Analysis of the Lotus Case

Introduction

This paper focuses on the Lotus case, which is concerned with a criminal trial due to the 2 August 1926 collision that happened between Lotus and Bozkourt in the northern Greece. In this regard, the first part of the paper will provide the summary of the case, which details various facts that relate to the issues that should be discussed in the second part of the paper. This is followed by the second part of the paper, which is the case comment that discusses the issues presented in the facts detailed in the case, offering Law Dissertation Help for those studying this landmark decision.

Summary of the case

Overview

This case involved a collision, which happened between a Turkish and French vessels on the high seas. As such, the victims happened to be Turkish nationals, whereas the alleged offender happened to be a French. Eight individuals that boarded the Turkish vessels died, owing to the collision. The question thus raised was whether Turkey could exercise its jurisdiction over the French national, based on international law?

A French steamer, Lotus and a Turkish vessel, Boz-Kourt collided precisely on 2 August 1926 on the high seas (international waters). Upon their collision, it is clear that Boz-Kourt sank and this consequently led to the death of 8 individuals who were Turkish. However, 10 survivors, inclusive of the captain boarded the Turkish vessel. All of them were taken to Turkey on board the Lotus. Notably, both captains (of the French steamer and the Turkish steamer) were charged in Turkey with a manslaughter. In this regard Demons, who was the French steamer captain was sentenced to 80 days imprisonment and also fined. However, the French government was against the imprisonment of their citizen and as such, demanded for his release or rather, his case to be transferred to the French courts. These two states later on came to an agreement of presenting the dispute before the Permanent Court of International Justice. Continue your journey with our comprehensive guide to Analysis of Court Procedures.

Questions presented before the court

The two questions that were presented to the International Court of Justice included the following:

If Turkey had violated the International Law principles, having improperly used the jurisdiction. If yes, under what principles?

In an instance where Turkey was found to have violated the International Law Principles, what preparations ought to be due to Demons, who was the French steamer captain at the collision time?

France

According to France, legal action against M. Demons belonged to the France courts. Clearly, the French government had the opinion that the Turkish authority pursued a wrong act of prosecuting M. Demons and as such, France stressed that such act was like disregarding the international law. Notably, the French authorities as well wanted the Turkish government to pay them 6,000 pounds for the wrong it had done. The French government argued that a state ought not to be entitled to extending its court’s jurisdiction to be including an offence that has been committed by a foreigners, on the consequence that its nationals happens to be the crime victim of the offence. In simple terms, the France stressed that the international law is against or does not allow a state to take upon itself, criminal proceedings against a foreign offender, owing to the nationality of the victim. Overall, France noted that the acts that were

performed on the high seas as relevant to criminal proceedings belonged to the ship’s nationality. In this regard, the French advocate provided an argument that in such instances, jurisdiction should be granted to the state, whose flag flies the involved vessel.

Turkey

On the other hand, the Turkish government together with the Minister of Justice of Turkey argued that the collision tool place when the Boz-Kourt was flying the flag that belonged to Turkey. In this regard, they stressed that the jurisdiction had to extend to the Turkish courts. Turkey stressed on the stipulations provided in the Convention of Lausanne 1923, Article 15, which allows the Turkish jurisdiction, owing that such jurisdictions do come into conflict with some of the provisions of the international law. Owing to the fact that the Turkish courts had the jurisdiction of that matter, the Turkish insisted that they did not have to pay any reparation to the French government.

Judgement

Notably, the court concluded that France did not have exclusivity to territorial jurisdiction, especially in the high seas, in an instance of collision with any vessel belonging to another state. As such, Turkey and France both had bestowed jurisdiction in regards to the entire incident in accordance with the court. In short, there existed a concurrent jurisdiction. Secondly, in an instance where a guilty act performed on the high seas has its impacts on a vessel that is flying another flat or rather, in a foreign state, it is clear that same principles ought to be applies just as if the territories of the two states were somewhat concerned. Conclusively, the court made it clear that there existed no provision, based on the international law that hindered Turkey from prosecuting Captain Demons. In this regard, in accordance with the International Court of Justice, it is evident that Turkey did not violate any principle bestowed in the international law. The court as well dismissed the France need for Turkey to pay a reparation.

The Lotus Principle

The Lotus Principles is regarded as the foundation of the international law. This principle states that every state has the right of acting in any way it desires, for as long as its actions do not hinder or prohibit the provisions as stated in the international law. In putting into consideration the Lotus principle, it is clear that the aftermath of the Lotus case is as follows. The high Seas Convention had been signed in Geneva in 1958 and contained the collision jurisdiction, based on the high seas as provided under article 11. In this regard, the articles addressed the following: First, in an instance where there is vessels collision on high seas, there should be no penal or rather, disciplinary proceedings that should be instituted against the service person of the master of the ship belonging to another state, not considering the victim’s personality. Secondly, the article noted that for all disciplinary procedures, it is only the state issuer of a master’s license that has been granted the right of withdrawing the same, and this is even in an instance where the holder fails to be a national of the state that issues it. Thirdly, the article notes that no authority other than the flag state of the vessel should force detention or even arrest of an individuals.

