Mehta 1

Rahul Mehta.
18010300.
BBA LLB E.

Case Comment on S.S Lotus (France v Turkey).

Electronic copy available at: https://ssrn.com/abstract=3850090

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[1] Introduction.

On August 2nd, 1926, the French mail steamer Lotus, bound for Constantinople, collided
with the Turkish collier, Boz-Kourt. The collision took place in the north of Cape Sigri and
left eight Turkish nationals, onboard the Box-Kourt, dead. On August 5th, Turkish authorities
requested Lieutenant Demons, the Lotus' watch officer, to come offshore and provide
evidence. Lieutenant Demons was arrested as a result of the investigation, and a court case
was filed against him for manslaughter. On August 28th, Demons was placed before the
Criminal Court of Stamboul. He challenged the Turkish Court's authority, but it was
overturned, and the Court sentenced him to eighty days in prison and a fine of £22. France
took cognizance of this matter and presented the case before the Permanent Court of
International Justice on September 7, 1927.

The Court was asked to rule on whether foreign law prohibits Turkey from pursuing criminal
charges against Lieutenant Demons under Turkish law. France contested that since the
collision occurred on the high seas, the state whose flag the vessel flew had sole authority
over the matter. The Turkish government, on the other hand, believes that Article 15 gives
Turkey authority if that jurisdiction does not interfere with an international law norm. The
Court ruled that international law would not exclude a State from exercising authority in its
territories in cases, including actions, that occurred elsewhere. The only requirement a state
needs to comply with is that it should not go above the limitations that international law
imposes on its authority; under these limits, the right to exercise jurisdiction is vested in its
sovereignty. The Permanent Court of International Justice ruled in Turkey's favour and
established the Lotus principle, which says that sovereign states are free to behave in
whatever manner they see fit as long as they don't breach an explicit prohibition.1

[2] Whether the lotus principle was in accordance with the principles of International
Justice.

Unless a state has sanctioned a law triggering their liability in the event of a violation, the
Lotus principle allows it to remain blissfully unaware of and unaccountable for the
detrimental externalities of their actions. The aforementioned requirement of express consent

1
S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7).

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grants the states "a de facto veto right" over any law that compels them to internalise the
negative externalities of their policies. 2The Lotus theory hence casts "a baneful spell on the
progressive advancement of international law.” 3 Additionally, it is imperative to note that
the former President of the International Court of Justice, Mohammed Bedjaoui, too held that
acts which are not expressly prohibited may still nevertheless be contrary to international
law. 4 The Lotus principle's concept of total independence for states limited only by their
consent is no longer adequate to fulfil the demands of the modern international community.5

While establishing the lotus principle, the majority emphasized that international law's
function is to ensure peaceful coexistence between sovereign societies. It neglected to note,
though, that by giving exclusivity to one state on the grounds that there does not exist any
prohibition regarding the same, it is in effect enforcing a prohibition, that does not exist, on
other states. Hence, the Lotus theory is not only contradicted by the Lotus judgment's text but
is further incompatible with international law's function.

[3] Whether France’s argument was a suitable alternative to the Lotus principle.

It is worthwhile to note that arguments that the validity of states' acts is contingent on
"finding a permission in international law", as France claimed, are unworkable for three
reasons. To begin with, a scheme that allows states to get consent before acting is
unacceptable. It fails to lift the "banned spell" of agreement that stymies the advancement of
international law. A provision of approval is troublesome since the acting state will have a de
facto veto right over the existence of any rule that allows an affected state to answer. 6
Second, a permissions-based scheme is unworkable. It "assumes a perfected body of
international law, sufficient to satisfy and resolve all practicable inter-national disputes.”
7
When a previously unknown problem occurs under a permissions-based scheme, states are

2
Hertogen A, “Letting Lotus Bloom ”26 The European Journal of International Law.

3
Legality of the Threat or Use of Nuclear Weapons , Advisory Opinion, 8 July 1996, ICJ Reports (1996) 226 ,at
495, Dissenting Opinion of Judge Weeramantry.
4
Hertogen A, “Letting Lotus Bloom ”26 The European Journal of International Law.
5
Nuclear Weapons , supra note 3, at 270–271, Declaration of President Bedjaoui.
6
Hertogen A, “Letting Lotus Bloom ”26 The European Journal of International Law.
7
Berge, ‘The Case of the S.S. “Lotus”’, 26 Michigan Law Review (1927–1928) 361, at 375.

