The Case of the S.S. Lotus (France v.

Turkey)

Citation. Permanent Court of Int’l Justice, P.C.I.J. (ser. A) No. 10 (1927)

Brief Fact Summary. Turkey’s (D) assertion of jurisdiction over a French citizen who
had been the first officer of a ship that collided with a Turkish ship on the high seas
was challenged by France (P) as a violation of international law.

Synopsis of Rule of Law. A rule of international law, which prohibits a state from
exercising criminal jurisdiction over a foreign national who commits acts outside of the
state’s national jurisdiction, does not exist.

Facts. A collision occurred shortly before midnight on the 2nd of August 1926 between
the French (P) mail steamer Lotus and the Turkish (D) collier Boz-Kourt. The French
mail steamer was captained by a French citizen by the name Demons while the Turkish
collier Boz-Kourt was captained by Hassan Bey. The Turks lost eight men after their
ship cut into two and sank as a result of the collision.

Although the Lotus did all it could do within its power to help the ship wrecked persons,
it continued on its course to Constantinople, where it arrived on August 3. On the 5th of
August, Lieutenant Demons was asked by the Turkish (D) authority to go ashore to give
evidence. After Demons was examined, he was placed under arrest without informing
the French (P) Consul-General and Hassan Bey. Demons were convicted by the Turkish
(D) courts for negligence conduct in allowing the accident to occur.
This basis was contended by Demons on the ground that the court lacked jurisdiction
over him. With this, both countries agreed to submit to the Permanent Court of
International Justice, the question of whether the exercise of Turkish (D) criminal
jurisdiction over Demons for an incident that occurred on the high seas contravened
international law.

Issue. Issue: Does a rule of international law which prohibits a state from exercising
criminal jurisdiction over a foreign national who commits acts outside of the state’s
national jurisdiction exist?

Held. (Per curiam) No. A rule of international law, which prohibits a state from
exercising criminal jurisdiction over a foreign national who commits acts outside of the
state’s national jurisdiction, does not exist. Failing the existence of a permissive rule to
the contrary is the first and foremost restriction imposed by international law on a state
and it may not exercise its power in any form in the territory of another state.

This does not imply that international law prohibits a state from exercising jurisdiction in
its own territory, in respect of any case that relates to acts that have taken place
abroad which it cannot rely on some permissive rule of international law. In this
situation, it is impossible to hold that there is a rule of international law that prohibits
Turkey (D) from prosecuting Demons because he was aboard a French ship. This stems
from the fact that the effects of the alleged offense occurred on a Turkish vessel.
Hence, both states here may exercise concurrent jurisdiction over this matter because
there is 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.

Discussion. In 1975, France enacted a law regarding its criminal jurisdiction over
aliens because of this the situation surrounding this case. The law stipulates that aliens
who commit a crime outside the territory of the Republic may be prosecuted and
judged pursuant to French law, when the victim is of French nationality. This is
contained in 102 Journal Du Droit International 962 (Clunet 1975). Several eminent
scholars have criticized the holding in this case for seeming to imply that international
law permits all that it does not forbid.

LOTUS CASE (SUMMARY)

Permanent Court of International Justice, Contentious Case: The Lotus Case
(France vs Turkey);
Year of the decision: 1927.
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 this 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:

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 Court’s 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: 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 principle of the Lotus Case. The Court held that:

“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, in 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.The Court held that:

“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)

This applied to civil and criminal cases. If the existence of a specific rule was a pre-
requisite to exercise jurisdiction, the Court argued, then “it would…in 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 Court based this finding on the sovereign will of States. It held that:

“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”

[Note: 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 has exclusive jurisdiction over offences
committed on board the ship in high seas. The Court 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: in
other words, there was concurrent jurisdiction.

The Court 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. The Court 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.” The Court
concluded that Turkey had jurisdiction over this case. It further said:

 “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 is also significant in that the Court 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: in other words, if the constituent element was absent – the crime
would not have happened. The Court said:

“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 gave an important dictum on creating customary international law.

France had 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 disagreed and 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 not only in acts of States (Nicaragua Case), but
also in omissions when those omissions are made following a belief that the said State
is obligated by law to  refrain from acting in a particular way. (For more on opinio
juris click here)
 THE CASE OF THE S.S. “LOTUS” (FRANCE V. TURKEY)
Judgment of September 7th 1927. Full judgment can be found here .

Background

 Case initiated by France to the Permanent Court of International Justice

(PCIJ) in The Hague which is the predecessor to the International Court of
Justice.
 This case is well known for analysing the condition of jurisdiction.
 The judgment being in 1927, with the events that took place in 1926, the
case was pre-UNCLOS (United Nations Convention on the Law of the Sea of
1982), the treaty drawn upon in particular to this event was the Convention of
Lausanne on July 24th 1923, and in particular, Article 15, respecting conditions of
residence and business and jurisdiction.

