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The Case of the S.S. Lotus (France v.

Turkey)
Citation. Permanent Court of Int’l Justice, P.C.I.J. (ser. A) No. 10 (1927)
Brief Fact Summary. Turkey’s (D) assertion of jurisdiction over a French citizen who had been
the first officer of a ship that collided with a Turkish ship on the high seas was challenged by
France (P) as a violation of international law.
Synopsis of Rule of Law. A rule of international law, which prohibits a state from exercising
criminal jurisdiction over a foreign national who commits acts outside of the state’s national
jurisdiction, does not exist.
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) ConsulGeneral 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.
Issue. Issue: Does a rule of international law which prohibits a state from exercising criminal
jurisdiction over a foreign national who commits acts outside of the state’s national jurisdiction
exist?
Held. (Per curiam) No. A rule of international law, which prohibits a state from exercising
criminal jurisdiction over a foreign national who commits acts outside of the state’s national
jurisdiction, does not exist. Failing the existence of a permissive rule to the contrary is the first
and foremost restriction imposed by international law on a state and it may not exercise its
power in any form in the territory of another state.
This does not imply that international law prohibits a state from exercising jurisdiction in its own
territory, in respect of any case that relates to acts that have taken place abroad which it cannot
rely on some permissive rule of international law. In this situation, it is impossible to hold that
there is a rule of international law that prohibits Turkey (D) from prosecuting Demons because
he was aboard a French ship. This stems from the fact that the effects of the alleged offense
occurred on a Turkish vessel.
Hence, both states here may exercise concurrent jurisdiction over this matter because there is
no rule of international law in regards to collision cases to the effect that criminal proceedings
are exclusively within the jurisdiction of the state whose flag is flown.
Discussion. 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.

The S.S. Lotus Case
P.C.I.J. Ser. A, No. 10, p. 4 (1927)
 A French ship (the S.S. Lotus), collided with a Turkish ship in international waters,
killing some Turkish sailors.
o The French ship then docked in Turkey.
 Turkey attempted to try the French officer in charge of the Lotus for negligence.
o They found him guilty and sentenced him to 80 days in jail.
 France went to the Permanent Court of International Justice (P.C.I.J.) and argued that
Turkey did not have jurisdiction to try the French officers, because they were on a
French boat in international waters at the time of the accident.
o Turkey argued that since their nationals were killed, they had jurisdiction to
try those responsible for the deaths.
o France argued that as a matter of customary international law, the flag of
the vessel (in this case France) has exclusive jurisdiction.
 The PCIJ found that Turkey did have the right to try the French sailors.
o The PCIJ basically found that since the two ships were involved in the same
accident, that both countries had concurrent jurisdiction over the accident.
o The PCIJ found that customary international law gave France jurisdiction,
but it didn't give them exclusive jurisdiction.
 "Under international law, everything that isn't prohibited is
permitted."
 This case led to the Lotus Principle (aka the Lotus Approach), which says that
sovereign states may act in any way they wish so long as they do not contravene an
explicit prohibition.
o The Lotus Principle was later overruled by the 1958 High Seas
Convention.
 Article 11(1) says that only the flag State or the State of which
the alleged offender was a national has jurisdiction over sailors
regarding incidents occurring in high seas.

Such a view would only be committed by a French national. demanding the release of Demons or the transfer of his case to the French Courts. it leaves them in this respect a wide measure of discretion. This discretion left to States by international law explains the great variety of rules which they have been able to adopt without . it allowed States to do so in certain The Court’s Decision: specific cases. Year of the decision: 1927. should Turkey pay compensation to tenable if international law contained a general prohibition to States to extend the application France? of their laws and the jurisdiction of their courts to persons. which is only limited in Relevant Findings of the Court: certain cases by prohibitive rules. Victims were Turkish nationals and the alleged offender was French. “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 A collision occurred on the high seas between a French vessel – Lotus – and a Turkish vessel – the territory of another State. Could Turkey exercise its jurisdiction over the French national under international law? Facts of the Case: existing rule of international law or is the mere absence of a prohibition preventing the exercise of jurisdiction enough? The first principle of the Lotus case said that jurisdiction is territorial: A State cannot exercise its jurisdiction outside its territory unless an international treaty or customary law permits it to do so. and Did Turkey violate international law when Turkish courts exercised jurisdiction over a crime in which it cannot rely on some permissive rule of international law. This is what we called the first Lotus Principle. in respect of any case which relates to acts which have taken place abroad. But this is certainly not the case under international law as it stands at present. the officer on watch of the Lotus (Demons). and the captain of the Turkish ship were charged with manslaughter. did not violate international law.LOTUS CASE (SUMMARY) Establishing Jurisdiction: Does Turkey need to support its assertion of jurisdiction using an Name of the Case: The Lotus Case (France vs Turkey). Overview: A collision occurred on the high seas between a French vessel and a Turkish vessel. and if. Demons. property and acts outside their territory. every State remains free to adopt the principles which it regards as best and most suitable. even if there is no specific rule of international law permitting it to do so. In these instances. on any matter. which is only limited by the prohibitive rules of international law. States have a wide measure of discretion. a State may exercise its jurisdiction. it cannot be Boz-Kourt. and Court: PCIJ. Far from laying down a general prohibition to the effect that States may not extend the Turkey. Questions before the Court: The second principle of the Lotus case: Within its territory. Turkey and France agreed to refer this dispute on the jurisdiction to the Permanent Court of International Justice (PCIJ). follow that international law prohibits a State from exercising jurisdiction in its own territory. application of their laws and the jurisdiction of their courts to persons. was sentenced to 80 days of imprisonment and a fine. by instituting criminal proceedings against Demons. property and acts outside their territory. “It does not. The French government protested. as an exception to this general prohibition. as regards other cases. In Turkey. The Boz-Kourt sank and killed eight Turkish nationals on board the Turkish vessel. outside Turkey? If yes.” (para 45) Lotus. In this sense jurisdiction is certainly territorial. a French national. however. exercised by a State outside its territory except by virtue of a permissive rule derived from The 10 survivors of the Boz-Kourt (including its captain) were taken to Turkey on board the international custom or from a convention.

