The Court: Permanent Court of International Justice, Contentious Case
Year of decision: 1927.
Link to the case: ICJ website
This article discusses a legal dispute between the governments of France and Turkey stemming from a ship collision in 1926. The collision involved the French vessel Lotus and the Turkish ship Boz-Kourt. Unable to resolve their differences, both nations agreed to let the International Court intervene. Two key questions were raised: firstly, whether Turkey’s prosecution of a French officer for the collision breached international law, and secondly, if so, the appropriate compensation for the French officer.
Both France and Turkey presented their arguments before the court. France contended that Turkey’s actions were contrary to international law and sought compensation for the French officer. On the other hand, Turkey argued that its actions were lawful and defended its jurisdiction over the matter.
After hearing arguments from both sides and reviewing the evidence, the court rendered its decision. It ruled in favor of France, concluding that Turkey’s actions indeed violated international law. As a result, the court ordered Turkey to provide compensation to the French officer.
Throughout the proceedings, both governments had the opportunity to clarify their positions. While France reiterated its demand for compensation, Turkey opted not to make any concluding remarks. With the court’s decision now reached, both nations are obliged to comply with its ruling.
POINT OF FACT
According to the presentations made to the Court by the agents of the Parties in their written submissions as well as in their oral pleadings, the facts that led to the case are, by agreement of the Parties, as follows:
On August 2, 1926, around midnight, a collision occurred between the French steamer Lotus, bound for Constantinople, and the Turkish coal steamer Boz-Kourt, at a location five to six nautical miles north of Cape Sigri (Mitylene). The Boz-Kourt, being cut in two, sank, and eight Turkish nationals aboard perished. After making every effort to assist the survivors, of whom ten were rescued, the Lotus continued its journey to Constantinople, where it arrived on August 3.
At the time of the collision, the officer on watch aboard the Lotus was Mr. Demons, a French citizen, a long-serving lieutenant and first officer of the vessel, while the maneuvers of the Boz-Kourt were directed by its captain, Hassan Bey, who was among those saved from the shipwreck.
From August 3 onwards, the Turkish police conducted an investigation into the collision aboard the Lotus, and the following day, August 4, the commander of the Lotus submitted his sea report to the French Consulate General, of which a copy was handed to the harbor captain.
On August 5, Lieutenant Demons was invited by the Turkish authorities to go ashore to give a statement. The length of the interrogation incidentally delayed the departure of the Lotus.
THE FACTS
As per the statements presented to the Court by the Parties’ Agents in their cases and during their oral arguments, the following are the agreed-upon facts that led to the dispute:
On August 2nd, 1926, shortly before midnight, a collision occurred between the French mail steamer Lotus, en route to Constantinople, and the Turkish coal ship Boz-Kourt, approximately five to six nautical miles north of Cape Sigri (Mitylene). The Boz-Kourt was split in two and sank, resulting in the loss of eight Turkish nationals aboard. Despite efforts to aid the survivors, with ten being rescued, the Lotus continued its journey to Constantinople, arriving on August 3rd.
At the time of the collision, Monsieur Demons, a French citizen, served as the officer on watch aboard the Lotus, holding the rank of lieutenant in the merchant service and serving as the ship’s first officer. The Boz-Kourt was under the command of its captain, Hassan Bey, who was among the survivors of the wreck.
On August 3rd, the Turkish authorities began an inquiry into the collision aboard the Lotus. The following day, August 4th, the captain of the Lotus submitted his report to the French Consulate-General, providing a copy to the harbor master.
On August 5th, Lieutenant Demons was asked by Turkish authorities to give evidence ashore. The length of the examination delayed the departure of the Lotus and led to the arrest of Lieutenant Demons and Hassan Bey, among others, without prior notice to the French Consul-General. This arrest, termed as preventive arrest, aimed to ensure the normal course of the criminal prosecution initiated against the two officers for manslaughter, following a complaint by the families of the collision victims, by the Public Prosecutor of Stamboul.
