LOTUS CASE
Introduction
The Lotus case concerns a criminal trial which was the result of the 2 August
1926 collision between the S.S. Lotus, a French steamship (or steamer), and
the S.S. Boz-Kourt, a Turkish steamer, in a region just north of Mytilene
(Greece). As a result of the accident, eight Turkish nationals aboard the BozKourt drowned when the vessel was torn apart by the Lotus.
Facts
A collision occurred shortly before midnight on the 2nd of August 1926
between the French (P) mail steamer Lotus and the Turkish (D) collier
Boz-Kourt. The French mail steamer was captained by a French citizen
by the name Demons while the Turkish collier Boz-Kourt was captained
by Hassan Bey. The Turks lost eight men after their ship cut into two
and sank as a result of the collision.
Although the Lotus did all it could do within its power to help the ship
wrecked persons, it continued on its course to Constantinople, where it
arrived on August 3. On the 5th of August, Lieutenant Demons was
asked by the Turkish (D) authority to go ashore to give evidence. After
Demons was examined, he was placed under arrest without informing
the French (P) Consul-General and Hassan Bey. Demons were convicted
by the Turkish (D) courts for negligence conduct in allowing the
accident to occur.
This basis was contended by Demons on the ground that the court
lacked jurisdiction over him. With this, both countries agreed to submit
to the Permanent Court of International Justice, the question of
whether the exercise of Turkish (D) criminal jurisdiction over Demons
for an incident that occurred on the high seas contravened
international law.
Issues
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?
Holding
Turkey, by instituting criminal proceedings against Demons, did not violate
international law.
Arguments
Turkish Arguments
Article 15 of the Convention of Lausanne refers solely to the principles
of international law as they relate to the provisions of Article 16.
- The limitations that Article 15 and 16 of the Convention place on
Turkey cannot be read to limit Turkeys jurisdiction beyond its borders
in every case.
- Instead, Turkey, when exercising jurisdiction in any case concerning
foreigners, need only take care not to act in a manner contrary to the
principles of international law
Article 6 of the Turkish Penal Code, used to prosecute Demons, is not
contrary to the principles of international law
The territoriality of criminal law is not an absolute principle of
international law and by no means coincides with territorial sovereignty
- the effects of the offense occurred on a Turkish vessel and it is
impossible to hold that there is a rule of international law that prohibits
Turkey from prosecuting Lieutenant Demons simply because he was
aboard a French ship at the time of the incident
Jurisdiction is not an exclusive concept and therefore, being a case of
connected offences, the case and the officer should be prosecuted
jointly with and at the same time as the Turkish officer
- Turkey, from this standpoint, is also entitled to claim jurisdiction
No principle exists in criminal law that debars Turkey from exercising
the jurisdiction to pursue criminal proceedings as an action for
damages
A collision between two vessels is not only an issue of breaches of
navigation, but also brings into operation the sanctions which apply to
criminal law in cases of manslaughter
Cases in Support of Each Side
French Arguments
The Convention of Lausanne July 24th, 1923 prevents Turkish Courts
from pursuing criminal proceedings directed against a French citizen for
crimes or offences committed outside Turkey.
Acts performed on the high seas on board a merchant ship are, in
principle and from the point of view of criminal proceedings, amenable only
to the jurisdiction of the courts of the State whose flag the vessel flies.
The Principle of the Freedom of the Seas has established this
convention and it is a principle that States have rarely departed from
- The nationality of the victim is not a sufficient ground to override this rule
and seeing that this was held in the case of the Costa Ricca Packet
- The claim to extend Turkey's jurisdiction on the ground of connexity of
offences in the collision has no support in international law
- Recognizing the jurisdiction of the Turkish Courts to take action against the
officer of the French ship involved contradicts firmly established precedent in
international law regarding collisions on the high seas.
France also argued that the Turkish position relied on an amendment made
to the treaty of Lausanne that was not accepted by the French Powers:
- "Whereas the substitution of the jurisdiction of the Turkish Courts for that of
the foreign consular courts in criminal proceedings taken against foreigners
is the outcome of the consent given by the Powers to this substitution in the
Conventions signed at Lausanne on July 24th, 1923"
Judgment
Even in countries where criminal legislation is given a strictly territorial
character, criminal law is interpreted as interpreted as having been
committed in that national territory if one of the constituent elements
of the offence and/or its effects, have taken place there
since the effects of the offence were inflicted on the Turkish vessel, the
Court found that there was no rule of international law prohibiting
Turkey from prosecuting Lieutenant Demons simply because he was
aboard the French ship
the effects of a guilty act committed on the French ship produced its
effects on the Turkish vessel, Turkey could regard the offence as
having been committed in its territory, allowing it to prosecute the
accused according to its own national criminal legislation
The Court found no precedent in international law that criminal
proceedings in collision cases come exclusively within the jurisdiction
of the State whose flag is flown
The Court also did not find it necessary to consider whether Article 6
of the Turkish Penal Code was compatible with international law.
The court found that the arguments advanced by the French
Government either are irrelevant to the issue or do not establish the
existence of a principle of international law precluding Turkey from
instituting the prosecution brought against Lieutenant Demon.
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.
Conclusion
The lotus case established two principles of international law known as
Lotus Principles; these are as follows
First principle of Lotus:
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.
Second principle of Lotus:
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
In 1975, France enacted a law regarding its criminal jurisdiction over aliens
because of this the situation surrounding this case. The law stipulates that
aliens who commit a crime outside the territory of the Republic may be
prosecuted and judged pursuant to French law, when the victim is of French
nationality. This is contained in 102 Journal Du Droit International 962 (Clunet
1975). Several eminent scholars have criticized the holding in this case for
seeming to imply that international law permits all that it does not forbid.
References
http://www.icj-cij.org/pcij/series-a.php?p1=9&p2=1
https://www.icrc.org/customary-ihl/eng/docs/v1_rul_in_asofcuin
https://ruwanthikagunaratne.wordpress.com/2012/07/27/lotuscase-summary/
