The Case of the S.S. "Lotus"

JUDEGMENT SUMMARY:

The Case of the S.S. “Lotus”

DATE OF JUDGEMENT: September 7th, 1927

JUDGES:

• President: MM. Huber Former President:LoderVice President: Weiss
• Judges:Lord Finlay, M.M. Nyholm, Moore, De Bustamante, Altamira, Oda, Anzilotti, Pessoa
• National Judge: Feizi- Daim Bey

REFERENCE:

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

PARTIES:

• The Government of the French Republic
• The Government of the Turkish Republic

SUBJECT:

This case dealt with the issue of a State’s jurisdiction over another State in a criminal trial for an offence that took place in the high seas. The Lotus can be considered to be an important case with regard to jurisdiction and public international law principles.

AN OVERVIEW/ BRIEF FACTS OF THE CASE:

1. On August 2nd, 1926 there happened to be a collision between ‘Lotus’ the French mail Steamer, and ‘Boz- Kourt’ which was the Turkish collier in the high seas just before midnight.  This incident resulted in the sinking of the Turkish collier and caused the death of 8 Turkish member on board, including sailors and passengers.
2. There were ten survivors from the collision, who were all taken aboard the French Steamer which finally reached Constantinople in Turkey.
3. On August 3rd, 1926 upon arrival, joint criminal proceedings were instituted against the captain of the Turkish collier – HaasanBey, as well as the officer on watch on board the French Steamer- M. Demons.
4. Mr. Demons was a French national who had been arrested and sentenced as per Turkish Law to imprisonment for 80 days as well as a fine of 20 pounds The same has occurred without a prior notice being given to the French Consul- General. The French Government demanded for the release of the officer and thereby transfer the case to France.
5. Following this, both the States signed a Special Agreement in Geneva on October, 11, 1926. Therefore, in accordance with the ICJ Statue[1] as well as the Rules of Court[2], the Turkish government accepted the PCIJ to decide on the issue of jurisdiction between France and Turkey.

IMPORTANT PROVISIONS:

• Article 40 of the ICJ Statue
• Article 15 of the Convention of Lausanne, 1923
• Article 6 of the Turkish Penal Code
• Public International Law Principle:
  1. “A State is not entitled, apart from express or implicit special agreements, to extend criminal jurisdiction of its court to include a crime or offence committed by a foreigner abroad solely in consequence of the fact that one of its nationals has been a victim of the crime or offence”[3]
  2. Freedom of the seas

ISSUES:

The following are the major issues discussed by the PCIJ included-

• Whether Turkey has violated International law by instituting joint criminal proceedings in accordance with Turkish law against an officer on the French Steamer for the lass caused to the Turkish Steamer?
• Whether if the above was answered in the affirmative, is Turkey liable to compensate France?

ANALYSIS OF THE JUDGEMENT:

Arguments of the French Government:

1. The French based their argument on the Lausanne Convention, 1923 dealing with residence and business and jurisdiction as well as principles of international law to establish that only France has exclusive jurisdiction to entertain criminal proceedings against M. Demons for the incident. They claimed the actions of the Turkish Judicial Authorities to be breaching of the Convention as well as principles of International law. They argued that in order for Turkey to have jurisdiction over the issue, the Turkish Government must be able to prove a title as under International law principles.
2. In addition, the French requested the Court to fix the indemnity in reparation at six thousand Turkish pounds, and was to be paid by the Turkish Government to the French Government for the injury caused to M. Demons.

Arguments of the Turkish Government:

1. The Turkish simply argued for the awarding the judgment in their favor, thereby allowing for Turkey to have had jurisdiction for the trial of M. Demons, who was a French citizen.

Application of Judicial Mind:

The PCIJ at the very first in this case narrowed to jurisdiction to either France or Turkey, as the incident had taken place in the high seas, as the territorial jurisdiction depends on the flag flying on either the Steamer or the collier. Further, the Court clarified that the issue at hand pertains to the very exercise of jurisdiction by Turkish Courts over the French national and not with respect to the trial procedure or the right application of the Turkish Law.

