TAMIL NADU NATIONAL LAW UNIVERSITY

(A State University Established under Act 9 of 2012)

PUBLIC INTERNATIONAL LAW

TITLE OF THE PROJECT

AN ANALYSIS OF THE LOTUS CASE

SUBMITTED BY
RAMANAH.V
(BC0160031)

PROJECT SUBMITTED TO
DR. S. AMIRTHALINGAM
ASSOCIATE PROFESSOR OF LAW
 TABLE OF CONTENTS

CHAPTER I: ABOUT THE PAPER ................................................................................. 3

• INTRODUCTION: .................................................................................................... 3

• OBJECTIVE OF THE TITLE: .................................................................................. 3

• RESEARCH QUESTIONS: ...................................................................................... 3

• FACTS OF THE CASE: ............................................................................................ 4

• COURT’S VERDICT: ............................................................................................... 4

CHAPTER II: BASIC PRINCIPLES FOUND IN THE CASE ...................................... 5

• THE LOTUS PRINCIPLE:........................................................................................ 5

CHAPTER III: CRIMINAL JURISDICTION ................................................................. 7

• TERRITORIALITY:.................................................................................................. 7

• NATIONALITY: ....................................................................................................... 8

CHAPTER IV- INDIA’S POSITION POST THE LOTUS CASE ................................. 9

• INDIA’S RELIANCE: ............................................................................................... 9

• THE REPUBLIC OF ITALY v. THE UNION OF INDIA: ...................................... 9

CHAPTER V- CONCLUSION......................................................................................... 11

• CONCLUSION: ....................................................................................................... 11

REFERENCES................................................................................................................... 12

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 CHAPTER I: ABOUT THE PAPER

INTRODUCTION:

The decision of the Permanent Court of International Justice (PCIJ) in the Lotus Case1 was a
landmark case in the history of International Law as its pronouncement changed the entire
perspective of viewing the concept of Territorial Jurisdiction in terms of the Jurisprudential
aspect.

The Court, in one way, paved way for the inception of the much-argued issue of ‘Extra-
Territorial Exercise of the Courts’ Jurisdictions of any State’, when the prohibitive rule of that
state is absent.

OBJECTIVE OF THE TITLE:

This paper aims at bringing out the principles laid down in the ‘Lotus Case’ and cull out the
necessary doctrines and briefly discuss about the Criminality involved in the International Law.
It further discusses about India’s stand in the Enrica Lexie Case2 and explains why India took
Lotus case as its defence.

RESEARCH QUESTIONS:

1. Can Turkey exercise its jurisdiction over the French person under International Law?
2. If yes, did Turkey violate any law of the International Jurisdiction by ruling a crime
over the French national?
3. If yes, is Turkey liable to pay compensation to France?

1
S.S. Lotus (France v. Turkey.), 1927 P.C.I.J. (ser. A) No. 10.
2
The Republic of Italy’s Ambassador v. Union of India, MANU/SC/0059/2013.

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RESEARCH METHODOLOGY:

The methodology employed in this paper will be analytical/non-doctrinal. The paper will
discuss the Lotus Case in detail and bring out the important principles of Jurisprudence in the
eyes of Public International Law regarding exercising the Extra-Territorial Jurisdictions with
analogies drawn from other cases, heard after this case. No specific conclusions may be drawn
but mere analyzation will be done on the outcomes and after effects of the case.

FACTS OF THE CASE:

In the mid-1920’s, there was a collision between two ships, with one, ‘Lotus’ belonging to
France and the other ‘Boz-Kourt’, belonging to Turkey. In due of this, 10 Turkish on board,
were sank killed with Boz-Kourt. The survivors of Boz-Kourt boarded Lotus and they headed
to Turkey. Once reaching Turkey, the captains of both the ships were charged with
manslaughter by the State’s Court. With the French Captain, being imprisoned and fined, the
French Government protested to release him or pleaded to transfer the case to their Courts.
Finally, both of the nations agreed to take this case to the Permanent Court of International
Justice (PCIJ).