whilst its effects made Criminal Jurisdiction: Territorial Jurisdiction themselves felt on board the Boz-Kourt. This applied to civil and criminal cases. The Lotus case gives an important dictum on creating customary international law. one must prove that the element of the crime and the actual crime are entirely inseparable.” Turkey had jurisdiction over this case. 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 The PCIJ based this finding on the sovereign will of States. took a strong positivist view)]. we call this subjective territorial of common aims. It is committed on board the ship in high seas. Some argued that the Court element was absent – the crime would not have happened. France argued that this absence of .e. In order for subjective territorial jurisdiction to be established. so long as a constitutive relations between these co-existing independent communities or with a view to the achievement element of the crime was committed in that State. If the existence of a specific rule was a pre-requisite to exercise jurisdiction. to the exclusion of all other States. In this case. as the flag State. “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. the same principles must be applied as if the territories of two support the exercise of their [States’] jurisdiction” (para 48). This State may exercise its jurisdiction over the ship. have taken place belongs. then “it would…in many cases result in paralysing the “If.e. placed too much emphasis on sovereignty and consent of States (i.” (paras 46 the Turkish vessel and consequently in a place assimilated to Turkish territory in which the and 47) application of Turkish criminal law cannot be challenged. so much so that their separation renders the offence non-existent… It is only natural that each France alleged that the flag State of a vessel would have exclusive jurisdiction over offences should be able to exercise jurisdiction and to do so in respect of the incident as a whole. a guilty act committed on the high seas produces its effects on a vessel flying action of the courts.e. from regarding the offence as having been committed in its territory and prosecuting. within these limits. It held that France. Today.. the delinquent. These two elements are. In this case. PCIJ argued. if the constituent [NB: This was one of the more debated aspects of the judgement. Restrictions upon the independence of States cannot therefore be presumed” jurisdiction. 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). there is concurrent jurisdiction. therefore. the PCIJ held that the “… offence produced its effects on jurisdiction. i. different States were concerned. accordingly. The rules of law binding upon States therefor emanate from their own free will as expressed in conventions or by usages The Lotus Case was also significant in that the PCIJ said that a State would have territorial generally accepted as expressing principles of law and established in order to regulate the jurisdiction.” Customary International Law both have jurisdiction in respect of the whole incident: i.” “International law governs relations between independent States. entirely inseparable. in the same way as it exercises its jurisdiction alleged that jurisdictional questions on collision cases are rarely heard in criminal cases because States tend to prosecute only before the flag State. the Court equated the Turkish required of a State is that it should not overstep the limits which international law places upon its vessel to Turkish territory. owing to the impossibility of citing a universally accepted rule on which to another flag or in foreign territory. The PCIJ disagreed. The Court held that Turkey and France therefore a case of concurrent jurisdiction. even in regard to offences committed there by foreigners. France The PCIJ held that a ship in the high seas is assimilated to the territory of the flag State. its title to exercise jurisdiction rests in its sovereignty. legally. even if the crime was committed outside its territory.objections or complaints on the part of other States …In these circumstances all that can be over its land.

