The Court’s Decision:

LOTUS CASE (SUMMARY)

Permanent Court of International Justice, Contentious Case: The Lotus Turkey, by instituting criminal proceedings against Demons, did not
Case (France vs Turkey); violate international law.

Year of the decision: 1927.

Relevant Findings of the Court:

Overview:
Establishing Jurisdiction: Does Turkey need to support its assertion of

A collision occurred on the high seas between a French vessel and a jurisdiction using an existing rule of international law or is the mere

Turkish vessel. Victims were Turkish nationals and the alleged absence of a prohibition preventing the exercise of

offender was French. Could Turkey exercise its jurisdiction over this jurisdiction enough?

French national under international law?

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
Facts of the Case: principle of the Lotus Case. The Court held that:

A collision occurred on the high seas between a French vessel – Lotus “Now the first and foremost restriction imposed by international law
– and a Turkish vessel – Boz-Kourt. The Boz-Kourt sank and killed upon a State is that – failing the existence of a permissive rule to the
eight Turkish nationals on board the Turkish vessel. The 10 survivors contrary – it may not exercise its power in any form in the territory of
of the Boz-Kourt (including its captain) were taken to Turkey on another State. In this sense jurisdiction is certainly territorial; it
board the Lotus. In Turkey, the officer on watch of the Lotus cannot be exercised by a State outside its territory except by virtue of
(Demons), and the captain of the Turkish ship were charged with a permissive rule derived from international custom or from a
manslaughter. Demons, a French national, was sentenced to 80 days convention.” (para 45)
of imprisonment and a fine. The French government protested,
demanding the release of Demons or the transfer of his case to the The second principle of the Lotus Case: Within its territory, a State

French Courts. Turkey and France agreed to refer this dispute on the may exercise its jurisdiction, in any matter, even if there is no specific

jurisdiction to the Permanent Court of International Justice (PCIJ). 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
Questions before the Court: prohibitive rules of international law.The Court held that:

Did Turkey violate international law when Turkish courts exercised “It does not, however, follow that international law prohibits a State
jurisdiction over a crime committed by a French national, outside from exercising jurisdiction in its own territory, in respect of any case
Turkey? If yes, should Turkey pay compensation to France? 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 a view to the achievement of common aims. Restrictions upon the
prohibition to States to extend the application of their laws and the independence of States cannot therefore be presumed”
jurisdiction of their courts to persons, property and acts outside their
territory, and if, as an exception to this general prohibition, it allowed [Note: This was one of the more debated aspects of the judgement.
States to do so in certain specific cases. But this is certainly not the Some argued that the Court placed too much emphasis on
case under international law as it stands at present. Far from laying sovereignty and consent of States (i.e. took a strong positivist view)].
down a general prohibition to the effect that States may not extend
the application of their laws and the jurisdiction of their courts to Criminal Jurisdiction: Territorial Jurisdiction
persons, property and acts outside their territory, it leaves them in
this respect a wide measure of discretion, which is only limited in France alleged that the flag State of a vessel has exclusive jurisdiction
certain cases by prohibitive rules; as regards other cases, every State over offences committed on board the ship in high seas. The
remains free to adopt the principles which it regards as best and most Court disagreed. It held that France, as the flag State, did not enjoy
suitable. This discretion left to States by international law explains the exclusive territorial jurisdiction in the high seas in respect of a
great variety of rules which they have been able to adopt without collision with a vessel carrying the flag of another State (paras 71 –
objections or complaints on the part of other States …In these 84). The Court held that Turkey and France both have jurisdiction in
circumstances all that can be required of a State is that it should not respect of the whole incident: in other words, there was concurrent
overstep the limits which international law places upon its jurisdiction.
jurisdiction; within these limits, its title to exercise jurisdiction rests
The Court held that a ship in the high seas is assimilated to the
in its sovereignty.” (paras 46 and 47)
territory of the flag State. This State may exercise its jurisdiction over
This applied to civil and criminal cases. If the existence of a specific the ship, in the same way as it exercises its jurisdiction over its land,
rule was a pre-requisite to exercise jurisdiction, the Court argued, to the exclusion of all other States. In this case, the Court equated the
then “it would…in many cases result in paralysing the action of the Turkish vessel to Turkish territory. The Court held that the “… offence
courts, owing to the impossibility of citing a universally accepted rule produced its effects on the Turkish vessel and consequently in a place
on which to support the exercise of their [States’] jurisdiction” (para assimilated to Turkish territory in which the application of Turkish
48). criminal law cannot be challenged, even in regard to offences
committed there by foreigners.” The Court concluded that Turkey had
The Court based this finding on the sovereign will of States. It held jurisdiction over this case. It further said:
that:
“If, therefore, a guilty act committed on the high seas produces its
“International law governs relations between independent States. The effects on a vessel flying another flag or in foreign territory, the same
rules of law binding upon States therefor emanate from their own free principles must be applied as if the territories of two different States
will as expressed in conventions or by usages generally accepted as were concerned, and the conclusion must therefore be drawn that
expressing principles of law and established in order to regulate the there is no rule of international law prohibiting the State to which the
relations between these co-existing independent communities or with ship on which the effects of the offence have taken place belongs,
from regarding the offence as having been committed in its territory possible to speak of an international custom. The alleged fact does
and prosecuting, accordingly, the delinquent.” 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
The Lotus Case is also significant in that the Court said that a State circumstances calculated to show that the contrary is true.”
would have territorial jurisdiction, even if the crime was
committed outside its territory, so long as a constitutive element of In other words, opinio juris is reflected not only in acts of States
the crime was committed in that State. Today, we call this subjective (Nicaragua Case), but also in omissions when those omissions are
territorial jurisdiction. In order for subjective territorial jurisdiction to made following a belief that the said State is obligated by law
be established, one must prove that the element of the crime and the to refrain from acting in a particular way. (For more on opinio
actual crime are entirely inseparable: in other words, if the constituent juris click here)
element was absent – the crime would not have happened. The Court
said: Subsequent ICJ Decisions and Separate Opinions That Referred to
Principles of the Lotus Case
“The offence for which Lieutenant Demons appears to have been
prosecuted was an act – of negligence or imprudence – having its Advisory Opinion on the Unilateral Declaration of Kosovo (2010)
origin on board the Lotus, whilst its effects made themselves felt on
board the Boz-Kourt. These two elements are, legally, entirely In the Kosovo Advisory Opinion the Court had to decide
inseparable, so much so that their separation renders the offence if the unilateral declaration of Kosovo of February 2008 was ‘in
non-existent… It is only natural that each should be able to exercise accordance with’ international law. The Court inquired and concluded
jurisdiction and to do so in respect of the incident as a whole. It is that the applicable international law did not prohibit an unilateral
therefore a case of concurrent jurisdiction.” declaration of independence. Based on this finding, the Court
decided that ‘the adoption of the declaration of independence did
Customary International Law not… violate any applicable rule of international law’.

The Lotus case gave an important dictum on creating customary Judge Simma disagreed, inter alia, with Court’s methodology in
international law. France had alleged that jurisdictional questions arriving at this conclusion. He imputed the method to the principle
on collision cases are rarely heard in criminal cases, because States established in the Lotus case: that which is not prohibited is
tend to prosecute only before the flag State. France argued that this permitted under international law. He criticised the Lotus
absence of prosecutions points to a positive rule in customary dictum as an out dated, 19th century positivist approach that is
law on collisions.The Court disagreed and held that, this: excessively differential towards State consent. He said that the Court
should have considered the possibility that international law can be
“…would merely show that States had often, in practice, abstained deliberately neutral or silent on the international lawfulness of certain
from instituting criminal proceedings, and not that they recognized 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
themselves as being obliged to do so; for only if such abstention were
should have inquired whether under certain conditions international law permits or
based on their being conscious of having a duty to abstain would it be
tolerates unilateral declarations of independence. Read more here.