Case comment

The Lotus case presents major issues, but this paper will focus on the customary law issue as an important aspect. Clearly, this case is regarded as an important case, based on the decision made by the Permanent Court of International Justice. Notably, this case has attracted a lot of attention than as compared to any of other opinions of the same court. Moreover, its effect has provided a source of significant foundational principles of various areas bestowed in the international law that have been lasting. The decision made in the case forms a mine of various valuable materials that govern the jurisdiction subject whilst it is also considered as one of the major landmarks of the 20th century jurisprudence. Moreover, it is worth noting that the Lotus case is famous, owing to the apparent majority view of it. Clearly, it is evident that unless France was in a position of proving that existence of a rule that prohibited Turkey’s conduct existed, the conduct did not violate any international law. Notably, for a long time, this has been regarded as a classic articulation of the international legal positivism. This is based on the common notion that “a law should be considered a unified system of rules, which emanate from the will of a state.” It is as well evident that the decision of the Permanent Court of International Justice is as well associated with the aspect of voluntary approach towards international law and in short it is based on the notion that “where there is the will of the state, there exists international law and vice versa.” Just like any other uncompromising perspective, it is evident that the popularity of this case has fallen subject of significant criticism. Evidently, some people argued that the decision of the court ignores the significant substantial development of the international law due to the agreement or rather consensus laying within the society of states.

As time went by, the majority tended to apply the terms ‘principle’ and ‘rule’ in accordance with the lotus case interchangeably and this required explicitly towards governing the case. However, dissenters to the decision of the case made a claim that requiring France and Turkey to cite significant explicit rules was too demanding of a burden. As such, Lord Finlay purposed to distinguish rules from principles. As such, he noted that in this case, there was no mention of rules, but just principles, and that made the principles to be normative and also fungible and would then allow the court to consider the aspect of fairness on the two parties whilst determining the application of any international law. In this regard, the international law was thus noted to be a manifestation of the international legal ethics of general consensus relating to the opinions of the countries that have adopted the European civilization system and not a fixed or unchanging code that states labor under. It is also worth noting that the court failed to rely on the municipal law whilst coming up with its decision and only stressed on its purpose, which was to determine whether the principles bestowed in the international law prevented turkey for instituting its criminal proceedings against Demons, based on the Turkish law. Clearly, it is evident that it then leaves the final possibility that the court was simply filling a gap under the international law by applying the residual principle.

Lotus principle is thus noted to yield three significant possibilities, which established new judgements. Firstly, it could be interpreted purely as a residual principle, owing to the fact that when there exists no other governing rules of even principles governing the international law, then states are free to be acting as they please. The majority opinion ought to be read in this manner as it endeavored towards ascertaining whether there existed a rule of the international law that limited the freedom of states extending their court’s criminal jurisdiction to collision or not. Owing to the fact that the rule concluded that there existed no such rules, it is evident that it focused on the residual principles, based on freedom of action, which thus ruled that Turkey did not violate any international law. Secondly, Lotus principle can be interpreted as residual principle that has an attached presumption. In this regard, when it is not clear whether rules governing the international law apply to a given situation, it is thus, presumed that there exist no rules and as such, states are at liberty to act. Notably, this perspective are in line with Judge Moore and Judge Altamira whose opinions regarding primary disputes appeared to bring forth the conclusion that there existed no rule in the international law prohibited the freedom of action.

Thirdly, lotus principle can be interpreted as pure presumption whereby states are presumed not to be restrained by the international law. Based on this conception, it is clear that the burden of proof that determines whether the international law can restrain a given state lies with the state having to allege the restraint existence. Notably, having that majority of the dissenters to the case interpreted the case in this manner, they brought forth the opinion that every door is open, not unless a treaty closes it, or when there exists a special rule. Whether the court applied the residual principle, or even a presumption or the two, it is evident that the Lotus principle appears to foreclose the possibility that an international tribunal could leave a substantive gap in place, or rather, in declaring a non-liquet. In deciding issues, based on the incompleteness of the international law, it is thus, clearly evident that the lotus principle notes that international law is complete.

Clearly, the later cases had different judgement decisions, yet identified the same jurisdictional aspect as in the Lotus case. For instance, the Asylum case involving Colombia and Peru was relevant in understanding ICJ’s posture regarding the lotus principle. Whilst ruling against Colombia, it is worth noting that the ICJ stated that the principles bestowed in the international law fail to recognize any definitive or unilateral rule. In conclusion, the court noted that none of the bases that Colombia presented established the right. In this regard, the court purposed to confront a gap or rather, the ambiguity that existed in the law and this is analogous to that presented in the Lotus case, particularly whilst considering the Bolivarian Agreement, which referred to the general international law principle. Rather than requiring that Peru shows that the actions of Colombia was prohibited as per the international law, the court evidently prioritized the territorial sovereignty of Peru and also required Colombia to show that the action was permitted as per the international law. This case stressed on state sovereignty and the relevance of the international law. As such, it identified the same issue presented in Lotus case.

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