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Colonial Cases

Afarian and Vartanian, 1905

[jurisdiction of consular courts]

Afarian and Vartanian

Source: The Times, 18 September 1905

THE UNITED STATES AND TURKEY.

CONSTANTINOPLE, SEPT. 11.

[Extracted from 'The Joris Affair.']

The Turks, however, have not been so lucky in another incident to which the activity of the Yildiz commission has given rise. About a month ago an Armenian, giving the name of Johannes Afarian, and carrying an American passport, was arrested in connexion with the dynamite outrage at the Selamlik, and a fortnight afterwards, when Vartanian, the man charged with the murder of Apik Effendi, was arrested, it turned out that he, too, claimed to be an American citizen.

The American Legation was not at first inclined to treat these incidents very seriously; for it has little sympathy with men who acquire American citizenship as a cloak for revolutionary agitation and murderous outrages; and, in view of what has often proved to be the case on similar occasions, it was disposed to think that investigation would show that these American passports either were forgeries or had been obtained by fraud. Far from appreciating this conciliatory disposition, the Turks treated the matter with a high hand.  The American officials were refused the right to visit the prisoners, who were prima facie American citizens; and Vartanian was actually tried and condemned to death without the Legation or Consulate being represented at the trial. 

The Minister then sent a strongly-worded Note, protesting against the illegality if these proceedings, and demanding that both prisoners should be handed over to him for trial. The Porte relied denying that the men had been in possession of American passports - a statement which is in flat contradiction to the evidence in the hands of the Legation - and arguing that, in any case, they had no claim to American protection as they had never received the necessary permission to divest themselves of their Ottoman nationality.  To this reply the Minister has made a forcible rejoinder, and the further development of the conflict is awaited with much interest.

In this conflict there are two questions at issue - (1) What is the measure of the protection which the United States legation has the right to give to American citizens accused of criminal offences?  And (2) have Ottoman subjects who have been naturalized in America the right to claim American citizenship when they return to Turkey?

The Porte claims that American citizens only possess the same rights as other foreigners - namely, that, except in urgent cases, they should not be arrested without the co-operation of their Consul, and that at their trial they should be assisted by a representative of their Consulate. The Washington Government claims, and always has claimed, that its treaty of 1830 removes American citizens altogether from the jurisdiction of the native Courts, and gives them the right to be arrested, tried, and punished only by their own national representatives. 

Diplomatic opinion here is almost unanimous on the side of the Turks, although the text odf the treaty seems conclusive in favour of the Americans.  Of course, if American citizens do possess these extensive rights, the principle of the most-favoured-nation will prevent their being withheld from other foreigners; and the Ambassador of one of thr Great Powers informed the Grand Vizier to-day that he will promptly claim for his nationals any privileges which are conceded to the Americans.

On the second question the Porte points to the Turkish law of 1869, which is recognized by all the leading Powers, and by which Ottoman subjects are forbidden to become naturalized without the written consent of the Porte, and any such naturalization is declared null and void.  The Americans, however, refuse to admit that any law of a foreign country can prevent them from admitting whom they wish to become citizens of their Commonwealth, and claim the right and duty to protect all their citizens, wherever they may be, without distinction of origin.  On this point, too, local opinion is strongly in favour of the Turkish contention.  It is  felt that it would be an abuse if Armenians, Young Turk, or other refugees were to be able to assume American nationality, and return to carry on their agitation against the Government with all the advantages and privileges of foreign residents.

The United States occupies a different position from the other Powers, which profoundly affects the attitude of thr American Government towards these questions.  The Commonwealth was largely built up by immigrants, often refugees who could never have obtained the consent of their Government to become American citizens.  Even at the present day millions of Americans are naturalizes citizens, and the Government would naturally not wish to offend them by even seeming not to give them the same protection as native-born Americans.  Moreover, as America has no political interests in Turkey, Washington has not the same inducement as other capitals to wink at infractions of treaty rights.

It is not thought likely that either Government will give way on either of the questions at issue.  But neither the United States nor Turkey has any reason to bring matters to a head.  Only the clumsiness of the Turks is responsible for the importance which the affair has now assumed, and of which both parties are, in all probability, anxious to divest it.  The ingenuity of one or the other will doubtless discover a compromise, by which the incident can be closed without either Turks or Americans giving way on the questions of principle.  But it seems urgent that a naturalization treaty should be concluded, so that such disputes should be made impossible in future.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School