The case was initially heard by the Criminal Court of Stamboul on August 28th, where Lieutenant Demons contested the jurisdiction of the Turkish courts, which was overruled by the court. When the proceedings resumed on September 11th, Lieutenant Demons requested release on bail, granted on September 13th with bail set at 6,000 Turkish pounds.
On September 15th, the Criminal Court issued its judgment, sentencing Lieutenant Demons to eighty days’ imprisonment and a fine of twenty-two pounds, with Hassan Bey receiving a slightly harsher penalty. The Public Prosecutor of the Turkish Republic lodged an appeal against this decision, suspending its execution until a decision on the appeal was made. The special agreement of October 12th, 1926, did not suspend the ongoing criminal proceedings in Turkey.
The actions of the Turkish judicial authorities regarding Lieutenant Demons prompted numerous diplomatic representations and interventions by the French Government or its representatives in Turkey, protesting against the arrest or demanding release, or seeking the transfer of the case from Turkish to French courts.
In response to these representations, on September 2nd, 1926, the Government of the Turkish Republic stated that it would not object to referring the jurisdictional conflict to the Court in The Hague.
The French Government accepted this solution on October 6th of the same year, and both governments appointed their representatives to draft the compromise to be submitted to the Court. This compromise was signed in Geneva on October 12th, 1926, as mentioned earlier, and the ratifications were deposited on December 27th of the same year.
LEGAL ASPECTS
Before delving into the examination of the principles of international law against which Turkey allegedly acted, contrary to Article 15 of the Lausanne Convention of July 24, 1923, regarding establishment and judicial jurisdiction, it is necessary to clarify, based on the written and oral procedures, the situation as outlined in the compromise. Since the Court was seized of the present case through the notification of a compromise reached by the Parties involved, it is within the terms of this compromise, rather than the conclusions of the Parties, that it must determine the specific points on which it is required to rule. In this regard, the following observations are pertinent:
The collision between the French steamship Lotus and the Turkish steamship Boz-Kourt, which occurred on August 2, 1926, took place on the high seas. Therefore, the territorial jurisdiction of any state other than France and Turkey is not applicable.
The potential violation of principles of international law would involve the initiation of criminal proceedings against Lieutenant Demons. This does not pertain to a specific act within those proceedings, such as the commencement of a criminal investigation, arrest, pretrial detention, or the judgment rendered by the Criminal Court of Stamboul, but rather to the exercise of Turkish criminal jurisdiction itself. Hence, the arguments presented by the Parties in both phases of the procedure have focused on whether Turkey’s exercise of jurisdiction over Lieutenant Demons conforms to international legal standards.
THE LAW
I
The case at hand revolves around a maritime incident that occurred on August 2nd, 1926, involving two ships: the S.S. Lotus, flying the French flag, and the S.S. Boz-Kourt, flying the Turkish flag. This incident took place on the high seas, outside the territorial jurisdiction of any state other than France and Turkey.
The main issue under consideration is whether Turkey had the legal authority, according to international law, to initiate criminal proceedings against Lieutenant Demons, who was involved in the incident. It’s important to note that the focus is not on the specifics of the legal procedures followed by Turkey, but rather on the broader question of whether Turkey had the right to exercise criminal jurisdiction in this case.
The prosecution was initiated because the collision led to the loss of the Boz-Kourt and the deaths of eight Turkish sailors and passengers. Although there was no allegation of criminal intent against either officer responsible for the ships, the prosecution was for involuntary manslaughter.
In terms of the legal framework, the French Government argued that violations of navigation regulations fall solely under the jurisdiction of the flag state of the vessel. However, they did acknowledge that collisions between vessels could trigger criminal law sanctions, such as manslaughter charges. The specific provision of Turkish law cited by the French Government was Article 6 of the Turkish Penal Code, which deals with offenses committed abroad against Turkey or Turkish subjects.
Article 6 of the Turkish Penal Code states that foreign nationals who commit offenses abroad against Turkey or Turkish subjects, for which Turkish law prescribes a penalty involving loss of freedom for a minimum period, may be prosecuted in Turkey if apprehended there. However, there are conditions attached to this provision, including the need for a minimum penalty of three years and the absence of an extradition treaty.
