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Customary International Law

Case: The Lotus Case (1927, France v. Turkey, PCIJ)

Facts: There was a collision between French steamer Lotus, who was going to
Constantinople, and Turkish collier Boz-Kourt, where the Boz-Kourt sank. The Lotus
tried to save the people on the Turkish vessel, and did save 10, but 8 Turkish
nationals who were on board died. The officer on watch onboard the Lotus, Ltn.
Demons, and of the Boz-Kourt, Bey, were taken by Turkish police for examination,
and then arrested (pending trial) for criminal prosecution of manslaughter,
without previous notice given to the French Consul-General. During trial in
Turkey, Demons (French national) submitted that Turkish courts had no
jurisdiction, but his objection was overruled. Demons was then sentenced to 80
days imprisonement, and a fine of 22 pounds. The French government protested this,
and both countries agreed to bring the issue before this International court at
the Hague in Geneva.

Issue: Whether or not the rules of international law prevent Turkey from
instituting criminal proceedings against a French national under Turkish law. If
yes, what pecuniary reparation is due to Demons?

Holding: Turkey did not act contrary to any existing Int'l law.

Reasoning: All that is required of Turkey is that it does not overstep the limits
which international law places upon its jurisdiction; within these limits, its
title to exercise jurisdiction rests in its sovereignty. The French gov't
arguments to which Turkey's actions conflicted with international law.
○ Int'l law doesn’t allow a state jurisdiction over a foreigner, where the
offense was committed abroad, just b/c of the victim's nationality. Here the
offense was committed aboard a French vessel.
§ Court says this doesn’t apply here, b/c they are assuming the only
affiliation Turkey has to the incident are the victim's nationality. However, this
is not true. The offense was committed against the Turkish vessel, which is part
of Turkey's territory. In this context, there is no int'l rule of law prohibiting
Turkey's jurisdiction.
○ Since the collision occurred on the high seas, France claimed that only
the state whose flag the vessel flew had exclusive jurisdiction over the matter.
§ Court agrees it is true that on the high seas, vessels are subject
only to the state of which the flag they fly is. ???
○ There a rule specially applying to collision cases has grown up, according
to which criminal proceedings regarding such cases some exclusively within the
jurisdiction if the State whose flag is flown.

• Positivism and the Nature of International Law: Positivism is that all
international legal rules are based on state consent. The court ruled that
Turkey’s state sovereignty is a fundamental principle for International Law
• Burden of Proof: In this case, the idea was the presumption that the burden of
proof was on France. France had to prove that there is a rule of customary
international law restricting Turkish independence rather than making Turkey prove
that its prosecution was sanctioned by international law.
• Lotus reversal: In 1958 Geneva Convention on the High Seas, provides that in
cases involving collisions on the high seas, only the flag state or the national
state of the accused may prosecute the officer.
• How did this case get to the ICJ?
○ French gov't challenging Turkey's jurisdiction over French citizen in
Turkey. There was diplomatic chaos.
○ Both countries mutually agreed/consented to the ICJ. Consent given after
the incident, not prior.
• Question here: does Turkey have the jurisdiction?
• Turkey's treaty - Turkish Penal Code - says subject to principles of int'l law
(or CIL)
• Court looks at territoriality in terms of jurisdiction
○ Where did the incident occur?
○ Limitation - a state cant extend its arm into another territory unless
they have a reason to do so
§ France brings argument that Turkey can't extend its arm to the vessel
on the high seas
• Holding: courts rejects all (3) of France's arguments
○ State can't exercise jurisdiction just b/c victim is a national of that
state (passive personality jurisdiction - some countries recognize it as a
principle of jurisdiction, some don’t, but increasingly being recognized)
§ Doesn’t apply b/c turkey did have a territoriality claim b/c the
incident took place on Turkish vessel flying Turkish flag
§ No argument otherwise
○ Exclusive jurisdiction to the state, if it' the states flag being flown on
the territory
§ But it offense occurred against Turkish vessel
§ No customary int'l law to the contrary
○ Conclusion could be overcome if there was a CIL, but none, after research,
no evidence showing existing custom
• France has burden of proof to show that there was CIL in the contrary
○ Why? - presumption is on proving a restriction from int'l law, rather than
a sanction allowing Turkey to do this.
• France failed to find a CIL

• After this case, countries came together and adopted a treaty to deal with
jurisdiction on the high seas, which contradicted the outcome of this case.
Treaties always trump customary/common law.

• Legal positivism - laws come from states. They are created, they don’t come from
nowhere. Contrasted with natural law theories, where even though law isn't written
down explicitly, they should still be followed.
○ States can create laws through actions or customs, but still made through
actions. Doesn’t just arise from purely moral reasons like natural law.