Postcard from Gemlik

Last October, twenty-four scholars from eighteen universities across Turkey and Europe presented at a symposium on legal aspects of the Lausanne Treaty held in Gemlik Bursa Uludağ University Faculty of Law. They addressed questions surrounding sovereignty rights within the scope of the Lausanne Peace Treaty, the effects of the treaty on the Turkish legal system, the capitulations, minority rights, private law issues, mixed courts and foreign schools. Having written my master’s thesis on the treaty-making capacity of international organisations, I was particularly interested in papers touching on the law of international treaties and international organisations.

An international treaty does not create rights and obligations for a third state without its consent. Treaties that establish an objective status may also create obligations for third parties, however, and may have erga omnes [“obligations towards all”] legal effect vis-a-vis the entire international community. Gülsüm Kaya’s paper considered these aspects in the context of Lausanne’s provisions on the capitulations and the Straits Convention annexed to the Treaty, which envisaged the demilitarisation of the Turkish Straits and the surrounding islands. A transit regime was also established in the context of the principle of freedom of passage, with the authority to control it left to a Straits Commission established by the treaty. Provisions on the status of the Turkish Straits and the transit regime thus had the same effect not only on the states party to the treaty, but on all states.

The Straits Convention was signed in anticipation of a peaceful order under the aegis of the League of Nations. However, with the expansionist policies of Italy, Japan and Germany from the early 1930s, the political conditions of the period were subject to radical change. These shifting political conditions led Turkey to request the conclusion of a new treaty.

The same paper also considered the Lausanne and Montreux Treaties in terms of rebuc sic standibus, a legal doctrine allowing for fundamental change of circumstances to render a treaty inapplicable,  important for the modification, suspension and termination of treaties. The regime introduced by the Lausanne Straits Convention was restrictive of Turkey’s sovereignty over the straits. However, the Convention stipulated that the demilitarisation of the straits and their surroundings should not pose a threat of war against Turkey. The Straits Convention was signed in anticipation of a peaceful order under the aegis of the League of Nations. This formed the fundamental basis for Turkey’s willingness to keep the Straits a demilitarised zone and to cede control to the Commission. However, with the expansionist policies of Italy, Japan and Germany from the early 1930s, the political conditions of the period were subject to radical change. These shifting political conditions led Turkey to engage the contracting states through diplomatic channels and request the conclusion of a new treaty, resulting in the Montreux Straits Convention. The demilitarised status of the Straits and the Straits Commission were abolished and Turkey’s sovereignty over the Straits was established. It was very impressive that the young Republic of Turkey, under the leadership of Mustafa Kemal Atatürk, acted on the idea that the changed political conditions of the time required a new treaty.

As I study the competences of international organisations, the Permanent Court of International Justice’s advisory opinion on the competences of the Mixed Exchange Commission, which is an international organisation, of particular interest to me. Habip Ünyılmaz’s paper addressed the sovereignty concerns raised. The Population Exchange Agreement signed at Lausanne excluded from the population exchange Greeks living in Istanbul who had settled before 1918. Turkey claimed that the determination of these settlers should be carried out in accordance with domestic law, otherwise the Commission would have exceeded its authority and interfered with state sovereignty. In the PCIJ’s advisory opinion, it was stated that the Mixed Commission was authorised to determine the persons to be exchanged and Turkey’s sovereignty claim was rejected. This decision is one of the first decisions to establish the doctrine of implied competence of international organisations. That is to say, an international organisation may also have some implied powers that can be obtained by interpreting the authority granted to it within the framework of its purposes and functions. In this respect, this decision is very important in terms of the law of international organisations.

The symposium was held in a very special location: Gemlik, Bursa. Bursa was one of the capitals of the Ottoman Empire. The Faculty where I am studying for my PhD is located in Gemlik, a coastal town neighbouring Mudanya, where the Armistice Treaty was concluded one year before Lausanne. Even more interesting, the Faculty is located on the land of a former Sungipek Factory, which was founded by Mustafa Kemal Atatürk, and which is one of the symbolic industrial institutions of the Republic of Turkey. The venue thus gave the papers added resonance.