Lotus Case

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:
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 said that jurisdiction is territorial: A State cannot exercise
its jurisdiction outside its territory unless it 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)
This applied to civil and criminal cases. If the existance of a specific rule was a pre-requisite to
exercise jurisdiction, PCIJ 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 PCIJ based this finding on the sovereign will of States.
“International law governs relations between independent States. The rules of law binding upon
States therefore 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 most debated aspects of the judgment. Some argued that the Court
placed too much emphasis on sovereignty and consent of States (i.e. took a strong positivists
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.
“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.