35. LOTUS CASE, CT. REP.

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FACTS:
On August 2, 1926, a collision occurred on the high seas between the French steamer Lotus and the Turkish
steamer Boz-Kourt which resulted in the loss of the latter, and eight of its Turkish sailors and passengers were
reported to have been killed.

Upon arrival of the Lotus at Constantinople to which it was originally headed, Lieutenant Monsieur Demons,
French Officer of the watch on board the Lotus vessel, was requested to go ashore by the Turkish authorities to
give evidence, but subsequently was put under examination which later led him to being placed under arrest
without previous notice being given to the French Consul-General. He was then formally charged with
manslaughter by the Public Prosecutor on the complaint filed by the victims’ families.

The case was first heard by the Criminal Court of Stamboul on August 28, 1926. On that occasion, Demons
submitted that the Turkish Court had no jurisdiction. In the later proceedings, upon his demand, he was released
on bail for 6,000 Turkish pounds. Finally, on the 15th of September the same year, the Turkish Criminal Court had
rendered its judgment, sentencing Demons to 80 days of imprisonment with 20 Turkish pounds fine.

This action of the Turkish Judicial authorities gave rise to many diplomatic representations and other steps on the
part of the French Government or its representatives in Turkey, either protesting against the arrest of Lieutenant
Demons or demanding his release, or with a view to obtaining the transfer of the case from the Turkish Courts to
the French Courts. Thus, Turkey was compelled to declare that it would have no objection to the reference of the
conflict of jurisdiction to the Court of The Hague, to which French government had agreed. A special agreement
between the two States was drawn in Geneva, by virtue of which the French government on January 4, 1927
submitted to the Permanent Court of International Justice the question of jurisdiction arising from the collision
incident. Additionally, it particularly raised the question whether Turkey acted in conflict with the principles of
international law as mandated in Article 15 of the 1923 Lausanne Convention that states “…all questions of
jurisdiction shall… be decided in accordance with the principles of international law."

ISSUE:
WON criminal proceedings involving jurisdictional question on collision cases, being hardly instituted by States,
constituted international customary law by opinio juris.

HELD: No

Common abstention of States from instituting criminal proceedings involving jurisdictional questions on collision
cases does not necessarily create customary law by opinio juris, especially when such abstention is not based upon
a consciousness of having such a duty.

The emergence of an international customary law by opinio juris does not only arise from overt acts of States but
also from omissions which are made following a belief that said States are obligated by law to refrain from acting
in a particular way, and not purely by their mere discretion. Opinio Juris or the belief that a certain form of
behavior is obligatory, is what makes “practice” an international rule.