyst for Ottoman legal reforms, pushing it towards the ‘modernization’ of its internal legal order as a means of proving to the West it was capable of protecting foreigners without the resort to controversial judicial immunities.

  • 78  Kayaoglu emphasizes the importance of local nationalist elites in China, Japan and in the Ottoman (...)
  • 79 ‘Historically, however, the capitulations have been an important factor in the legal development of (...)

36Each time the Sublime Porte attempted to abolish the capitulatory system and to claim its right, as did its European counterparts, to exclusive jurisdiction over conduct occurring within its territory, European governments denied their consent on the basis that its legal system was ‘not ready’. As in the case of China, extraterritorial jurisdiction clearly was not the only cause of legal reforms; without a doubt, other, historically-contingent factors also played an important role in this process.78 Nevertheless, Western diplomatic pressures, as well as the gradual assimilation of foreign legal ideas through the presence of extraterritorial communities and legal experts in those countries, certainly had an enormous effect on their normative shift towards a positivist conception of legality. According to Liebesny, capitulations gradually became ‘one avenue through which Western legal thought and legal procedure were introduced’.79 The influence that capitulatory jurisdictional privileges, and the desire to terminate them, had on this process of re-structuring Turkish indigenous law is illustrated by the speech that Ismet Pasha made at the Lausanne negotiations. Having stressed the failure to abolish capitulations sixty-six years before, during the 1856 Paris Conference, Pasha vehemently emphasized the legal ‘modernization’ accomplishments of the Turkish Republic:

  • 80  Ismet Pasha further asserts: ‘The free will of the parties in the matter of contracts and agreemen (...)

‘During the period subsequent to the conclusion of the Treaty of Paris, Turkey has worked feverishly at the perfection of her judicial system, which she had already taken in hand. The commercial code, the penal code, the codes of civil and penal procedure, as well as the laws regarding the “Tribunaux de Paix,” and also all the administrative laws and regulations, have been established on the model of codes and laws in force in European countries. Above all, it has quite recently been possible to carry out a very important reform in the civil law, by which our judicial institutions have been completely secularized…’80

  • 81  See Esin Örücü, ‘The Impact of European Law on the Ottoman Empire and Turkey’, In European Expansi (...)
  • 82  Literally ‘Imperial Edict of the Rose House’.
  • 83 On the Tanzimat legal and administrative reforms, see Gülnihal Bozkurt, ‘The Reception of Western E (...)
  • 84  See Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman E (...)
  • 85  ‘The choices were eclectic: the Ottomans modelled their legal system on the French and employed Pr (...)
  • 86  Kayaoğlu, Supra: 127–128.
  • 87  Ibid: 117.

37Ismet Pasha’s statement reveals how the West’s insistence upon the maintenance of extraterritoriality recurrently invoked the alleged inefficiency of the Ottoman legal system as compared to an ideal-typical positivist legal order. Consequently, a discourse regarding the necessity of comprehensive legal reforms, based on European legal categories, was gradually created and reinforced.81 A first wave of legal ‘modernization’ corresponded with the 1830s apex of extraterritorial concessions in the Ottoman Empire, and culminated with the 1839 Imperial Edict known as The Hatt-i Sharif of the Gülhane.82  The Edict launched the so-called Tanzimat period, wherein the Sublime Port enacted its first legal codes and first attempted to construct an extended courts system based on European models of justice administration.83 Hence, in 1840, a partial criminal code was published, followed ten years later by the enactment of a partial commercial code. At the same time, a parallel modernization of Turkish detention infrastructures and the police system was attempted.84 Subsequently, a review of those first instruments, in reference to French legal codes, was undertaken.85 Perhaps unsurprisingly, after the 1856 Congress of Paris failed to fulfil its promise to revisit negotiations on the subject of capitulation, a Second Imperial Edict was issued to promote legal reforms. A decade later, the Ottoman Land Code was promulgated, allowing the commercialization of land in the Empire and prescribing guarantees on foreign ownership and succession.86 The first appellate court was established in 1874, in an attempt to introduce a legal hierarchy of tribunals and promote uniformity in legal interpretation. 1876 saw the publication of the first Turkish constitution.87

  • 88  All the data mentioned above are taken from the outstanding research of Kayaoğlu, Ibid: 135–136. S (...)

38The purpose of these massive projects of codification was primarily to consolidate Turkish territorial jurisdiction, eliminate – or at least minimize – the role of religious and customary laws, unify the domestic legal system to guarantee more coherent interpretation of the law and, more generally, construct a modern, European-style nation-state. It was, however, in the aftermath of the Lausanne Conference that the most impressive wave of legal reforms began. The Turkish desire to fulfil its promises to further promote the ‘positivization’ of its legal system and prove that it was a ‘civilized state’, coupled with the new government of progressive nationalists led by Mustafa Kemal Atatürk, had a major role in this process. Accordingly, in 1923, the old and increasingly intrusive consular courts were abolished. In 1924, the communal and religious courts were similarly shuttered and, in the course of the same year, a new constitution was promulgated. 1926 saw the adoption of a revised, Swiss-inspired civil code, which was shortly thereafter complemented by revised penal and commercial statutes. Finally, in 1927, a new civil procedure code was adopted, followed by a reformed code on criminal procedure.88 It appears, therefore, that, in less then one century, the Ottoman Empire experienced an enormous shift towards a typically Continental tradition of codification and legal positivism. Extraterritorial consular jurisdiction and the attempts to abolish it should be understood as, at least to some extent, informing this process. The increasing attempts to modernize its domestic legal order reflected the belief that, by positivizing its laws, Turkey could rid itself of both Western judicial interference and European insinuations as to the ‘lack of real law’ in the Levant. At the same time, the institutionalization of domestic law, and the corresponding promises to intensify the reformist process, help account for the ultimate willingness of Euro-American governments to accept the abolition of extraterritoriality during the Lausanne negotiations.

