The Consequences of Turkey being the “Continuing” State of the Ottoman Empire in terms of International Responsibility for Internationally Wrongful Acts


The Consequences of Turkey being the “Continuing” State of the Ottoman Empire in terms of International Responsibility for Internationally Wrongful Acts

 

By Patrick Dumberry

Other presentations have shown that the Ottoman Empire committed internationally wrongful acts against Armenian populations before, during and after World War I. The problem is that the Ottoman Empire ceased to exist as a State in 1923. Who should then be responsible for these wrongful acts? I was asked to examine the following question: Can the modern State of Turkey, which was officially “created” in 1923, be held responsible under international law for internationally wrongful acts which were committed before its creation? To answer this question, two different issues must be analyzed. The first issue is whether Turkey should be regarded as the “continuing” State of the Ottoman Empire under international law or as a “new” State. If there is State “identity” between Turkey and the Ottoman Empire, than a second question arises: What are the legal consequences of Turkey being considered as the “continuing” State of the Ottoman Empire in terms of internationally wrongful acts which were committed by the Ottoman Empire before its disintegration?

 

I. Whether Turkey should be considered as the “continuing” State of the Ottoman Empire

The disintegration of the Ottoman Empire in the 19th and 20th Centuries is best characterized in legal terms as a series of secessions. For instance, new States in the Arabian Peninsula (Hejaz, Asir, Nedjed, Yemen) were created after the War in territories that used to belong to the Empire. The disintegration of the Ottoman Empire was also marked by a number of secessions of territories that belonged to the Ottoman Empire and which were ceded after the War to Allies which established protectorates over them. This is the case of United Kingdom protectorates over Iraq and Palestine and French protectorates over Syria and Lebanon.

The question is whether or not Turkey can be considered under international law as “identical” to the Ottoman Empire: By some account, between 1878 and 1918 the Ottoman Empire lost some 85% of its territory and some 75% of its population. To answer that question we must examine the features of the Ottoman Empire before its disintegration and Turkey’s features after its creation in 1923. When there is State identity between two entities, it means that there is a “continuing” international legal personality under international law. In this case, issues of State succession do not arise. There is a presumption in favour of continuity under international law. Thus, a State will continue to exist unless sufficient evidence demonstrates its extinction.

There exist no “formal” criteria under international law to categorically distinguish between cases of continuity from those of discontinuity. Let’s look at some factors that have been identified in doctrine to determine whether or not a new State has been created.

The first factor is territory. It is generally recognized that when a State loses part of its territory, this does not affect its legal personality. In other words, it does not affect its own identity as a State under international law. For instance, France did not cease to exist when the territory of Alsace-Lorraine was transferred to Germany in 1871. From the very substantial diminution of territory suffered by the Ottoman Empire, it simply cannot be concluded that Turkey is a new State under international law.

The second factor is change of government. Under international law, a change of government (even when it arises as a result of a revolution or a coup d’Etat) does not in itself amount to the creation of a new State. Examples of this principle include the 1917 Revolution in Russia and the 1979 Revolution in Iran which were both considered as changes of governments not creating a new State. It is true that Turkey went through fundamental changes after its creation in 1923, including the replacement of the Monarchy by a Republic as well as other far-reaching changes affecting its society more globally. But, the international personality of a State is simply not affected by a change in government, no matter how radical that change is. Finally, name changes do not per se have any impact a State’s continuous international personality. Thus, it cannot be concluded that Turkey is a new State merely because in 1923 the name of the country was changed from the “Ottoman Empire” to the “Republic of Turkey”. In sum, changes related to the territory of a State, to its government and even its name does not affect its identity.

What are the relevant criteria to determine whether there is identity of State and a continuity of international personality? There are basically two relevant criteria.

The first one is the nucleus of a State. There is identity of State when what is left of a State’s territory following a significant reduction in its size is the core (or the nucleus) of the State that existed before its disintegration. In other words, when what remains of a territory after a radical change can be considered as the “essential portion” of the territory of the “old” State. The territory of modern post-1923 Turkey was reduced to the “historical homeland” of the Turkish State. After centuries of Ottoman Empire’s territorial expansion, followed by slow disintegration, modern Turkey was reduced in 1923 to its nucleus, its “essential” part. There is also identity of State when what remains of a territory after a radical change is still populated by its “core” ethnic/national group, i.e. the national group which was the largest, the most dominant and most powerful in the “old” State. The Turks were indeed the most dominant and most powerful national group in government in the Ottoman Empire. The territories that the Empire gradually lost in the 19th and 20th Centuries were essentially non-Turkish. These territories were populated mostly by Arabs with pockets of Jewish (Palestine) and Kurdish populations (Mosul, Kirkuk). The criterion of the core or the nucleus of the State strongly supports the proposition that there is an identity of State between the Ottoman Empire and the Republic of Turkey.

The second relevant criterion is recognition by other States. Recognition is indeed of great importance to decide issues of identity and continuity. Whether or not a claim of continuity is recognized by other States will ultimately be the decisive factor to determine issues of identity when substantial territorial changes occurred and when a claim of continuity is controversial and has been contested by other States. Recent State practice has shown that third States will assess any claim of continuity to determine whether to give it any effect. For instance, the “Federal Republic of Yugoslavia” (consisting of Serbia and Montenegro) claimed to be the “continuator” of the former Yugoslavia. However, other States refused to recognise this claim of continuity. This refusal was the decisive factor in blocking the F.R.Y.’s claim of continuity to have any practical effectiveness. Another example is the former Republics of the U.S.S.R. which agreed that Russia would be considered as the “continuator” of the international legal personality of the U.S.S.R. Russia took over U.S.S.R.’s seat at the UN Security Council essentially because other States recognised such claim of continuity.

