Lotus Case (Summary) | Public International law 11/03/2017, 12)44 PM

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Lotus Case (Summary)

Ruwanthika Gunaratne and Public International Law
at https://ruwanthikagunaratne.wordpress.com, 2008 present. Unauthorized use and/or
duplication of this material without express and written permission from this blogs author and/or
owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is
given to Ruwanthika Gunaratne and Public International Law with appropriate and specific direction
to the original content.

Name of the Case: The Lotus Case (France vs Turkey); Year of the decision: 1927; and Court: PCIJ.

Overview: A collision occurred on the high seas between a French vessel and a Turkish vessel. Victims were
Turkish nationals and the alleged offender was French. Could Turkey exercise its jurisdiction over the French
national under international law?

Facts of the Case:

A collision occurred on the high seas between a French vessel Lotus and a Turkish vessel Boz-
Kourt. The Boz-Kourt sank and killed eight Turkish nationals on board the Turkish vessel. The 10
survivors of the Boz-Kourt (including its captain) were taken to Turkey on board the Lotus. In Turkey,
the officer on watch of the Lotus (Demons), and the captain of the Turkish ship were charged with
manslaughter. Demons, a French national, was sentenced to 80 days of imprisonment and a fine. The
French government protested, demanding the release of Demons or the transfer of his case to the
French Courts. Turkey and France agreed to refer this dispute on the jurisdiction to the Permanent
Court of International Justice (PCIJ).

Questions before the Court:

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Did Turkey violate international law when Turkish courts exercised jurisdiction over a crime
committed by a French national, outside Turkey? If yes, should Turkey pay compensation to France?

The Courts Decision:

Turkey, by instituting criminal proceedings against Demons, did not violate international law.

Relevant Findings of the Court:

Establishing Jurisdiction: Does Turkey need to support its assertion of jurisdiction using an existing
rule of international law or is the mere absence of a prohibition preventing the exercise of
jurisdiction enough?

The first principle of the Lotus case said that jurisdiction is territorial: A State cannot exercise its
jurisdiction outside its territory unless an international treaty or customary law permits it to do so.
This is what we called the first Lotus Principle.

Now the first and foremost restriction imposed by international law upon a State is that failing the
existence of a permissive rule to the contrary it may not exercise its power in any form in the territory of
another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its
territory except by virtue of a permissive rule derived from international custom or from a convention.
(para 45)

The second principle of the Lotus case: Within its territory, a State may exercise its jurisdiction, on
any matter, even if there is no specific rule of international law permitting it to do so. In these
instances, States have a wide measure of discretion, which is only limited by the prohibitive rules of
international law.

It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own
territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot
rely on some permissive rule of international law. Such a view would only be tenable if international law
contained a general prohibition to States to extend the application of their laws and the jurisdiction of their
courts to persons, property and acts outside their territory, and if, as an exception to this general
prohibition, it allowed States to do so in certain specific cases. But this is certainly not the case under
international law as it stands at present. Far from laying down a general prohibition to the effect that States
may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts
outside their territory, it leaves them in this respect a wide measure of discretion, which is only limited in
certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles
which it regards as best and most suitable. This discretion left to States by international law explains the
great variety of rules which they have been able to adopt without objections or complaints on the part
of other States In these circumstances all that can be required of a State is that it should not overstep the
limits which international law places upon its jurisdiction; within these limits, its title to exercise
jurisdiction rests in its sovereignty. (paras 46 and 47)

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This applied to civil and criminal cases. If the existence of a specific rule was a pre-requisite
to exercise jurisdiction, PCIJ argued, then it wouldin many cases result in paralysing the action of the
courts, owing to the impossibility of citing a universally accepted rule on which to support the exercise of their
[States] jurisdiction (para 48).

The PCIJ based this finding on the sovereign will of States.

International law governs relations between independent States. The rules of law binding upon States
therefor emanate from their own free will as expressed in conventions or by usages generally accepted as
expressing principles of law and established in order to regulate the relations between these co-existing
independent communities or with a view to the achievement of common aims. Restrictions upon the
independence of States cannot therefore be presumed

[NB: This was one of the more debated aspects of the judgement. Some argued that the Court placed
too much emphasis on sovereignty and consent of States (i.e. took a strong positivist view)].

Criminal Jurisdiction: Territorial Jurisdiction

France alleged that the flag State of a vessel would have exclusive jurisdiction over offences
committed on board the ship in high seas. The PCIJ disagreed. It held that France, as the flag State,
did not enjoy exclusive territorial jurisdiction in the high seas in respect of a collision with a vessel
carrying the flag of another State (paras 71 84). The Court held that Turkey and France both have
jurisdiction in respect of the whole incident: i.e. there is concurrent jurisdiction.

The PCIJ held that a ship in the high seas is assimilated to the territory of the flag State. This State
may exercise its jurisdiction over the ship, in the same way as it exercises its jurisdiction over its land,
to the exclusion of all other States. In this case, the Court equated the Turkish vessel to Turkish
territory. In this case, the PCIJ held that the offence produced its effects on the Turkish vessel and
consequently in a place assimilated to Turkish territory in which the application of Turkish criminal
law cannot be challenged, even in regard to offences committed there by foreigners. Turkey had
jurisdiction over this case.

If, therefore, a guilty act committed on the high seas produces its effects on a vessel flying another flag or
in foreign territory, the same principles must be applied as if the territories of two different States were
concerned, and the conclusion must therefore be drawn that there is no rule of international law prohibiting
the State to which the ship on which the effects of the offence have taken place belongs, from regarding the
offence as having been committed in its territory and prosecuting, accordingly, the delinquent.

