SS LOTUS CASE SLIDES

Facts

• A collision occurred in 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).
Question before the PCIJ
• 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
• 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
• 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:
The Second Principle
• “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
The Second Principle
• 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 Second Principle
• 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”
The Second Principle
• 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 Second Principle
• 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:
The Second Principle
• “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.”
Subjective Territorial Jurisdiction
• 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:
Subjective Territorial Jurisdiction
• 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:
Customary International Law
• “…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.”
Customary International Law
• 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.
Current law on collisions in the high
seas
• The current law on collisions in the high seas is out in Article 97 of the
United Nations Convention on the Law of the Sea (UNCLOS 1982).
• Article 97
Penal jurisdiction in matters of collision or any other incident of navigation
• 1. In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving
the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal
or disciplinary proceedings may be instituted against such person except before the judicial or administrative
authorities either of the flag State or of the State of which such person is a national.
• 2. In disciplinary matters, the State which has issued a master's certificate or a certificate of competence or
licence shall alone be competent, after due legal process, to pronounce the withdrawal of such certificates,
even if the holder is not a national of the State which issued them.
• 3. No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities
other than those of the flag State.