The Lotus Case (1927, France v.

Turkey, PCIJ)
Customary International Law 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 Turkish nationals 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 in Turkey, Demons (French national) submitted that Turkish courts had no jurisdiction, but his objection was overruled. Demons was then sentenced to 80 days 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 from instituting criminal proceedings against a French national under Turkish law. If yes, 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't arguments 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 the jurisdiction 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 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 a principle 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 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.

9/29/2012 12:36:00 PM

9/29/2012 12:36:00 PM