THE CASE OF THE S.S. LOTUS- (Case Commentary)

Case commentary: The Government of the French Republic v. The Government of the Turkish Republic, (1927) PCIJ Series A. No. 10

Decided by: Permanent Court of International Justice

Date of judgment: September 7, 1927

INTRODUCTION:

            International law can be defined as the set of rules and principles which are legally binding on the countries of the world when they have intercourse with each other. In simple words International law regulate the conduct and relations of the members of international community. The law of the sea is a part of International law, wherein it deals with maritime zones and its boundaries. High seas is one among the maritime zone which lies beyond the Exclusive Economic Zone. Generally, high seas are the common heritage of all mankind and is beyond the jurisdiction of any nation. Collision of a ship means a ship hitting another ship or an iceberg or a port or likewise. In the instances of collision of ship or vessel on the high sea, the flag state or the State of which the person in the ship or vessel is a national have exclusive jurisdiction to try the matter.

BACKGROUND:

            S.S. Lotus is a case in which the PCIJ ruled that the applicability of territoriality in cases of criminal law is not an absolute principle of international law and this principle has nowhere connection with territorial jurisdiction because the principle focused mainly on extra territorial jurisdiction.

            In this case, on 2^nd August, 1926, a collision occurred between the French mail steamer Lotus and the Turkish collier Boz-Kourt at Cape Sigri. Due to the collision, eight Turkish nationals were dead and ten were saved including Turkish captain, Hassan Bey. The Lotus continued its course and reached Constantinople on 3^rd August. On 5^th August, Lieutenant Demons of the Lotus ship was arrested by the Turks without giving notice to French Consul-General. The Criminal Court of Stamboul took up the case and had its first hearing on August 28^th, in which Lieutenant Demons submitted that Turkish courts have no jurisdiction to try the case because he is of another national. PCIJ gave its judgment over the matter on 15^th September, by upholding the Turkey’s conviction and directed Lieutenant Demons to undergo eighty days of imprisonment and to pay the fine of twenty two pounds. The two Governments signed a special agreement with regard to refer the matter to PCIJ at Geneva on 12^th October. Both the countries deposited their ratifications before the court on 27^th December, 1926.

            The matter was referred to PCIJ based on two questions. Firstly, by virtue of Article 15 of the      Convention of Lausanne, whether Turkey contravened the particular provision and acted on conflict with the principles of international law? If so what principles? Secondly, if Turkey contravened, then what pecuniary reparation to be provided to Lieutenant Demons?

            The PCIJ gave the judgment and held for the first question that Turkey has not acted in conflict with the principles of international law or contravened Article 15 of the Convention of Lausanne, 1923. With regard to the second question, the court held that since Turkey had not acted in conflict with the principles of international law, therefore there arises no situation to give judgment on the question of pecuniary reparation to Lieutenant Demons.

ANALYSIS:

            In general, ship or vessel is a moving chattel. It is not a place. So while the ship is on a voyage, the jurisdiction of the ship changes from place to place. Particularly, when the ship reaches high seas, no nation can have jurisdiction over the high seas because high seas are common to all the nations. Jurisdiction for the crimes committed on ship at high sea is not territorial in nature. It mostly depends on the law of convenience and by common consent.

To avoid confusion in the jurisdiction for the acts committed in the high seas by the ships, flag state rule principle was enacted. The rule states that the country whose flag the vessel bears have the jurisdiction to try the matters which arise in high seas. If the offender is of a nationality different from that of flag state, then the jurisdiction of the offender’s nationality country can be used.

But in the case of S.S. Lotus, both Turkey and France have concurrent jurisdiction. Turkey have jurisdiction based on the victims of the collision. France have the jurisdiction based on the flag state and the nationality of Lieutenant Demons. France contended before the PCIJ that Turkey have no jurisdiction, because flag state of a vessel has exclusive jurisdiction over offences committed on ship in high seas. However, the court disagreed and stated that France cannot have exclusive jurisdiction in high seas with respect to collision of a vessel of another flag state. Only concurrent jurisdiction can be enjoyed by France. Also, the court equated the Turkish vessel to Turkish territory.

Here arises the major question, when court can equate Turkish vessel to Turkish territory, then why can’t the same court equate French vessel to French territory. This particular statement made by the court seems to be one sided favoring Turkey. The collision was not intended, it was purely an accidental one. If it was intended then the S.S. Lotus wouldn’t have saved the ten people of Boz-Kourt including Turkish captain. Also, Turkey arrested Lieutenant Demons who is of French national even without giving prior notice to France. This power exercised by Turkey was of arbitrary in nature, which have not been questioned by the PCIJ when the matter came before them. Nationality of the victim is not a sufficient ground to override the flag state rule.

Another slip in the judgment came while disagreeing the French contention of rule of flag state applies to collision cases. The court answered that no matter of such a nature of collision have been decided by this court. Instead certain municipal courts have delivered judgments of like nature. PCIJ also stated some of such cases. The slip here is how can an international court refer municipal court decisions and taking a stand based on that? It would have rather taken a neutral view stating no such collision rule has come in force.

In addition to above, Judge Moore, in his dissenting opinion in the Lotus Case, stated that the Turkish Criminal Code provides for jurisdiction of Turkey where harm resulted to a Turkish national. But here, Lieutenant Demons was a French national, therefore Turkey sentenced him based on inaccurate enactment. The majority of the bench did not even look into this opinion of Judge Moore.

CONCLUSION

            The decision given in the Lotus case was followed for a very longer period in similar cases before the PCIJ and certain municipal courts also adopted the same principle. Ultimately, the Convention on the High Seas, 1958 overruled the decision given by the Lotus case. Article 11 of the Convention states that in the cases of collision in the high seas, proceedings can be instituted by the flag state or the state of the offender where he is national. Even as a part of investigation, arrest or detention of the ship cannot be done by any other state other than flag state. In addition to this, United Nations Convention on the Law of the Sea, 1982, in its Article 92 incorporated that flag state shall have exclusive jurisdiction over the ship on the high seas. These two provisions are made subsequent to the Lotus Case. Now, the nations around the world adopted the flag state rule by incorporating provisions of UNCLOS in their municipal laws. As rightly said by John Selden in his work Mare Clausum Sive de Maris, “nations could not appropriate themselves the high seas, they belonged to all,” is the policy of the modern international law of the seas.

-Bini. R. A

School of Excellence in Law.