The terms international waters or trans-boundary waters apply where any of the following types of bodies of water (or their drainage basins) transcend international boundaries: oceans, large marine ecosystems, enclosed or semi-enclosed regional seas and estuaries, rivers, lakes, groundwater systems (aquifers), and wetlands.
Oceans, seas, and waters outside of national jurisdiction are also referred to as the high seas or, in Latin, mare liberum (meaning free seas).
Ships sailing the high seas are generally under the jurisdiction of the flag state (if there is one); however, when a ship is involved in certain criminal acts, such as piracy, any nation can exercise jurisdiction under the doctrine of universal jurisdiction. International waters can be contrasted with internal waters, territorial waters and exclusive economic zones.
The Lotus case concerns a criminal trial which was the result of the 2 August 1926 collision between the S.S.Lotus, a French steamship (or steamer), and the S.S. Boz-Kourt, a Turkish steamer, in a region just north of Mytilene (Greece). As a result of the accident, eight Turkish nationals aboard the Boz-Kourt drowned when the vessel was torn apart by the Lotus.
The Lotus principle or Lotus approach, usually considered a foundation of international law, says that sovereign states may act in any way they wish so long as they do not contravene an explicit prohibition. The application of this principle – an outgrowth of the Lotus case – to future incidents raising the issue of jurisdiction over people on the high seas was changed by article 11 of the 1958 High Seas Convention. The convention, held in Geneva, laid emphasis on the fact that only the flag state or the state of which the alleged offender was a national had jurisdiction over sailors regarding incidents occurring in high seas.
Statement of Facts:
On August 2nd, 1926, just before the midnight, an accidental collision occurred between the French mail, Lotus and a Turkish collier Boz – Kourt. The French ship was heading towards Constantinople. The Turkish ship after the collision was cut into two and sank into the water, eight Turkish nationals, who were on board died as a result of the collision. After making some of the best efforts, ten people on board were saved after the tragic shipwreck. The French ship continued for Constantinople and arrived there on August 3rd, 1926.
When the mishap occurred on August 2nd, 1926 the French Captain on the ship was Lieutenant Monsieur Demons, while the Turkish ship was under the command of its captain, Hassan Bey, who was one of the ten nationals rescued from the shipwreck.
The Turkish authorities took the action, as early as on August 3rd. The Turkish authorities conducted some enquiries and the report of the collision was forwarded to the authorities on August 4th. On August 5th, the French captain Demons was requested by the Turkish authorities to go ashore and give evidence. The examination conducted by the Turkish authorities resulted in the arrest of the French Lieutenant, Demons and also the arrest of Hassan Bey. The arrests were made without prior notice to the French Consul – General. This arrest had been characterised as an arrest pending trial (arrestation preventive). This arrest was instituted to ensure the criminal proceedings against the two officers, on the charge of manslaughter, by the Public Prosecutor of Stamboul, on the complaints made by the family members of the victims in the shipwreck.
The case was first heard by the Criminal court of Stamboul, on August 28th. On that instance Lieutenant Demons appealed that the Turkish court had no jurisdiction upon the matter in question, however the appeal was overruled. Subsequently on September 13th, the decided to release the Lieutenant on bail for an amount fixed at 6,000 Turkish pounds.
It was also a established fact that the between the parties the Turkish Republic has entered an appeal against that decision, which had the effect of suspending its execution until the decision upon the appeal had been given; that such decision has not been given; but that the special agreement of October 12th, 1926, did not have the effect of suspending the “criminal proceedings …. now in progress in Turkey”.
The actions taken by the Turkish judicial authorities with regards to the matter of Lieutenant Demons gave rise to many diplomatic representations by the French government in the country of Turkey. The French demanded either release of the Lieutenant or the transfer of the case from Turkish courts to the French courts.
As a result of such political and diplomatic representation, the Turkish Republic declared on September 2nd, 1926, that ‘it would have no objection if the case gets transferred from the Turkish courts to the court at Hague, in the Hollands’.
The issues involved:
The issues which were put before the Permanent Court of International Justice (PCIJ) was that –
- Did Turkey violate the law when it exercised its jurisdiction upon the case of Lotus, the crime which was committed by a French national outside the territory of the Turkish nation?
- If yes, then whether Turkey is obliged to pay compensation to the country of France?