COURT’S VERDICT:

The Court found Turkey not violating International Law and charged the French Captain
holding him guilty.

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 CHAPTER II: BASIC PRINCIPLES FOUND IN THE CASE

THE LOTUS PRINCIPLE:

The first principle is that a State, outside its territory, cannot exercise its jurisdiction unless any
International Treaty or Customary Law permits.3

The second principle is that, for a State, if any issue falls within its territory, it may exercise its
jurisdiction in anyway even if there is no International Treaty or Customary Law directing it to
do a certain way. 4 On this note, States get unlimited discretion to exercise their powers on land,
but limited by any International Prohibitive Rules, if any.5

We will now discuss briefly about the auxiliary principles culled out from the Lotus Principle.

a. Territoriality Principle:

A large number of countries accept this principle, if there is any dispute between two
or more States. ‘Territoriality’ translates to the sovereignty of one State.6 There are two
types of Territoriality Principle.

i. Subjective Territoriality: If the conduct occurs within the territorial limits.

ii. Objective Territoriality: If the conduct occurs only partially inside the
territorial limits

3
Id. The PCIJ ruled, “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.” In Para 45
4
Id. The PCIJ ruled, “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.” In Para 46.
5
Id. The PCIJ ruled, “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.” In Para 47
6
Danielle Ireland-Piper, PROSECUTIONS FOR EXTRATERRITORIAL CRIMINAL CONDUCT AND THE
ABUSE OF RIGHTS DOCTRINE, 9(4) UTRECHT L. REV. 74, 68 (Sept. 2013).

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 b. Nationality Principle:

This principle vests powers on a State to exercise jurisdiction of nationals even when
the issue is involved outside of the territory. There are two types of Nationality
Principle.

i. Active Nationality: When a State exercises jurisdictions of other-State

Nationals, in their territory (E.g. Turkey filing charge on the French Captain).
ii. Passive Nationality: When a State exercises its jurisdictions on its own
Nationals. (E.g. Turkey filing charge on the Turkish Captain).

c. Universality Principle:

This principle allows a State to exercise its jurisdiction for crimes that are grave and
irrespective of the committed location, perpetrator or the victim. 7 This principle is
applied to cases of crimes of extreme degree of piracy, war, slavery, genocide, torture
etc. 8

d. Protective Principle:

This principle is invoked to justify the claims of extraterritorial jurisdiction by a State

if any offence is charged against it or its Nationals that bothers the State’s national
interest.9 Mostly States would invoke this principle if there is any threat possessed to
their security or sovereignty. In the Lotus Case, France invoked this principle to protect
its sovereignty.

7
Oppenheim, OPPENHEIM’S INTERNATIONAL LAW 479 (Robert Jennings & Arthur Watts eds., 9th ed.
1955).
8
Starke, STARKE’S INTERNATIONAL LAW 211 (I. A. Shearer ed., 11th ed., OUP 1994).
9
Supra Note 6, p. 571.

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 CHAPTER III: CRIMINAL JURISDICTION

TERRITORIALITY:

France purported that the Flag State of the ship has complete jurisdiction over the offences
done inside the ship, in the waters. The PCIJ disagreed to this and held that France cannot enjoy
exclusive territorial Jurisdiction in the seas with another ship carrying a flag of another State.
The Court finally held that the jurisdiction lies either with Turkey or with France. That is, it
was a Concurrent Jurisdiction.10

The Court held that a ship is espoused to its Flag State’s jurisdiction.11 The Court linked the
Turkish ship to belonging to the Turkish Territory and the laws of Turkey would apply.12 Thus,
the Court concluded that Turkey held the jurisdictional power over this case.13

Talking about the Customary International Law, the Lotus Case iterated a significant dictum
in the creation of the Customary International Law. France claimed that the jurisdictional
questions on collision cases are not so often heard into criminal cases and that States should
prosecute these issues only before the flag States, i.e. the French Courts in this case. It also
argued that in the absence of a statutory customary law, only the positive rules of France should
be applied. PCIJ turned down this argument stating the duty rights that should be vested in the
Turkish jurisdiction.14

So, opinio juris applies to not only the States having acts, but also imposes a duty on States,
that have omitted to put such rules and that they have an obligation to have laws in place.