Facts of the case as agreed by both parties:

 2nd August 1926, just before midnight, a collision occurred between the
French steamship named S.S. Lotus and the Turkish steamship named S.S. Boz-
Kourt on the high seas.
 The S.S. Boz-Kourt was cut in two, sank, and eight Turkish nationals
aboard died.
 Lotus attempted to save all passengers on board, who managed to save 10
persons.
 Lotus continued its course to Constantinople (now modern day Istanbul),
and arrived there on the 3rd August.
 The first officer and watch on board of the French ship was French citizen
Monsieur Demons.
 The captain of Boz-Kourt was Hassan Bey, who managed to be saved from
the collision.
 On the 3rd August the Turkish police immediately started an investigation
into the collision.
 On the 5th August M. Demons was requested by the Turkish authorities to
give evidence.
 The Turkish authorities then arrested M. Demons, without notice given by
the French Consul-General and Hassan Bey.
 On the 28th August the case was heard by a court in Turkey, to which M.
Demons argued that Turkish courts have no jurisdiction. The Turkish court
objected this argument.
 On September 11th, M. Demons demanded bail, to which it was granted on
the 13th September to the sum of 6,000 Turkish pounds.
 On September 15th, the Turkish court sentenced M. Demons to 80 days
imprisonment and a fine of 22 pounds. Hassan Bey was sentenced to a more
severe penalty.
 The prosecutor of the Turkish court entered an appeal against the decision,
to which effectively suspended the execution of the sentence until a decision
upon appeal had been made, however an agreement made on 12th October did
not effect the criminal proceedings against M. Demons in Turkey. According to
France, M. Demons was imprisoned for 39 days.
 The action of the Turkish judicial authorities gave rise to diplomatic
concern from the French government. Both the French government and the
Turkish government then agreed for the case to be transferred to the PCIJ in The
Hague.

Case

 The questions asked of the Court was :

o Has Turkey violated the principles of international law with improper
use of jurisdiction, and if so, what principles?
o If Turkey are found to violate these principles, what reparation is
due to M. Demons, the officer in command on board of Lotus at the time of the
collision.

What did France say?

 France said criminal proceedings against M. Demons during which a

collision occurred belongs exclusively to France courts.
 France said Turkish authorities were wrong to prosecute M. Demons, and
this therefore violated international law on jurisdiction.
 The French government want reparation amounting to 6,000 Turkish
pounds paid by the Turkish government.

France furthermore argued that:

 As the practice of international law of civilised nations, a “state is not

entitled..to extend criminal jurisdiction of its courts to include a crime or offence
committed by a foreigner abroad solely in consequence of the fact that one of its
nationals has been a victim of the crime of offence. Putting it another way to
reiterate this stance, international law does not allow a state to take criminal
proceedings against the foreign offender by reason of the victim’s nationality.
 Acts performed on the high seas in the relevance of criminal proceedings
are subject to the courts of the nationality of the ship. Jurisdiction is given to the
courts whose flag the vessel flies. Putting it another way to reiterate this stance,
international law recognises the exclusive jurisdiction to the state of a vessel
 whose flag is flown. In the Court’s judgment, they mentioned that this principle is
not always universally accepted, the United Kingdom refused the United States
for the extradition of John Anderson, a British seaman who had committed
homicide on board an American vessel. The United Kingdom recognised the
jurisdiction of the United States but also mentioned the entitlement to exercise
theirs.
 The nationality of the victim is not sufficient grounds to override the above
rule.
 The act of the collision must be considered in the jurisdiction to which the
ship applies.
 Jurisdiction cannot be transferred to the nationality of the vessel sunk.
 The fact that both ships are of different nationalities and collided together,
jurisdiction cannot be transferred from one ship to another, there is no such
agreement of international law to this effect.
 In order for a Turkish court to have jurisdiction, they should be able to
point towards some form of international law on jurisdiction in favour of Turkey.

What did Turkey say?

 They argued to the court to give judgment in favour of the Turkish court.
 In addition to France’s argument, Turkey responded, inter alia, that:
 The place where the offence was committed was the S.S Boz-Kourt flying
the Turkish flag, and so Turkish Courts have jurisdiction of the offence.
 (A key argument)  Article 15 of the Convention of Lausanne 1923 allows
Turkey jurisdiction whenever such jurisdiction does not come into conflict with a
principle of international law.
 Turkey has jurisdiction, and therefore no reparation should be paid by the
Turkish government to the French government.

Judgment

 There is no rule of international law that criminal proceedings occurring

from collisions at sea are exclusively within the jurisdiction of the state on whose
flag the vessel is flown.
 This therefore means, in answer to the questions asked of the Court:
o Turkey has not violated principles of international law by instituting
criminal proceedings against M. Demons.
o As such there is no occasion to give judgment on reparation to
France.

Important notice
 After this case, a convention was signed at Geneva in 1958  (the High Seas
Convention) that specifically addressed jurisdiction on collisions on the high seas
under Article 11.
 Article 11, in three paragraphs state:
o 1. In the event of a collision at the high seas, no penal or disciplinary
proceedings may be instituted against the master or any service person of the
ship other than the flag state of the ship or the nationality of the person.
o 2. For disciplinary procedures, only the state issuer of a master’s
licence have the ability to withdraw it, even if the holder of the licence is not a
national of the issuing state.
o 3. No arrest or detention of a ship can be ordered by any authorities
other than the flag state of the ship.
 Had this convention been in place before the time of the Lotus collision, the
judgment of the PCIJ would have been different. Turkey would not have had the
jurisdiction to institute criminal proceedings against M. Demons due to Article 11
paragraph 1.
 The exact wording of Article 11 is also included in the convention's
successor, UNCLOS (United Nations Convention of the Law of the Sea of
1982)  under Article 97.

Lotus Principle

 This case highlighted what is known as the lotus principle in international

law. This means that states can do as they wish unless it is made explicit that it is
prohibited in international law.