One of the most suitable examples of the applicability of a passive
personality principle is the case of Steamship Lotus, also known as SS Lotus
that traces back its roots into the sources of international law in early
20th century between both the world wars and its interpretation thereafter.
Here, what Passive Personality Principle means is that it:
allows states, in limited cases, to claim jurisdiction to try a foreign national
for offences committed abroad that affect its own citizens.
The question of applicability of this particular principle arises from the very
facts of the case of Steamship Lotus, between France and Turkey in the year
1927,. Although the case originates during the end of the first world war but
its implications may be felt in the present scenarios which would be one of the
aspects on which the project would deal with. The case also highlights the
as an important element of the custom from which
International law derives its sources, however this particular decision
overpowers this element and serves new interpretation.
The case of Steamship Lotus essentially involves two basic facets of the
International Law i.e. the sources and the jurisdiction. It is because of these
essential elements that the case seems very much relevant in the present
context. Though a very controversial decision of the Permanent Court of
International Justice, it brings out various perspectives of jurisdiction under
the International Law.
This implies that the states become subject to International Law only by
arriving at a common consent, therefore it may be inferred that consent forms a
clear base for the International Law and the Law of Nations specifically, to
prevail. Custom, being a major source of International law seemed to be
overpowered by the new interpretations by the court, the analysis of which would
be dealt as the article furthers.
The Background: Steamship Lotus, France v. Turkey
The problem eventually arose in 2 August 1926 when the French Mail-steamer,
Lotus headed by Monsieur Demons who was a French citizen, lieutenant in the
merchant service, and the Turkish collier Boz-Kourt, directed by Captain Hassan
Bey, collided five to six nautical miles to the north of Cape Sigri (Mitylene). The
French Steamship was heading to Constantinople. Due to this collision, the
Turkish collier sank and led to the loss of life of eight Turkish nationals.
After the collision, Lotus tried aiding the shipwrecked persons but could save
only ten, one of them was Captain Hassan Bey, after which they continued to
Constantinople. After two days of arriving at their destination, the Turkish
authorities requested the French Captain to go ashore and give the evidence.
This, in turn, delayed the departure of SS Lotus from Constantinople. In the
meantime, the captain of the Lotus handed his master's report at the
After this delay, the Lieutenant was arrested by the Turkish authorities without
giving any prior notice to him along with Hassan Bey. The arrest was done on the
charge manslaughter that was complained against him by the families of the
victims who died in the collision which the Turkish Agent termed as the Arrest
Pending Trial. The case then was heard not before, 28 August 1926 by the
Criminal Court of Stamboul wherein the French Lieutenant objected over Turkey's
unreasonable jurisdiction over him.
He also pleaded for his release on bail to which the court agreed the bail being
fixed at 6,000 Turkish pounds. However, the court declared its judgement on 15
September 1926 sentencing Lieutenant Demons to eighty days' imprisonment along
with a fine of twenty-two pounds. Also, Hassan Bey was given a slightly more
Although the Public Prosecutor of the Turkish republic went for an appeal which
had the implication of suspending the execution of the decision of the Criminal
Court of Stamboul until a decision on the appeal had been given, but in vain.
All these gave rise to a wide range of diplomatic representations from the part
French Government or their representatives in Turkey. Following this, the
Turkish Republic finally to sought to solve this matter in the Permanent Court
of Justice, The Hague. M. Basdevant Professor represented the government of
French Republic while Mohmout Essat Bey represented the Government of Turkish
Republic on the international forum.
Contentions Raised: Extra Territorial Jurisdiction v. The High Seas
Jurisdiction continues to remain a bone of contention between most of the
conflict of states when it comes to resolving their dispute in the International
forum. The case remains same under the conflict of France and Turkey. Therefore,
jurisdiction remains an essential element for putting claims by the both the
parties. Jurisdiction basically refers to the rights that a particular state or
an authority has, to regulate the conduct and limit those rights. The case of
SS Lotus can be analyzed on the arguments and the jurisprudence behind the court
for applying those arguments.
Contentions raised by the French:
- The French raised contentions on six grounds in order to prove the fact
that the Turkish Government exercised the jurisdiction beyond their scope.