While moving on to the incident, the court identified that the reason for such a trial was the result of death of Turkish nations on board the Boz- Kout, and as it had happened sans criminal intention, it was a case of ‘involuntary manslaughter’.

The Court in this case considered the conception of connexity of offences, as similarity in the  time and place of the offence can give rise to the same. Therefore the Court expressed that with the facts accruing with respect to the Turkish collier, it is a undisputed fact that the Turkish Courts had jurisdiction, and considering the complexities of the facts as it also involves a French vessel, according to Turkish law the jurisdiction of the entire incident falls within the jurisdiction of the Turkish  Court.

It was produced before the court that the Turkish Authorities initiated prosecution of M. Demons as per Art. 6 of the Turkish Penal Code, which is as follows:

“Any foreigner who, apart form the cases contemplated by Art. 4, commits an offence abroad to the prejudice of Turkey or of a Turkish subject, for which offence Turkish law prescribes a penalty involving loss of freedom for a  minimum period of not less tan one year, shall be punished in accordance with the Turkish Law provided he is arrested in Turkey. The penalty may however be reduced by one third and instead of death penalty, 20 years of penal servitude shall be awarded…”[4]

The PCIJ in this case emphasized that, the real question before the court is if such a provision is against public international law principles as a plain reading of this provision justifies the action of the Turkish authority.

The Court further, tried to ascertain the principles of International law that was in violation. Firstly, they addressed Art. 15 of the Convention of Lausanne, wherein it was clearly stated that the question of jurisdiction between Turkey and other signatories would be decided in conformity with International Law principles. The Court interpreted the term ‘principles of international law’ as mentioned in the Article, to be all those “principles which are in force between all independent nation, and equally applying to all contracting party”[5]

The first principle of international law that was considered by the court was that unless there existed a customary practice or international treaty to the contrary, a State cannot exercise its power outside its territory, thus including jurisdiction. Moreover, the court held that irrespective of the presence of an international law for the same, a State has jurisdiction over any matter within its territory. This exercise of jurisdiction can be in respect of any incident wherein acts have taken place beyond the territories. The binding power of these principles can be traced back to willingness of States, i.e., in accepting practices or rejecting them. Thus, if there was a prior requirement of an explicit rule for exercising jurisdiction in such matters, it would be nearly impossible to get a globally recognized rule, thereby denying justice.

Furthermore, the court held that according to laws of the sea, since there existed two vessels with different flags involved in the collision, there exists concurrent jurisdiction, and thereby rejecting the French Governments claim of exclusive jurisdiction. Furthermore, in this case, the suffering was also borne by Turkey and also there existed no international law principle which prohibits, the State whose vessel has faced severe loss on sea as an offence that had taken place on its own territory. Thus, there exists no principle in international law that prohibits Turkey from exercising its jurisdiction over the French national- M. Demons.

​The PCIJ with equally divided votes came to the decision that Turkey has not acted in breach of international law principles or contrary to Art, 15 of the Lausanne Convention, thereby there exists no reason to sanction pecuniary reparation,

CONCLUSION:

The S.S. Lotus Case established the principle that so long as an act is not in conflict with an explicit prohibition in international law, it is the sovereign states will to act in the way they prefer. That is, it clarified that, so long as the offence had a constitutive element within the territory of the state, the State would have territorial jurisdiction over the offence even if it was committed abroad.Therefore, for the exercise of such a jurisdiction over an offence beyond the territory, it had to be established that there are non- separable consequences that have affected the State. Furthermore, another important impact of this case was that, the court identified opinio juris not only from the acts of the States but held that it is reflected in the omissions as well.

This case by the PCIJ is a landmark case with respect to establishing territorial jurisdiction and its connection with Public International law and therefore a recommended read for students of public international law.

• [1] Article 40 of the ICJ Statute
• [2] Article 35 of the Rules of Court
• [3]S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7)
• [4] Article 6 of the Turkish Penal Code
• [5]S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7)