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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​)
Subsequent ICJ Decisions and Separate Opinions That Referred to Principles of the
Lotus Case
Advisory Opinion on the Unilateral Declaration of Kosovo​ (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 disagreed, ​inter alia​, with Court’s methodology in arriving at this conclusion. He
imputed the method to the principle established in the Lotus case: that which is not prohibited is
permitted under international law. He criticised the Lotus dictum as an out dated, 19th century
positivist approach that is excessively differential towards State consent. He said 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.
© Ruwanthika Gunaratne at https://ruwanthikagunaratne.wordpress.com, 2008 – present.
Unauthorized use and/or duplication of this material without express and written permission
from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used,
provided that full and clear credit is given to Ruwanthika Gunaratne with appropriate and
specific direction to the original content.

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Related

Lesson 6.2. Types of Extra-Territorial Criminal Jurisdiction

Note: This lesson should not be considered a comprehensive overview. It was used as a
supplement to classes conducted in 2010. In this lesson, we discussed the basis of criminal
jurisdiction of a national court when offenses are committed in the country and abroad. These
are: Territorial jurisdiction Jurisdiction based on nationality…
In "Jurisdiction & immunity"

Opinio Juris

What is opinio juris? 1. Article 38 (1) (b) of the Statute of the International Court of Justice
explains customary international law as comprising of "(1) a general practice (2) accepted as
law". The general practice or state practice was discussed in an earlier post. The ICJ, in its
jurisprudence, has relied…
In "Sources"

6.1. Prescriptive and Enforcement Jurisdiction: Territorial and Extraterritorial

Application

© 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 blog’s 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…
In "Jurisdiction & immunity"

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 ​Dakshinie Ruwanthika
Gunaratne​. ​31 Comments
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31 comments

1. Pingback: ​Case: Arrest Warrant Case: Separate Opinion of Judge Higgins, Kooijmans
and 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
5. Pingback: ​Is this the Nicaragua moment of the ICC? Plus a note on jurisdiction | Public
International law
6. Pingback: ​Settling the Confusion of Sovereignty and Independence | Hawaiian Kingdom
Blog
7. Pingback: ​Hawai‘i War Crimes: Willfully Depriving a Protected Person of a Fair Trial |
Hawaiian Kingdom Blog
8. Pingback: ​NORTH SEA CONTINENTAL SHELF CASES (SUMMARY) | Public
International law
9. Pingback: ​Asylum Case (Summary) | Public International law
10. Pingback: ​Opinio Juris | Public International law
11. Pingback: ​Simma on the Lotus Dictum: An Outdated Principle | Public International law
12. Pingback: ​6.1. Prescriptive and Enforcement Jurisdiction: Territorial and Extraterritorial
Application | Public International law
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.
Reply
1. ​Anonymous​ says:
December 6, 2015 at 5:07 PM
sure. @chinelo
Reply
17. Pingback: ​Talleres de Derecho Internacional: Derecho Internacional Básico | 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
20. ​Sajida​ says:
March 29, 2017 at 11:56 AM
I am using your resume as one of my source for my international law assignment. It is
handwritten, but i will make sure your resume is credited properly. Thank you
Reply
21. Pingback: ​The Nuclear Weapons Advisory Opinion (General Assembly Request) | Public
International law
22. ​sanasana​ says:
August 16, 2017 at 3:50 AM
How is this case related to the issue of equity as a source of law
Reply
23. ​Oscartaremwa​ says:
October 8, 2017 at 8:08 PM
This is great to discover
Reply
24. ​fai​ says:
October 13, 2017 at 11:44 PM
 Thanks so much. This really helps me understand the Lotus Case more for my Intro to IL
assignment.
Reply
1. ​Dakshinie Ruwanthika Gunaratne​ says:
November 6, 2017 at 12:06 PM
Good luck on the assignment.
Reply
25. ​Anil Upadhayay (Nepal)​ says:
November 29, 2017 at 7:24 AM
It is really very easy language to understand . I got the points from this. Thanks a lot
Reply
26. ​Desmond Ogbuinya​ says:
February 11, 2018 at 6:57 PM
very helpful, I appreciate your contributions.
Reply
27. Pingback: ​International Civil Litigation Procedure- Fall 2017 – International and European
Affairs
28. Pingback: ​Universal Law and Piracy – World Mediation Organization
29. Pingback: ​The Lotus Case (in Brief) – Samir Kulung.

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© 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 blog’s 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.

Public International Law by ​Ruwanthika Gunaratne​ is licensed under a ​Creative Commons

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