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Case Law Analysis of “The Lotus Case”

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Introduction:

When a dispute arises within the citizens or institutions of a state it is settled through following the legislation of that particular State. For example: if a breach of contract occurs between the citizens of ‘state x’ then the dispute will be resolved by the court of ‘State x’ following the statutory provisions of that State or if ‘State x’s judges are permitted, they might use their discretion to resolve the dispute. But the problem arises when one of the parties of the case is a foreigner. Then the question arises whether the Court of a particular country has the jurisdiction to try a foreigner even if he has been accused to cause damages to a local entity or might have violated statutory provision. The answer to this question lies in various treaties, customary international law, case decisions and publication of the highly qualified writers, which are known as the sources of international law. One of the mostly debated Court decisions in this respect was the France v Turkey (1927) case, commonly known as the Lotus case[1].

Parties of the Case:

A French vessel collided with a Turkish vessel causing severe damage to it. Then the Turkish authority filled a case in their respective had a collision at the high sea. The Turkish nationals were the victims and the French was alleged as offender.

Fact:

On 2nd August, 1926, a French ship named ‘Lotus’ was heading towards Constantinople with the direction of the Officer of the ship, Lieutenant Deman. On the same day, a Turkish ship ‘Boz-Kourt’ was passing through the High sea, in the north region of Mytilene (Greece). The Boz-Kourt was captained by Hassan Bey.

At a distance of about six miles from the cape of Singri, those two ships had a collision unfortunately. The Boz-kourt torn apart and as a result, drowned with eight Turkish nationals, among which 10 were survived.

Lotus reached Constantinople at 3rd August, 1926. Lieutenant Deman was enquired by Turkish officers there about the accident. Lieutenant Deman and Hassan Bey were arrested on 05 August, 1926 without any prior notice. Their trial was necessary as the family members of the deceased persons had charged them of homicides.

The Turkish court conducted the case but Lieutenant Deman raised an argument before the Turkish court that the Turkish court has no jurisdiction to conduct the case against him as he is a French citizen. The French government has also protested on behalf of Lieutenant Deman and demanded his release and they impulse the Turkish Court to transfer the case to the French Court. Later both the French Government and Turkish Government agreed to sent the case to the Permanent International Court.

Issues:

Did Turkey violate international law when Turkish courts exercised jurisdiction over a crime committed by a French national, outside Turkey? If yes, should Turkey pay compensation to France?

Judgment:

The Turkish courts didn’t violate any international law by exercising jurisdiction over a French national.

Reasoning:

Three major principles played as the reasoning behind this case:

First Principle: A state has no right to exercise its jurisdiction outside its territory unless an international treaty or customary law permits it to do so.

Second Principle: A state may exercise its jurisdiction within its territory, in any matter, even if there is no specific rule of international law permitting it to do so.

Third Principle: On the ship in the open sea, the flag of which is hoisted on the ship, has its jurisdiction on it. If the activities of the ship affect the other State, the affected State has also   jurisdiction to conduct the case.

Implications:

The Lotus Case put a significant impact on creating customary international law. It is considered as the foundation of Public International Law. It has directed many cases and principles.

Firstly, Advisory Opinion on the Unilateral Declaration of Kosovo the ICJ had to decide if the unilateral declaration of Kosovo of February 2008 was ‘in accordance with’ international law. The decision was referred by the principles of The Lotus case. In the Kosovo Advisory Opinion (2010), the court accomplished that the international law did not prohibit a unilateral declaration of independence.

The application of this principle – an outgrowth of the Lotus case – to future incidents raising the issue of jurisdiction over people on the high seas was changed by article 11 of the 1958 High Seas Convention.

This “flag state principle” has since been also been implemented in United Nations Convention on the Law of the Sea (UNCLOS), e.g. in article 92 and, in regards to enforcement of environmental legislation, article 217(1).

In arguments against the reasons of the United States of America, for opposing the existence of the International Criminal Court (ICC), this principle has also been used.

Conclusion:

Relationship between the States is one of the major concerns of Public International Law. Whenever there is a clash or collision of interest between two or more States, International Law interferes if the parties of the dispute consent to resolve the dispute according so. The Lotus case has introduced three principles to us which helped the international law to reshape the structure of the international judicial system. But we must remember that no case decision remains concrete throughout the passage of time. The various implications of the Lotus case in many other cases are debatable. For example: in the Kosovo case the principles of the Lotus case have been construed as an opinion against the unilateral declaration of independence. But it seems an attack on the right of the nations around the world who are constantly struggling for right to self-determination. Therefore, it is high time that the judges of the International Court of Justice reconstruct a better solution than that has been prescribed in the Lotus case and thus pave the way of a better peaceful world.

Writer:

Rabeya Akter Ritu, Student, 3rd Year, LL.B. (Honors’), Department of Law and Justice, Jahangirnagar University and Senior Executive, NILS-JU Chapter;

Co-writer:

Mashrur Rahman Mahin, Student, 3rd Year, LL.B. (Honors’), Department of Law and Justice, Jahangirnagar University. 

Footnote:

[1] France vs. Turkey, Court of International Justice, P.C.I.J., (ser A) No. 10 (1927).

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