This case comes as a result of a ship crash arising in the high seas on the night of 2nd August 1926. The two crashing vessels were SS Lotus a French ship and Bouz-Kourt a Turkish Vessel. As a result of the crash the Turkish vessel broke into two causing the loss of 8 Turkish citizens deployed on the ship. The French sailors rescued the pending 10 passengers of the ship and continued on its original trajectory to Constantinople (modern day Istanbul) where it docked on the 3rd August. When docked the Turkish govt. lodged an investigation into the case, asking M. Demons (French ship’s captain) to provide evidence with regard to the crash. Subsequent to which the Turkish authorities arrested M. Demons pending trial without any notice to the French Consul General. Both M. Demons and Hassen Bay (captain of the Turkish ship who had been rescued by the French sailors) are found guilty of the death of the 8 Turkish citizens. M. Demons contented the jurisdiction of the Turkish courts, the courts rejected that contention and pronounced M. Demons guilty with a bail set at 6000 Pounds.
However, France contended the jurisdiction of Turkey and together France and Turkey agreed to move this to the permanent court of international justice (hereinafter PCIJ). The most significant question that PCIJ opined upon in the following case was, which country had jurisdiction when the conflict arose outside the territorial bounds of both countries and if Turkey used improper jurisdiction when convicting M. Demons.
At the PCIJ, France argued that nationality of the victim was not sufficient Nexis (for turkey) to extend its jurisdiction (as opined in the case of Costa Rica Packets[1]), and in doing so it went beyond its scope of authority. France further went on to say that M. Demons was called in for investigation and not arrest, thereby citing another example of turkey going beyond their justified bounds and arresting M. Demons with no reasonable authority to do so. France also put forth that the ‘law of the flags[2]’ should apply. This is to mean that the country whose flag the ship bares gets the jurisdiction with regard to any crime that has arisen on that vessel.
Turkey on the other hand argued that it would have been unfair to the Turkish citizens if Turkey did not get to exercise jurisdiction and hold M. Demons responsible for the death of the 8 dead Turkish citizens. Turkey also further contented that the under Article 15 of the convention of Lausanne 1923[3], turkey could extend its jurisdiction, wherever said jurisdiction did not conflict with international law. This conjoined with the principle of connexity of events, turkey claimed that there had been no violation of international principles and therefore Turkey did not exceed its jurisdiction.
The PCIJ eventually took the positive school of thought and ruled in favor of Turkey. The court opined that “Law is a unified system that arises from the states will” and therefore in absence of consent, international law cannot prevail[4]. Justice Nyhlom in the majority opinion also argued that in absence of any existing rules, there must be absolute freedom. Thereby, in the absence of any legal principle governing conflict in international waters, Turkey was free to exercise its jurisdiction[5].
This case rejected the French contention of the law of the flags and essentially held in favor of turkey as Turkish citizens had been impacted. This case presents a very early example of conflicts being mitigated by international law, and it can be seen that the judgment pronounced lays down problematic ratios in two broad forms. One is the Lotus principle, that is to say that the countries are free to extend jurisdiction as long as it does not conflict with the international laws. The other is with regards to the grounds of jurisdiction, and what is important to establish valid jurisdiction of a country.
The case used the test of objective territoriality. This is the understanding that ships and aircrafts are treated as the floating territories of the nations whose flag they bare. Thus, an incident that happened on a Turkish ship impacting Turkish citizens would be under the Turkish jurisdiction. However, the understanding on this principle has been extended to (in certain cases) include the jurisdiction of states that faced the impact of the act, regardless of the fact the act could have been fully planned and executed in a different state (referred to as the ‘effects doctrine’[6]). This doctrine is often used by the US to regulate foreign cartels, using the argument that the prices set by the cartels impacts the American citizens and thereby America should have jurisdiction to regulate the same[7]. What’s imperative to notice here is that in the case at hand, the citizens being impacted was one of the key arguments that was used to justify the jurisdiction that Turkey was to receive in the name of ‘passive personality principle[8]’ saying that their citizens had been impacted, regardless of the fact that the action had been taken by a foreign national. Thus, it could be understood that the PCIJ in Lotus case relied heavily on the passive personality test and the understanding that the state whose nationals are impacted should receive jurisdiction to try foreign nationals in their courts.