10
Supra Note 1, Para 71.
11
Oteri & Oteri v. Regina, (1976) ALR, 11, p. 142.
12
Id., The PCIJ ruled, “… 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.” Para 74.
13
Id. The PCIJ ruled, “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.”
14
Id. The PCIJ ruled, “…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.” Para
80.

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NATIONALITY:

The Lotus Case Judgement, one of whose, where the possible effects were to link the sailors
and the sea men to a foreign criminal law, of which they have no knowledge, was widely
criticized.15 A contrary rule was taken into consideration in matters of collision and other sea-
related accidents.16 In the international conventions and the Lotus case, unless suggested
otherwise, other rules that are adhered to, will no longer be accepted.

Therefore, the nationality of the persons accused will stay the same, however, the laws applied
on them, will be the laws derived from the distinguished territory of where the issue occurred.

15
Malcolm N. Shaw, INTERNATIONAL LAW 664 (6th ed. 2008), p. 301.
16
1952 International Convention for the Unification of Certain Rules relating to Penal Jurisdiction in
matters of Collision or Other Incidents of Navigation, art. 1, May 10, 1952, 429 U.N.T.S. 233.

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 CHAPTER IV- INDIA’S HOLD OF THE LOTUS CASE

INDIA’S RELIANCE:

India has not been subjected to the territoriality issues relating to seas with other States often,
but it was one scenario that made India head to the Permanent Court of International Justice
against Italy in what we prevalently call as the Enrica Lexie.

1. The Republic of Italy Case17: The case where the international law criterion from the
shoes of India was recently challenged in a high voltage set of arguments in the
Supreme Court of India.

The Indian Government seemingly took the Lotus position ruled by the PCIJ. In the cases
where Public International Law is dealt, the judiciary has always been less involved and that
too, in the case of crimes reported to have occurred in the sea.

THE REPUBLIC OF ITALY v. THE UNION OF INDIA:

In this infamous case, the two Italian naval soldiers’ immunity was put at the question. India
held the Lotus Case’s Judgement as the sole defense for its arguments. The Lotus case strictly
laid down the territorial jurisdictional principles, and told that any act outside of the territory,
the international law leaves states with a wide measure of discretion of exercising jurisdictions
onto them. However the ITLOS hardly accepted the Lotus position claimed by India, bit the
appeal to the Domestic Court still continues. This Lotus presumption ignores that any particular
Act, if it is not expressly prohibited, might yield consequences that are forbidden by law if a
state authorizes a particular Act.

Justice Kabir, in this case had the view that the principles pronounced in the Lotus Case have,
to some extent been diluted by Article 97 of the United Nations Convention on the Law of the
Sea, 1982 (UNCLOS).18 It is crucial to understand that the Indian Court has perceived the

17
Supra Note 2.
18
Id. Para 19.

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UNCLOS knowing that India may be a party to it. Italy contended that the provisions of
domestic laws will be Maritime Zones Act of 1976. They should be read along with the
UNCLOS. For the Indian side of defense, India’s Counsel Harish Salve insisted that the Lotus
Judgement has not been obsolete yet and still holds to be good law, saving the extent that
Article 97 of the UNCLOS had overwritten it.19 The Articles 91, 92, 94 and 97 of UNCLOS
have rejected any concurrent jurisdiction that the international law has previously allowed,
Harish Salve argued.