  • 89  See Teemu Ruskola, ‘Legal Orientalism’, Michigan Law Review 101, no. 1 (2002): 185.

39 Like the notion of superiority, however, the ontological category of ‘modernization’ owes its existence to its binary counterpart – i.e. ‘backwardness’ and/or ‘stagnation’. For centuries the Ottoman Empire had not perceived itself as ‘backward’ or ‘retrograde’ and, especially with regard to the treatment of foreigners, its traditional regulatory order demonstrated an enormous degree of tolerance and flexibility. It was only when Western jurists gradually assumed the interpretative monopoly of what constitutes law that legal systems, and societies, came to be measured in terms of their conformity to the positivist conception of legality. Hence, when a society passed the test by, for lack of a better term, simply coping and pasting Continental legal ideas and practices, it was admitted to the restricted club of ‘civilized nations’. When, to the contrary, its traditional order significantly diverged from positivist ideas of legality, it was depicted as stagnating in the ‘Third World’.  Yet, as Ruskola has pointed out, cultures, including the legal ones, do not come labelled with ordinal numbers.89 There is no universal principle prescribing that every normative system must be dissected, judged, and eventually, dismissed, with reference to Euro-centric analytical legal categories – although this is exactly what happened in the cases of the Ottoman Empire and China.

Notes

1  See generally Stanford Jay Shaw, and Ezel Kural, History of the Ottoman Empire and modern Turkey. Vol. 2. (Cambridge University Press, 1977); Halil Inalcik, The Ottoman Empire: the classical age, 1300–1600. (Weidenfeld and Nicolson, 1973); Halil İnalcık and Donald Quataert, An economic and social history of the Ottoman Empire: 1300–1914. (Cambridge University Press, 1994).

2  ‘A striking exception was the Ottoman Empire. Rather than the area of land within the Ottoman Empire being considered uniform or homogeneous, it was in fact quite heterogeneous and was accepted as such. It was divided up into different communities, usually religious – the millet system – each with its own laws. As a matter of fact, it is precisely this heterogeneity, which is implied by our very use of the term “empire”. This heterogeneity is one of the essential characteristics which distinguish an empire from a national state.’ See Steven Grosby, ‘Territoriality: The Transcendental, Primordial Feature of Modern Societies’, Nations and Nationalism 1, no. 2 (1995): 145. For a theoretical overview of the Muslim ‘commonwealth’ of the believers, or Umma, see Amira K. Bennison, ‘Muslim Universalism and Western Globalization’, In Globalization in World History. (New York: WW Norton, 2002). 75–90; Selim Deringil, ‘Legitimacy Structures in the Ottoman State: The Reign of Abdulhamid II (1876-1909)’, International Journal of Middle East Studies 23, no. 3 (1991): 345–359 – discussing the increasing use of the idea of the caliphate in the late nineteenth century.

3  For an institutional survey of the Ottoman government during the golden age of Suleiman the Magnificent, see Norman Itzkowitz, Ottoman Empire and Islamic Tradition. (Chicago: University of Chicago Press, 1972).

4  ‘Powerful multi-ethnic empires, such as the Ottoman, were quite willing to accord a level of extraterritorial law to minority communities, but with ultimate jurisdiction remaining in the hands of the sovereign.” In Richard S. Horowitz, ‘International Law and State Transformation in China, Siam, and the Ottoman Empire during the Nineteenth Century’,  Journal of World History 15, n. 4 (2004): 460. See also Lauren Benton, ‘Historical Perspectives on Legal Pluralism’, Hague Journal on the Rule of Law 3, no. 01 (2011): 57–69.

5  Etymologically, the meaning of the word ‘Ulama’ derives from the term ‘Ulm’, or knowledge.

6  On the traditional Islamic normative order, see Joseph Schacht, An Introduction to Islamic Law. (Oxford: Clarendon Press, 1964); Abdur Rahman I. Doi, Sharåiah: The Islamic law. (London: Ta Ha Publishers, 1984); Wael B. Hallaq, The Origins and Evolution of Islamic Law. Vol. 1. (Cambridge University Press, 2005); Albert Hourani, Arabic Thought in the Liberal Age 1798–1939. (Cambridge University Press, 1962).

7  See Wael B. Hallaq, A History of Islamic Legal Theories: An Introduction to Sunni Usul al-Fiqh. (Cambridge University Press, 1999).

8  Arguably, this helps explain why today Sharia law may coexist with novel legal disciplines, such as business and investment law. See for instance Almas Khan, ‘The Interaction between Shariah and International Law in Arbitration’, Chicago Journal of International Law 6 (2005): 791.M. Kabir Hassan and Mervyn K. Lewis, ‘Product Development and Shariah Issues in Islamic Finance’, Thunderbird International Business Review 49, n. 3 (2007): 281–284. Abdul Rahim, Abdul Wahab and M. Kabir Hassan, ‘Islamic Takaful: Business Models, Shariah Concerns, and Proposed Solutions’,  Thunderbird International Business Review 49, n. 3 (2007): 371–396.  

9  Richard S. Horowitz, ‘International Law and State Transformation in China, Siam, and the Ottoman Empire During the Nineteenth Century’, Journal of World History 15, n. 4 (2004): 463.

