The Lotus principle

The Lotus principle or Lotus approach, usually considered a foundation of Public International Law, says that sovereign states may act in any way they wish so long as they do not contravene an explicit prohibition. The Lotus case concerns a criminal trial. A collision occurred on the high seas between a French vessel and a Turkish vessel. Victims were Turkish nationals and the alleged offender was French. Could Turkey exercise its jurisdiction over this French national under International Law?

The Lotus case

The judgment of the Permanent Court of International Justice (PCIJ) on the Lotus case, concerning the jurisdiction of a State under international law, was delivered on September 7, 1927. On August 2, 1926, around midnight, a French liner, the Lotus, which sailed for Constantinople (Istanbul), landed on the high seas a Turkish coal ship, the Boz-Kourt, in the Mediterranean Sea. This Turkish ship, under the impact of the shock, breaks in two.

During the collision, eight Turkish sailors die. The French ship rescues ten Turkish sailors, then goes to Constantinople where it arrives on August 3rd. On August 15, the French captain of the ship was arrested by the authorities, and on September 15, he was sentenced by the Turkish courts because of the damage suffered by the Turkish sailors.

France protests to Turkey, arguing that since the captain was French and the vessel was under French flag, Turkey had no objective title to judge the acts committed. France considered that objective criminal jurisdiction is territorial in nature and therefore cannot be exercised in respect of events which took place outside France. The damage was caused on the high seas, so it is up to the flag state to exercise criminal jurisdiction. Turkey argued that it had objective jurisdiction because of the nationality of the victims. The Lotus case poses two problems: 1. what are the powers of the state, and how are they determined in international law? 2. What happens when two states are concurrently competent?

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? Turkey, by instituting criminal proceedings against Demons, did not violate international law.

The PCIJ will consider that international law has not been violated. The State alone exercises, to the exclusion of all, its state functions. PCIJ has therefore held that exclusivity prohibits any coercive action by one State in the territory of another State. It retains the famous dictumthe limitations of state independence are not presumed”, that is to say that everything that is not prohibited in international law is allowed. This has since then been called the Lotus principle. On the custom and the voluntarism of the international relations: “the rules of law which bind the states, are the fruit of their will, in conventions or in the uses generally accepted as devoting principles of the law”.

It is also in the context of this case that was quoted the principle of universal jurisdiction applied in cases of piracy: “In the case of what is known as of human rights piracy, it has been granted universal jurisdiction, under which any person accused of having committed this offense can be judged and punished by any country under whose jurisdiction it has just been. Although, there are legislations that provide for repression, it is an offense under international law; and since the theatre of operations of the pirate is the high seas where the right or the duty to ensure public order does not belong to any country, he is treated as the individual outlaw, as the enemy of the human race — hostis humani generis — that any country, in the interest of all can seize or punish”.

The Lotus principle

The first principle of the Lotus Case is that a state cannot exercise its jurisdiction outside its territory unless an international treaty or customary law permits it to do so. This is what we called the first principle of the Lotus Case. The Court held that: “Now the first and foremost restriction 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 virtue of a permissive rule derived from international custom or from a convention”.

The second principle of the Lotus Case is that within its territory, a State may exercise its jurisdiction, in any matter, even if there is no specific rule of international law permitting it to do so. In these instances, States have a wide measure of discretion, which is only limited by the prohibitive rules of international law. The Court held that: “It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law. Such a view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, and if, as an exception to this general prohibition, it allowed States to do so in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion, which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable. This discretion left to States by international law explains the great variety of rules which they have been able to adopt without objections or complaints on the part of other States… In these circumstances all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty”.

The Lotus case gave an important dictum on creating customary international law. France had alleged that jurisdictional questions on collision cases are rarely heard in criminal cases, because States tend to prosecute only before the flag State. France argued that this absence of prosecutions points to a positive rule in customary law on collisions. The Court disagreed and held that, this: “would merely show that States had often, in practice, abstained from instituting criminal proceedings, and not that they recognized themselves as being obliged to do so; for only if such abstention were based on their being conscious of having a duty to abstain would it be possible to speak of an international custom. The alleged fact does not allow one to infer that States have been conscious of having such a duty; on the other hand, as will presently be seen, there are other circumstances calculated to show that the contrary is true”.

In other words, opinio juris is reflected not only in acts of States, but also in omissions when those omissions are made following a belief that the said State is obligated by law to refrain from acting in a particular way.