Italy claimed sovereign immunity on the fronts of international Law and claimed the
International trade practices to be a valid ground of excuse.20 To this, the arguments forwarded
by India were justifiable and notable. India noted that the UN Convention on Juridical
Immunities of States and their Property 2004, which Italy referred, has not been enforced. This
makes the argument voidable. Disagreeing to Italy’s argument, India argued they cannot accept
Italy’s contention that the Convention reflected customary international law. The SC, however,
disagreed to India’s submission, and told the provincial government of Kerala could not initiate
the subject matter of a proceeding.21

The Apex Court finally directed India to

“set up a Special Court to try this case and to dispose of the same in accordance with
the provisions of the Maritime Zones Act, 1976, the Indian Penal Code, the Code of
Criminal Procedure and most importantly, the provisions of UNCLOS 1982.”22

Since Italy has invoked this Writ Jurisdiction to the SC under the Indian Constitution, it may
be considered as a waiver, though not express.23 However, keeping in perspective the power of
the Supreme Court under Article 12924 of the Constitution to punish for contempt of itself, the
SC seems to have had the legal weapons in its armour.

19
Ibid., Para 33.
20
Id,. Italy Submitted, “In earlier matters The Indian Supreme Court had ruled that although Conventions, such
as these, have not been adopted by legislation, the principles incorporated therein, are themselves derived from
the common law of nations as embodying the felt necessities of international trade and are, therefore, a part of
the common law of India and applicable for the enforcement of maritime claims against foreign ships.” Para 42.
21
Supra Note 17, Para 96.
22
Ibid., Para 101.
23
https://www.lawfarm.in/question/legal-aspects-of-enrica-lexie-case.
24
Supreme Court to be a court of record The Supreme Court shall be a court of record and shall have all the
powers of such a court including the power to punish for contempt of itself.

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 CHAPTER V- CONCLUSION

CONCLUSION:

Though this research paper started with an intent to suggest any feasible alternative that would
best suit the Indian stand when it comes to interpreting the legal repercussions arising out of
the issues dealt in the seas, the recent case of the Republic of Italy v. Union of India25 shows
that the best defense for India under these circumstances will be to adhere to the Lotus Principle
only.

Therefore, the extraterritorial exercise of jurisdiction can prove to be useful in seeking to

regulate transnational crimes, such as child-sex tourism, piracy, money laundering, drug
trafficking, human trafficking and migrant smuggling. As these crimes are not limited to the
territorial limits of any state, thus the relevant legal frameworks should also not be limited to
the territorial limits of the state as these crimes are of universal nature and have to be curbed.
When it comes to issues between states, what principles that are held by the Lotus Case, still
holds to be good in law as in the researcher’s point of view. Thus the researcher advises that is
best for now to stick to the golden Lotus Principle.

25
Supra Note 2.

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 REFERENCES

ARTICLES

1. K. Rubenstein, CITIZENSHIP IN AN AGE OF GLOBALISATION: The

Cosmopolitan Citizen, 25 LAW IN CONTEXT, no. 1, p. 88 (2007).
2. The Princeton Principles on Universal Jurisdiction, p. 29, PROGRAM IN LAW AND
PUBLIC AFFAIRS, PRINCETON UNIVERSITY (2001).
3. L. May, GLOBAL JUSTICE AND DUE PROCESS, 198 (2011).
4. P. Arnell, THE CASE FOR NATIONALITY BASED JURISDICTION, 50 INT’L
AND COMP. L. QUARTERLY, no. 4, p. 961 (2001).

BOOKS

1. G.D. Triggs, INTERNATIONAL LAW: CONTEMPORARY PRINCIPLES AND

PRACTICES (2006).
2. MALCOLM N. SHAW, INTERNATIONAL LAW (6th ed. 2008).
3. Starke, STARKE’S INTERNATIONAL LAW (I. A. Shearer ed., 11th ed., OUP 1994).
4. Oppenheim, OPPENHEIM’S INTERNATIONAL LAW (Robert Jennings, Arthur
Watts, 9th ed. 1955).

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