10  On the millet system, see Benjamin Braude and Bernard Lewis, Christians and Jews in the Ottoman Empire: The central lands. v. 2. The Arabic-speaking lands. Vol. 1. (Holmes & Meier Publishers, 1982); Richard Clogg, ‘The Greek Millet in the Ottoman Empire’, In Christians and Jews in the Ottoman Empire: The Functions of a Pluralist Society 1 (1982): 185-208; Kamel S. Abu Jaber, ‘The Millet System In The NineteenthCentury Ottoman Empire’, The Muslim World 57, no. 3 (1967): 212–223.

11  ‘Tolerance in a millet system meant the dominant cultural group, the Muslims of the Ottoman Empire, “tolerated” the different religious groups within its empire as long as they did not question its authority. Neither within the Muslim territory nor within other, Jewish or Christian ones under Ottoman rule, did there exist anything like religious liberty and freedom of conscience, yet the system itself was one of mutual toleration in the sense of religious-political co-existence.’ In Rainer Forst, ‘Foundations of a Theory of Multicultural Justice’. Constellations 4, no. 1 (1997): 69.

12  A passage of Koran prescribes:
‘Say: O ye Unbelievers!
I worship not what ye worship,
And ye are not worshippers of what I worship;
And I am not a worshipper of what ye have worshipped,
And ye are not worshippers of what I worship.
To you your religion; and to me my religion.”
Liu. Look for reference.’
Quoted from Shih Shun Liu. Extraterritoriality: Its Rise and Decline.
(New York: AMS Press, 1969). 25.

13  On the system of capitulations, see Thomas Naff, ‘Ottoman Diplomatic Relations with Europe in the Eighteenth Century: Patterns and Trends’, Studies in Eighteenth Century Islamic History (1977): 97–103; Nasim Sousa, Capitulatory Regime of Turkey (Baltimore: Johns Hopkins University Press, 1933). 68-88; Nasim Sousa, The Capitulatory Régime of Turkey: Its History, Origin, and Nature. No. 18. (Baltimore: Johns Hopkins Press, 1933); Maurits Van den Boogert, The Capitulations and the Ottoman Legal System: Qadis, Consuls, and Beraths in the 18th Century. Volume 21 of Studies in Islamic Law and Society. (Brill, 2005). For further reading, see footnote 11.

14  See, generally, Alexander Von Miltitz, Manuel des Consules (1840). See also Shih Shun Liu, Extraterritoriality: Its Rise and Decline. (New York: AMS Press, 1969). 22–35; George Williams Keeton, Extraterritoriality in International and Comparative Law. ( Hague: Librairie du Recueil Sirey 1948). 294–299.

15  Article 2 of the 1535 Treaty stated that the King of France was also ‘Given the right to send to Constantinople or Pera or other places of this Empire a bailiff -just as at present he has a consul at Alexandria. The said bailiff and consul shall be received and maintained in proper authority so that each one of them may in his locality, and without being hindered by any judge, qadi, soubashi, or other according to his faith and law, hear, judge, and determine all causes, suits and differences, both civil and criminal, which might arise between merchants and other subjects of the King (of France)…The qadi or other officers of the Grand Signior may not try any difference between the merchants and subjects of the King, even if the said merchants should request it, and if per-chance the said qadis should hear a case their judgment shall be null and void’. For the complete text of the treaty, see Baron I. De Testa, Recueil des Traités de la Porte Ottomane, Vol. I. (Paris, 1864). 15–21; and Gabriel Noradounghian, Recueil d 'Actes Internationaux de 1’Empire Ottoman, Vol. I. ( Paris, 1897). 83–87. For an English translation, see Nasīm Susa, The Capitulatory Régime of Turkey: Its History, Origin, and Nature. No. 18. (Baltimore: Johns Hopkins Press, 1933). 314–320.  

16  ‘Extraterritoriality as a semi-colonial institution was in important respects an adaptation of the system of capitulations in the Ottoman Empire.’ In Richard S. Horowitz, ‘International Law and State Transformation in China, Siam, and the Ottoman Empire during the Nineteenth Century’,  Journal of World History 15, n. 4 (2004): 460.

17  By ‘private international law’, I mean the law that a sovereign authority establishes to administer relations between aliens inhabiting its territory and disputes involving a foreign element. In support of the normative shift of capitulations towards a public international law dimension, see Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China. (Cambridge: Cambridge University Press, 2010). 104 footnote 4 – ‘I use extraterritoriality rather than “capitulations,” a term preferred by Middle East scholars. One reason for this choice is to differentiate the legal authority of foreign merchant communities and mercantile companies (a form of legal self-rule) from a state’s jurisdiction over their citizens beyond state boundaries (a form of extraterritorial jurisdiction).’ For a similar approach see also Thomas Naff, ‘The Ottoman Empire and the European States System’,  In The Expansion of International Society, ed. Hedley Bull and Adam Watson. (Oxford: Clarendon Press, 1984). 162–169.

18 Capitulations avec la France. En date du 28 mai 1740 (4 Rébi-ul-Eicel 1153). L’Empereur Sultan Mahmoud; fils du du Sultan Moustapha toujours victorieux. In Gabriel Noradounghian, Recueil d’actes internationaux de l’Empire Ottoman: 1300–1789. Vol. 1 (Paris:  F. Pichon, 1897). 277, N. 32.

19  While, with respect to this point, the reference to criminal cases is clear from the words ‘qualque meurtre’, the provision is more ambiguous with regard to civil and commercial litigation. It is not clear whether the expression ‘qualque autre désordre’ aimed at including such a typology of cases, although it is highly probable.

