BRIEF FACTS
A collision occurred between the French Mail Steamer Lotus and the Turkish Collier Bozkourt. The Boz-kourt was cut in two, it sunk and eight Turkish nationals that were on board perished. At the time of the collision, the officer on watch on board the Lotus was Monsieur Demons (French captain), whereas movements on the Boz-kourt were directed by its captain Hassan Bey, who was one of the survivors. The Turkish police proceeded to hold an inquiry into the collision on board the Lotus. The French captain was requested ashore by the Turkey authorities to give evidence, he was arrested and placed on a charge of manslaughter together with the officer on board the Bozkourt. The action of the Turkish judicial authorities raised many diplomatic representations by the French government. The French representatives were protesting against the arrest of the French Captain and demanding his release or request for the transfer of the case from the Turkish courts to the French courts. As a compromise, the Turkish Republic declared that it had no objection to referring the case to the jurisdiction of the International Criminal Court at The Hague in order to determine whether or not Turkey had a legitimate claim to institute criminal proceedings against the French captain.
ARGUMENTS BY PARTIES
The following are the arguments put forward by France. Firstly, according to the convention of Lausanne of July 24th, 1923, construed in the light of these circumstances and intentions, does not allow the Turkish courts to take cognisance of criminal proceedings directed against a French citizen for crimes or offences committed outside Turkey.
Secondly, according to international law as established by the practice of civilised nations in their relations with each other, a state is not entitled, apart from express or implied special agreements, to extend the criminal jurisdiction of its court to include a crime or offence committed by a foreigner abroad solely in consequence of the fact that one of its nationals has been a victim of the crime or offence.
Thirdly, the law of the freedom of the high sea gives the principle that the state whose flag is flown has exclusive jurisdiction over everything that occurs on board a merchant ship on the high seas. Therefore, the turkey had no jurisdiction over the French captain as the ship was flying with French flags.
Turkey argued that when exercising jurisdiction in any case concerning foreigners, need, under the Lausanne convention, only to take care not to act in a manner contrary to the principles of International Law. Turkey also argued that vessels on the high sea form part of the territory of the nation whose flag they fly and in the case under consideration, the place where the offence was committed was the S.S Boz-kourt. Turkish jurisdiction in the proceedings taken is as clear as if the case had occurred on her territory. Turkey argued that it had jurisdictions in this case because no principle of International Criminal Law exists which would debar Turkey from exercising the jurisdiction that she possesses to entertain an action for damages.
LEGAL ISSUES
1. Whether or not Turkey had, according to the principles of International Law, jurisdiction to prosecute in this case.
2. Whether or not the principles of International Law prevent Turkey from instituting criminal proceedings against a foreign national under Turkish law.
HOLDING
The first rule imposed by international law upon a state is that – failing the existence of a permissive rule to the contrary- 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 a permissive rule derived from international custom or a convention. It does not, however, follow that International law prohibits a state from exercising jurisdiction in its territory, in respect of any case which relates to acts that have taken place abroad, and in which it cannot rely on some permissive rule of International law. Vessels on the high sea are subject to no authority except that of the states whose flag they fly.
There is no rule of International law prohibiting the state to which the ship on which the effects of the offence have taken place belongs from regarding the offence as being committed from its territory and prosecuting accordingly the delinquent. There is no rule of International law regarding collision cases to the effect that criminal proceedings are exclusively within the jurisdiction of the state whose flag is flown.
In conclusion, Turkey instituting criminal proceedings in pursuance of Turkish law against Leftenant Demons, the officer on watch on board the Lotus at the time of the collision did not act in conflict with any principles of International law.
SIGNIFICANCE AND APPLICATION
The ruling in the Lotus case is significant in the application of international law. It discusses the concept of jurisdiction in international law, jurisdiction is concerned with the reach of a State’s law, and jurisdiction is an aspect of a State’s sovereignty, as the right to prescribe and enforce laws is an essential component of statehood. Therefore, the court's holding made it clear that a state has absolute and complete jurisdiction over matters within its territory (however, there are certain circumstances as will be shown below that would also permit a foreign state to exercise some degree of jurisdiction in the host state.
The ruling further provides for obligations that every state has towards another under international law, that is, every state has an obligation to respect and recognize another state’s sovereignty. This obligation demands that a state must not interfere with another state’s affairs and jurisdiction to hear and settle disputes in accordance with their domestic laws. However, international law norms and customs demand that the foremost obligation of every state is to uphold international law standards even in domestic settings. It also must be mentioned that every state is under an obligation to protect the interests of its citizenry no matter where they may be. On that basis, the Lotus case provides us with principles of jurisdiction among which allows a state to apply its criminal jurisdiction in another state. The jurisdictional principles that a state may rely on when claiming criminal jurisdiction under international law are the following: (i) territorial principle (ii) nationality principle (ii) protective principle (iv) passive personality principles (v) universality principle.
For the purpose of this writing; the territorial principle allows a state to have criminal jurisdiction over any criminal matter occurring within their territory. And it is on this principle that Turkey claimed jurisdiction to pursue criminal proceedings over the French captain. The nationality principle allows a state to have criminal jurisdiction over crimes committed by its nationals in foreign states. And it is on this principle that France was claiming to have exclusive rights to handle their national (French captain).
It is important to emphasise that both states had legitimate claims of criminal jurisdiction over the French captain, as on the one hand, the territorial principle permitted Turkey to institute criminal proceedings against the French captain, and on the other hand, the nationality principles permitted France to subject the French captain under their jurisdiction. However, the question before the Court was whether or not France had exclusive jurisdiction to try the French captain thereby extinguishing Turkey’s jurisdiction in whatever way. The Court therefore, just as shown above, ruled that Turkey had criminal jurisdiction in the matter and therefore, instituting criminal proceedings against the French captain did not violate any international law principle.
This Article is brought to you by:
LEGAL AID INITIATIVE
(University of Zambia)
About the Author:
Kunda Mulenga is a third-year
law student at the University of Zambia and serving as
the Secretary General of the Legal Aid Initiative.