Its Rise and Its Decline

Notes by the Author


The fifth method of procedure in discontinuing the system of extraterritoriality is by unilateral cancellation. This method was resorted to by Turkey more than once, always eliciting loud protests from the Powers. On October 11, 1881, a circular was sent out to the effect that certain rights accorded to the consuls by virtue of a long established usage was thenceforth to be abolished. In reply, the Powers declared by their joint notes of December 25, 1881, and February 25, 1882, that the sultan had no authority to annul the existing usages without previous consultation and agreement with the Powers concerned [1]. (*A)
At the beginning of the World War, Turkey endeavored once more to abrogate the extraterritorial system by unilateral action. On September 10, 1914, the foreign embassies at Constantinople received a note from the Turkish Ministry for Foreign Affairs, to the effect that on and after the first of October, the Ottoman Empire would abolish the Capitulations which restricted the sovereignty of Turkey in her relations with certain Powers (*B). It was stated that owing to the improved state of Ottoman jurisprudence and to the interference entailed by the Capitulations with the legislative and administrative autonomy of the Ottoman Empire, the decision had been taken to abrogate, from the above-stated date, the Capitulations, "as well as all privileges and toleration accessory to these Capitulations or resulting from them, and to adopt as the basis of relations with all States the general principles of international law" [2].
The United States Government lodged its protest by sending, on September 16, 1914, the following telegram to the American Ambassador at Constantinople:

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 [3].

A copy of this telegram was also sent to the Turkish Ambassador at Washington on the same day [4]. On September 10, all the other embassies at Constantinople, including the German and Austrian, sent identical notes to the Sublime Porte, stating that while communicating to their respective governments the note respecting the abolition of the Capitulations, they must point out that the capitulatory regime was not an autonomous institution of the Empire but the resultant of international treaties, which could not be abolished either wholly or in part without the consent of the contracting parties. It was, therefore, declared that in the absence of an understanding arrived at before the first of October between the Ottoman Porte and the foreign governments concerned, the ambassadors could not recognize the executory force after that date of a unilateral decision of the Turkish Government [5].
Later, the protest of the British Ambassador was confirmed by his Government, which instructed him to reiterate to the Ottoman Government the binding nature of the Capitulations and the invalidity of the unilateral action of the Porte in abrogating them. He was also authorized to say to the Turkish Government that the British Government would reserve their liberty of action in regard to any Turkish violation of the Capitulations and would demand due reparation for any prejudice to the British subjects resulting therefrom [6].
To the American contention that the Capitulations were trilateral agreements and could not be abrogated by unilateral action, the Turkish Ministry for Foreign Affairs answered that "the Sublime Porte had, like every State, the right to denounce, at any time, international acts concluded without stipulations of duration." It was maintained that the change of conditions justified the action of the Turkish Government, "since the regime of the Capitulations, obsolete and no longer responding to modern needs, even when it is confined within its true contractual limits, threatens its own existence, and renders very difficult the conduct of Ottoman public affairs" [7]. As we shall see presently, this point of view is open to serious question.
On September 4, 1915, the Turkish Foreign Office communicated to the American Ambassador a note verbale, which insisted that the Capitulations had been definitively abrogated and that "since October 1, 1914, the European international public law must govern the relations of the states and foreign subjects with the Imperial authorities and Ottoman subjects." It was added that if the Imperial Ministry received any further communication on the subject, it would, to its regret, "find itself in the painful necessity not to give it any effect and to pay no attention to the matter to which it refers" [8]. The United States Government, however, was in total disagreement with the Porte as to the effect of this declaration. It insisted on the continued validity of the Capitulations, although it indicated its willingness to consider the abandonment of its extraterritorial rights in Turkey whenever the state of Turkish justice warranted such a measure. Ambassador Morgenthau was instructed to notify the Ottoman Government that the United States would hold it responsible for any injury which might be occasioned to the United States or to its citizens by a failure to observe the Capitulations [9].
At the First Lausanne Conference on Near Eastern Affairs, held November 22, 1922 - February 4, 1923, the Turkish delegation defended the cancellation of the Capitulations by their government in 1914. One of the arguments advanced was that the Capitulations were unilateral in nature and could be revoked at the will of the Sublime Porte. "It is an undoubted fact," said the Memorandum of the Turkish delegation, "that in taking such a decision Turkey merely exercised a legitimate right. As a matter of fact, the Capitulations are essentially unilateral acts. In order that an act may be regarded as reciprocal, it must above all contain reciprocal engagement's. From an examination of the texts, the evidence shows that in granting the privileges in question to foreigners in Turkey, the Ottoman emperors had no thought of obtaining similar privileges in favor of their subjects traveling or trading in Europe." It was further contended that the Capitulations were voidable on the principle of rebus sic stantibus. "Even supposing that the Capitulations were bilateral conventions," the Turkish statement asserted, "it would be unjust to infer from that that they are unchangeable and must remain everlastingly irrevocable. Treaties whose duration is not fixed imply the clause rebus sic stantibus, in virtue of which a change in the circumstances which have given rise to the conclusion of a treaty may bring about its cancellation by one of the contracting parties, if it is not possible to cancel it by mutual agreement" [10].
That the Capitulations were at first unilateral in form there can be no question. This is admitted by the author-ities who have examined the matter [11]. But to say that they have remained unilateral acts would be incorrect. In every case, as we know, the Capitulations were at one time or other converted into treaties consistent with the forms laid down by international law and binding on each contracting party. Indeed, the Sublime Porte itself admitted, on one occasion, the validity of these agreements as mutually binding treaties. In a Mémoire addressed by the Porte to the representatives of the foreign Powers, in May, 1869, it was declared in unequivocal terms:

The Capitulations having been consecrated by treaties subsequently concluded between the Sublime Porte and the foreign Powers, should, so long as they are in force, be scrupulously respected in the same manner as these treaties [12].

It is certainly unthinkable that the Turkish delegation to the Lausanne Conference should have taken upon themselves to contradict a solemn engagement of their own government made over half a century before.
As to the statement that treaties, in order to be reciprocal, must contain reciprocal engagements, one would look in vain for a sound basis of this contention. To give one instance, treaties of peace concluded at the end of a war have never been reciprocal in nature. Does this mean that all such treaties are of no effect and can be annulled at the will of the vanquished? Nothing of the sort is sanctioned by international law.
In regard to the second contention of the Turkish delegation, it is admitted that the principle rebus sic stantibus is recognized by the majority of publicists to be an implied clause of all unnotifiable treaties [13]. But, taking it for granted that the change of the circumstances which had led to the conclusion of the Capitulations had, in 1914, reached such a stage as to justify the demand for their abrogation, we cannot absolve the Sublime Porte from the responsibility for a breach of good faith. For while the rule rebus sic stantibus is recognized by a vast number of writers, it is also their opinion that the clause "ought not to give a State the right, immediately upon the happening of a vital change of circumstances, to declare itself free from the obligations of a treaty, but should only entitle it to claim to be released from them by the other party or parties to the treaty [14]. In other words, before a State can release itself from the obligations of a treaty on the principle rebus sic stantibus, it must first enter into negotiations with the other contracting party or parties to that effect [15], with a view of examining the reasons for the proposed cancellation or modification of the obligations in question and reaching a common accord on the subject [16].
In the case of Turkey, there is all the more reason for such a common accord. Ever since the admission of the Ottoman Empire in 1856 "to participate in the advantages of the European public law and concert" [17], every important question of Turkish foreign relations has been a concern of the general European polity. Far more than ordinary synallagmatic [i.e. reciprocally binding] agreements, therefore, the Capitulations had a binding force which should not be lightly brushed aside.
Contrary to established principle, the Sublime Porte, without making any earnest attempt to reach a satisfactory agreement with the Powers, announced by unilateral action the end of all the Capitulations, and when the United States Government protested against it, the Turkish Foreign Office categorically replied that the abrogation had become a fait accompli and that no further discussion of the question would be engaged in. This shows that while the Turkish Government intended to make use of the clause rebus sic stantibus, it refused to enter into negotiations the which are recognized to be a necessary part of the procedure laid down by international law for the application of that principle.
In fine, it may be reiterated that the measure taken by the Turkish Government in 1914 to abrogate its treaty obligations by unilateral action is wholly unfounded in law and has been vigorously opposed by the Powers. The policy has failed of its desired end, and, as will be seen [18], the Ottoman Empire was finally compelled to seek the restoration of its judicial
autonomy by means of bilateral or rather multilateral negotiations instead of unilateral cancellation [19].

