A.  Introduction

1  Few decisions of the Permanent Court of International Justice (PCIJ) have been so vividly and controversially discussed, to this day, as the Court’s judgment in The Case of the Lotus (‘Lotus Case’). At first glance, the decision, dealing with a ship collision at sea and the criminal jurisdiction of States in relation thereto, seems to concern an issue of only minor importance (Collisions at Sea; Criminal Jurisdiction of States under International Law). Yet, the assumptions underlying the PCIJ’s ruling touch at the very heart of how the international legal order has to be envisioned.

B.  Facts of the Case

2  The affair originated in a collision on the high seas, between five and six nautical miles to the north of Cape Sigri (Mitylene), between the French mail steamer Lotus and the Turkish collier Boz-Kourt on 2 August 1926. As a result of the collision, the Boz-Kourt, which was cut in two, sank, and eight Turkish nationals on board the ship were killed. Upon the arrival of the Lotus in Constantinople (Istanbul), the Turkish authorities launched criminal proceedings in pursuance of Turkish law against, amongst others, the officer of the watch on board the Lotus at the time of the collision, Mr Demons, a French citizen, and the captain of the Boz-Kourt, Hassan Bey, who was one of ten saved from the wreck.

3  On the occasion of the first hearing of the matter before the Criminal Court of Istanbul on 28 August 1926, the Court overruled Lieutenant Demons’ objection that Turkey had no jurisdiction (Jurisdiction of States). On 15 September 1926, the Court sentenced Lieutenant Demons for involuntary manslaughter to 80 days’ imprisonment and a fine of £22.

4  The action of the Turkish judicial authorities with regard to Lieutenant Demons gave rise to diplomatic representations (Diplomatic Protection) on the part of the French government with a view to obtaining the transfer of the case from the Turkish courts to the French courts. As a result of these representations, the government of the Turkish Republic declared that it was willing to have the dispute decided by the PCIJ. Following negotiations, the two governments, by a special agreement (Compromis) signed on 12 October 1926 and filed with the Registry of the Court, in accordance with Art. 40 Statute of the PCIJ and Art. 35 Rules of the Court, on 4 January 1927, submitted the case to the PCIJ. According to the special agreement, the Court had to decide on the question of whether the prosecution of Lieutenant Demons contravened Art. 15 Convention of Lausanne respecting Conditions of Residence and Business and Jurisdiction (‘Convention of Lausanne’) of 24 July 1924 (signed together with the Lausanne Peace Treaty [1923]). This article provided that ‘all questions of jurisdiction shall, as between Turkey and the other contracting Powers, be decided in accordance with the principles of international law’. In the case of an affirmative answer, the Court was asked to indicate what reparation was owed to Lieutenant Demons.

C.  Court’s Ruling

5  The PCIJ, by the President’s casting vote under Art. 55 PCIJ Statute—the votes being equally divided (six-six)—held that Turkey had not acted in conflict with the principles of international law, contrary to Art. 15 Convention of Lausanne, when launching the proceedings against Lieutenant Demons. Consequently, the Court saw no need to consider the question of reparation.

6  Having briefly defined the position resulting from the terms of the special agreement of 12 October 1926, the PCIJ first turned attention to the question of how the expression ‘principles of international law’, as referred to in Art. 15 Convention of Lausanne, was to be understood. The French government maintained that the meaning of the expression should be sought in the light of the evolution of the Convention of Lausanne, stating that during the preparatory work, a proposal by Turkey to extend its jurisdiction to crimes committed in the territory of a third State had been rejected. The French government deduced from this fact that the intention of the framers of the Convention of Lausanne was to limit the scope of Turkey’s criminal jurisdiction in respect of foreigners. The court did not follow this argument. Instead, it considered that the expression ‘principles of international law’ could not be construed otherwise than as meaning ‘the principles which are in force between all independent nations and which therefore apply equally to all the contracting parties’ (Lotus Case [Judgment] 17). The court based its assessment on the wording and on the context of Art. 15 Convention of Lausanne, stressing, as it had done in some of its preceding decisions and today is confirmed by Art. 32 Vienna Convention on the Law of Treaties (1969) (see also Interpretation in International Law), ‘that there is no occasion to have regard to preparatory work if the text of a convention is sufficiently clear in itself’ (ibid 16).

