Turkey and International Society from a Critical Legal Perspective
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TURKEY AND INTERNATIONAL SOCIETY FROM A CRITICAL LEGAL PERSPECTIVE BY BERDAL ARAL Presented for the degree of Doctor of Philosophy to the School of Law in the University of Glasgow September 1994 © Berdal Aral, 1994 ProQuest Number: 13834079 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a com plete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. uest ProQuest 13834079 Published by ProQuest LLC(2019). Copyright of the Dissertation is held by the Author. All rights reserved. This work is protected against unauthorized copying under Title 17, United States C ode Microform Edition © ProQuest LLC. ProQuest LLC. 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106- 1346 ci1 Z > GLASGOW UNIVERSITY LIBRARY TO THE MEMORY OF MY MOTHER, AND TO MY FATHER ABSTRACT Contrary to the pretentions of liberal jurists, positive international law does not represent a ’scientific1 and 'universal' system of law. Instead, it is largely marked by ambiguity, fragmentation and legal lacunae. For instance, international law still lacks supranational mechanisms for resolving inter-state disputes. Furthermore, there is no agreed definition among states of what constitutes 'law' and how it should be applied. If this is the case, then, international jurists should seek to understand the subjective context in which a particular legal discourse takes place, instead of proposing 'correct' formulae on the basis of'objective' legal norms. The deficiency of present international law is most visible in the sphere of the law of territory. Under international law, territory is still treated as an exclusive preserve of the state irrespective of the wishes of the 'people'. It will be argued that the state- centric nature of international law still persists despite the inclusion of other legal personalities and categories of rights into its ambit Since the autonomy of states is the starting point of international law, practical implementation of the right of 'peoples' to self-determination or the international protection of human rights and minority rights are severely prejudiced. This conceptual framework informs the mode of analysis pursued here to examine Turkish conceptions and practices of international law. By attempting to understand Turkey's international outlook fromwithin , this study is intended to demonstrate, in the context of various test-cases, the need for the international legal discipline to open itself to other social disciplines, instead of confining itself to the parochial boundaries of law' as such. The second chapter, following the Introduction, introduces the critical hermeneutical paradigm adopted in this study. It argues that the analysis of international law requires a multidimensional and multilayered understanding of legal pheneomenon and behaviour which does not proceed on the basis of a single theory, be it positivism, naturalism or postmodernism. Chapter three focuses on the theories of state and nationalism as explanatory frameworks for the international legal behaviour of individual states. This theoretical framework is then deployed for an exposition and explanation of Turkish conceptions of international society. It will be argued that the Turkish view of international society is largely shaped by Eurocentric assumptions and perspectives, while Turkish nationalism is deeply suspicious of the outside world, including the west Chapter four focuses on the role played by Turkey's academic establishment in the dissemination of a particular view of international society and its legal framework. Having examined some prominent textbooks of international law and, to a far more limited degree, of international relations, this study concludes that they are largely modelled on western positivistic scholarship, and tend to ignore the 'progressive' dimensions of international law and politics. The second section of this thesis draws on the practical implications of the conceptual analyses made previously. This is done through an investigation of Turkey's legal behaviour in the context of some disputes and questions with which it has been involved. Chapter five focuses on the Cyprus dispute over which Turkey and Greece hold contradictory views. This is also the case with the Aegean dispute which will be examined in Chapter six. Chapter seven focuses on the problems faced by the Turkish minorities in Bulgaria and Greece. In its turn, Chapter eight deals with the question of the Kurdish minority in Turkey. Chapter nine focuses on Turkey's voting pattern in the UN General Assembly with regard to some of the 'progressive' issues of international law, namely the principle of self-determination, human rights and the search for a new international economic order. The concluding chapter, on the basis of the preceding analyses, draws