20  The dragomans were the official translators of the Ottoman Empire. See generally Bernard Lewis, From Babel to Dragomans: Interpreting the Middle East. (Oxford University Press, 1953).

21  Liu presents the opposite view, asserting that the general principle regulating the choice of law procedure in criminal and civil cases – and also applied to extraterritorial arrangements in Asia and in other countries – was that of  actor sequitur forum rei: ‘Mixed cases between natives and foreigners were assigned by the earlier treaties, as by the Turkish, to the competence of the local authorities, who should, however, try them in the presence of the foreign diplomatic or consular officer concerned; but it was expressly provided that the pretext of the absence of the foreign representative should not be abused. In general, the principle actor sequitur forum rei was adhered to, and in a number of the treaties mentioned, it was laid down that in all mixed cases, civil or criminal, the plaintiff should be brought under the jurisdiction and laws of the defendant’s courts, an officer of the plaintiff’s nationality being deputed to attend the proceedings in the interests of justice.’ In Shih Shun Liu, Extraterritoriality: Its Rise and Decline. (New York: AMS Press, 1969). 32.

22  Article 26, Capitulations avec la France. En date du 28 mai 1740 (4 Rébi-ul-Eicel 1153). L’Empereur Sultan Mahmoud; fils du Sultan Moustapha toujours victorieux. In Gabriel Noradounghian, Recueil d’actes internationaux de l’Empire ottoman: 1300–1789. Vol. 1. Paris: F. Pichon, 1897: 277, N. 32.

23  Article 52, Ibid.

24 Capitulations commerciales avec le Danemark. Fait à Constantinople le 14 octobre 1740 (15 Zilkadè 1l70). In Noradounghian, Gabriel. Recueil d’actes internationaux de l’Empire ottoman: 1300–1789. Vol. 1 Paris F. Pichon, 1897: 308, N. 34.

25 Capitulations ou traité d’amitié et de commerce avec la Prusse. Fait à Constantinople le 23 Mars 1761 (24 Zilhidjê 1174). Le texte original est en Italien pour la Prusse. In Ibid: 315. N. 35.

26  For the exact references to every single treaty, see Shih Shun Liu, Extraterritoriality: Its Rise and Decline. (New York: AMS Press, 1969). 32. See also Maurits H. Van den Boogert, and Kate Fleet, eds. The Ottoman Capitulations: Text and Context. (Istituto per l’Oriente CA Nallino, 2004); Nasim Sousa, Capitulatory Regime of Turkey. (Baltimore: Johns Hopkins University Press, 1933). 68–88; Edhem Eldem, ‘Capitulations and Western Trade’, The Cambridge History of Turkey 3 (2006): 283–335; Gabriel Bie Ravndal, The Origin of the Capitulations and of the Consular Institution. No. 34. (US Government Printing Office, 1921); Philip Marshall Brown, ‘The Capitulations’, Foreign Affairs 1, no. 4 (1923): 71–81; Pierre Crabites, ‘Islam, Personal Law and the Capitulations’, The Muslim World 18, no. 2 (1928): 173–176.

27  Accordingly, Liu emphasizes how, in addition to the Ottoman Empire, extraterritorial consular jurisdiction has also existed in other states of the Levant and Africa, such as Algiers, Morocco, Tripoli, Tunis, Persia, Muscat, Zanzibar, Senna, Egypt, Congo, Ethiopia and Madagascar. See Liu, Ibid: 31–33. For an interpretation of the status of extraterritorial consular jurisdiction in international law, see George Williams Keeton, Extraterritoriality in International and Comparative Law. ( Hague: Librairie du Recueil Sirey 1948). 349–368.

28  See the discussion below on the internal opposition to extraterritorial consular jurisdiction.

29  See Capitulations avec la France. En date du 28 mai 1740 (4 Rébi-ul-Eicel 1153). L’Empereur Sultan Mahmoud; fils du Sultan Moustapha toujours victorieux. In Gabriel Noradounghian, Recueil d’actes internationaux de l'Empire ottoman: 1300–1789. Vol. 1. (Paris: F. Pichon, 1897). 277 N. 32.

30 At the same time, capitulations were limited to reign of a given sultan and had to be renewed with the accession of a new sultan. This system, which apparently functioned reasonably well for centuries, was part of the strategy of legal pluralism.’ In Richard S Horowitz, ‘International Law and State Transformation in China, Siam, and the Ottoman Empire during the Nineteenth Century’, Journal of World History 15, n. 4 (2004): 460. See also Thomas Naff, ‘Ottoman Diplomatic Relations with Europe: Patterns and Trends’, In Studies in Eighteenth Century Islamic History, ed. Thomas Naff and Roger Owen. (Carbondale: Southern Illinois University Press, 1977). 97–103; Nasim Sousa, Capitulatory Regime of Turkey. (Baltimore: Johns Hopkins University Press, 1933). 68-88.

31  ‘As it was the Turkish theory that treaties should not last longer than the lifetime of a single sultan, this document was renewed by each sultan in succession, with occasional modifications, until, in 1740, the treaties were given their final form, to constitute the principal basis of the European claim to extraterritorial privileges in Turkey.’ In Shih Shun Liu, Extraterritoriality: Its Rise and Decline. (New York: AMS Press, 1969). 31.

32  As it will be discussed later, this was one of the major arguments employed by the Ottoman Empire to successively ask for the abolishment of extraterritoriality.