8  In that context, the Court pointed to the prohibition of exercising State power in the territory of another State as ‘the first and foremost restriction imposed by international law upon a State’ (ibid).

10  The court concluded that in these circumstances, all that could be required of a State is that it did not transgress the limits which international law placed upon its jurisdiction. Within these limits, the Court argued, a State’s title to exercise jurisdiction rested in its sovereignty.

11  Consequently, the PCIJ dedicated the final—and most lengthy—part of its judgment to the issue of whether general international law prohibited Turkey from prosecuting Lieutenant Demons. The French government contended a) that a State could not punish offences committed abroad by a foreigner simply by reason of the nationality of the victim; b) that the flag State had exclusive jurisdiction over everything which occurred on board a merchant ship on the high seas (see also Flag of Ships); and c) that criminal proceedings regarding collision cases came exclusively within the jurisdiction of the flag State.

12  As to the first contention, the Court took the view that even if that contention was correct, it could not be used in the case at hand, since international law did not forbid Turkey to take into consideration the fact that the offence in question had produced its effects on a Turkish vessel and thus ‘in a place assimilated to Turkish territory in which the application of Turkish criminal law cannot be challenged’ (ibid 23). With regard to the second argument advanced by the French government, the PCIJ admitted that vessels on the high seas were subject to no authority except that of the State whose flag they flew. According to the Court, this did not mean, however, that a State could never in its own territory exercise jurisdiction over acts which had occurred on board a foreign ship on the high seas. A corollary of the principle of the freedom of the high seas was that a ship on the high seas was to be considered ‘assimilated to the territory of the State the flag of which it flies’ (ibid 25). In the opinion of the PCIJ, it followed that:

If … a guilty act committed on the high seas produces its effects on a vessel flying another flag or in foreign territory, the same principles must be applied as if the territories of two different States were concerned, and the conclusion must therefore be drawn that 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 having been committed in its territory and prosecuting, accordingly, the delinquent. (Ibid)

13  Neither did the Court accept the proposition that there was a rule of customary international law which established the exclusive jurisdiction of the flag State over everything which occurred on board a merchant ship on the high seas. In that context, the Court distinguished the case from the Costa Rica Packet Arbitration in 1888, the offence in the latter having taken place on a ship which had been adrift without flag or crew.

14  Concerning the French government’s third argument, the PCIJ observed that while there were no decisions of international tribunals on this matter, municipal jurisprudence was divided. The court thus found it ‘hardly possible to see in it an indication of the existence of the restrictive rule of international law which alone could serve as a basis for the contention of the French Government’ (ibid 29). Moreover, in the eyes of the Court, it was ‘only natural’ (ibid 30) that in order to satisfy the requirements of justice and effectively to protect the interests of the two States involved, each of them should be able to exercise jurisdiction and to do so in respect of the incident as a whole.

D.  Assessment

15  The Lotus Case is still one of the most often cited international law cases. Both legal practice and doctrine have frequent recourse to it, in particular when addressing issues of extraterritorial jurisdiction (Extraterritoriality). In the Arrest Warrant Case (Democratic Republic of Congo v Belgium) before the International Court of Justice (ICJ), for instance, the ‘Lotus principle’, ie that States have the right to do whatever is not prohibited by international law, was made the starting point not only of the Belgian government in defence of its claim to universal jurisdiction over war crimes and crimes against humanity, but also of a number of the separate opinions annexed to the ICJ’s judgment (see, eg, Case concerning the Arrest Warrant of 11 April 2000 [Democratic Republic of the Congo v Belgium] [Judgment] [Dissenting Opinion of Judge Van Den Wyngaert] [2002] ICJ Rep 3 paras 48–51). Similarly, the PCIJ’s proposition that what is not prohibited is permitted in international law played a prominent role in the debate around the ICJ’s Nuclear Weapons Advisory Opinions.