on the limits of positive international law in securing a peaceful and egalitarian international order. The same chapter also asserts that Turkey's largely anachronistic view of international law, and its failure to play an active role in international relations is, by and large, a function of its problematic identity. TABLE OF CONTENTS Acknowledgements I Table of Cases and Reports II Table of Treaties III Table of Resolutions VI List of Abbreviations VII Chapter 1: Introduction 1 Notes to Chapter 1 11 PARTI CONCEPTUAL BASIS Chapter 2 : An Introduction to the Paradigm 13 Notes to Chapter 2 33 Chapter 3 : Turkey and International Society from a 'nation-building* perspective 39 3.1. Introduction 39 3.2. A Critical Analysis of the Classical Doctrine on the Law of Territory 42 3.3. An Exposition of the Critical Approach to International Law 54 3.4. Nationalism and the Nationalist Discourse 58 3.5. 'National Identity Dynamic' as a relevant dimension of Foreign Policy-Making 67 3.6. The Emergence of Turkish Nationalism 71 3.7. Main Characteristics of Turkish National Identity 80 3.8. The Turkish Concept of Sovereignty 84 3.9. Turkish Perception of International Society from the Perspective of Nationalist Discourse 88 3.10.Conclusion 95 Notes to Chapter 3 98 Chapter 4 : An Analysis of Foreign Policy and International Law Scholarship in Turkey 117 4.1. A Brief Survey of the Literature on Turkish Foreign Policy 118 4.2. The State of International Law Scholarship in Turkey 122 4.2.1.Introduction 122 4.2.2.Major Features of the Turkish Legal System 123 4.2^.Preliminary Remarks on the Development of the International Legal Discipline in Turkey 125 4.2.4.An Examination of International Law Books Written by Turkish Scholars 126 4.2.4.1.Historical Origins and Basic Features of International Law 127 4.2.4.2.Formal Sources of International Law 130 4.2.4.3.Subjects of International Law 132 4.2.4.4.The Law of Territory 136 4.2.4.5.Intemational Law and Development 138 4.2.4.6.An Overview of the Methodological and Substantive Analysis 144 4.2.5.Conclusion 147 Notes to Chapter 4 150 PART II CASE STUDIES Introduction to Part II 154 Chapter 5 : The Cyprus Dispute 157 Notes to Chapter 5 180 Chapter 6 : The Aegean Dispute 188 Notes to Chapter 6 199 Chapter 7 : Turkish minorities in Bulgaria and Greece 203 Notes to Chapter 7 214 Chapter 8 : The Kurdish minority in Turkey and their Rights under International Law 218 8.1. Introduction 218 8.2. Minorities and Self-determination 222 8.3. The Kurds of Turkey and the Principle of Self-determination 225 8.4. Minority Protection under International Law 229 8.5. Turkey's Obligations Towards the Kurdish Minority under International Law 239 Notes to Chapter 8 248 Chapter 9: Turkey and the 'progressive' themes in International Law 256 9.1. Decolonization and the Principle of Self-determination 257 9.2. The Search for a New International Economic Order 264 9.3. Human Rights 271 9.4. Conclusion 275 Notes to Chapter 9 276 Chapter 10 : Conclusion 283 Notes to Chapter 10 301 Bibliography 302 ACKNOWLEDGEMENTS I would like to express my sincere gratitude to my principal supervisor, Anthony Carty, as the main inspiration behind the structure and the intellectual content of this thesis. Despite his absence during the last two years of my research, he continued to assist me with his constructive comments. Noreen Burrows and John Grant, who took over my supervision from Anthony Carty during the latter part of this research project, have been extremely helpful with their invaluable criticisms of the individual chapters and of the general structure of the thesis as a whole. I thank them both. My sincere gratitude also extends to Peter Fitzpatrick, who had been my supervisor during my MPhil research in the University of Kent, for his valuable comments on the initial drafts of the first two chapters of this thesis. I am also grateful to Catriona Drew, who was then a lecturer in law in the University of Glasgow, for her invaluable comments and grammatical corrections during the writing of a conference paper which I submitted to the Critical Legal Conference held in Oxford in September 1993. My thanks also extend to Elspeth Attwooll, Department of Jurisprudence, for her extremely fruitful suggestions with regard to the sociology of law and contemporary developments in legal theory. Janice Harper was my guardian angel when I desperately needed a helping hand for formatting the manuscripts in accordance with the regulations. For this, as well as for her wonderful friendship, I am indebted to her. I am similarly grateful to Patricia, the manager of the computer cluster in the Faculty of Law and Financial Studies, for patiently assisting me while this project was finally being printed. My greatest debt, however, is to the Turkish Ministry of Education, without whose generous financial support this thesis would never have been written.