Updated: Jun 28, 2020
The SS Lotus (France v Turkey) decision is recognised as a seminal case in international law pertaining to whether international law is regarded as permissive or prohibitive. This determination spans many subjects of law, and in particular, may affect conclusions drawn in relation to state responsibility and individual criminal liability. The decision was concluded before the Permanent Court of International Justice ('PCIJ'), the International Court of Justice’s ('ICJ') predecessor and the judicial body of the League of Nations at the time.
International law is permissive. As a result, States are empowered to engage in any activity except where there is an express prohibition and the act amounts to a breach of international law.
A collision between France’s SS Lotus and Turkey’s SS Boz-Kourt occurred in the early hours of August 2nd, 1926 just north of Greece. Each ship was captained by a national of the country under which the ship sailed. The SS Boz-Kourt was split in two and sank, resulting in the deaths of eight Turkish nationals. The Lotus attempted to help but ultimately continued on their voyage, docking in Constantinople on August 3rd. The Turkish authorities questioned and arrested Lotus’s captain who was then convicted by Turkish courts of negligent conduct. However, the captain of the Lotus contended that Turkey did not have jurisdiction over his case. Accordingly, France and Turkey agreed to submit the case to the PCIJ.
The PCIJ was asked to determine ‘whether the exercise of Turkish criminal jurisdiction over Demons [the Lotus’s captain] for an incident that occurred on the high seas contravened international law’.
In other words, whether a rule of international law exists which prohibits a State from exercising criminal jurisdiction over a foreign national, where the national commits an act purportedly in breach of international law outside of its territorial jurisdiction?
France contended that the criminal responsibility of the accused, who was a French national, was a matter that belonged exclusively to French courts. This was because acts that occur on the high seas fall within the responsibility of the nationality of the ship. Further, that “jurisdiction is given to the courts whose flag the vessel flies.” However, Turkey contended they held jurisdiction as the act occurred on board the S.S. Boz-kourt.
(Per curiam) There is the absence of a rule of law which prohibits a State from exercising criminal jurisdiction over a foreign national who commits a criminal act outside of that State’s national jurisdiction. Absent of a permissive rule to the contrary, it is the first and foremost restriction imposed by international law on a State which is relevant. However, international law respects the concept of state sovereignty and therefore prohibits a State from exercising any act within the territory of another state.
The PCIJ held that the actions of Turkey, by trying a foreign national, was not conduct in contravention of international law. There was no present rule that prevented a State from exercising criminal jurisdiction over a foreign national who committed an act outside of the State’s national jurisdiction. Accordingly, Turkey had the jurisdiction to try the foreign national as there was an absence of any law to the contrary.
The PCIJ held that concurrent jurisdiction was present because of this absence. This principle, however, has since been limited by subsequent developments in the law of the sea. Now, the position is that accountability for actions that occurred in the High Seas rests with the State of origin of the accused (see Article 11 of the High Seas Convention 1958).
Judge Loder characterised Turkey's position as "based on the contention that under international law everything which is not prohibited is permitted. In other words ...every door is open unless it is closed by treaty or by established custom.”
Judge Weiss claimed that the majority opinion meant that Turkey "can do as she thinks fit as regards persons or things unless a specific provision in a treaty or an established custom in international relations prevents her from so doing. This power is thus in its essence unlimited....”.
The impact of this decision is all encompassing where points of law have not concretely been resolved in international law. For example, in the context of international humanitarian law, the emergence of new methods, means and weapons of warfare is evolving with the introduction of technology into this sphere. As the Nuclear Weapons Advisory Opinion by the ICJ shows, the use of nuclear weapons in times of armed conflict is not regulated at a conventional level.
In the absence of the customary international law requirements existing under international humanitarian law and international human rights law, the question arises as to how nuclear weapons could be regulated at all? It may be the case that in the absence of these customary international law requirements, there would be a finding that the law is ‘permissive’ in this area in following the SS Lotus decision.
Written by Madeleine Bowater
Co-Chair and Founder
1. SS ‘Lotus’ (France v Turkey) (Judgment)  PCIJ (ser A) No 10.
2. Hugh Handeyside, ‘The Lotus Principle in ICJ Jurisprudence: Was the Ship Ever Afloat?’ (2007) 29(1) Michigan Journal of International Law 71.
3. Rayhanul Islam, Lotus Case (France v Turkey, PCIJ 1927) (Blog Post, 29 September 2018)<(https://lawhelpbd.com/international-law/auto-draft-7/>.
4. Int law, The Case of the S.S. “Lotus” (France v. Turkey) (Blog Post, 11 April 2017) <https://intlaw.co.uk/lotus/>.
5. Case Briefs, ‘International Law Keyed to Damrosche’, The Case of the S.S. Lotus (France v. Turkey) (Blog Post) <https://www.casebriefs.com/blog/law/international-law/international-law-keyed-to-damrosche/chapter-2/the-case-of-the-s-s-lotus-france-v-turkey/>.