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compelled to choose between inaction and international law violations before a clear legal
precedent allowing action to address the problem is established. 8
Third, even though a robust regime allowing all possible state acts is possible, states are
unlikely to follow an international legal framework that limits their right to operate in certain
situations where approval is available. It is nearly impossible to categorize international law
as a set of prohibitive or permissive laws, and attempting to do so yields no benefit. 9As a
result, a scheme dependent on permissions rather than restrictions isn't a good substitute for
the Lotus concept.

[4] Whether the judgment delivered would be overruled today.

Jurisdiction founded on the concept of passive personality, allows the victim state to exert
authority over a foreigner in the event of an occurrence occurring overseas that causes an
injury to one of its citizens. The principle is enshrined in several international treaties,
However, due to its controversial nature, it is unlikely to be considered customary
international law. 10

The majority in its reasoning, instead of relying on the passive personality principle, framed
the issue as one of objective territorial jurisdiction since the action of one state was
inseparable from its effects in the territory of another state. It was a contentious step that sent
shockwaves across the maritime community and prompted international regulation on the
subject of criminal jurisdiction over high seas collisions.11

The dissenting judges, on the other hand, maintained that according to international law
country's rules should not be extended to include suspected crimes perpetrated by foreigners
outside the country's borders.12 They further highlighted the Court's inability to evaluate the
legitimacy of the passive personality authority and claimed that Turkey tried to exercise
jurisdiction solely on the aforementioned authority, rather than on a territorial-effects

8
S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7).
9
Hertogen A, “Letting Lotus Bloom ”26 The European Journal of International Law.

10
Echle R, “The Passive Personality Principle and the General Principle of Ne Bis In Idem” .

11
Hertogen A, “Letting Lotus Bloom ”26 The European Journal of International Law.
12
S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7).

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principle and that such exercise of jurisdiction was forbidden by customary international law.
13
It is worthwhile to note that the Convention of the High Seas, 1958, vindicated the dissent's
view and held that either the flag state or the officer in charge's home state could sue for
accidents that took place on the high seas.14 Hence, If the Lotus and the Boz-Kourt were to
have collided now, the authority to govern this matter would rest with France, as not only is it
the Lotus' flag state but also the home country of Lieutenant Demons.

[5] Conclusion.

It is imperative to note that the majority exhibited a considerably more egalitarian

perspective, when compared to the dissenters, by being more receptive to the
interdependence between states. The Lotus theory, which the dissenters condemn, has the
same flaws as the dissenters' theory, which focuses on permissive legislation and further
hollows out the principle of sovereignty15.

Furthermore, the PCIJ's decision in Lotus sparked discussions of a different jurisdictional

allocation for high-seas crashes.16 In a territorial structure, maintaining an atmosphere which
encourages sovereign states to resolve conflicts between opposing claims of jurisdiction is
superior than the Court adjudicating for them. It's further desirable from the standpoint of a
court which lacks mandatory authority since states would be less likely to turn to a court that
exercises its powers too frequently.17 It's not surprising that the PCIJ took this stand, given
the fact that it was only recently established when it was presented with the Lotus case, that
too is one of its kind.

13
The S.S. "Lotus", supra note 1, at 34 (MM. Loder dissenting).
14
Convention on the High Seas, April 29, 1958, art. 11, 13 U.S.T. 2313, 450 U.N.T.S.
15
Hertogen A, “Letting Lotus Bloom ”26 The European Journal of International Law.
16
Ruzé, ‘L’Affaire Du Lotus’, 9 RDILC (1928) 124, at 155.
17
Hertogen A, “Letting Lotus Bloom ”26 The European Journal of International Law.

Electronic copy available at: https://ssrn.com/abstract=3850090