By: Sanskruti Yagnik, SVKM’s Pravin Gandhi College of Law, Mumbai University

The Lotus Case arose out of a collision between the Lotus, a French Liner captained by a French citizen named Lieutenant Demons, and the Turkish steamer Boz- Kourt was captained by Hassan Bey at the high seas. The Boz-Kourt was sunk and eight persons, sailors and passengers, were drowned. The officer of the watch on board the Lotus was Lieutenant Demons, and on the arrival of the Lotus at Constantinople, to give evidence to the authorities and upon investigation he was arrested by the Turkish authorities and put on his trial on charge of having committed an offence under Article 6 of the Turkish Penal Code[1]. However, France protested against the arrest, demanding the release of Demons or to transfer the case to the French courts. Both France and Turkey agreed to refer this dispute on the jurisdiction to the Permanent Court of International Justice (PCIJ).

The question before the court was whether Turkey acted in conflict with the principles of International Law – and if so, what principles – by instituting criminal proceedings in pursuance of Turkish law against Demons?[2]

The decision of the PCIJ was ultimately ruled, in a six-six split with President Huber casting the deciding vote. The contentions will be briefly discussed in this article along with the opinion of the Court.

The court inquiring whether International law is permissive or prohibitive derived its famous dictum based on the finding on the sovereign will of the states:

International law governs relations between independent States. The rules of law binding upon States therefore 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[3].

(Note: This was the most debated aspects of the judgements and further can be seen reflecting upon the dissenting judgements of six Judges of the PCIJ)

The Court established two principles in the Lotus Case. Firstly, it stated that the state cannot exercise its jurisdiction outside its territory unless an international treaty or customary law permits it to do so. 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.”[4]

Secondly, 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:

“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. 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.”[5] 

The dissenting opinion by M. Loder made an important statement by stating the general principles and spirit of International Law. He held:

It seems to me that the contention is at variance with the spirit of international law. This law is for the most part unwritten and lacks sanctions; it rests on a general consensus of opinion; on the acceptance by civilized States, members of the great community, of nations, of rules, customs and existing conditions which they are bound to respect in their mutual relations, although neither committed to writing nor confirmed by conventions. This body of rules is called international law[6].

The Conundrum around the Flag

1. Criminal Jurisdiction- Territorial jurisdiction

France alleged that the flag of the state on the vessel have exclusive jurisdiction on the case and collisions cases in the high seas. The court however had a different view and held that France as the flag state did not carry exclusive jurisdiction over the vessel whose flag is flown, and  that there is no rule of international law in regard to collision cases to the effect that criminal proceedings are exclusively within the jurisdiction of the State whose flag is flown[7].

Significantly, in the Lotus case the court stated that the state will have territorial jurisdiction even, even if the crime was committed outside its jurisdiction, so long as the constituent element of the crime is committed in that state. Today, we call this substantive territorial jurisdiction, and the court held that:

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. Neither the exclusive jurisdiction of either State, nor the limitations of the jurisdiction of each to the occurrences which took place on the respective ships would appear calculated to satisfy the requirements of justice and effectively to protect the interests of the two States. It is only natural that each should be able to exercise jurisdiction and to do so in respect[8] of the incident as a whole. It is therefore a case of concurrent jurisdiction[9].

• Customary International Law

France in its contentions had held that jurisdictional questions on collision cases at the high seas are rarely heard in criminal cases, as the court tends to prosecute the flag state. The Lotus case gave an important dictum on creating customary international law. The court disagreed with France and held that:

“…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.” 

Lastly, that the Court could deduce no rule or principle of international law preventing Turkey from exercising jurisdiction, and that under the circumstances France and Turkey had concurrent jurisdiction.

Later, the ICJ held concurring opinions with the Lotus case while deciding upon matters of territorial jurisdiction which I shall divulge into in subsequent publications.

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[1] S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7)

[2] Ibid 

[3] Ibid

[4] Ibid para 45

[5] Ibid,  para 46 and 47

[6] Ibid, para 100

[7] Ibid, para 71-84

[8] Ibdi, para 31

[9] Ibid, para 84