33  When, for instance, in 1881 the Ottoman Empire edited a circular informing all foreign embassies on its territory of its intentions to abolish the capitulatory privileges, in reply, the European powers declared by their joint notes of December 25, 1881 and February 25, 1882 that the sultan had no authority to do so without their previous consent. See Alphonse Rivier, Principes du droit des gens. Vol. 1. (Paris: A. Rousseau, 1896). 544.

34  See Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China. (Cambridge University Press). 117–118.

35  See Eliana Augusti, ‘From Capitulations to Unequal Treaties: The Matter of an Extraterritorial Jurisdiction in the Ottoman Empire’, Journal of Civil Law Studies 4 (2011): 302.

36 Ibid.

37  See Lucius Ellsworth Thayer, ‘The Capitulations of the Ottoman Empire and the Question of their Abrogation as it Affects the United States, ‘ The American Journal of International Law 17, no. 2 (1923): 217.

38  Ibid: 223.

39  Quoted in Shih Shun Liu, Extraterritoriality: Its Rise and Decline. (New York: AMS Press, 1969). 31.

40  ‘Initially, the ability to use these consular courts was limited to cases involving no Muslims. Eventually, as the balance of military power between the Middle East and the West shifted in favour of the latter, west European diplomats managed to loosen the age-old ban against trying Muslims in non-Islamic courts.’ In Timur Kuran, ‘Why the Middle East is Economically Underdeveloped: Historical Mechanisms of Institutional Stagnation, ‘ The Journal of Economic Perspectives 18, no. 3 (2004): 85.

41  ‘The sole question, therefore, before this court is, has His British Majesty’s Supreme Court in the Ottoman Dominions jurisdiction to hear and determine a criminal case in which the accused is a British subject and the complainant an Ottoman subject? There is no doubt that in recent years the custom usually followed in cases where an Ottoman subject is proceeding criminally against a British subject is for the accused to be tried before a Turkish tribunal. But although this had been the custom in recent years and will undoubtedly continue to be the course of procedure, I see no reason to assume that privileges acquired by treaties have been annulled by reason of this custom being carried on.’ In Rex v. Lawson decided on appeal in His British Majesty’s Supreme Court for the Dominions of the Sublime Ottoman Porte, February 19, 1912. Quoted from Lucius Ellsworth Thayer, ‘The Capitulations of the Ottoman Empire and the Question of their Abrogation as it Affects the United States’, The American Journal of International Law 17, no. 2 (1923): 223.

42  When, by diplomatic note in 1914, Turkey asked for the end of extraterritorial consular jurisdiction, the joint circular issued by European governments in response read as follows: ‘That the Capitulatory regime is not an autonomous institution of the Empire but a resultant of international treaties, diplomatic agreements, and contractual acts of divers kinds.’ See Collected Diplomatic Documents relating to the Outbreak of the European War. Great Britain. Foreign Office. London: H.M. Stationery Office, Harrison and Sons Printers: No. 43.

43  As a matter of fact, during the same decades the first capitulations were instituted, France was experiencing a massive process of positivist codification of its domestic laws and customs. Possibly, this contributed to reinforcing the French rulers’ willingness to stipulate clear, formal treaties with foreign powers. On the codification of French laws during the eighteenth and nineteenth centuries, see generally John P. Dawson, ‘The Codification of the French Customs.’ Michigan Law Review 38, no. 6 (1940): 765–800. See also Rodolfo Batiza, ‘Origins of Modern Codification of the Civil Law: The French Experience and Its Implications for Louisiana Law’, Tulane Law Review 56 (1981): 477–601.

44  Supporting the allegation that the 1940 Treaty between France and the Ottoman Empire primarily aimed at restating long-lasting custom between the two polities, see Sultan Mahmoud’s statement in the preface to the treaty: ‘Porte de félicité (Louis  XV), aurait demandé la 1740 permission de présenter et de remettre ladite lettre, ce qui lui aurait été accordé par notre consentement impérial, conformément à l’ancien usage de notre cour; et conséquemment ledit ambassadeur ayant été admis jusque devant notre trône impérial, environné de lumière et de gloire, il y aurait remis la susdite lettre et aurait été témoin de notre majesté en participante notre faveur et grâce impériale;…. Et comme les expressions de cette lettre amicale font connaître le désir et l’empressement de Sa Majesté à faire comme par ci-devant, tous honneurs et ancienne amitié jusqu’à présent maintenus, depuis un tems immémorial, entre nos glorieux ancêtres (sur qui soit la lumière de Dieu), et les très magnifiques empereurs de France, et que dans ladite lettre il est question, en considération de la sincère amitié et de rattachement particulier que la France a toujours témoigné à notre maison impériale, de renouveler encore, pendant l’heureux temps de notre glorieux règne, et de fortifier et éclaircir, par l’addition de quelques articles, les capitulations impériales, déjà renouvelées l’an de l’hégire 1084, sous le règne de feu sultan Mohammed, notre auguste aïeul, noble et généreux pendant sa vie, et bienheureux à sa mort.’ Emphasis added. See Capitulations avec la France. En date du 28 mai 1740 (4 Rébi-ul-Eicel 1153). L’Empereur Sultan Mahmoud; fils du du Sultan Moustapha toujours victorieux. In Gabriel Noradounghian, Recueil d’Actes Internationaux de l’Empire Ottoman: 1300–1789. Vol. 1. (Paris F. Pichon, 1897). 277 N. 32.

