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Passive Personality Principle: Case Comment on S.S. Lotus (France v. Turkey)

One of the most suitable examples of the applicability of a passive personality principle is the case of Steamship Lotus, also known as SS Lotus that traces back its roots into the sources of international law in early 20th century between both the world wars and its interpretation thereafter. Here, what Passive Personality Principle means is that it:
allows states, in limited cases, to claim jurisdiction to try a foreign national for offences committed abroad that affect its own citizens[1]”.

The question of applicability of this particular principle arises from the very facts of the case of Steamship Lotus, between France and Turkey in the year 1927,. Although the case originates during the end of the first world war but its implications may be felt in the present scenarios which would be one of the aspects on which the project would deal with. The case also highlights the general practice as an important element of the custom from which International law derives its sources, however this particular decision overpowers this element and serves new interpretation.

The case of Steamship Lotus essentially involves two basic facets of the International Law i.e. the sources and the jurisdiction. It is because of these essential elements that the case seems very much relevant in the present context. Though a very controversial decision of the Permanent Court of International Justice, it brings out various perspectives of jurisdiction under the International Law.

This implies that the states become subject to International Law only by arriving at a common consent, therefore it may be inferred that consent forms a clear base for the International Law and the Law of Nations specifically, to prevail.[2] Custom, being a major source of International law seemed to be overpowered by the new interpretations by the court, the analysis of which would be dealt as the article furthers.

The Background: Steamship Lotus, France v. Turkey

The problem eventually arose in 2 August 1926 when the French Mail-steamer, Lotus headed by Monsieur Demons who was a French citizen, lieutenant in the merchant service, and the Turkish collier Boz-Kourt, directed by Captain Hassan Bey, collided five to six nautical miles to the north of Cape Sigri (Mitylene).[3] The French Steamship was heading to Constantinople. Due to this collision, the Turkish collier sank and led to the loss of life of eight Turkish nationals.

After the collision, Lotus tried aiding the shipwrecked persons but could save only ten, one of them was Captain Hassan Bey, after which they continued to Constantinople. After two days of arriving at their destination, the Turkish authorities requested the French Captain to go ashore and give the evidence. This, in turn, delayed the departure of SS Lotus from Constantinople. In the meantime, the captain of the Lotus handed his master's report at the French-Consulate General.

After this delay, the Lieutenant was arrested by the Turkish authorities without giving any prior notice to him along with Hassan Bey. The arrest was done on the charge manslaughter that was complained against him by the families of the victims who died in the collision which the Turkish Agent termed as the Arrest Pending Trial. The case then was heard not before, 28 August 1926 by the Criminal Court of Stamboul wherein the French Lieutenant objected over Turkey's unreasonable jurisdiction over him.

He also pleaded for his release on bail to which the court agreed the bail being fixed at 6,000 Turkish pounds. However, the court declared its judgement on 15 September 1926 sentencing Lieutenant Demons to eighty days' imprisonment along with a fine of twenty-two pounds. Also, Hassan Bey was given a slightly more severe penalty.

Although the Public Prosecutor of the Turkish republic went for an appeal which had the implication of suspending the execution of the decision of the Criminal Court of Stamboul until a decision on the appeal had been given, but in vain. All these gave rise to a wide range of diplomatic representations from the part French Government or their representatives in Turkey. Following this, the Turkish Republic finally to sought to solve this matter in the Permanent Court of Justice, The Hague.[4] M. Basdevant Professor represented the government of French Republic while Mohmout Essat Bey represented the Government of Turkish Republic on the international forum.

Contentions Raised: Extra Territorial Jurisdiction v. The High Seas
Jurisdiction continues to remain a bone of contention between most of the conflict of states when it comes to resolving their dispute in the International forum. The case remains same under the conflict of France and Turkey. Therefore, jurisdiction remains an essential element for putting claims by the both the parties. Jurisdiction basically refers to the rights that a particular state or an authority has, to regulate the conduct and limit those rights.[5] The case of SS Lotus can be analyzed on the arguments and the jurisprudence behind the court for applying those arguments.

Contentions raised by the French:

  • The French raised contentions on six grounds in order to prove the fact that the Turkish Government exercised the jurisdiction beyond their scope.
     