The Court’s task is to determine whether Turkey’s prosecution of Lieutenant Demons under Article 6 of the Turkish Penal Code was in accordance with international law principles. The French Government contended that regardless of the specific provision of Turkish law invoked, Turkey lacked jurisdiction to prosecute Lieutenant Demons, arguing that the incident should be considered as occurring on the high seas rather than within Turkish territory.
In essence, the dispute centers on whether Turkey had the legal right to prosecute Lieutenant Demons for his involvement in the maritime collision, considering the principles of international law. The Court must decide whether Turkey’s actions were in conformity with these principles, irrespective of the specific legal provisions cited by the parties involved.
II
The Court now needs to understand which international legal principles could potentially conflict with the prosecution of Lieutenant Demons.
According to Article 15 of the 1923 Lausanne Convention, questions of jurisdiction between Turkey and other contracting parties should be decided based on principles of international law. The French Government argues that during the drafting of this convention, Turkey attempted to extend its jurisdiction to crimes committed in the territory of third states. However, this amendment was rejected, and the final version of Article 15 states that jurisdiction should be determined by international law principles.
The French Government interprets “principles of international law” as referring to the laws applied universally among nations. They argue that the prosecution of Demons contradicts the intentions behind the Lausanne Convention.
However, the Court believes that the term “principles of international law” refers to general international legal principles applicable to all nations. This interpretation is supported by the context of Article 15 and the preamble of the Lausanne Convention, which emphasize adherence to modern international law.
In conclusion, the Court finds that the prosecution of Demons must align with general international legal principles regarding jurisdiction. The rejection of specific proposals during the drafting of the convention suggests that the intention was to rely on these general principles rather than establishing specific rules regarding jurisdiction.
III
The Court is tasked with determining whether any rules of international law were violated by Turkey’s prosecution of Lieutenant Demons under Turkish law. This raises a fundamental question: Should Turkish courts have jurisdiction based on a recognized title of jurisdiction in international law, or is jurisdiction allowed unless it conflicts with a principle of international law?
The French Government argues for the former, while Turkey asserts the latter interpretation, suggesting that Turkey has jurisdiction unless it clashes with an international legal principle.
This debate aligns with the special agreement, which asks whether Turkey acted contrary to international law principles and, if so, which principles were violated. Thus, the issue is not about establishing principles allowing Turkey to prosecute but about identifying principles violated by such prosecution.
International law governs relations between independent states, and rules are derived from agreements or widely accepted practices. States have considerable freedom in legislating within their territories unless restricted by international law.
Regarding criminal jurisdiction, while territoriality is fundamental, many legal systems extend jurisdiction beyond their borders. Thus, territoriality isn’t an absolute principle of international law but often extends to criminal cases.
Two viewpoints exist: one emphasizing state freedom to legislate unless restricted by international law and the other asserting that criminal jurisdiction is exclusively territorial, except where expressly permitted.
Regardless of the viewpoint, the key is whether there’s a rule of international law limiting states’ freedom to extend criminal jurisdiction. This requires examining precedents similar to the present case to determine the existence of a general principle applicable to it.
IV
The Court is now examining whether international law prevents Turkey from prosecuting Lieutenant Demons. The French Government argues that:
- International law doesn’t allow a state to prosecute offenses committed by foreigners abroad just because the victim is of their nationality. But in this case, where a collision occurred between two vessels flying different flags, and the victims were on board the French vessel, this argument isn’t applicable. Many countries interpret criminal law to consider offenses committed abroad if their effects occur within their territory. So, Turkey can prosecute Lieutenant Demons because the collision’s effects were on the Turkish vessel.
- The French Government also argues that international law recognizes the exclusive jurisdiction of the state whose flag a ship flies. However, there’s no rule preventing Turkey from prosecuting Demons because the collision’s effects occurred on the Turkish vessel.
