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S.S.Lotus Case (France V. Turkey), 1927: Case Analysis

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 decentralized basis.

The ICJ Statute, Art. 38, identifies the following sources:
  1. 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.
  2. 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:
    1. Consistent and widespread state practice;
    2. 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.
    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.
  3. 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. case (1970)).
  4. 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."

Facts of the case:
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:
  1. Had Turkey violated the principles of international law with improper use of jurisdiction, and if so, what principles?
  2. 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 collision?

Case Analysis:

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 Government .

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 way.

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 crashes.

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.


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