  • The first and foremost ground that the French relied upon was the Law of the flag[6] which prevailed in the High Seas. According to this, the flag of the country which flows on the ship has jurisdiction over any dispute regarding the matter. However, this only came into a wider picture in High Seas Convention of 1958[7] while the case of SS Lotus dates back to 1927. Hence, this contention was refuted by the court.
     
  • The second contention raised by the French that was in accordance with the principles of international law, claims that a state is not entitled to extend the criminal jurisdiction of its court merely because of the fact that the effect had been on one of its nationals or he has been a victim of any such crime or offence which was committed by the foreign national. Taking reference of the case of Costa Rica Packet[8], the French argued that the nationality of the victim cannot be held as a sufficient ground to override the above rule and go beyond the jurisdiction.
     
  • The third contention raised by French in its Counter-case also included, the extension of jurisdiction can also not be claimed merely because of the connexity of offences due to the collision of the vessels. Considering the fact that the two vessels are not of the same nationality, the international law doesn't support such claims. Fourthly, France contended that the reparations which were demanded from Monsieur Demons was not to be disputed as the arrest, imprisonment and conviction had been done beyond the scope of jurisdiction, therefore the point of reparations cannot be claimed by the Turkish court.
     
  • The fifth contention made by the French Government was regarding the indemnity for the moral damage and the bailment amount which was submitted by Monsieur Demons. To further elaborate, it can be said that while acting beyond the jurisdiction, the Turkish government arrested Demons and who was to be granted a bail only after being paid 6000 Turkish pounds.
     
  • Lastly, the French government demanded 6000 Turkish pounds from the Government of Turkish Republic as a form of reparation.

Therefore, it won't be wrong here to infer that the arguments of the French Counsel were entirely based on the essential that the Turkish authorities exercised jurisdiction beyond their scope but the court here misjudged the consequences of absence of protest with regards to rule of flag state while determining generality of practice in a custom as a source of international law. As mentioned earlier, this same rule which was disregarded by the court found its authority in the Geneva Convention on High Seas.[9]

Contentions raised by Turkey:

As mentioned in the earlier Chapters that consent forms the very base for the functioning of the International Law or rather to be precise, Public International Law or the Law of the Nations. Going into the background, there was a treaty signed by Turkey after the first world war known as the Treaty of Lausanne which prevents Turkey from exercising jurisdiction in certain territories near it. This forms a strong argument for the French while pleading for exercise of ultra-vires jurisdiction by Turkey.

However, Turkey claims that there was loss of life of eight people present on the vessel Boz-Kourt due to the collision with Steamship Lotus which was directed by Monsieur Demons. Therefore, the death of these eight people had been a consequence of such collision which makes the person liable because, if Turkey hadn't done so it would have been injustice to the citizens who lost their lives in the collision between Steamship Lotus and the Boz-Kourt.[10]

The reason behind this argument was the connexity of events and therefore, the Turkish authorities arrested Demons and the Criminal Court of Stamboul sentenced him to imprisonment of eighty days and a fine of twenty-two pounds. Turkey, in its counter case submitted to the Permanent Court of Justice, The Hague that the judgement was in the scope of jurisdiction of the Turkish courts and pleaded to decide in the favor of the same. The Turkish Court also seeks defense from the statute of Turkish Penal Code, Article 6 which was “taken word to word” from the Irish Penal Code.[11]

Questions before the Court:
The first and foremost question that was put before the Permanent Court of Justice among all the contentions was whether Turkey acted in contrary to the International Law principles on the basis of Article 15 of the Convention of Lausanne. This article which states that:
all questions of jurisdiction, shall as between Turkey and other contracting powers, be decided in accordance with principles of international law”[12].

The question before the court was also that if this article applies, then to what extent and which part of the article would apply.

The second question raised before the court was regarding the reparations due to be paid by Monsieur Demons in accordance with the principles of international law. After the proposal by both the parties the court decided the dates for the cases and counter-cases by both the parties to be heard on the ground of Article 48[13] of the Statute.

