Customary International LawCase Lotus Case

7/30/2019 Customary International LawCase Lotus Case

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Customary International Law Case: The Lotus Case (1927, France v. Turkey, PCIJ)Facts: There was

a collision between French steamer Lotus, who was going to Constantinople, and Turkish collier

Boz-Kourt, where the Boz-Kourt sank. The Lotus tried to save the people on the Turkish vessel, and

did save 10, but 8 Turkishnationals who were on board died. The officer on watch onboard the Lotus,

Ltn .Demons, and of the Boz-Kourt, Bey, were taken by Turkish police for examination, and then

arrested (pending trial) for criminal prosecution of manslaughter,without previous notice given to the

French Consul-General. During trial inTurkey, Demons (French national) submitted that Turkish

courts had no jurisdiction, but his objection was overruled. Demons was then sentenced to 80days

imprisonement, and a fine of 22 pounds. The French government protested this, and both countries

agreed to bring the issue before this International court at the Hague in Geneva. Issue: Whether or not

the rules of international law prevent Turkey frominstituting criminal proceedings against a French

national under Turkish law. Ifyes, what pecuniary reparation is due to Demons? Holding: Turkey did

not act contrary to any existing Int'l law. Reasoning: All that is required of Turkey is that it does not

overstep the limits which international law places upon its jurisdiction; within these limits, its title to

exercise jurisdiction rests in its sovereignty. The French gov'targuments to which Turkey's actions

conflicted with international law .Int'l law doesnt allow a state jurisdiction over a foreigner, where the

offense was committed abroad, just b/c of the victim's nationality. Here the offense was committed

aboard a French vessel. Court says this doesnt apply here, b/c they are assuming the only affiliation

Turkey has to the incident are the victim's nationality. However, this is not true. The offense was

committed against the Turkish vessel, which is part of Turkey's territory. In this context, there is no

int'l rule of law prohibiting Turkey's jurisdiction. Since the collision occurred on the high seas, France

claimed that only

the state whose flag the vessel flew had exclusive jurisdiction over the matter. Court agrees it is true

that on the high seas, vessels are subject only to the state of which the flag they fly is. ???There a rule

specially applying to collision cases has grown up, according

to which criminal proceedings regarding such cases some exclusively within thejurisdiction if the

State whose flag is flown. Notes: Positivism and the Nature of International Law: Positivism is that

all international legal rules are based on state consent. The court ruled that turkeys state sovereignty is

a fundamental principle for International Law Burden of Proof: In this case, the idea was the

presumption that the burden of proof was on France. France had to prove that there is a rule of

customary international law restricting Turkish independence rather than making Turkey prove that


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its prosecution was sanctioned by international law. Lotus reversal: In 1958 Geneva Convention on

the High Seas, provides that in cases involving collisions on the high seas, only the flag state or the

national state of the accused may prosecute the officer.

Notes How did this case get to the ICJ? French gov't challenging Turkey's

jurisdiction over French citizen in

Turkey. There was diplomatic chaos. Both countries mutually agreed/consented to the

ICJ. Consent given after

the incident, not prior. Question here: does Turkey have the jurisdiction? Turkey's

treaty - Turkish Penal Code - says subject to principles of int'l law(or CIL) Court

looks at territoriality in terms of jurisdiction Where did the incident occur?

Limitation - a state cant extend its arm into another territory unless

they have a reason to do so France brings argument that Turkey can't extend its arm

to the vessel on the high seas Holding: courts rejects all (3) of France's arguments

State can't exercise jurisdiction just b/c victim is a national of that

state (passive personality jurisdiction - some countries recognize it as aprinciple of

jurisdiction, some dont, but increasingly being recognized) Doesnt apply b/c turkey

did have a territoriality claim b/c the incident took place on Turkish vessel flying

Turkish flag No argument otherwise Exclusive jurisdiction to the state, if it' the

states flag being flown on


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the territory But it offense occurred against Turkish vessel No customary int'l law

to the contrary Conclusion could be overcome if there was a CIL, but none, after

research,

no evidence showing existing custom France has burden of proof to show that there

was CIL in the contrary Why? - presumption is on proving a restriction from int'l law,

rather than

a sanction allowing Turkey to do this. France failed to find a CIL After this case,

countries came together and adopted a treaty to deal with jurisdiction on the high seas,

which contradicted the outcome of this case. Treaties always trump

customary/common law. Legal positivism - laws come from states. They are created,

they dont come from nowhere. Contrasted with natural law theories, where even

though law isn't written down explicitly, they should still be followed. States can

create laws through actions or customs, but still made through

actions. Doesnt just arise from purely moral reasons like natural law.

