In this blog, we are going to talk about the Lotus case.
Full Case Name: The Case of the S.S. “Lotus” (France v Turkey)
Court: Permanent Court of International Justice
Citation: (1927) PCIJ Series A – No 10
Fact of Lotus Case
On 2nd August of 1926 before midnight a collision took place on the high seas between a French vessel Lotus and a Turkish collier Boz-Kourt which resulted in sinking of the Boz-Kourt and death of eight Turkish nationals on board the Turkish collier. The 10 survivors of the Boz-Kourt (including its captain, Hassan Bey) were taken to Turkey on board the Lotus. The French mail steamer was captained by a French citizen by the name Monsieur Demons. The Lotus continued on its course to Constantinople, where it arrived on August 3. On the 5th of August, Lieutenant Demons was inquired into by the Turkish (D) authority to go ashore to give evidence. After Demons was questioned, he was placed under arrest without informing the French (P) Consul-General and later, Demons was convicted by the Turkish (D) criminal courts for manslaughter. He was sentenced to 80 days of imprisonment and a fine.
Argument of France (P):
France argued that,
The state whose flag the vessel flew had exclusive jurisdiction over the matter and also offered to show ‘state practice’ in support of its position. It also argued that Turkey does not have jurisdiction to try the case. The French government challenged Turkish jurisdiction, demanding the release of Demons or the transfer of his case to the French Courts.
Argument of Turkey (D):
Turkey argued that,
A sovereign state may act in any way they wish so long as they do not contravene an explicit prohibition of international law. The Turkish Criminal Court claimed jurisdiction under Article 6 of the Turkish Penal Code.
On 7 September 1927 the case was presented before the Permanent Court of International Justice (PCIJ).
Issues of Lotus Case
- Whether Turkey violated international law when Turkish courts exercised jurisdiction over a crime committed by a French national, outside Turkey?
- Should Turkey pay compensation to France, if it violated international law?
Rule of Law
There exists no rule of international law, which restricts a sovereign state from exercising criminal jurisdiction in its own territory over a foreign national who commits offences outside of the state’s national jurisdiction. In this circumstance, Turkey (D) may prosecute Demons because although he was aboard a French ship, the impacts of the alleged offence occurred on a Turkish collier. Hence, both states here in respect of the whole incident may practice ‘concurrent jurisdiction’ because there exists no rule of international law in regards to collision cases to the effect that criminal proceedings are exclusively within the jurisdiction of the state whose flag is flown. [para 71-84]
Analysis of Lotus Case
The ‘flag state principle’ which was argued by France was rejected by majority in the court since there was no rule to that effect in international law. The implication of this principle to future events raising the issue of jurisdiction over people on the high seas was altered by Article 11 of the Geneva Convention of High Seas, 1958. The convention put weight on the fact that only the flag state or the state of which the alleged offender was a national had jurisdiction over sailors regarding incidents occurring in high seas. This “flag state principle” has since also been adopted in the United Nations Convention on the Law Of the Sea (UNCLOS), e.g. in article 92 and, in regards to enforcement of environmental legislation, article 217(1).
A State cannot exercise its jurisdiction beyond its territory unless an international convention or customary law allows it to do so. [para 45]
Within the bounds of its territory, a State may exercise its jurisdiction, in any matter, although there is no specific rule of international law permitting it to do so. In these cases, States have a broad measure of discretion, which is only limited by the prohibitive or restrictive principles of international law. [para 46 & 47]
The court’s decision is rooted in the ‘concept of the sovereign will of states’ since international law regulates the relations between independent states and the principles which are binding on states origins from their own free will, which is expressed in conventions and by usages. In this case the court took a positivist stand and considered consent of states very highly.
Conclusion
Turkey(D) by initiating criminal proceedings against Demons, did not violate international law. It also held that Turkey had jurisdiction due to the fact that the offense caused its effect on a Turkish collier and the court considered the Turkish collier as Turkish territory. Thus, Turkey may exercise its jurisdiction over the ship, in the exact way as it exercises its jurisdiction over its land, to the exclusion of all other States.
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