The problems of the Conference of Lausanne American participation in the first phase of the Conference of Lausanne 582 597 APPENDIX C. Letters exchanged respecting the treatment to be accorded by the Turkish Government to religious, scholastic and medical estab- THE AMERICAN TREATY OF LAUSANNE BY EDGAR W. TURLINGTON Assistant to the Solicitor, Department of State On August 6, 1923, the United States and Turkey concluded at Lausanne a treaty for the purpose of regulating the conditions of intercourse and residence of their nationals on their respective territories and re-establishing their relations "in accordance with the principles of international law and on the basis of reciprocity".1 The conclusion of this treaty, which was of course entirely distinct from the Allied-Turkish treaty of Lausanne, was a link in a chain of events which began in 1914 with the Turkish denunciation of the régime of the capitulations as the basis for the relations between Turkey and the western states, and seems destined to end, at a time yet to be determined, with the reestablishment of the interrupted relations between the United States and Turkey upon the basis of reciprocity and conformity with international law which has been accepted by Great Britain, France, Italy and other states as the basis for their relations with the Turkish Republic.3 AMERICAN RIGHTS IN TURKEY IN 1914 American rights in Turkey in 1914 were based primarily upon a treaty of commerce and navigation, concluded in 1830, and a protocol concerning the ownership of real estate, concluded in 1See appended summary of treaty. *Including Japan, Rumania, Greece, Poland, Russia, Germany, Austria, Hungary, Sweden, Spain, Holland and Czechoslovakia. "In Article 28 of the Allied-Turkish treaty of Lausanne, which came into effect in August, 1924, "each of the high contracting parties accepts, in so far as it is concerned, the complete abolition of the capitulations in Turkey in every respect.” The "establishment" convention, which came into full force at the same time as the treaty, provides that allied nationals in Turkey shall be "received and treated, both as regards their persons and property, in accordance with ordinary international law" and that each of the provisions of the convention regarding the conditions of residence and business of the nationals and corporations of the Allied Powers in Turkey shall be "expressly subject to complete reciprocity being accorded to Turkish nationals and corporations in the territories of the said Powers." The Turkish State was declared to be a Republic on October 29, 1923. 1874. The principal provisions of the treaty of 1830 are that American merchants shall enjoy most-favored-nation treatment as regards duties, imposts, privileges and facilities, and as regards the general conduct of their affairs; that American merchant vessels shall enjoy most-favored-nation treatment as regards passage of the Straits; that civil cases between Americans and Turks shall be decided by the Turkish authorities only in the presence of an American dragoman; and that Americans accused of penal offenses may not be arrested by the local authorities but must be tried by an American minister or consul. An interesting provision of a restrictive character is that American diplomatic and consular officers shall not protect the Christian subjects of Turkey. The protocol of 1874, by which Americans were given the right to hold real estate in Turkey, subject to the laws and regulations governing Turkish nationals, provided that the immunities specified by the ancient treaties (capitulations) should be continued in force, pending the revision which the Sublime Porte reserved the right to bring about by understanding with the Powers. Other provisions of the protocol are to the effect that the residence of an American citizen may be entered by Turkish authorities only in the presence of an American consul and that in proceedings against Americans in Turkish tribunals the right of defense and publicity of hearings must be assured. In addition to the benefit of the explicit provisions of the treaty and the protocol, American citizens, as implied in the protocol as well as stated on numerous occasions by representatives of the Sublime Porte, could claim any of the privileges accorded to the nationals of the other states under the system of the capitulations. These privileges, most of which had been granted by the early Sultans and confirmed by treaties and usage, included exemption from direct taxation and from customs dues in excess of 11% ad valorem, the rate authorized by the capitulatory states in 1907. They also included the free entry of commodities for the use of religious and philanthropic institutions. The most important of the privileges accorded under the capitulations and not explicitly "The treaty and the protocol are printed in the compilation entitled "Treaties, Conventions, International Acts, Protocols, and Agreements between the United States and Other Powers 1776-1909" (usually cited as Malloy), on pages 1318 and 1344, respectively. granted in the American treaty or protocol was exemption from Turkish jurisdiction in both civil and criminal cases involving only foreigners, whether of the same nationality or of different nationalities; Americans in such cases, like other foreigners, being subject only to the jurisdiction of the consular courts.1 In one particular the rights of American citizens under the treaty of 1830 were bitterly disputed by the Ottoman Government for more than fifty years. In the English translation of the Turkish original (which was apparently regarded as controlling by Commodore Porter, the American chargé d'affaires who acted for the United States in the exchange of ratifications) Article IV of the treaty reads in part as follows: Citizens of the United States of America, quietly pursuing their commerce, and not being charged or convicted of any crime or offense, shall not be molested; and even when they may have committed some offense they shall not be arrested and put in prison, by the local authorities, but they shall be tried by their Minister or Consul, and punished according to their offense, following, in this respect, the usage observed toward other Franks. The Turkish contention was that the words "they shall not be arrested" and "they shall be tried by their Minister or Consul and punished according to their offense" had no equivalent in the Turkish text and that American citizens accused of penal offenses against Turks must therefore be treated according to "the usage observed toward other Franks", that is, other foreigners, who, when the dispute first arose, in 1868, and throughout its continuance, were regularly tried in such cases by Turkish tribunals. The dispute remaining unsettled, Americans accused of penal offenses against Turks were, as a rule, not prosecuted at all. The treaty rights of the United States in the Ottoman Empire, 'For details regarding the origin, nature, and content of the capitulations reference may be made to Ravndal, "The Origin of the Capitulations and of the Consular Institution" (Senate Document No. 34, 67th Congress, 1st Session); Van Dyck, "Report upon the Capitulations of the Ottoman Empire since the year 1150" (Executive Document No. 3, Special Session of Congress, 1881); Brown, "Foreigners in Turkey"; Hinckley, "American Consular Jurisdiction in the Orient"; Mandelstam, "La Justice Ottomane dans ses Rapports avec les Puissances étrangéres"; and du Rausas, "Le Régime des Capitulations dans l'Empire Ottoman". "The details of the controversy are given in Moore's Digest of International Law, Volume II, pages 668-714. |