1927

PCIJ

SS Lotus Case France v. Turkey

A collision occurred in the high seas between the French steamer Lotus, and Turkish steamer Bos Kourt, the latter was sunk. Upon the arrival of the Lotus at a Turkish port, the officer Lieutenant Demons was arrested of manslaughter. Turkey, by exercising its criminal jurisdiction in prosecuting the French citizen, was acting contrary to international law? By casting vote, court said she had not. Arguments of the French government: 1.- IL does not allow a State to take proceedings on offences committed by foreigners abroad, simply by reason of the nationality of the victim 2.- IL recognizes exclusive jurisdiction of the State whose flag is flown as regards every thing which occurs on board a ship on the high seas 3. Questions of jurisdiction in collision cases have risen in civil court, not in criminal courts [This case is seen as establishing a presumption in favour of the validity of any claim to prescriptive jurisdiction, positive approach] Resolution International law governs relations between independent States. The rules of law binding upon States emanate from their own free will. Restrictions upon the independence of States cannot therefore be presumed. [Lotus presumption, freedom of states] Now the 1st and foremost restriction imposed by IL upon a State is that it may not exercise its power in any form in the territory of another state. In this sense jurisdiction is certainly territorial; it cannot be exercised by a state outside its territory except by virtue of a permissive rule derived from international custom or from a convention. IL far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts outside their territory, it leaves them with wide discretion. All that is required of a State is that it should not overstep the limits which IL places upon its jurisdiction, within these limits, its title to exercise jurisdiction rest in its sovereignty

Territoriality of criminal law is not an absolute principle of IL and by no means coincides with territorial sovereignty 1. Nationality of the victim is not the only criterion on which jurisdiction is based. The Effects of the offence were produced on the Turkish vessel, and consequently in a place assimilated to Turkish territory in which application of Turkish criminal law cannot be challenged. Offences are regarded as committed in national territory if one of the constituent elements takes place there. French courts have given decisions in that sense. (30p) ‘The offence …was an act…having its origin on board of the Lotus, whilst its effects made themselves felt on board of the Bos-kourt. These two elements are, legally entirely inseparable, so much so that their separation renders the offence non-existent. Neither the exclusive jurisdiction of either state, not the limitations of the jurisdiction of each to the occurrences which took place on the respective ships would appear calculated to satisfy the requirements of justice and effectively to protect the interest of the two states. It is only natural that each should be able to exercise jurisdiction and to do so in respect of the incident as a whole. It is therefore a case of concurrent jurisdiction’ 2. The principle of exclusive jurisdiction of the country whose flag the vessel flies is not universally accepted. E.g. GB refused the extradition of a British who had committed homicide in an American Vessel on the grounds that notwithstanding the American jurisdiction UK had concurrent jurisdiction 3. Rarity of criminal decisions shows that States had often abstained from instituting criminal proceedings but not that they recognised themselves as being obliged to do so; only if such abstention were based on their being conscious of having a duty to abstain would it be possible to speak of International Custom. In cases where it happened, States concerned have not objected criminal proceedings. Moore (dissenting opinion) … the substance of the jurisdictional claim is that Turkey has a right to try and punish foreigners for acts committed in foreign countries not only against Turkey herself, but also against Turks, should such foreigners afterwards be found in Turkish territory…I cannot escape the conclusion that it is contrary to well settle principles of international law The protective principle (has been claimed here) [now known as the passive personality principle]; and the countries by which the claim has been espoused are said to have adopted the system of protection…What may we ask is this system? It means that the citizen of one country when he visits another country takes with him for his ‘protection’ the law of his own country.