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

Turkey)

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) Consul-General 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. 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.
OVERVIEW OF THE CASE

On 20 March 1993, the Republic of Bosnia and Herzegovina instituted proceedings against the Federal Republic of Yugoslavia
in respect of a dispute concerning alleged violations of the Convention on the Prevention and Punishment of the Crime of
Genocide, adopted by the General Assembly of the United Nations on 9 December 1948, as well as various matters which
Bosnia and Herzegovina claimed were connected therewith. The Application invoked Article IX of the Genocide Convention as
the basis for the jurisdiction of the Court. Subsequently, Bosnia and Herzegovina also invoked certain additional bases of
jurisdiction.

On 20 March 1993, immediately after the filing of its Application, Bosnia and Herzegovina submitted a request for the
indication of provisional measures under Article 41 of the Statute and, on 1 April 1993, Yugoslavia submitted written
observations on Bosnia and Herzegovina’s request for provisional measures, in which it, in turn, recommended the Court to
order the application of provisional measures to Bosnia and Herzegovina. By an Order dated 8 April 1993, the Court, after
hearing the Parties, indicated certain provisional measures with a view to the protection of rights under the Genocide
Convention. On 27 July 1993, Bosnia and Herzegovina submitted a new request for the indication of provisional measures and,
on 10 August 1993, Yugoslavia also submitted a request for the indication of provisional measures. By an Order dated 13
September 1993, the Court, after hearing the Parties, reaffirmed the measures indicated in its Order of 8 April 1993 and
declared that those measures should be immediately and effectively implemented. Then, within the extended time-limit of 30
June 1995 for the filing of its Counter-Memorial, Yugoslavia, referring to Article 79, paragraph 1, of the Rules of Court, raised
preliminary objections concerning both the admissibility of the Application and the jurisdiction of the Court to entertain the
case.

In its Judgment of 11 July 1996, the Court rejected the preliminary objections raised by Yugoslavia and found that it had
jurisdiction to deal with the dispute on the basis of Article IX of the Genocide Convention, dismissing the additional bases of
jurisdiction invoked by Bosnia and Herzegovina. Among other things, it found that the Convention bound the two Parties and
that there was a legal dispute between them falling within the provisions of Article IX.

By an Order dated 23 July 1996, the President of the Court fixed 23 July 1997 as the time-limit for the filing by Yugoslavia of
its Counter-Memorial on the merits. The Counter-Memorial was filed within the prescribed time-limit and contained counter-
claims, by which Yugoslavia requested the Court, among other things, to adjudge and declare that Bosnia and Herzegovina
was responsible for acts of genocide committed against the Serbs in Bosnia and Herzegovina and for other violations of the
Genocide Convention. The admissibility of the counter-claims under Article 80, paragraph 1, of the Rules of Court having been
called into question by Bosnia and Herzegovina, the Court ruled on the matter, declaring, in its Order of 17 December 1997,
that the counter-claims were admissible as such and formed part of the proceedings in the case. The Reply of Bosnia and
Herzegovina and the Rejoinder of Yugoslavia were subsequently filed within the time-limits laid down by the Court and its
President. During 1999 and 2000, various exchanges of letters took place concerning new procedural difficulties which had
emerged in the case. In April 2001, Yugoslavia informed the Court that it wished to withdraw its counter-claims. As Bosnia and
Herzegovina had raised no objection, the President of the Court, by an Order of 10 September 2001, placed on record the
withdrawal by Yugoslavia of the counter-claims it had submitted in its Counter-Memorial. On 4 May 2001, Yugoslavia submitted
to the Court a document entitled “Initiative to the Court to reconsider ex officio jurisdiction over Yugoslavia”, in which it first
asserted that the Court had no jurisdiction ratione personae over Serbia and Montenegro and secondly requested the Court to
“suspend proceedings regarding the merits of the case until a decision on this Initiative”, i.e., on the jurisdictional issue, had
been rendered. On 1 July 2001, it also filed an Application for revision of the Judgment of 11 July 1996 ; this was found to be
inadmissible by the Court in its Judgment of 3 February 2003 (see No. 1.98 below). In a letter dated 12 June 2003, the
Registrar informed the Parties to the case that the Court had decided that it could not accede to the Applicant’s request to
suspend the proceedings on the merits.

Following public hearings held between 27 February 2006 and 9 May 2006, the Court rendered its Judgment on the merits on
26 February 2007. It began by examining the new jurisdictional issues raised by the Respondent arising out of its admission as
a new Member of the United Nations in 2001. The Court affirmed that it had jurisdiction on the basis of Article IX of the
Genocide Convention, stating in particular that its 1996 Judgment, whereby it found it had jurisdiction under the Genocide
Convention, benefited from the “fundamental” principle of res judicata, which guaranteed “the stability of legal relations”, and
that it was in the interest of each Party “that an issue which has already been adjudicated in favour of that party be not
argued again”. The Court then made extensive findings of fact as to whether alleged atrocities had occurred and, if so,
whether they could be characterized as genocide. After determining that massive killings and other atrocities were perpetrated
during the conflict throughout the territory of Bosnia and Herzegovina, the Court found that these acts were not accompanied
by the specific intent that defines the crime of genocide, namely the intent to destroy, in whole or in part, the protected group.
The Court did, however, find that the killings in Srebrenica in July 1995 were committed with the specific intent to destroy in
part the group of Bosnian Muslims in that area and that what happened there was indeed genocide. The Court found that
there was corroborated evidence which indicated that the decision to kill the adult male population of the Muslim community in
Srebrenica had been taken by some members of the VRS (Army of the Republika Srpska) Main Staff. The evidence before the
Court, however, did not prove that the acts of the VRS could be attributed to the Respondent under the rules of international
law of State responsibility. Nonetheless, the Court found that the Republic of Serbia had violated its obligation contained in
Article 1 of the Genocide Convention to prevent the Srebrenica genocide. The Court observed that this obligation required
States that are aware, or should normally have been aware, of the serious danger that acts of genocide would be committed,
to employ all means reasonably available to them to prevent genocide, within the limits permitted by international law