45 See Report from Hornby to Earl of Malmesbury. London: National Archives FO 881/981 (1858: 27).

46  ‘But, as a rule, custom based on the religious law, coupled with exaggerated reverence for the original lawgiver, holds all those who cling to the faith of Islam with a grip of iron from which there is no escape. During the Middle Ages, it has been truly said, man lived enveloped in a cowl. The true Muslim of the present day is even more tightly enveloped in the Sheriat.’ In Evelyn Baring Cromer, Modern Egypt. Vol. 2. (London: Macmillan, 1908). 136.

47  See Turan Kayaoglu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China. (Cambridge University Press, 2010). 126.

48  See Henry Morgenthau, Ambassador Morgenthau’s Story. (Gomidas Institute, 2000). 114–117.

49  On the birth of  nineteenth-century Ottoman nationalism, see Şerif Mardin, The Genesis of Young Ottoman Thought: A Study in the Modernization of Turkish Political Ideas. Vol. 21.(Princeton University Press, 1962); Şerif Mardin, Continuity and Change in the Ideas of the Young Turks. (School of Business Administration and Economics, Robert College, 1969); Hasan Kayali, Arabs and Young Turks: Ottomanism, Arabism, and Islamism in the Ottoman Empire, 1908-1918. (University of California Press, 1997); Ayşe Kadioğlu, ‘The Paradox of Turkish Nationalism and the Construction of Official Identity’, Middle Eastern Studies 32, no. 2 (1996): 177–193; Walter F. Weiker, ‘The Ottoman Bureaucracy, Modernization and Reform’, Administrative Science Quarterly (1968): 451–470; Bernard Lewis, ‘The Ottoman Empire in the MidNineteenth Century: A Review’, Middle Eastern Studies 1, no. 3 (1965): 283–295; Nikki R. Keddie, ‘Pan-Islam as Proto-Nationalism’, The Journal of Modern History 41, no. 1 (1969): 17–28.

50  Curiously, the causus belli of the Crimean War was the Russian pretention to accord stronger jurisdictional protection to Orthodox Christians residing in the Ottoman Empire. See generally Trevor Royle, Crimea: The Great Crimean War, 1854–1856. (St.Martin’s Press, 2000).

51  Article 7 – ‘Sa Majesté le roi de Sardaigne, Sa Majesté l’Empereur d’Autriche, Sa Majesté l’Empereur des Frangais, Sa Majesté la Reine du Royaume-Uni de la Grande Bretagne et l’Irlande, Sa Majesté le Roi de Prusse et Sa Majesté l’Empereur de toutes les Russies déclarent la Sublime Porte admise a participer aux avantages du droit public et du concert européens. Leurs Majestés s’engagent, chacune de son côte, à respecter l’indépendance et l’intégrité territoriale de l’Empire Ottoman, garantissent, en commun, la stricte observation de cet engagement, et considéreront, en conséquence, tout acte de nature à y porter atteinte, comme une question d’intérêt général’. In Traité de Paix Signé à Paris le 30 Mars 1856 entre la Sardaigne, l’Autriche, la France, le Royaume Uni de la Grande Bretagne et d’Irlande, la Prusse, la Russie et la Turquie avec les Conventions qui en Font Partie, les Protocoles de la Conférence et la Déclaration sur les Droits Maritimes en Temps de Guerre.Turin: Imprimerie Royale, 1856.

52  Stephen D. Krasner, Sovereignty: Organized Hypocrisy. (Princeton University Press, 1999).

53  ‘During the session of March 25 [of the Paris Congress], the question of abolition was brought up for discussion. Ali Pasha argued that the Capitulations were disadvantageous alike to the foreigner and to the Ottoman Government; that they created “a multiplicity of governments in the Government;” and that they were an insuperable obstacle to all reform. Count Clarendon, Count Walewski and Count Cavour expressed themselves very sympathetically and were favourably inclined to the Turkish point of view. On the other hand, Count de Buol and Baron de Burquency hesitated to grant to Turkey her judicial autonomy at once. While agreeing that the Capitulations needed modification, Baron de Burquency deemed it important that the modification should be proportionate to the judicial reforms inaugurated by the Ottoman Empire. A protocol was drawn up and signed, embodying the wish (vœu) that a conference should be assembled at Constantinople, after the conclusion of peace, to deliberate upon the matter. The promised conference was, however, never held.’ In Shih Shun Liu, Extraterritoriality: Its Rise and Decline. (New York: AMS Press, 1969). 90.

54  Ibid. See also Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China. (Cambridge University Press, 2010). 121–123.

55  See Liu, Ibid: 86.

56  ‘In Turkey, after the Ottoman regime took advantage of World War I to abrogate the capitulations, the victorious allies did not accept the new state of affairs.’ In Richard S. Horowitz, ‘International Law and State Transformation in China, Siam, and the Ottoman Empire during the Nineteenth Century’, Journal of World History 15, n. 4 (2004): 466.

57  ‘The Imperial Ottoman government, animated by a spirit of hospitality and sympathy toward the subjects of friendly Powers, formerly determined in a special manner the rules to which foreigners should be subject on coming to the Orient to engage in business here and communicated these rules to the Powers. In the course of time these rules, which the Sublime Porte had promulgated upon its exclusive initiative came to be interpreted as privileges, strengthened and extended by certain practices, and maintained to the present under the name of old treaties or Capitulations.’ See Collected Diplomatic Documents Relating to the Outbreak of the European War. Great Britain. Foreign Office. London: H.M. Stationery Office, Harrison and Sons Printers, 1915: 1092, No. 43.