Another problematic ratio that was set by the case is with regards to the fact the if international law is silent on something, countries enjoy absolute freedom[9]. This gives countries immense freedom to act however they like in cases where there is no prevailing international law. The lotus principle has been widely criticized and often overruled in future cases. The Arrest Warrant case of 2002[10] is an avid example where the lotus principle had been rejected at it was said that “if any act of law has not been prohibited it cannot be considered to be permitted.”
The final contention that was raised by France in the case, saying cases of collision weren’t tried under criminal charges because state tends to prosecute only in front of the flag state. The PCIJ rejected this argument saying that the mere abstinence of Turkey from doing this in the past did not mean that it wasn’t in its power to do it now, as they had no duty from abstaining to initiate criminal proceedings in cases of collision that could be used to bind them in international customary law.
It was also seen that soon after this case the flag rule had been solidified into the High-seas Convention of 1958[11]. This shows another front that the decisions taken by the courts in PCIJ had been overturned. The law of the flags is now considered to be a general practice that is accepted to confer jurisdiction and thus showing how the case might have been decided differently had the case been heard post the signing of the convention. While France did rase these contentions, it was seen that the PCIJ took a very narrow and positivist view of the law leading to formations of problematic understandings of International law which were subsequently amended in future jurisprudence.
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[1] “Costa Rica Packet Arbitration”. Oxford Public International Law, 2021, https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e119#:~:text=1%20On%2013%20(25)%20February,and%20the%20Netherlands%20(Whaling). Accessed 20 Apr 2021.
[2] “About | Heinonline”. Heinonline, 2021, https://heinonline.org/HOL/LandingPage?handle=hein.journals/tulmar17&div=16&id=&page=. Accessed 20 Apr 2021.
[3] “Treaty Of Lausanne – World War I Document Archive”. Wwi.Lib.Byu.Edu, 2021, https://wwi.lib.byu.edu/index.php/Treaty_of_Lausanne#:~:text=No%20power%20or%20jurisdiction%20in,Powers%20signatory%20of%20the%20present. Accessed 20 Apr 2021.
[4] Legal.Un.Org, 2021, https://legal.un.org/avl/pdf/ha/sicj/sicj_ph_e.pdf. Accessed 17 Apr 2021.
[5] Repository.Law.Umich.Edu, 2021, https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1145&context=mjil. Accessed 17 Apr 2021.
[6] “Effects Doctrine – Irwin Law”. Irwin Law, 2021, https://irwinlaw.com/cold/effects-doctrine/#:~:text=A%20doctrine%2C%20developed%20mainly%20by,of%20the%20objective%20territorial%20principle. Accessed 25 Apr 2021.
[7] Meti.Go.Jp, 2021, https://www.meti.go.jp/english/report/downloadfiles/2011WTO/2-14-2ExcessiveExtraterritorial.pdf. Accessed 29 Apr 2021.
[8] “Passive Personality Principle | International Law”. Encyclopedia Britannica, 2021, https://www.britannica.com/topic/passive-personality-principle#:~:text=The%20passive%20personality%20principle%20allows,1989%E2%80%9390)%20the%20de%E2%80%A6. Accessed 29 Apr 2021.
[9] Matignon, Louis. “The Lotus Principle In Public International Law – Space Legal Issues”. Space Legal Issues, 2019, https://www.spacelegalissues.com/the-lotus-principle/. Accessed 25 Apr 2021.
[10] “Belgian Arrest Warrant Case (Summary)”. Public International Law, 2012, https://ruwanthikagunaratne.wordpress.com/2012/07/27/belgian-arrest-warrant-case-summary/#:~:text=Facts%20of%20the%20Case%3A&text=The%20Court%20issued%20the%20warrant,Yerodia%20of%20inciting%20racial%20hatred.&text=Belgium%20sent%20the%20arrest%20warrant,and%20extradite%20Yerodia%20to%20Belgium. Accessed 25 Apr 2021.
[11] Legal-Tools.Org, 2021, https://www.legal-tools.org/doc/7b4abc-1/pdf/. Accessed 25 Apr 2021.
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