The Court further held that the Respondent had violated its obligation to punish the perpetrators of genocide, including by
failing to co-operate fully with the International Criminal Tribunal for the former Yugoslavia (ICTY) with respect to the handing
over for trial of General Ratko Mladi´c. This failure constituted a violation of the Respondent’s duties under Article VI of the
Genocide Convention.

In respect of Bosnia and Herzegovina’s request for reparation, the Court found that, since it had not been shown that the
genocide at Srebrenica would in fact have been averted if Serbia had attempted to prevent it, financial compensation for the
failure to prevent the genocide at Srebrenica was not the appropriate form of reparation. The Court considered that the most
appropriate form of satisfaction would be a declaration in the operative clause of the Judgment that Serbia had failed to
comply with the obligation to prevent the crime of genocide. As for the obligation to punish acts of genocide, the Court found
that a declaration in the operative clause that Serbia had violated its obligations under the Convention and that it must transfer
individuals accused of genocide to the ICTY and must co-operate fully with the Tribunal would constitute appropriate
satisfaction.
Underhill vs Hernandez

Facts:

A revolution was initiated in Venezuela, against the administration thereof, which the revolutionists claimed had ceased
to be the legitimate government. On the 8th of August, 1892, an engagement took place between the arimes of the two
parties at Buena Vista, some seven miles from Bolivar, in which the troops under Hernandez prevailed; and, on the 13th of
August, Hernandez entered Bolivar, and assumed command of the city. George F. Underhill was a citizen of the United States,
who had constructed a waterworks system for the city of Bolivar, under a contract with the government, and was engaged in
supplying the place with water. Some time after the entry of Gen. Hernandez, Underhill applied to him, as the officer in
command, for a passport to leave the city. Hernandez refused this request, and requests made by others in Underhill's behalf,
until October 18th, when a passport was given, and Underhill left the country. This action was brought to recover damages for
the detention caused by reason of the refusal to grant the passport, for the alleged confinement of Underhill to his own house,
and for certain alleged assaults and affronts by the soldiers of Hernandez's army. The circuit court of the United states ruled
that the plaintiff was not entitled to recover. The court of appeals affirmed the ruling of the lower court.

Issue:

Whether or not the plaintiff Underhill is entitled to recover damages for alleged detention?

Ruling:

No. Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one
country will not sit in judgment on the acts of the government of another, done within its own territory. Redress of grievances
by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between
themselves. The immunity of individuals from suits brought in foreign tribunals for acts done within their own states, in the
exercise of governmental authority, whether as civil officers or as military commanders, must necessarily extend to the agents
of governments ruling by paramount force as matter of fact. In this case the archives of the state department show that civil
war was flagrant in Venezuela from the spring of 1892, that the revolution was successful, and that the revolutionary
government was recognized by the United States as the government of the country; it being, to use the language of the
secretary of state in a communication to our minister to Venezuela, 'accepted by the people, in the possession of the power of
the nation, and fully established. We entertain no doubt, upon the evidence, that Hernandez was carrying on military
operations in support of the revolutionary party. The acts complained of were the acts of a military commander representing
the authority of the revolutionary party as a government, which afterwards succeeded, and was recognized by the United
States. We think the circuit court of appeals was justified in concluding 'that the acts of the defendant were the acts of the
government of Venezuela, and as such are not properly the subject of adjudication in the courts of another government.
Whitney vs Robertson

Facts:

Plaintiffs are merchants doing business in New York and imported a large quantity of sugars which are similar to goods
in the Hawaiian island. The goods were admitted free of duties under the treaty and were entered in the custom house in the
port of New York. Plaintiffs claimed that by the treaty of Santo Domingo, the goods should be admitted on the same terms
that is free of duty same with the produce of Hawaiian islands. The defendeant collector refused to allow the plaintiffs claim.
Plaintiffs then appealed to the Secretary of Treasury which was also denied plaintiffs proposition. Hence this petition

Issue:

Whether or not the petitioner is exempted from paying obligations as imposed in the treaty.

Held:

Yes. If there is any conflict between the stipulations of the treaty requirements of the law. The latter must prevail. As
provided in the ninth article of the treaty, no higher duty shall be imposed on the importation into the united states of any
article or manufacturer of the Dominican republic and vice versa. It follows that when the law is clear, its validity cannot be
assailed before the courts for want of conformity to the stipulations of a provisions of a treaty not already executed.