The Lotus Case was also significant in that the PCIJ said that a State would have territorial
jurisdiction, even if the crime was committed outside its territory, so long as a constitutive element of
the crime was committed in that State. Today, we call this subjective territorial jurisdiction. In order
for subjective territorial jurisdiction to be established, one must prove that the element of the crime
and the actual crime are entirely inseparable; i.e., if the constituent element was absent the crime
would not have happened.

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The offence for which Lieutenant Demons appears to have been prosecuted was an act of negligence or
imprudence having its origin on board the Lotus, whilst its effects made themselves felt on board the Boz-
Kourt. These two elements are, legally, entirely inseparable, so much so that their separation renders the
offence non-existent It is only natural that each should be able to exercise jurisdiction and to do so in
respect of the incident as a whole. It is therefore a case of concurrent jurisdiction.

Customary International Law

The Lotus case gives an important dictum on creating customary international law. France alleged
that jurisdictional questions on collision cases are rarely heard in criminal cases because States tend to
prosecute only before the flag State. France argued that this absence of prosecutions points to a
positive rule in customary law on collisions.The Court held that this would merely show that States
had often, in practice, abstained from instituting criminal proceedings, and not that they recognized themselves
as being obliged to do so; for only if such abstention were based on their being conscious of having a duty to
abstain would it be possible to speak of an international custom. The alleged fact does not allow one to infer that
States have been conscious of having such a duty; on the other hand, as will presently be seen, there are other
circumstances calculated to show that the contrary is true. In other words, opinio juris is reflected in acts
of States (Nicaragua Case) or in omissions (Lotus case) in so far as those acts or omissions are
done following a belief that the said State is obligated by law to act or refrain from acting in a
particular way. (For more on opinio juris click here
(https://ruwanthikagunaratne.wordpress.com/2011/04/22/lesson-2-4-formation-of-cil-opinio-
juris/))

Subsequent ICJ Decisions and Separate Opinions That Referred to Principles of the Lotus Case

1. Advisory Opinion on the Unilateral Declaration of Kosovo

(https://ruwanthikagunaratne.wordpress.com/2014/04/04/lotus-case-simma-2/) (2010)

In the Kosovo Advisory Opinion the Court had to decide if the unilateral declaration of Kosovo of
February 2008 was in accordance with international law. The Court inquired and concluded that the
applicable international law did not prohibit an unilateral declaration of independence. Based on this
finding, the Court decided that the adoption of the declaration of independence did not violate
any applicable rule of international law.

Judge Simma disagrees, inter alia, with Courts methodology in arriving at this conclusion. He
imputes the method to the principle established in the Lotus case: that which is not prohibited is
permitted under international law. He criticises the Lotus dictum as an out dated, 19th century
positivist approach that is excessively differential towards State consent. He says that the Court
should have considered the possibility that international law can be deliberately neutral or silent on
the international lawfulness of certain acts. Instead of concluding that an the absence of prohibition
ipso facto meant that a unilateral declaration of independence is permitted under international law, the
court should have inquired whether under certain conditions international law permits or tolerates
unilateral declarations of independence. Read more here.
(https://ruwanthikagunaratne.wordpress.com/2014/04/04/lotus-case-simma-2/)

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Lotus Case (Summary) | Public International law 11/03/2017, 12)44 PM

Ruwanthika Gunaratne and Public International Law

at https://ruwanthikagunaratne.wordpress.com, 2008 present. Unauthorized use and/or
duplication of this material without express and written permission from this blogs author and/or
owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is
given to Ruwanthika Gunaratne and Public International Law with appropriate and specific direction
to the original content.

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Posted in Cases, Jurisdiction & immunity and tagged criminal jurisdiction, customary international
law, France vs Turkey, Jurisdiction, Lotus Case, opinio juris, summary on July 27, 2012 by
Ruwanthika Gunaratne. 20 Comments

20 comments

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Buergenthal | Public International law

2. Pingback: Cases ICJ: Arrest Warrant Case: Separate Opinion of Judge Higgins, Kooijmans and
Buergenthal | Public International law
3. Nanabanyin Ackon says:
November 6, 2012 at 8:30 PM
In an event of concurrent jurisdiction does international law not require that states concerned
agree on who or how to exercise jurisdiction?

REPLY
4. Muna Rashid Omary says:
January 3, 2013 at 4:21 PM
The notes are logically arranged with reasonable argumentations, and also the language used is
not complicated in a manner that it enable the readers to understand the subject matter.

REPLY
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13. Alpha says:
May 28, 2014 at 4:37 AM
thanks for your contribution that make others to have a knowledge

REPLY
14. Lateef Oladimeji says:
November 28, 2014 at 9:02 AM
Clearly and well exlanatory.

REPLY
15. Pingback: The SS. Lotus Case (France v Turkey) 1926 | arjungupta
16. Chinelo says:
July 23, 2015 at 4:08 PM
Reblogged this on ciscadichie's Blog and commented:
just when we would expect that the principles of international law would apply in a global
common.

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Lotus Case (Summary) | Public International law 11/03/2017, 12)44 PM

REPLY
1. Anonymous says:
December 6, 2015 at 5:07 PM
sure. @chinelo

REPLY
17. Pingback: Talleres de Derecho Internacional: Derecho Internacional Bsico | Pangea UPR
18. Angela Minayo says:
November 15, 2016 at 6:10 PM
Great analysis

REPLY
19. Caleb Kusienya says:
December 11, 2016 at 2:23 PM
Great analysis of the Case

REPLY

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