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The Treaty of Paris and Turkey’s Status in International Law

Published online by Cambridge University Press:  12 April 2017

Hugh McKinnon Wood
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Extract

Writers on international law agree that its development in its present form began in the 16th century among the Christian States of Europe, when the feudal organization of the continent gave place to its modern organization in the “sovereign, independent” States of the traditional terminology, and that originally it was considered as not applying, or as not fully applying, to States outside the pale of Christian civilization. At the end of the 18th and until well into the 19th centuries it was common for treatises on the subject to bear titles referring not to “International Law” but to “European International Law,” although such a title had ceased to be appropriate after the attainment of independence by the United States. It is also usually said that Turkey, the first Mohammedan State to join the family of States between which international law is in force, was brought into the family and made for the first time a subject or “person” of international law by Article 7 of the Treaty of Paris of March 30, 1856, which terminated the Crimean War. This view has, however, been disputed by A. H. Smith who argues that “for many centuries Turkey had maintained diplomatic intercourse and concluded treaties with Great Britain and other European Powers and … the general body of international law was considered to apply,” and that the alleged recognition appears to have made no practical difference; and who accordingly suggests the meaning of the article to be that Turkey was formally “admitted to the specifically European group of nations which was deemed to have been established by the Vienna settlement of 1815.” Smith gives no details regarding the evidence on which his view is based, and other writers habitually content themselves with quoting the text of the article. It may be interesting to consider what light contemporary evidence throws upon the matter.

Type
Research Article
Information
American Journal of International Law , Volume 37 , Issue 2 , April 1943 , pp. 262 - 274
Copyright
Copyright © American Society of International Law 1943

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References

1 For example Günther, Europäisches Völkerrecht (1787); Klüber, Droit des gens moderne de l’Europe (1819) ; F. L. deMartens, Précis du droit des gens moderne de l’Europe (1831) ; Heffer, Das europäiehes Völkerrecht der Gegenwart (1855); Fodéré, Pradier, Traiti du droit international public européen et américan (1885).Google Scholar

2 Great Britain and the Law of Nations, Vol. I (1932), pp. 16, 17.

3 British and Foreign State Papers, Vol. 46, p. 8 at p. 12. The Treaty of Paris, and the protocols recording the negotiations which led to the conclusion of that treaty, were drawn up in the French language only, and, as the exact words used are of importance, they are quoted in the present article in the original French.

4 Strupp, Wörterbuch des Völkerrechts, s.v. Wiener Kongress.

5 Hertsiet, , Map of Europe by Treaty, Vol. I, No. 27.Google Scholar

6 See Secret Article 3 attached to the peace treaty signed with France on May 30, 1814, after the first abdication of Napoleon, British and Foreign State Papers, Vol. I, p. 151 at pp. 169–170. The English text of this treaty is authoritative.

7 Act of the Congress of Vienna, Art. 119.

8-9 Wheaton, , History of the Law of Nations (1845), p. 556.Google Scholar

10 Cambridge Modern History, Vol. II (1923); Dupuis, Charles, Le Principe d’équilibre et le Concert Européen (1909), Chap. 5, especially the observations from p. 72 onwards on the Crimean War.Google Scholar

11 Holland, T. E., Studies in International Law, Ch. XI, The Treaty Relations of Russia and Turkey, 1774–1853, p. 217.Google Scholar The treaties were those of Kutschuk-Kainardji, July 10, 1774; Jassy, Jan. 9, 1792; Bucharest, May 28, 1812; Ackerman, Oct. 7, 1826; Adrinople, Sept. 14, 1829; Unkiar Skelessi, July 8, 1833.

12 The maintenance of the balance of power is given the chief place among the motives for resorting to war recited in the preambles of the convention between Great Britain and Turkey relating to military aid to be given to Turkey, April 10, 1854, and the treaty between Great Britain, France and Turkey of May 8, 1854, dealing with the same subject. An attempt to give a general European character to the Anglo-French intervention is made by two articles of the first of these agreements, namely, Art. 4: “The H.C.P. being animated with a desire to maintain the balance of power in Europe, and having no interested ends in view, renounce beforehand the acquisition of any advantage for themselves from the events which may occur;” and Art. 5 : “Their Majesties the Queen of the United Kingdom of Great Britain and Ireland and the Emperor of the French will readily admit into their alliance, in order to cooperate for the proposed object, such of the other Powers of Europe as may be desirous of being party to it.” Sardinia acceded to the alliance on Jan. 26, 1855. See British and Foreign State Papers, Vol. 44, pp. 5, 8, and Vol. 45, p. 43.

13 Turkey had been at war with Russia since Oct. 23, 1853. Sardinia entered the war early in 1855.

14 British and Foreign State Papers, Vol. 44, p. 82 at p. 83.

15 For the text, see in British and Foreign State Papers, Vol. 44, pp. 88–90, notes exchanged between Great Britain and Austria on Aug. 8, 1854.

16 British and Foreign State Papers, Vol. 29, p. 703. The original parties to the treaty were the five great Powers and Turkey; it was open to accession by other Powers invited to do so by Turkey.