58  The response to the Turkish communication insisted ‘that the Capitulatory regime is not an autonomous institution of the Empire but a resultant of international treaties, diplomatic agreements, and contractual acts of divers kinds’. See Collected Diplomatic Documents: Ibid. See also the instructions received by the U.S. Ambassador to Constantinople following the Ottoman declaration: ‘You are instructed to notify the Ottoman Government that this Government does not acquiesce in the attempt of the Ottoman Government to abrogate the Capitulations, and does not recognize that it has a right to do so or that its action, being unilateral, has any effect upon the rights and privileges enjoyed under those conventions. You will further state that this Government reserves for the present the consideration of the grounds for its refusal to acquiesce in the action of the Ottoman Government and the right to make further representations later.’ Collected Diplomatic Documents: Ibid, 1093.

59  ‘At the beginning of the European War, Germany and Austria-Hungary offered as the price of Turkish assistance in the conflict their consent to abrogate the Capitulations. This was later confirmed by Germany in a treaty of January 11, 1917, which provided that Germans in Turkey and Turks in Germany should enjoy the same treatment as the natives in respect of the legal and judicial protection of their persons and property and that to this end they should have free access to the courts and be subjected to the same conditions as the natives.’ In Shih Shun Liu. Extraterritoriality: Its Rise and Decline. (New York: AMS Press, 1969). 91.

60  Ibid.

61  For the text of the treaty, see Jacob Coleman Hurewitz, Diplomacy in the Near and Middle East: 1914–1956. Vol. 2. (Van Nostrand, 1956). 96–97.

62  For a detailed account of the Lausanne Conference’s negotiations with regard to the termination of extraterritoriality in Turkey, see Turan Kayaoğlu, Legal imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China. (Cambridge University Press, 2010). 134–147.

63  On the collapse of the Ottoman Empire and on the birth of modern Turkey, see generally Stanford Jay Shaw and Ezel Kural, History of the Ottoman Empire and Modern Turkey. Vol. 2. (Cambridge University Press, 1977). See also David Fromkin, A Peace to End All Peace: The Fall of the Ottoman Empire and the Creation of the Modern Middle East. (Macmillan, 2001).

64  See Documents Diplomatiques, Conférence de Lausanne. Vol. 1. (Paris : Imprimerie nationale, 1923). 446–451.

65  In Lausanne Conference on Near Eastern Affairs, 1922–1923: Records of Proceedings and Draft Terms of Peace.  London: H.M.S.O. – Turkey; no. 1 (1923): 483.

66  Ibid: 467–503.

67  See Shih Shun Liu, Extraterritoriality: Its Rise and Decline. (New York: AMS Press, 1969): 95.

68  ‘The much-debated declaration was also signed in the form accepted on June 4 by the Turkish delegation. By this declaration, the Turkish Government proposed to engage for a period of not less than five years a number of European legal counsellors, to be selected from a list prepared by the Permanent Court of International Justice front among jurists nationals of countries which did not take part in the World War. These legal counsellors were to serve as Turkish officials under the Minister of Justice, some of them being posted in Constantinople and others in Smyrna.’ Liu, Ibid: 96.

69  Ibid.

70  Article 28 – ‘Each of the High Contracting Parties hereby accepts, in so far as it is concerned, the complete abolition of the Capitulations in Turkey in every respect.’ In: Treaty Of Peace With Turkey Signed At Lausanne July 24, 1923; The Convention Respecting The Regime Of The Straits And Other Instruments Signed At Lausanne. The British Empire, France, Italy, Japan, Greece, Roumania And The Serb-Croat-Slovene State, of the one Part, and Turkey, of the other part. Done at Lausanne, the 24th July, 1923. Available at: http://www.atour.com/government/un/20040205e.html.

71  See Convention (IV) Respecting Conditions of Residence and Business and Jurisdiction. The British Empire, France, Italy, Japan, Greece, Roumania and the Serb-Croat-Slovène State, of the one part, And Turkey, of the other part. Done at Lausanne, the 24th July, 1923. Available at: http://www.mfa.gov.tr/chapter-i_-conditions-of-residence-and-business.en.mfa.

72  See Article 15, Ibid. Article 16 of the instrument specified that, as promised by the Turkish delegation during the Lausanne negotiations, all questions related to the personal status of foreigners had to be subject to the exclusive jurisdiction of their state of nationality: ‘In matters of personal status, i.e., all questions relating to marriage, conjugal rights, divorce, judicial separation, dower, paternity affiliation, adoption, capacity, majority, guardianship, trusteeship and interdiction; in matters relating to succession to personality, whether by will or on intestacy, and the distribution and winding up of estates; and family law in general, it is agreed between Turkey and the other contracting Powers that, as regards non-Moslem nationals of such Powers in Turkey, the national tribunals or other competent national authorities established in the country of which the party whose personal status is in question will alone have jurisdiction.’

Article 17 provided: ‘The Turkish Government declares that the Turkish courts will ensure to foreigners in Turkey, both as regards person and property, protection in accordance with international law and the principles and methods generally adopted in other countries.’ Ibid.

73  ‘Turkish historiography argues that the nationalist victory under Mustafa Kemal (later Mustafa Kemal Ataturk) in 1922 against British-sponsored Greek forces caused the Allies to acquiesce to numerous Turkish demands, including the abolition of extraterritoriality.’ In Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China. (Cambridge University Press, 2010). 129. See also Hamza Eroglu, Turk Devrim Tarihi [History of Turkish Revolution]. (Ankara: Karde § Matbaasi, 1967): 170–176.

