IntLawGrrls – ilg2.org/01 September 2018
By Professor RASHMI RAMAN
In the weeks leading up to the 91st anniversary of the judgment, two students and I had an occasion to re-read the iconic case of the SS Lotus (France v. Turkey) PCIJ 1927. Our task was to see how one word – the name of the capital city of Turkey – one of the two parties to the case, was invoked by judges in the text of the 1927 Lotusdecision. We write this small piece to bring out a non-essential, but nevertheless interesting aspect of this much-cited, much-studied decision.
The SS Lotus case was a legal dispute between France and Turkey, brought by France to the chief judicial organ of the League of Nations, the Permanent Court of International Justice – which is the precursor to the International Court of Justice, chief judicial organ of the United Nations. The facts of the case involved a collision upon the high seas, on August 2, 1926, between a French vessel the SS Lotus and a Turkish vessel the Boz Kourt. The victims were Turkish nationals and the alleged offender was a French lieutenant on the Lotus. The case was brought before the PCIJ to study whether Turkey could exercise its jurisdiction over the French lieutenant under international law.
Our starting point is that the political histories of Western and Eastern scholarship, use different names for the same city. And though Istanbul – the name, the city, and the symbol; is, at best, of tangential importance to the legal outcome of the Lotus; there is something to be said about the how the usage of different names for the same city, offer clues to the political imaginations of the judges.
The Turkish capital, originally referred to in texts by Pliny the Elder, as Lygos, was colonised by the Greek in 667 BC. The Romans named it Byzantium – Eastern Roman Empire. It was then renamed Nova Roma, and eventually become Constantinopolis, when the Roman Emperor Constantine made it his capital 330 AD. Given Emperor Constantine’s recent conversion to Christianity, the city of Constantinople became a thriving centre for religion and an important symbol of Christendom. In 1453 AD, Sultan Mehmed II “The Conqueror” laid siege to the city and captured it, and made it the capital of the Ottoman Empire. Mehmed sacked the legendary Hagia Sophia and turned it into a mosque. He proclaimed Islam as the State religion.
After World War I, the empire was split up and occupied by the Allied powers. The Turkish War of Independence saw the Allies being pushed out in 1923. Turkey signed the Treaty of Lausanne – giving it recognised international borders and exclusive jurisdiction over the territory of Turkey.
It is in this political and historical backdrop that the SS Lotus Case is situated. The case can, by a short stretch outside the Treaty of Lausanne of 1923, be perceived as a confrontation between Western European Christendom and East European Islam. The Lotus decision is a representation of the downfall of imperialism and the recognition of the enduring edifice that state sovereignty plays in modern international law.
What is interesting then, is the nomenclature used by the judges in their opinions. Different judges refer to the city of Istanbul with different names – the historic Constantinople (associated with the Ottoman Empire), the modern Istanbul (associated with the modern sovereign Turkey) and Stamboul (the preferred British and Western European name for the city centre of Istanbul). The usage of different names to refer to the same city is an interesting remnant of past political history and shows the proclivities on the bench of the Lotus – from the proud invocation in the opinions of judges educated in the rich Roman history of Western Europe, to the modern statist invocation in the studiedly positivist judges, to the Eurocentric version in a third group.
7 different opinions were delivered in the SS Lotus Case. The majority opinion with President Huber; separate opinions by Former President Loder, Vice-President M. Weiss, Judges Lord Finlay, Nyholm, Altamira; and a separate opinion by Moore.
In Western languages, Stamboul was a reference to the central parts of a larger Constantinople. This usage was common among the Western Europeans and Americans. Dionisio Anzilotti was an Italian jurist, Max Huber a Swiss lawyer diplomat, Feizi-Daim Bey a French jurist. In the separate opinions to the majority opinion, Judge Finlay uses both Constantinople and Stamboul; Charles Andre Weiss use Stamboul multiple times in his separate judgement while Moore, an American judge refers to Istanbul as Constantinople throughout his separate judgement. This practice is typical among the English and is followed by the judges in the majority opinion too.
We see that there almost seems to be a pattern that is a reflection of the political history between the West and the East. The Western jurists tend to refer to Istanbul by the traditional Stamboul or Constantinople – rather than its official name Istanbul. Such vagaries of nomenclature in the opinion of a court are a telling remnant of the attitude of the West towards the East. However, the judges, even while upholding Turkish sovereignty, use nomenclature which reflects their tacit failure to recognize the newly formed sovereign state by the name it has chosen for itself. This makes for an interesting reading of the judgment.
As we mark the 92nd year of that fateful collision upon the high seas and commentaries abound with theories explaining precisely what it is that made this one PCIJ decision outlive all its peers and become a landmark case for students of public international law for all time to come, this little foray, into the world of the many names of Istabul, is a telling story, albeit unwritten, about the brave new world of sovereignty that the League of Nations sought to establish – of the clash between the West and East on the bench of the SS Lotus.