Decision of the Permanent Court of International Justice and Dissenting Opinion

The case of SS Lotus occurred during the time of end of World War when it can be inferred that the International Law had not evolved much as it is in the current circumstances. The decision in this case is still criticized on many grounds even today. In the judgement, eight of nine judges were in favor of Turkey exercising jurisdiction over the French national whereas there was dissenting opinion from Mr. Moore who based his reason on Article 6 of the Turkish Penal Code which relates the case with the criminal proceedings.

To understand the decision, one needs to look into the reasoning applied by the judges in deciding such a case. The reason behind such jurisprudence comes from the positivist school of thought which believes in the notion that “law is regarded as a unified system of rules that emanate from state will[14]”. As mentioned earlier the base of international law lies in 'consent' between states therefore, at this point, it can be inferred that in the absence of any will as prescribed by the Legal Positivist theory, international law cannot prevail.

In a similar manner, the judge in the majority, Judge Nyholm argued that as a principle of international law, wherever any rule is not setup, there must be absolute freedom.[15] Hence, Turkey was correct in exercising its jurisdiction. This concept of consent has been further highlighted by Spiermann when he argues, the court was of the opinion that there exists a cooperation between the states that helped in shaping their view in this manner.[16]

However, this decision has been subject to many criticisms in the later period of time. Talking about the dissenting opinion by Judge Moore in the Lotus Case of 1927, it can be inferred that jurists including Judge Weiss and Judge Loder were having the similar contention that international law is something permits everything that is not prohibited under the same.[17] According to another intellectual Henkin, the court in this case started with a presumption that the:
state was not fully autonomous rather than the presumption that the state was fully autonomous[18]”.

Therefore, it can be taken into consideration that the international law had not reached a mature stage wherein the court would also classify or categorize which actions were to be permitted and prohibited specifically. The impact of this decision can be seen at present too, which would be discussed in the next chapter. However, this case provides an insight into what the judges actually thought while deciding the jurisdiction while simultaneously studying the reasoning behind the dissenting opinion.

The Lotus Principle: An Analysis and Impact

The researcher in the very beginning mentions that the dispute was regarding whether Turkey was authorized while using its 'extra- territorial jurisdiction' and prosecuting Monsieur Demons. It was allowed to so in the traditional aspect of the International Law, which simply means, everything is permitted until it is specifically prohibited. However, there were a lot of disagreements with regard to this decision in the later period of time. Now, it is also important to look what repercussions had this principle produced in the current time.

A very evident one is the resolution of United Nations General Assembly on 15 December 1994 in which it asked the International Court of Justice whether “the use or threat of nuclear violence in any circumstance permitted under the international law”.

What makes it more controversial is the Lotus Principle and more profoundly its passive personality principle. In this case, nuclear power states like Britain, USA, France, Russia and allies were of the clear opinion that International Law should not exceed its jurisdiction in such scenario. Adding to this, international law is seen as deriving sources from customs, general principles while the threat or use of nuclear weapons was not covered under any customary or conventional international law. This particular conclusion of the International Court of Justice makes it very much related to the Lotus Principle established in 1927.

To this, though the ICJ has answered that use of nuclear weapons would be treated as contrary to the international law in cases of armed conflict, violation of humanitarian law, but the lacuna comes when something called 'Self-Defense' needs to be defined which enables a particular state or country to use such weapons.[19] Here, the importance is not to be given to the lacuna remaining, rather to the jurisprudence which involves the Lotus Principle that gives rise to the lacuna.

This was not the first time when the controversy arose due to the applicability of Lotus Principle. One of the key factors in the case of nuclear weapons is that the UN General Assembly merely asked for the Advisory opinion which restricts the scope of international law to a great extent when it comes to the implementation under the given circumstances. The other case when the Lotus Principle came up was the Maersk Dubai case in Halifax wherein this principle had come for a different reason but the rule of flag state was applied in this particular decision.[20]

However, there are certain cases which entirely reversed the decision of the SS Lotus which includes the case of ICJ which deals with the Arrest Warrant Case, 2002[21]. The problem manifests to another level when it comes under the purview of criminal jurisdiction similar to the case mentioned above. Applying the Lotus principle in such cases would inflict grave injustice to the parties.[22]

Analyzing these cases, it can be said that the extra-territorial jurisdiction existed as an exception to the rule[23] as it mainly perpetuates that whatever is not prohibited is permitted. But, the implications of such principles had been felt much later when the questions of nuclear weapons and disarmament arose. Today also, it is a very well-established fact in case of violation of such rules, international would decide on the matter but to what extent is the decision binding is still debatable.