74  According to Kayaoğlu, Churchill wrote to Prime Minister Lloyd George on the possibility of war with Turkey that ‘with military resources which the Cabinet have cut to the most weak and slender proportions, we are leading the Allies in an attempt to enforce a peace on Turkey which would require a great deal and powerful armies and long, costly operations and occupations’. Ibid: 129.

75  On the rise of the Wilsonist ideology see generally George W Egerton, ‘Ideology, Diplomacy, and International Organisation: Wilsonism and the League of Nations in Anglo-American Relations, 1918-1920’, In Anglo-American Relations in the 1920s: The Struggle for Supremacy, ed. Mc Kercher. (Edmonton: University of Alberta Press, 1990).

76  For major advocates of this view see Esin Örücü, ‘The Impact of European Law on the Ottoman Empire and Turkey’, In European Expansion and Law: the Encounter of European and Indigenous Law in 19th and 20th Century Africa and Asia. (New York: BERG, 1992). 39–58; Richard S. Horowitz, ‘International Law and State Transformation in China, Siam, and the Ottoman Empire during the Nineteenth Century’, Journal of World History 15, n. 4 (2004): 445–486; Gerrit W. Gong, The Standard of Civilization in International Society. (Oxford: Oxford University Press, 1986); Brett Bowden, ‘The Colonial Origins of International Law. European Expansion and the Classical Standard of Civilization,’ Journal of the History of International Law 7, no. 1 (2005): 1–23.

77  ‘According to cultural arguments, the Ottoman Empire was not a member of the international society. Turkey, however, as a consequence of its westernization and thus fulfilment of the standard of civilization, was.’ In Kayaoğlu, supra: 146. Similarly, Gong argues that ‘the Turks had passed a turning-point’ when Western powers agreed to abolish extraterritoriality. See Gong, Ibid: 119.

78  Kayaoglu emphasizes the importance of local nationalist elites in China, Japan and in the Ottoman Empire – and their willingness to cut with the previous social order – as major actors in promoting the enormous legal changes of those years.

79 ‘Historically, however, the capitulations have been an important factor in the legal development of the region once included in the Ottoman Empire. They were one avenue through which Western legal thought and legal procedure were introduced. Also, since the capitulatory rights came to be felt in the nineteenth century as an infringement of sovereignty, they felt a stimulant for judicial reform, since modernization and reform of the judicial system were one way to prove that the capitulations were no longer needed to protect the European merchant from the possible abuses of local courts. The capitulations can thus be regarded as one of the factors which induced the Ottoman Empire and Egypt to adopt continental European codes and procedure and to endeavour to follow European standards in the administration of justice.’ In Herbert I. Liebesny, ‘The Development of Western Judicial Privileges’, In Law in the Middle East. M. (Washington, DC: The Middle East Institute, 1955): 332.

80  Ismet Pasha further asserts: ‘The free will of the parties in the matter of contracts and agreements has been recognized as paramount, and the principle of the freedom of the will has been accorded the same place as in Europe. Further, while these laws were being elaborated and promulgated, a faculty of law was instituted at Constantinople, whose programme is more or less identical with that of the corresponding faculties in Europe. This situation has produced during forty years a body of distinguished judges and advocates who possess all the necessary qualifications, and it is to them that at the present time the important task of administering justice is assigned. A considerable number of young men have since the change of régime in 1908 studied in the various faculties of law of the Empire, and are now appointed to various posts in the magistracy.’ Cited in Shih Shun Liu, Extraterritoriality: Its Rise and Decline. (New York: AMS Press, 1969). 91–92.

81  See Esin Örücü, ‘The Impact of European Law on the Ottoman Empire and Turkey’, In European Expansion and Law: The Encounter ofEuropean and Indigenous Law in 19th and 20th Century Africa and Asia. (New York: BERG, 1992): 44; Herbert I. Liebesny, ‘The Development of Western Judicial Privileges’, In Law in the Middle East. (Washington, DC: The Middle East Institute, 1955). 328.

82  Literally ‘Imperial Edict of the Rose House’.

83 On the Tanzimat legal and administrative reforms, see Gülnihal Bozkurt, ‘The Reception of Western European Law in Turkey. From the Tanzimat to the Turkish Republic, 1839-1939’,  Der Islam 75, no. 2 (1998): 283–295; Ruth Miller, ‘The Legal History of the Ottoman Empire’, History Compass 6, no. 1 (2008): 286–296; Gabriel Baer, ‘The Transition from Traditional to Western Criminal Law in Turkey and Egypt’, Studia Islamica 45 (1977): 139–158; Ma’oz Moshe, Ottoman Reform in Syria and Palestine, 1840-1861: The Impact of the Tanzimat on Politics and Society. (Oxford University Press, 1968).

84  See Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China. (Cambridge University Press, 2010): 115.

85  ‘The choices were eclectic: the Ottomans modelled their legal system on the French and employed Prussian military advisors.’ In Richard S. Horowitz, ‘International Law and State Transformation in China, Siam, and the Ottoman Empire during the Nineteenth Century’, Journal of World History 15, n. 4 (2004): 456.

86  Kayaoğlu, Supra: 127–128.

87  Ibid: 117.

88  All the data mentioned above are taken from the outstanding research of Kayaoğlu, Ibid: 135–136. See also Gülnihal Bozkurt, ‘The Reception of Western European Law in Turkey. From the Tanzimat to the Turkish Republic, 1839-1939,’ Der Islam 75, no. 2 (1998): 283–295.

89  See Teemu Ruskola, ‘Legal Orientalism’, Michigan Law Review 101, no. 1 (2002): 185.

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