Notes by the Author (^)

[1] Rivier, Principes du droit des gens (Paris, 1896), vol. i, p. 544.

[2] U.S. Foreign Relations, 1914, p. 1092.

[3] Ibid., p. 1093.

[4] Ibid., p. 1094.

[5] Sir L. Mallet to Sir Edward Grey, Sept. 10, 1914, Parl. Pap., 1914-16 [Cd. 7628], Miscellaneous, no. 13 (1914). p. 23.

[6] Note Verbale communicated to the Sublime Porte, Oct. 1, 1914, ibid., p. 53.

[7] The Minister for Foreign Affairs to Ambassador Morgenthau, Dec. 5, 1914, U.S. Foreign Relations, 1915, p. 1302.

[8] U.S. Foreign Relations, 1915, p. 1304.

[9] The Secretary of State to Ambassador Morgenthau, Nov. 4, 1915, ibid., p. 1305.

[10] Great Britain, Parl. Pap., 1923 [Cmd. 1814], Turkey, no. 1 (1923), p. 478; France, Documents diplomatiques, Conférence de Lausanne, vol. i, pp. 450-451.

[11] "The Capitulations were, in principle, gracious concessions (concessions gracieuses). " Pradier-Fodéré, "La Question des Capitulations" R. D. I., vol. i, p. 119. According to another writer, it is a mistake to give to the Capitulations the name of treaties, which presuppose two contracting parties stipulating for their interests.
"Here [in the Capitulations] one finds only concessions and privileges and exemptions of pure liberality given by the Porte to France." Lawrence, Commentaire sur les éléments du droit international et sur l’histoire des progrès du droit des gens de Henry Wheaton (Leipzig, 1868-80), vol. iv, p. 123; cf. Ancien Diplomate, Le Régime des Capitulations, p. 9.

[12] Archives diplomatiques, 1870, vol. i, p. 249.

[13] "For it is an almost universally recognized fact that vital changes of circumstances may be of such a kind as to justify a party in demanding to be released from the obligations of an unnotifiable treaty. The vast majority of publicists, as well as the Governments of the Civilized States, defend the principle conventio omnis intelligitur rebus sic stantibus, and they agree, therefore, that all treaties are concluded under the tacit condition rebus sic stantibus." Oppenheim, International Law (3rd ed., Lon-don, 1920), vol. i, pp. 688-9.

[14] Ibid., p. 692.

[15] Ibid., cf. Phillimore, Three Centuries of Treaties of Peace (London, 1919), p. 138.

[16] Pouritch, De la clause "rebus sic stantibus" en droit international public (Paris, 1918), p. 81.

[17] Art. 7, Treaty of Paris, Mar. 30, 1856, State Papers, vol. xlvi, p. 12.

[18] See Chapter X

[19] It is interesting to note that even before the "Lausanne Conference of 1922-1923, the Turkish Government had consented in the suspension of the unilateral cancellation of the Capitulations. Russian Ambassador at Constantinople to Russian Minister of For. Aff., Sep. 18 (Oct. 1), 1914, Scott, Dip. Doc. relating to the Outbreak of the European War (New York, 1916), pt. ii, pp. 1422-3.