- The first and foremost ground that the French relied upon was the Law of
the flag which prevailed in the High Seas. According to this, the flag of
the country which flows on the ship has jurisdiction over any dispute
regarding the matter. However, this only came into a wider picture in High
Seas Convention of 1958 while the case of SS Lotus dates back to 1927.
Hence, this contention was refuted by the court.
- The second contention raised by the French that was in accordance with
the principles of international law, claims that a state is not entitled to
extend the criminal jurisdiction of its court merely because of the fact
that the effect had been on one of its nationals or he has been a victim of
any such crime or offence which was committed by the foreign national.
Taking reference of the case of Costa Rica Packet, the French argued that
the nationality of the victim cannot be held as a sufficient ground to
override the above rule and go beyond the jurisdiction.
- The third contention raised by French in its Counter-case also included,
the extension of jurisdiction can also not be claimed merely because of the connexity of offences due to the collision of the vessels. Considering the fact
that the two vessels are not of the same nationality, the international law
doesn't support such claims. Fourthly, France contended that the reparations
which were demanded from Monsieur Demons was not to be disputed as the arrest,
imprisonment and conviction had been done beyond the scope of jurisdiction,
therefore the point of reparations cannot be claimed by the Turkish court.
- The fifth contention made by the French Government was regarding the
indemnity for the moral damage and the bailment amount which was submitted
by Monsieur Demons. To further elaborate, it can be said that while acting
beyond the jurisdiction, the Turkish government arrested Demons and who was
to be granted a bail only after being paid 6000 Turkish pounds.
- Lastly, the French
government demanded 6000 Turkish pounds from the Government of Turkish Republic
as a form of reparation.
Therefore, it won't be wrong here to infer that the arguments of the French
Counsel were entirely based on the essential that the Turkish authorities
exercised jurisdiction beyond their scope but the court here misjudged the
consequences of absence of protest with regards to rule of flag state while
determining generality of practice in a custom as a source of international law.
As mentioned earlier, this same rule which was disregarded by the court found
its authority in the Geneva Convention on High Seas.
Contentions raised by Turkey:
As mentioned in the earlier Chapters that consent forms the very base for the
functioning of the International Law or rather to be precise, Public
International Law or the Law of the Nations. Going into the background, there
was a treaty signed by Turkey after the first world war known as the Treaty of
Lausanne which prevents Turkey from exercising jurisdiction in certain
territories near it. This forms a strong argument for the French while pleading
for exercise of ultra-vires jurisdiction by Turkey.
However, Turkey claims that there was loss of life of eight people present on
the vessel Boz-Kourt due to the collision with Steamship Lotus which was
directed by Monsieur Demons. Therefore, the death of these eight people had been
a consequence of such collision which makes the person liable because, if Turkey
hadn't done so it would have been injustice to the citizens who lost their lives
in the collision between Steamship Lotus and the Boz-Kourt.
The reason behind this argument was the connexity of events and therefore, the
Turkish authorities arrested Demons and the Criminal Court of Stamboul sentenced
him to imprisonment of eighty days and a fine of twenty-two pounds. Turkey, in
its counter case submitted to the Permanent Court of Justice, The Hague that the
judgement was in the scope of jurisdiction of the Turkish courts and pleaded to
decide in the favor of the same. The Turkish Court also seeks defense from the
statute of Turkish Penal Code, Article 6 which was taken word to word
Irish Penal Code.
Questions before the Court:
The first and foremost question that was put before the Permanent Court of
Justice among all the contentions was whether Turkey acted in contrary to the
International Law principles on the basis of Article 15 of the Convention of
Lausanne. This article which states that:
all questions of jurisdiction, shall as between Turkey and other contracting
powers, be decided in accordance with principles of international law.
The question before the court was also that if this article applies, then to
what extent and which part of the article would apply.
The second question raised before the court was regarding the reparations due to
be paid by Monsieur Demons in accordance with the principles of international
law. After the proposal by both the parties the court decided the dates for the
cases and counter-cases by both the parties to be heard on the ground of Article
48 of the Statute.