(For more on opinio juris click here) . 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. and not that they recognized themselves as being obliged to do so.The Court held that this “…would merely show that States had often. The alleged fact does not allow one to infer that States have been conscious of having such a duty.” In other words. there are other circumstances calculated to show that the contrary is true. in practice. on the other hand. 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. as will presently be seen.prosecutions points to a positive rule in customary law on collisions. abstained from instituting criminal proceedings.

or any resistance at the time of her capture. was likely to aid the enemy. knowledge of the blockade. and kept and sold alive.were regularly The Paquete Habana. not for the speculations of their authors concerning what the law ought to be. but for trustworthy evidence of what the law really is. or her crew. 517. until she was stopped by a blockading vessel.S. residing in Havana. each was captured by one of the United States without any certificate of the district judge as to the importance of the particular case. STATES FOR THE SOUTHERN DISTRICT OF FLORIDA put on board as they were caught. but were entitled to shares. caught by her crew from the sea. nor was there any evidence that she. At the breaking out of the recent war with Spain.the one a sloop. where there is no treaty and no controlling executive or legislative act or judicial decision. without regard to the amount in dispute and coast of Cuba. had any International law is part of our law. administering the law of nations. with her cargo of live fish. 677 (1900) Spanish subject. unarmed and honestly pursuing their peaceful calling of catching and bringing in fresh fish. and Under the Act of Congress of March 3. with their implements and supplies. cargoes and crews. and. had no interest in the vessel. Neither fishing vessel had any arms or ammunition on board. sailing under the Spanish flag. resort must be had to the customs and usages of civilized nations. and the other a schooner. and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. 1891. and without probable cause. On her return. blockading squadron. and her cargo consisted of fresh fish. And this rule is one which prize courts. or even of the war. Held that both captures were unlawful. For this purpose. and to give effect to. made any attempt to run the blockade. two fishing smacks -. this Court has jurisdiction of appeals from fished for eight days on the coast of Yucatan. and when near Havana. along the all final sentences and decrees in prize causes. 677 (1900) engaged in fishing on the coast of Cuba. the sloop there fished for twenty-five days in the territorial waters of Spain. and each owned by a 175 U. are bound to take judicial notice of. 43 feet long on the keel and of 25 tons burden. . are exempt from capture as prize of war. and with a crew of three men. the other third APPEALS FROM THE DISTRICT COURT OF THE UNITED belonging to her owner. and with a crew of six men -. to the works of jurists and commentators. it is an established rule of international law that coast fishing vessels. by the general consent of the civilized nations of the world and independently of any express treaty or other public act. c. and sailed along the coast of Cuba about two hundred miles to the west end of Syllabus the island.S. her crew. 175 U. of her catch.51 feet long on the keel and of 35 tons burden. and the schooner extended her fishing trip a hundred miles farther across the Yucatan Channel. who also resided there. in the absence of any treaty or other public act of their own government in relation to the matter. amounting in all to two thirds. Each vessel left Havana on a coast fishing voyage. At the present day. as evidence of these.

cargoes and crews. Inside the vessels were fresh fish which the crew had caught. Issue. This appeal of a district court decree. Yes. which condemned two fishing vessels and their cargoes as prizes of war.S.S (P) officials was that international law exempted coastal fishermen from capture as prizes of war.). unarmed and honestly pursuing their peaceful calling of catching and bringing in fish are exempt from capture as prizes of war. (P) squadron. J. When the owners (D) appealed. (P) from the time of the War of Independence and has been recognized explicitly by the French and British governments. The argument of the fishermen whose vessels was seized by the U. they argued that both customary international law and writings of leading international scholars recognized an exemption from seizure at wartime of coastal fishing vessels. (Gray. Synopsis of Rule of Law. The argument of the fishermen whose vessels was seized by the U. Are coastal fishing vessels with their cargoes and crews excluded from prizes of war? Held.S (P) officials was that international law exempted coastal fishermen from capture as prizes of war. The doctrine that exempts coastal fishermen with their vessels and crews from capture as prizes of war has been known by the U. Discussion. Each of the vessel running in and out of Havana and sailing under the Spanish flag was a fishing smack which regularly engaged in fishing on the coast of Cuba. Reversed. . It is an established rule of international law that coastal fishing vessels with their equipment and supplies. Facts. was brought by the owners (D) of two separate fishing vessels. He further argued that the exemption in any case had not become a customary rule of international law. Coastal fishing vessels with their cargoes and crews are excluded from prizes of war.S.PAQUETE HABANA Brief Fact Summary. The owners of the vessels were not aware of the existence of a war until they were stopped by U. Chief Justice Fuller who had a dissenting opinion which was not published in this casebook argued that the captured vessels were of such a size and range as to not fall within the exemption. but was only an act of grace that had not been authorized by the President. No incriminating material like arms were found on the fishermen and they did not make any attempt to run the blockade after learning of its existence not did they resist their arrest.