16  The relevance of the Lotus decision for today’s international law nevertheless remains open to discussion. While some of the PCIJ’s assumptions have been highly problematic right from the beginning, others have been modified or superseded by subsequent developments in international law.

17  As regards, first of all, the PCIJ’s characterization of the international legal order as an exclusively inter-State system, which rests on notions of sovereignty and independence (Territorial Integrity and Political Independence), this perception reflects the nature of international law as it was seen in the so-called ‘classical’ era that reached its height in the late 19^th and early 20^th centuries (History of International Law, 1815 to World War I). Since that time, the number of actors in the international arena has constantly increased, some of the new participants having even been conferred the, albeit limited, status of a subject of international law (Individuals in International Law; International Organizations or Institutions, General Aspects; Subjects of International Law). More importantly, with the adoption of the United Nations Charter in 1945, the subsequent acceptance of international human rights standards and of further ‘non-State values’ on the international plane (Community Interest), as well as the general development of factual and legal interdependence (Globalization), the cohesive bonds between the members of the international system have been strengthened over the last decades, the ‘Lotus world’ of sovereign and independent States thus having given way to a more integrated international system (International Community).

18  Concerning, secondly, the presumption of freedom which goes along with the ‘Lotus principle’, the argument advanced by the PCIJ could never fully satisfy: it builds on the idea of sovereignty preceding the law without explaining how normative consequences can result from the fact of sovereignty (see Koskenniemi 220: ‘pure fact approach’). Neither does it provide any guidance how to deal with cases involving a conflict of sovereignties. Besides, the ‘Lotus test’ is hardly convincing in regard to activities possibly undermining the very foundations of the international system (see, on this point, Legality of the Threat or Use of Nuclear Weapons [Advisory Opinion] [Dissenting Opinion of Judge Shahabuddeen] [1996] ICJ Rep 226, 394–97). In any event, the PCIJ’s dictum has been significantly overtaken by the further development of the international system already referred to. Thus, in the area of extraterritorial jurisdiction, for example, practice gives evidence that while the territorial theory applied by the PCIJ remains the point of departure, the exercise of both prescriptive and adjudicative jurisdiction in cases involving a foreign element is, as a general rule, subject to the existence of a sufficiently close connection, a genuine link, between the territorial base and the subject-matter of jurisdiction.

19  By contrast, the PCIJ’s proposition that no State is allowed to exercise its power in the territory of another State is still one of the cornerstones of the international legal order. The prohibition forms part of the principle of non-intervention (Intervention, Prohibition of), being one of the so-called fundamental rights and duties of States (States, Fundamental Rights and Duties). Similarly, the PCIJ’s method of ascertaining customary rules of international law, as applied in the Lotus judgment, paved the way for the jurisprudence of the ICJ, even though the latter indicates that in the current more integrated international system the threshold for the formation of customary international law is lower than that applied in the Lotus judgment.

20  Finally, as to the particular question of criminal jurisdiction over persons responsible for collisions on the high seas, practice did not follow the approach taken by the PCIJ, ie that in principle, each of the States involved is entitled to commence proceedings. Instead, subsequent international agreements, such as the 1952 Brussels Convention for the Unification of Certain Rules Relating to Penal Jurisdiction in Matters of Collision or Other Incidents of Navigation (439 UNTS 233, Arts 1, 3) or the 1958 Geneva Convention on the High Seas (450 UNTS 82, Art. 11; Conferences on the Law of the Sea), provided for the exclusive jurisdiction of the flag State or of the State of nationality of the offender. That approach is also followed by the 1982 United Nations Convention on the Law of the Sea (1833 UNTS 3, Art. 97; Maritime Jurisdiction).