Decision of the Permanent Court of International Justice and Dissenting
The case of SS Lotus occurred during the time of end of World War when it can be
inferred that the International Law had not evolved much as it is in the current
circumstances. The decision in this case is still criticized on many grounds
even today. In the judgement, eight of nine judges were in favor of Turkey
exercising jurisdiction over the French national whereas there was dissenting
opinion from Mr. Moore who based his reason on Article 6 of the Turkish Penal
Code which relates the case with the criminal proceedings.
To understand the decision, one needs to look into the reasoning applied by the
judges in deciding such a case. The reason behind such jurisprudence comes from
the positivist school of thought which believes in the notion that law is
regarded as a unified system of rules that emanate from state will.
mentioned earlier the base of international law lies in 'consent' between states
therefore, at this point, it can be inferred that in the absence of any will as
prescribed by the Legal Positivist theory, international law cannot prevail.
In a similar manner, the judge in the majority, Judge Nyholm argued that as a
principle of international law, wherever any rule is not setup, there must be
absolute freedom. Hence, Turkey was correct in exercising its jurisdiction.
This concept of consent has been further highlighted by Spiermann when he
argues, the court was of the opinion that there exists a cooperation between the
states that helped in shaping their view in this manner.
However, this decision has been subject to many criticisms in the later period
of time. Talking about the dissenting opinion by Judge Moore in the Lotus Case
of 1927, it can be inferred that jurists including Judge Weiss and Judge Loder
were having the similar contention that international law is something permits
everything that is not prohibited under the same. According to another
intellectual Henkin, the court in this case started with a presumption that the:
state was not fully autonomous rather than the presumption that the state was
Therefore, it can be taken into consideration that the international law had not
reached a mature stage wherein the court would also classify or categorize which
actions were to be permitted and prohibited specifically. The impact of this
decision can be seen at present too, which would be discussed in the next
chapter. However, this case provides an insight into what the judges actually
thought while deciding the jurisdiction while simultaneously studying the
reasoning behind the dissenting opinion.
The Lotus Principle: An Analysis and Impact
The researcher in the very beginning mentions that the dispute was regarding
whether Turkey was authorized while using its 'extra- territorial jurisdiction'
and prosecuting Monsieur Demons. It was allowed to so in the traditional aspect
of the International Law, which simply means, everything is permitted until it
is specifically prohibited. However, there were a lot of disagreements with
regard to this decision in the later period of time. Now, it is also important
to look what repercussions had this principle produced in the current time.
A very evident one is the resolution of United Nations General Assembly on 15
December 1994 in which it asked the International Court of Justice whether the
use or threat of nuclear violence in any circumstance permitted under the
What makes it more controversial is the Lotus Principle and more profoundly its
passive personality principle. In this case, nuclear power states like Britain,
USA, France, Russia and allies were of the clear opinion that International Law
should not exceed its jurisdiction in such scenario. Adding to this,
international law is seen as deriving sources from customs, general principles
while the threat or use of nuclear weapons was not covered under any customary
or conventional international law. This particular conclusion of the
International Court of Justice makes it very much related to the Lotus Principle
established in 1927.
To this, though the ICJ has answered that use of nuclear weapons would be
treated as contrary to the international law in cases of armed conflict,
violation of humanitarian law, but the lacuna comes when something called
'Self-Defense' needs to be defined which enables a particular state or country
to use such weapons. Here, the importance is not to be given to the lacuna
remaining, rather to the jurisprudence which involves the Lotus Principle that
gives rise to the lacuna.
This was not the first time when the controversy arose due to the applicability
of Lotus Principle. One of the key factors in the case of nuclear weapons is
that the UN General Assembly merely asked for the Advisory opinion which
restricts the scope of international law to a great extent when it comes to the
implementation under the given circumstances. The other case when the Lotus
Principle came up was the Maersk Dubai case in Halifax wherein this principle
had come for a different reason but the rule of flag state was applied in this
However, there are certain cases which entirely reversed the decision of the SS
Lotus which includes the case of ICJ which deals with the Arrest Warrant Case,
2002. The problem manifests to another level when it comes under the purview
of criminal jurisdiction similar to the case mentioned above. Applying the Lotus
principle in such cases would inflict grave injustice to the parties.