Turkey claimed to be a new State in 1924. This position was clearly taken during negotiations at the Lausanne Conference. Thus, the head of the Turkish delegation, Ismet-Pacha, declared that « L’Empire ottoman, ayant cessé d’exister, il est naturel que ses dettes soient réparties entre tous les pays auxquels les territoires qui lui ont appartenu ont été attribués ». Turkey argued that because it was a new State it should not be held responsible for the entire debts of the defunct Ottoman Empire, but only for a portion of it. Turkey was never recognized as a “new” State by other States. Their refusal to recognise Turkey’s claim of discontinuity ultimately prevented such claim from having any effectiveness. Thus, several provisions of the 1924 Lausanne Treaty clearly show that Turkey is considered as the continuator State of the Ottoman Empire. Similarly, two international tribunals have taken the position that Turkey has continued the international legal personality of the Ottoman Empire (Ottoman Public Debt case (1925); Lighthouse Arbitration case 1956). This position was also adopted by one national court (Roselius Case, District Court of Amsterdam, 1925)).

In sum, despite considerable territorial losses and radical change to its government, there is nevertheless an identity of international personality between the Turkish Republic and the Ottoman Empire. One objective criterion (the nucleus of the State) shows that Turkey is the same State as the Ottoman Empire. This conclusion is also supported by one subjective criterion. Thus, other States’ refusal to recognise Turkey’s claim of discontinuity ultimately prevented such claim from having any effectiveness. Almost all scholars have come to the same conclusion of continuity between the Turkish Republic and the Ottoman Empire.

 

II. Rules of International Law on International Responsibility for Continuing State

Turkey is therefore the “continuing” State of the Ottoman Empire. The logical consequence of an identity of State is the continuity of rights and obligations between the two entities. Thus, if one comes to the conclusion that entity A (at one point in time) is in legal terms identical as entity B (at another point in time), it must logically follow that the rights and obligations which were those of entity A will remain those of entity B. This is because entity A and entity B have the same international personality.

But what about those obligations arising from international wrongful acts which were committed before any territorial changes took place? In other words, does the continuing State also remain responsible for such wrongful acts? Case law and State practice show that whenever a State continues to exist following events affecting its territorial integrity, it will remain responsible for any international wrongful acts committed before such changes. This principle is also supported in doctrine. This principle has been applied to both cases of cession of territory and secession. Such case law is relevant because the disintegration of the Ottoman Empire in the 20th Century is marked by a series of secession and a number of cessions of territories.

In the context of cession of territory, all cases that I have examined in my book State Succession to International Responsibility (2007) have applied the following principle. The continuing State, which lost territory, will remain responsible for its own internationally wrongful acts committed before the date of succession. The successor State (i.e. the State to which the ceded territory is now attached) will not take over any responsibility for the acts. This principle was applied by several municipal courts: Romanian courts in the context of the transfer of the territory of Bessarabia from Soviet Russia to Romania in April 1918; French courts in the context of the cession of the territory of Alsace-Lorraine to France in 1919; Hungarian courts in the context of the cession of Transylvania from Hungary to Romania in 1920. The principle was also adopted by international arbitral tribunals such as the French-German Mixed Arbitral Tribunal in the context of the cession of the territory of Alsace-Lorraine to France in 1919. One important case is the Lighthouse Arbitration case in the context of the cession of the territory of Crete from the Ottoman Empire to Greece (1913). In Claim no. 12-a, France was seeking damages against Greece (as successor State) for acts committed by the authorities of the Ottoman Empire in the Island of Crete, which was at the time under Ottoman control. The Arbitral Tribunal ultimately ruled that the Ottoman authorities had not committed any wrongful act. It added that had the Ottoman Empire committed such an act, Greece could nevertheless not be held liable. Turkey (the continuing State of the Ottoman Empire) would be liable for its “own” acts committed before the loss of a substantial portion of its territory.

In the context of secession, all cases that I have examined also show that the continuing State, which lost a territory that seceded, will remain responsible for its own internationally wrongful acts committed before changes affecting its territory. This principle was applied for instance in State practice in the context of the break-up of the Austria-Hungary Dual Monarchy after World War I which was considered by the “Allied and Associated Powers” as a case of a series of secessions by Poland, Czechoslovakia and Yugoslavia, which all became new States, with both Austria and Hungary considered as the continuing States of the Monarchy. The Allied insisted in the Peace Treaty of St. Germain that both States be considered as continuing States precisely to ensure that they would be held responsible for internationally wrongful acts committed by the Dual Monarchy during the War.

The application of this case law to the Turkish Republic shows that it is responsible for any internationally wrongful acts that took place before 1923, even if these acts were committed by the Ottoman Empire. This principle applies to all internationally wrongful acts, including acts of genocide. This is also the position adopted by a great number of writers in doctrine.

 

Conclusion

Turkey should be considered under international law as the “continuing” State of the Ottoman Empire. The fact that Turkey is, in legal terms, “identical” to the Ottoman Empire, has some important consequences in terms of responsibility. Case law and State practice in the context of secession and cession of territory is clear: The continuing State remains responsible for its own internationally wrongful acts committed before the date of succession. Based on this unanimous practice of States, in my view there is no doubt that Turkey should be held responsible for all internationally wrongful acts committed by the Ottoman Empire, including acts of genocide.

Patrick Dumberry,

Ph.D. (HEI, Geneva), Assistant Professor, Faculty of Law (Civil Law Section),

University of Ottawa, Canada


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