S. S. Lotus (France v. Turkey)

On 2 August 1926, on the high seas near the Greek island of Lesbos, the French mail steamer Lotus collided with the Turkish ship Boz Kourt. The Turkish ship sank and eight Turkish nationals died.

The Lotus picked up survivors and sailed on to Constantinople (today's Istanbul). There, Turkish authorities arrested Lieutenant Demons, the French officer of the watch on the Lotus at the time of the collision. He was tried together with the Turkish captain for involuntary manslaughter and was convicted.

France protested, and France and Turkey took the matter to the P.C.I.J. by agreement.

1. Did Turkey need a permissive rule of international law to justify prosecuting a French officer for a collision on the high seas?

2. On the high seas, does the flag State alone have jurisdiction over what happens on board its ship?

3. Did the fact that States usually did not prosecute in such cases prove that customary international law prohibited such prosecution?

France: Turkey needed a permissive rule of international law to justify its jurisdiction. On the high seas, the flag State alone (here, France) has jurisdiction over what happens on board its ship.

Turkey: No rule of international law prohibited the prosecution, so Turkey was free to try the officer.

The judges were equally divided, and the President's casting vote decided the case for Turkey.

The Court held that restrictions on the independence of States cannot be presumed. A State has wide freedom to act, limited only by prohibitive rules. So the burden was on France to point to a rule forbidding Turkey's jurisdiction, and France found none.

The Court also reasoned that the effects of the offence were felt on the Turkish ship, which is treated like Turkish territory. So both France and Turkey had concurrent jurisdiction, each with a valid claim to try the case.

Finally, the Court said that the fact that States had usually not prosecuted in such cases did not prove a customary prohibition, because there was no evidence that they had abstained out of a sense of legal duty.

Customary international law (State jurisdiction on the high seas); United Nations Convention on the Law of the Sea, 1982, Article 97(1); United Nations Convention on the Law of the Sea, 1982, Article 97(2); United Nations Convention on the Law of the Sea, 1982, Article 97(3)

Lotus is one of the most famous cases on State jurisdiction and the freedom of States in international law. It gave the 'Lotus principle' that a State may act unless a rule forbids it. It also teaches that custom needs more than practice: abstention must come from a sense of legal duty.

Students must also remember that the specific collision rule was later reversed by treaty. Under Article 97(1) of UNCLOS, 1982, penal or disciplinary proceedings after a collision on the high seas can be brought only before the authorities of the flag State or of the State of the accused person's nationality. Under Article 97(2), only the State that issued a master's certificate, or a certificate of competence or licence, may withdraw it, after due legal process, even if the holder is not its national. Under Article 97(3), no authority other than the flag State may order the arrest or detention of the ship, even as a measure of investigation.

Memory line from the lecture: Lotus gave a broad principle of State freedom, but for collisions at sea, the treaty now gives jurisdiction only to the flag State and the State of the accused person's nationality.

Hypothetical: Prince is an officer on a ship flying the flag of Country A. On the high seas, his ship collides with a ship of Country B, and Farhan, a crew member of the Country B ship, dies. Under the old Lotus reasoning, Country B could also try Prince, because the effect of the collision was felt on its ship and no rule forbade it. Today, under Article 97(1) of UNCLOS, 1982, Prince can face penal or disciplinary proceedings only before the authorities of Country A (the flag State) or of the State of which Prince is a national. Under Article 97(3), Country B also cannot order the arrest or detention of Prince's ship, even as a measure of investigation; only Country A can.