Conclusion
The Lotus Principle, established in the year 1927 reflects the conventional and traditional interpretation of the International Law. This notion has evolved in the form of the “Passive Personality principle” which talks about the exercise of jurisdiction by a nation on the foreign national when his activities have affected the citizen of the former Nation. The international which is based on the consent of the states plays a major role in forming such decision.

This makes “anything not prohibited, is permitted” under the international law. The Lotus case has been a debatable issue since 1927 but with the growth and development of international law and inclusion of new problems in this world, the interpretations have changed. Such examples can be found in the “Arrest Warrant case” of 2002. The modern jurists have criticized this principle on the ground that it can't be made applicable to criminal acts taking place between two states or violation of humanitarian law for that matter. But here the concern lies in the very fact that if any act or law is not prohibited, it does not mean that it is permitted.

Also, referring to the case of SS Lotus, the decision was given in the favor of Turkey because there was no existing law at that time which prevented or prohibited Turkey from exercising its jurisdiction in such a manner. However, one of the contentions raised by France was regarding the imposition of the law of the flag state which came into a full picture only after the High Seas Convention of 1958.

This very fact provided a backdrop to this case of SS Lotus and it becomes one of the reasons why it is still criticized by many. Though the judgement of Steamship Lotus was a milestone that argued that legal positivism prevailed over the normativity, but one can still find the dissents to this particular reason of thought and it has not only impacted the 20th century but its implications have been felt by the 21st century in the very beginning itself.

End-Notes:
  1. https://www.britannica.com/topic/international-law/Jurisdiction#ref795056
  2. James Crawford, Brownlie's Principles Of Public International Law, 5, (8th ed. 2012).
  3. Steamship Lotus (France v. Turkey), Permanent Court of International Justice, P.C.I.J. (ser. A) No. 10 (1927).
  4. Id at 3.
  5. Danielle Ireland-Piper, Prosecutions of Extra-Territorial Criminal Conduct and the Abuse of Rights Doctrine, 9 UTRECHT LAW REVIEW, 68, (2013).
  6. Supra note 2.
  7. 29 April 1958, 450 UNTS 82.
  8. Great Britain v. The Netherlands, pas. Int. 510.
  9. Article 97, Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397.
  10. An Hertogen, Letting Lotus Bloom, 26 European Journals Of International Law, 901-906, (2015), https://doi.org/10.1093/ejil/chv072.
  11. S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7).
  12. Bruno Simma & Andreas S. Paulus, The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View, 93 American Journals Of International Law, 302,304 (1999
  13. League of Nations, Statute of Permanent Court of International Justice, 16 December 1920.
  14. Supra note 18.
  15. Hugh Handeyside, The Lotus Principle in ICJ Jurisprudence: Was the Ship ever Afloat, 29 Michigan Journals Of International Law, 71, 94, (2007).
  16. Ole Spiermann, Lotus and the Double Structure of International Legal Argument, in International Law, The International Court Of Justice And Nuclear Weapons 143 (Laurence Boisson de Chazournes & Philippe Sands eds., 1999).
  17. Supra note 11.
  18. Louis Henkin, International Law: Politics, Values and Functions, 216 Recueil Des Cours 9, 278, (1989 IV).
  19. Moira L. McConnell, Nuclear Weapons, the ICJ and the Limits of Permittable Violence: The SS Lotus Rises Once Again, 55 Advocate (Vancouver), 364-375, (1997).
  20. Pasha L. Hsieh, An Unrecognized State in Foreign and International Courts: The case of the Republic of China on Taiwan, 28 Michigan Journals Of International Law, 765-813, (2007).
  21. Arrest Warrant of 11 April 2000, Democratic Republic of Congo v. Belgium, ICJ Reports 2002, p. 3 at seqq.
  22. Nathalie Isabelle Thorhauer, Conflicts of Jurisdiction in Cross-Border Criminal Cases In The Area Of Freedom, Security, And Justice, 6 New Journal Of European Criminal Law, 78-105, (2015).
  23. Supra note 5.

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