Analyzing these cases, it can be said that the extra-territorial jurisdiction
existed as an exception to the rule as it mainly perpetuates that whatever
is not prohibited is permitted. But, the implications of such principles had
been felt much later when the questions of nuclear weapons and disarmament
arose. Today also, it is a very well-established fact in case of violation of
such rules, international would decide on the matter but to what extent is the
decision binding is still debatable.
The Lotus Principle, established in the year 1927 reflects the conventional and
traditional interpretation of the International Law. This notion has evolved in
the form of the Passive Personality principle
which talks about the
exercise of jurisdiction by a nation on the foreign national when his activities
have affected the citizen of the former Nation. The international which is based
on the consent of the states plays a major role in forming such decision.
This makes anything not prohibited, is permitted under the international law.
The Lotus case has been a debatable issue since 1927 but with the growth and
development of international law and inclusion of new problems in this world,
the interpretations have changed. Such examples can be found in the Arrest
of 2002. The modern jurists have criticized this principle on
the ground that it can't be made applicable to criminal acts taking place
between two states or violation of humanitarian law for that matter. But here
the concern lies in the very fact that if any act or law is not prohibited, it
does not mean that it is permitted.
Also, referring to the case of SS Lotus, the decision was given in the favor of
Turkey because there was no existing law at that time which prevented or
prohibited Turkey from exercising its jurisdiction in such a manner. However,
one of the contentions raised by France was regarding the imposition of the law
of the flag state which came into a full picture only after the High Seas
Convention of 1958.
This very fact provided a backdrop to this case of SS Lotus and it becomes one
of the reasons why it is still criticized by many. Though the judgement of
Steamship Lotus was a milestone that argued that legal positivism prevailed over
the normativity, but one can still find the dissents to this particular reason
of thought and it has not only impacted the 20th century but its implications
have been felt by the 21st century in the very beginning itself.
- James Crawford, Brownlie's Principles Of Public International Law, 5,
(8th ed. 2012).
- Steamship Lotus (France v. Turkey), Permanent Court of International
Justice, P.C.I.J. (ser. A) No. 10 (1927).
- Id at 3.
- Danielle Ireland-Piper, Prosecutions of Extra-Territorial Criminal
Conduct and the Abuse of Rights Doctrine, 9 UTRECHT LAW REVIEW, 68, (2013).
- Supra note 2.
- 29 April 1958, 450 UNTS 82.
- Great Britain v. The Netherlands, pas. Int. 510.
- Article 97, Convention on the Law of the Sea, Dec. 10, 1982, 1833
- An Hertogen, Letting Lotus Bloom, 26 European Journals Of International
Law, 901-906, (2015), https://doi.org/10.1093/ejil/chv072.
- S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7).
- Bruno Simma & Andreas S. Paulus, The Responsibility of Individuals for
Human Rights Abuses in Internal Conflicts: A Positivist View, 93 American
Journals Of International Law, 302,304 (1999
- League of Nations, Statute of Permanent Court of International Justice,
16 December 1920.
- Supra note 18.
- Hugh Handeyside, The Lotus Principle in ICJ Jurisprudence: Was the Ship
ever Afloat, 29 Michigan Journals Of International Law, 71, 94, (2007).
- Ole Spiermann, Lotus and the Double Structure of International Legal
Argument, in International Law, The International Court Of Justice And
Nuclear Weapons 143 (Laurence Boisson de Chazournes & Philippe Sands eds.,
- Supra note 11.
- Louis Henkin, International Law: Politics, Values and Functions, 216
Recueil Des Cours 9, 278, (1989 IV).
- Moira L. McConnell, Nuclear Weapons, the ICJ and the Limits of
Permittable Violence: The SS Lotus Rises Once Again, 55 Advocate
(Vancouver), 364-375, (1997).
- Pasha L. Hsieh, An Unrecognized State in Foreign and International
Courts: The case of the Republic of China on Taiwan, 28 Michigan Journals Of
International Law, 765-813, (2007).
- Arrest Warrant of 11 April 2000, Democratic Republic of Congo v.
Belgium, ICJ Reports 2002, p. 3 at seqq.
- Nathalie Isabelle Thorhauer, Conflicts of Jurisdiction in Cross-Border
Criminal Cases In The Area Of Freedom, Security, And Justice, 6 New Journal
Of European Criminal Law, 78-105, (2015).
- Supra note 5.