The Case of S.S. Lotus

France v. Turkey1927 P.C.I.J. (Ser. A) No. 10 (Sept. 7)On August 2, 1926, the S.S.

Lotus, a French steamship, collided on thehigh seas with the Boz-Kourt, a Turkish

collier. The Boz-Kourt split in two andsank, and eight of its crew members were

killed. The Lotus remained toassist the survivors of the Boz-Kourt, including its

captain, Hassan Bey, andthen continued with the survivors to Constantinople. Turkish

authoritiessubsequently requested that Lieutenant Demons, the officer of the watch

onboard the Lotus when the collision occurred, come ashore to give evidence.At the

conclusion of the questioning, Turkish authorities placed Demons andHassan Bey

under arrest pending trial on charges of manslaughter. At trial,Demons argued that the

Turkish court lacked jurisdiction, but the courtconvicted both Demons and Hassan


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Bey, sentencing each to a term of imprisonment. The French government protested

the arrest and theconviction and requested that the case be transferred to a French

court. Turkey proposed, and France agreed, to pose the following question to thePCIJ:

(1) Has Turkey . . . acted inconflict with the principles of international lawand if

so, what principlesbyinstituting . . . criminal proceedings in pursuance of Turkish

law against M.Demons . . .? The French government invoked the 1923 Convention

of Lausanne inarguing against Turkish jurisdiction. Article 15 of the Convention

indicatedthat all questions of jurisdiction shall, as between Turkey and the

othercontracting Powers, be decided in accordance with the principles of international

law. France maintained that such principles precluded criminal jurisdiction in this

case. The Court, somewhat significantly, condensed thepositions of the parties in the

following way:

The French Government contends that the Turkish Courts, in order to have

jurisdiction, should be able to point to some title to jurisdiction recognized by

international law in favor of Turkey. Onthe other hand, the Turkish Government takes

the view that Article15 allows Turkey jurisdiction whenever such jurisdiction does

not come into conflict with a principle of international law.

Having thus framed the question as one inquiring whether internationallaw is

essentially permissive or prohibitive, the Court then issued its famousdictum:

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 toregulate 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 Court ultimately ruled, in a six-six split with President Huber castingthe deciding

vote, that trying Demons was not an exercise of power on theterritory of another

State, that the Court could deduce no rule or principle of international law preventing

Turkey from exercising jurisdiction, and thatunder the circumstances France and

Turkey had concurrent jurisdiction


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Principle:

According to the customary intimation law, only the flag state vessel can take

proceeding with regard to offences or crimes committed on the open sea; the Court

held an opposite view regarding this on this case.

Facts of the case:

A collision was occurred on August 2nd

, 1926 on the high seas between the French

Steamer Lotus and Turkish Steamer Bozkourt, which caused the death of eight

Turkish sailors and passengers. When the French Steamer Lotus arrived at

Constantinople, a criminal suit was instituted against the officer of the watch on board

the Lotus, Mr. Demonas who was a French citizen & as well as against Mr. Hassan

Bey who was the captain of the Bozkourt. On 5th

August both of them were arrested.

The French Govt. contends that the Turkish Court in order to have jurisdiction should

be able to point to some points recognized by international law in favour of Turkey.

So, it protested and demanded the release of Lt. Demonas or the transfer of the case to

the French Court.

On the other hand, Turkey Govt. takes the view that Article 15 of the Convention of

Lausanne of July 24th

1923 allows Turkey to exercise its jurisdiction whenever such

jurisdiction does not come into conflict with a principle of international law.

