Public International Law:
Public international law is the body of law created through the interactions
between nations. International law is the law of the international community of
states. There is no such thing as a "Code of International Law." There is no
Parliament in international law, and there is no such thing as legislation.
It deals with the conduct of nation-states and their relations with other
states, and to some extent also with their relations with individuals, business
organizations, and other legal entities." Nations adhere to the concepts of
international law through treaties, custom, and interpretations by both their
own domestic judiciaries and international tribunals. These are treated as the
Sources of International law.
The SS Lotus case herein is about a criminal trial that occurred as a result of
a collision between the S.S. Lotus, a French steamer, and the S.S. Boz-kourt, a
Turkish steamer, on August 2, 1926, in a region just north of Mytilene. Eight
Turkish nationals aboard the Bozkourt drowned as a result of the accident when
the vessel was ripped apart by the Lotus.
Sources Of Public International Law
In particular, it is dangerous to try to transfer ideas from national legal
systems to the very different context of international law.
While the International Court of Justice and other specialized international
courts and tribunals exist, their jurisdiction is critically dependent on the
consent of states, and they lack what can properly be described as compulsory
jurisdiction, as do national courts. As a result, the actions of the 192 states
that comprise the international community produce much of international law on a
The ICJ Statute, Art. 38, identifies the following sources:
Facts of the case:
- Treaties between states:
Treaties (sometimes called agreements, conventions, exchanges of notes or
protocols) between States � or sometimes between States and international
organizations � are the other main source of law.
- Customary principles:
Customs are rules of behavior which prescribes what is permitted and what is
not. Such rules develop subconsciously within the group and are maintained
by the members of the group by social pressures and with the aid of various
others more tangible implements. They are not written down or codified and
survive because of an aura of historical legitimacy.
The two essentials needed to consider an act to become a customary
principle, those are:
The same was held in the SS Lotus case, that for becoming a customary
principle the above mentioned essentials are important. This article further
deals with the mentioned case herein.
- Consistent and widespread state practice;
- Opinio Juris- derived from the maxim 'opinio juris sive necessitatis',
which means 'an opinion of law or necessity'. It is a belief that an action
to be carried out as a legal obligation.
- General principles of law recognized by civilized nations; and, as a
secondary means of determining international law rules - The third source,
general principles of law recognized by civilized nations, is rarely
mentioned judgments. They are most commonly used when the ICJ or another international
tribunal wishes to adopt a widely accepted concept in national legal systems,
such as the legal personality of corporations (as in the Barcelona Traction Co.
- Court rulings and the writings of "the most highly qualified
publicists"- Article 38(1)(d) refers to judicial decisions as a secondary
means of determining legal rules. The ICJ Statute expressly states that a Court decision
is not binding on anyone except the parties to the case in which it is issued,
and even then only in that specific case (Article 59). Nonetheless, the ICJ
frequently refers to its own past decisions, and most international tribunals
use past cases as a guide to the content of international law, so it would be a
mistake to assume that "subsidiary" meant "insignificant."
There was a clash between two ships in the high sea , one was the Lotus Ship of
France and the other Boz-Kourt of Turkey. The accident took place on 2nd August,
1926. The reason behind this accident was the negligence by the watch officer of
the Lotus ship, who was Lt.Demon.
The result of this accident was that the Boz-Kourt , the ship of the Turkey
broke down and out of 18 travelers, 8 of them were dead. The rest 10 got saved
and came back to Turkey by the Lotus ship.
On such an accident, the actions taken by the Turkish government was the arrest
of the watch officer and captain of the Lotus ship , for the gross negligence of
Lt. Demons, and gave them punishment of imprisonment of 80 days. The Turkish
government said that they gave the punishment i.e. Claimed the jurisdiction on
Lotus ship on the basis of "objective territorial principle".
The French government protested against this and demanded the release of the
watch officer, Lt. Demons and the captain of the ship saying that since the ship
had their (France's) flag, so whatever was being done by the Lotus ship will be
investigated by them , and also did not agree to the Turkish judgement of giving
the punishment of imprisonment to Lt. Demons and the captain of the ship.
Due to the disagreement from both the countries, the case was then referred to
the Permanent Court of International Justice (PCIJ).
Issues related to the case:
The questions raised in the Court were:
- Had Turkey violated the principles of international law with improper
use of jurisdiction, and if so, what principles?
- If Turkey is found to violate these principles, what reparation is due
to M. Demons, the officer in command on board of Lotus at the time of the
The Turkish Government, for its part, simply asks the Court in its Case to "give
judgment in favor of the jurisdiction of the Turkish Courts". The French
Government, however, has, in its Counter-Case, again formulated the conclusions,
already set out in its Case, in a slightly modified form, introducing certain
new points preceded by arguments which should be cited in full, seeing that they
summarize in a brief and precise manner the point of view taken by the French
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.
In other words, opinio juris is reflected not only in acts of States (Nicaragua
Case), 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
Subsequent ICJ Decisions and Separate Opinions That Referred to Principles of
the Lotus Case
The Court had to decide whether Kosovo's unilateral declaration in February 2008
was "in accordance with" international law in the Kosovo Advisory Opinion. The
Court investigated and came to the conclusion that the applicable international
law did not forbid a unilateral declaration of independence. Based on this
determination, the Court concluded that "the adoption of the declaration of
independence did not violate any applicable rule of international law."
Judge Simma, for example, disagreed with the Court's methodology for reaching
this conclusion. He attributed the method to the Lotus case's established
principle: what is not prohibited is permitted under international law. He
criticized the Lotus dictum as an outmoded, 19th century positivist approach
that is overly discriminatory toward State consent. He claimed that the Court
should have considered the possibility that international law can be
purposefully neutral or silent on the international legality of specific acts.
Instead of concluding that the absence of prohibition ipso facto meant that a
unilateral declaration of independence is permitted under international law, the
Court should have inquired whether unilateral declarations of independence are
permitted or tolerated under certain conditions under international law.
The Lotus theory, which the dissenters oppose, has the same flaws as the
dissenters' theory, which focuses on permissive legislation and hollows out the
principle of sovereignty even further. In addition, the PCIJ's decision in Lotus
sparked debate about a different jurisdictional allocation for high-seas
Maintaining an atmosphere that encourages sovereign states to resolve conflicts
between opposing claims of jurisdiction in a territorial structure is superior
to the Court adjudicating for them. It is also desirable from the perspective of
a court that lacks mandatory authority, because states are less likely to turn
to a court that exercises its powers too frequently.
Please Drop Your Comments