17 British and Foreign State Papers, Vol. 45, p. 53.

18 British and Foreign State Papers, Vol. 45, pp. 92–93.

19 Ibid., p. 97.

20 Ibid., pp. 99, 117.

21 Ibid., pp. 111, 114–115.

22 Ibid., pp. 104, 110.

23 British and Foreign State Papers, Vol. 46, pp. 63–138.

24 Ibid., p. 70.

25 Ibid., p. 89.

26 It consisted of Ali Pacha for Turkey and the second plenipotentiaries of the other Powers.

27 British and Foreign State Papers, Vol. 46, pp. 91–92.

28 British and Foreign State Papers, Vol. 46, pp. 105.

29 Ibid., p. 70.

30 British and Foreign State Papers, Vol. 46, p. 89.

31 Ibid., p. 89.

32 Ibid., p. 90.

33 Ibid., 100.

34 For the text of this memorandum (F.O. 27.1125) see The Cambridge History of British Foreign Policy, Vol. II, Appendix D, p. 644. This history itself (p. 389) treats the article as admitting Turkey to the “European Concert.”

35 The mover of the address in the House of Lords devoted one sentence to calling attention to the “incalculable consequences of” what he called “the admission of Turkey into the pale of European States.” In the House of Lords the mover of the address said that Turkey had been “received under the common law of Europe” and the seconder described the transaction as admission “into the European system.” (Hansard, Parliamentary Debates, Session 1856, Vol. 141, col. 1947 et seq., in particular cols. 1966, 2037, 2039, and 2045.)

36 Hansard, , Parliamentary Debates, Sess. 1853, Vol., 126, 1, cols. 1638 and 1641.Google Scholar

37 Translated from the German version of the declaration in Wurm, C. F., Diplomatische Geschichte der Orientalischen Frage (1858), See. 23Google Scholar. The section as a whole bears the title “Die einführung der Türkei in das Europäische System. Der Garantie-Vertrag von 15 April, 1866,” and it says nothing of a fundamental change in Turkey’s relation to international law.

38 From the English translation of the declaration in 138 Hertslet, Map of Europe by Treaty, Vol. II, No. 138, p. 777.

39 The treaty of peace concluded at Kutschuk-Kainardji on July 10, 1774, Art. 16, No. 9, provides that the sovereigns of Moldavia and Wallachia shall be entitled to accredit to the Porte chargés d’affaires who shall be regarded “malgré leur peu d’importance comme des hommes jouissant du droit des gens et en consequence exempts de toute vexation.” See Noradoungian, , Receuil d’Actes internationaux de l’Empire Ottoman, Vol. I, Text No. 36.Google Scholar

40 The treaty of peace concluded at Sistowa on Aug. 4, 1791, Art. 13, provides that the Ministers accredited by either party to the other “joueront en vertu du statu quo strict de toutes les prerogatives du droit des gens et autres immunités attachées a leur caractère d’après les articles des Traités et l’observance établi.” See Noradoungian, loc. cit., Vol. II, Text No. 3.

41 See Noradoungian, loc. cit., VoL II, p. lxiii, No. 643.

42 The most important element probably consisted of treaty provisions. Cf. Sir W. Scott (Lord Stowell) in The Helena (High Court of Admiralty, 1801, 4 Christopher Robinson 3, Hudson, Cases, 29–30) : “as it is by the law of treaty only that these nations (i.e., the African Mohammedan states) hold themselves bound, conceiving (as some other people have foolishly imagined) that there is no other law of nations, but what is derived from positive compact and convention.” For the other element, see the same judge’s judgment in The Madonna of Burso (4 Christopher Robinson 171–172): “The inhabitants of the Ottoman Empire are not the possessors of exactly the same Law of Nations with ourselves. In consideration of its situation and character, the Court has repeatedly expressed its disposition not to hold them bound to the utmost rigour of that Public Law, on which European states have so long acted in their intercourse with one another.” Wheaton, History of the Modern Law of Nations (1845), p. 555, says: “In respect to the mutual intercourse between the Christian and Mohammedan Powers, the former have been sometimes content to take the law from the Mohammedan, and in others to modify the International Law of Christianity in its relation to them. Instances of the first may be found in the ransom of prisoners, the rights of ambassadors, and many others where the milder usages established among Christian nations have not yet been adopted by the Mohammedan Powers. On some others they are considered as entitled to a very relaxed application of the peculiar principles established by long usage among the states of Europe in constant intercourse with one another.”

43 Wheaton, , Elements of International Law, 3rd ed. (1846), Pt. I, Chap. 1, Sect. 13Google Scholar.

44 Phillimore, , Commentaries on International Law (1854), Vol. I, pp. 86, 87.Google Scholar

45 Woolsey, , Introduction to the Study of International Law (1868), pp. 20 and 420–421Google Scholar.

46 Twiss, Travers, The Law of Nations considered as Independent Political Communities (1861), Sec. 62.Google Scholar

47 Heffter, , Das europäische Völkerrecht der Gegenwart (3rd ed. 1855), Sec. 7.Google Scholar His actual words are “eine zwanglose, nach der zu erwartenden Reciprocität abgemessene, also eine bloss conventioneile politische Anwendung” of international law.

48 See, for example, the French edition of 1866, Sec. 7, where the article is said to have introduced Turkey “dans le concert et dans la communion du droit public européen.”

49 Oppenheim, H. B., System des Völkerrechts, p. 57.Google Scholar

50 Hall, W. E., A Treatise on International Law (1880), Sec. 6Google Scholar.

51 Alphonse Rivier, Principes du Droit du Gens (1896), Tome I, p. 10.

52 Westlake, John, International Law, Pt. I, p. 47.Google Scholar

53 Oppenheim, L., International Law, Vol. I, Sec. 28.Google Scholar

54 John Bassett Moore, Digest of International Law, Sec. 27, last sentence.

55 E.g. Hershey, , Essentials of Public International Law and Organization (1912)Google Scholar; Hyde, , International Law (1922)Google Scholar; Fenwick, , International Law (1924).Google Scholar