Issues:

1. Whether, Turkey acted contrary to Article 15 of the Convention of Lausanne

of July 24th

1923 and acted in conflict with the principles of international law.

2. Whether, there is a rule of international law expressly allowing Turkey to

prosecute a foreigner for an offence committed, by him outside Turkey, if notthen which one of the two countries can try the offence.


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Decision:

The conclusion at which the Court arrived was that there is no rule of international

law in regards two collision cases to the effect that criminal proceedings are

exclusively within the jurisdiction of the state whose flag is flown. So both the

countries can try the offence and Turkey did not act the conflict with the principles of

international law.

Reasoning:

1. International Law does not allow a state to take proceedings with regard to

offences committed by foreigners abroad simply by reason of the nationality

of the victim and such is the situation in the present case because the offence

must be regarded as having being committed on board the French vessel.

2. International Law recognizes the exclusive jurisdiction of the state whose flag

is flown as regards in anything which occurs on board a ship on the high seas.

3. It is admitted that the effect of the offence were produced on the Turkish

vessel, it becomes impossible to hold that there is a rule of international law to

hold prohibits Turkey from prosecuting lieutenant Demons because the authorof the offence was on board the French ship.

4. The Court does think it is necessary to consider the contention that a state

cannot punish offences committed aboard by a foreigner simply reason of the

nationality of the victim. For this contention only relates to the case where the

nationality of the victim is the only criterion on which the criminal jurisdiction

of the state is based.

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,

,

.

4.

.

.

But the decision of this case is not followed now.


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Lotus Case (Summary)

Name of the Case: The Lotus Case (France vs Turkey); Year of the decision: 1927;

and Court: PCIJ.

Overview: A collision occurred on 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 the French national under international

law?

Facts of the Case:

A collision occurred on the high seas between a French vesselLotusand a Turkish

vesselBoz-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).

Questions before the Court:

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 Courts 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?


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:

;.

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.

Now the first and foremost restriction imposed by international law upon a State is

thatfailing 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)

Lotus :

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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.

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,


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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. (paras 46 and 47)

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( 46 47).

This applied to civil and criminal cases. If the existance of a specific rule was a pre-

requisite to exercise jurisdiction, PCIJ argued, then it wouldin 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 4

, PCIJ , , " ...

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[] . (. 48).8).

The PCIJ based this finding on the sovereign will of 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

[NB: This was one of the most debated aspects of the judgement. Some argued thatthe Court placed too much emphasis on sovereignty and consent of States (i.e. took a

strong positivists view)].

Criminal Jurisdiction: Territorial Jurisdiction

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 highseas in respect of a collision with a vessel carrying the flag of another State (paras 71


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84). The Court held that Turkey and France both have jurisdiction in respect of the

whole incident: i.e. there is concurrent jurisdiction.

The PCIJ 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. In this case, the PCIJ 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.

Turkey had jurisdiction over this case.

PCIJ

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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.

The Lotus Case was also significant in that the PCIJ 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


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entirely inseparable; i.e., if the constituent element was absent the crime would not

have happened.

The offence for which Lieutenant Demons appears to have been prosecuted was an

actof 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 gives an important dictum on creating customary international law.

France 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 held that this 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 werebased 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.

In other words, opinio juris is reflected in acts of States (Nicaragua Case) or in

omissions (Lotus case) in so far as those acts or omissions are done following a belief

that the said State is obligated by law to act or refrain from acting in a particular way.

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(For more on opinio juris clickhere)
http://ruwanthikagunaratne.wordpress.com/2011/04/22/lesson-2-4-formation-of-cil-opinio-juris/http://ruwanthikagunaratne.wordpress.com/2011/04/22/lesson-2-4-formation-of-cil-opinio-juris/http://ruwanthikagunaratne.wordpress.com/2011/04/22/lesson-2-4-formation-of-cil-opinio-juris/http://ruwanthikagunaratne.wordpress.com/2011/04/22/lesson-2-4-formation-of-cil-opinio-juris/

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