Even if the Court had to consider whether Turkish law complies with international law, it would still conclude similarly. Even if a specific Turkish law were found incompatible with international law, it wouldn’t automatically mean the prosecution itself was against international law. The Court also notes that the argument about the location of the offense in cases like manslaughter is a matter of interpreting Turkish criminal law and doesn’t establish an international rule.
Therefore, the Court finds no basis in international law preventing Turkey from prosecuting Lieutenant Demons for the collision, as its effects occurred on the Turkish vessel.
The French Government’s second argument is based on the idea that the country whose flag a merchant ship flies has exclusive control over what happens on that ship while it’s on the high seas.
It’s true that, except in specific cases defined by international law, ships on the high seas are only under the authority of the country whose flag they carry. This is because of the principle of the freedom of the seas, which means that no country can enforce its laws on foreign ships in international waters. So, if a warship witnesses a collision between a ship flying its flag and a foreign ship, sending an officer to investigate the foreign ship would go against international law.
However, this doesn’t mean that a country can never exercise jurisdiction over actions that occur on a foreign ship in international waters within its own territory. The principle of the freedom of the seas also means that a ship on the high seas is treated as if it’s part of the territory of the country whose flag it flies. So, if a crime happens on a ship in international waters and affects another ship or foreign territory, the same principles apply as if it were two different countries involved. Therefore, the country whose ship was affected by the crime has the right to treat it as if it occurred within its own territory and pursue legal action against the offender.
The French Government has tried to argue that there’s a customary international law that gives exclusive jurisdiction to the country whose flag is flown, but this hasn’t been convincingly proven. While many legal experts agree that ships on the high seas fall under the jurisdiction of the country whose flag they fly, there’s disagreement about the extent of this jurisdiction. Some argue that it only extends as far as the country’s jurisdiction within its own territory.
Additionally, past cases where exclusive jurisdiction was recognized typically involved situations where the foreign country’s interest was only as the nationality of the victim, which may not be enough to justify prosecution under that country’s laws. Conventions that reserve exclusive jurisdiction to the country whose flag is flown usually deal with specific maritime issues, like slave trade or damage to underwater cables, rather than common crimes. Also, these conventions typically involve situations with only one ship, so they don’t provide guidance for cases involving two different countries’ jurisdictions.
Ultimately, the French Government’s argument doesn’t prove the existence of a rule of international law preventing Turkey from prosecuting Lieutenant Demons for the incident.
The court examined whether there is a rule in international law preventing Turkey from prosecuting Lieutenant Demons for a collision incident. The French government argued that such a rule exists, but the court disagreed.
The French government presented three arguments:
- The court ruled that neither the first nor the second argument proved the existence of a rule prohibiting Turkey from prosecuting Demons.
- The third argument was about whether criminal jurisdiction in collision cases should belong exclusively to the flag state. However, the court found that there was no such exclusive jurisdiction in international law. It noted that the jurisdiction of both the flag state and the state where the effects of the offense occurred should be considered.
The court also considered various legal precedents and found no clear evidence supporting the French government’s argument. It concluded that Turkey had the right to prosecute Demons under its own laws, as there was no international rule preventing it from doing so.
Finally, the court noted that it didn’t need to decide whether the joint prosecution of Demons with the captain of the other ship justified an extension of Turkish jurisdiction, as there was no rule prohibiting Turkey from prosecuting Demons in the first place.
V
After determining that Turkey did not act against international law by prosecuting Lieutenant Demons for his involvement in a collision at sea, the court concluded that there is no need to address the question of pecuniary compensation for Demons. The court’s decision was made by the President’s casting vote, as the votes were equally divided.
- The court found that Turkey’s prosecution of Lieutenant Demons under Turkish law, following a collision between the French ship Lotus and the Turkish ship Boz-Kourt, did not violate international law principles outlined in the Convention of Lausanne.
- Therefore, the court decided that there is no need to decide on any financial compensation that might have been owed to Lieutenant Demons if Turkey’s prosecution had been deemed contrary to international law principles.