Law on the point:
The clause and the Article involved in the particular case as the law on the point was – Article 6 of the Turkish Penal Code, Law No. 765 of March 1st, 1926 (Official Gazette No. 320 of March 13th, 1926)
The point of dispute and debates was arisen on the Article 6 only.
Relevant Findings of the Case:
Establishing Jurisdiction: Does Turkey need to support its assertion of jurisdiction using an existing rule of international law or is the mere absence of a prohibition preventing the exercise of jurisdiction enough?
- On the question of Turkey establishing its jurisdiction – the court said that the jurisdiction in the particular case is territorial. It said, “A state cannot exercise its jurisdiction outside its territory, unless an express international treaty or any other customary law permits a country to do the same. This was called as The First Lotus Principle.
Following the judgment given by the PCIJ –
“Now the first and foremost restriction imposed by international law upon a State is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention.”
- On the question whether the jurisdiction carried out was within its territory – the court established the second lotus principle – a state can exercise its jurisdiction, in any cases, where there is no established International principle / law permitting it to carry out such jurisdiction. In such cases, a state a wide measure of the discretion of its jurisdiction, unless barred by the prohibitive rules of International law.
Following the judgment given by the PCIJ –
“It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law. Such a view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, and if, as an exception to this general prohibition, it allowed States to do so in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion, which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable.”
“This discretion left to States by international law explains the great variety of rules which they have been able to adopt without objections or complaints on the part of other States …In these circumstances all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty.”
The PCIJ also talked about the sovereign will of the state and gave the reasoning that International law governs relations between different states. The rule of law binding in such states therefore emanates from the free will of the state as per the conventions and according to the domestic laws applied in a particular state and also to regulate the relations between the co – existing communities within the state. Therefore the actions of an independent state cannot be bound on unreasonable grounds and therefore restriction on such states cannot be presumed.
France alleged that the flag State of a vessel would have exclusive jurisdiction over offences committed on board the ship in high seas. The PCIJ disagreed. It held that France, as the flag State, did not enjoy exclusive territorial jurisdiction in the high seas in respect of a collision with a vessel carrying the flag of another State. The Court held that Turkey and France both have jurisdiction in respect of the whole incident; i.e. there is a concurrent jurisdiction.
According to the court – the offence committed by Lieutenant Demons on the French vessel had a direct and inseparable effect on the vessel belonging to the nation of Turkey. It is as if the negligence if overlooked in this case renders the whole case as non – existent. Therefore in this situation Turkish jurisdiction over the case cannot be restricted.
Subsequent ICJ Decisions and Separate Opinions That Referred to Principles of the Lotus Case
Advisory Opinion on the Unilateral Declaration of Kosovo (2010)
In the Kosovo Advisory Opinion the Court had to decide if the unilateral declaration of Kosovo of February 2008 was ‘in accordance with’ international law. The Court inquired and concluded that the applicable international law did not prohibit a unilateral declaration of independence. Based on this finding, the Court decided that ‘the adoption of the declaration of independence did not… violate any applicable rule of international law’.
Judge Simma disagrees, inter alia, with Court’s methodology in arriving at this conclusion. He imputes the method to the principle established in the Lotus case: that which is not prohibited is permitted under international law. He criticises the Lotus dictum as an out dated, 19th century positivist approach that is excessively differential towards State consent. He says that the Court should have considered the possibility that international law can be deliberately neutral or silent on the international lawfulness of certain acts. Instead of concluding that an the absence of prohibition ipso facto meant that a unilateral declaration of independence is permitted under international law, the court should have inquired whether under certain conditions international law permits or tolerates unilateral declarations of independence.
After reading the SS Lotus case, and analysing the all the facrs and circumstances in the given situation, it can be said that the PCIJ’s decision in the case was a fair one because the incident allegedly took place on the high seas and according to the agreement between France and Turkey there was no fixed jurisdiction of any state. The agreement and any other International treaty/convention was silent upon the fact that if the jurisdiction of any state is not specified for any water body?
The PCIJ did right not to bar Turkey from taking the appropriate action against the French captain Demons, because if it is not mentioned about the powers of any state in a particular area, then the state should be assumed to enjoy unlimited powers in that area.
For compiling the research paper, following literary works were referred to:
1). Anand, R. P. Confrontation or Cooperation: International Law and the Developing Countries (1987)
2). Dixon, M. (2007). Textbook on international law (6th ed.). Oxford: Oxford University Press.
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