S.S Lotus Case and its Relevance in the Modern International Law

The article 'S.S Lotus Case and Its Relevance in the Modern International Law' by Sia Ganju examines the major role of the S.S Lotus case in the context of contemporary international law.  In maritime law, the issue focused on state authority and the international legal maxim that "the absence of a restriction does not mean consent." The first part of the article looks at the case's history and its significance for the advancement of international law. The Lotus principle is still a cornerstone of international law and has important ramifications for current legal and political concerns. 

Introduction

The S.S. Lotus case from 1927 marked a turning point in the growth of modern international law. This case raised significant issues regarding whether or not governments may exercise jurisdiction over incidents that take place outside of their boundaries because it involved a collision between two ships in international waters. The "Lotus Principle" was created as a result of this case, and it states that countries have the right to exercise jurisdiction over foreign vessels in international seas unless another rule of international law forbids it. This idea has been applied numerous times since the S.S. Lotus case and is still a cornerstone of international law.

The history of the S.S. Lotus Case, the arguments put out by each side, and the importance of the Lotus principle in contemporary international law are all covered in this essay. The importance of the case to current international law will be addressed, with an emphasis on its ramifications for state jurisdiction over maritime acts. It is essential to know the significance of the S.S. Lotus case in order to ensure conformity with international legal norms in the contemporary world and to understand the boundaries of state jurisdiction in international law.

Linking the Case in Hand with the Customary Law

It cannot be avoided that certain states are more powerful and influential than others and that their actions should be given more weight. International law reflects this, allowing for the creation of custom by a small number of states as long as those states have a close connection to the topic at hand, whether due to their wealth and power or to their unique connection to the practice's subject matter, such as maritime nations and maritime law. This is an example of how politics and power cannot be separated from the rule of law. This is due to the structure of the international system, where everyone is allowed to participate but the opinions of those in positions of power are given more weight.

In fact, it has been argued that persistently acting passively in some situations may lead to the establishment of a legal rule. It is possible to show the danger of asserting that a long period of inaction results in a negative custom, that is, a rule actually not to do it, by pointing out the absurdity of the claim that a continuous failure to act until the late 1950s is evidence of a legal rule not to send artificial satellites or rockets into space.

On the other hand, it could be claimed that states' inaction when a particular code of conduct is established could be interpreted as consent to that regulation. The Permanent Court of International Justice, which before the International Court of Justice, set a high standard in this particular case by declaring that abstention could only lead to the establishment of a custom if it was based on a consciously chosen responsibility to abstain. In other words, nations had to consciously be aware that they were not acting in a certain way because they had a clear duty not to. The ruling has drawn criticism and would seem to cover categories of non-acts based on legal responsibilities, but it does not appear to pertain to situations where states are implicitly acknowledging the legality and applicability of a particular law by simply doing nothing to violate it.

Special Rule with Regard to Collision Cases 

It has been argued in support of the theory that criminal jurisdiction in collision cases would only belong to the State of the flag flown by the ship that it is a matter of adhering to national regulations of each merchant marine and that effective punishment does not consist so much in the infliction of some months' imprisonment upon the captain as it does in the cancellation of his certificate as master, that is, in depriving the captain of his master's license. In light of this, the Court must take note that a criminal law offence, not a violation of discipline, was the basis for the prosecution in the current case.

The application of criminal law and punitive measures of repression cannot be stopped by the requirement to take administrative regulations into consideration (even if one ignores the fact that it is a matter of uniform regulations issued by States as a result of an international conference).

As a result, the Court has determined that there is no principle of international law saying that criminal prosecutions in collision cases are the sole responsibility of the State whose flag is flying. This notion is further supported by how simply the laws of two different countries are implicated by the collision.

Legally speaking, these two elements are completely connected; in fact, if they were to be split apart, the offence would no longer exist. It would seem that neither the State's exclusive jurisdiction nor the restriction of its jurisdiction to incidents that took place aboard its respective ship was intended to effectively further the interests of either State or to satisfy the requirements of justice.

If the Delivered Judgment would be Reversed Today

In the event that an abroad incident results in harm to one of its residents, jurisdiction based on the idea of passive personality enables the victim state to assert control over a foreigner. Although the idea is codified in a number of international agreements, it is unlikely to be regarded as customary international law because of its contentious character. Instead, of relying on the passive personality concept, the majority's reasoning framed the problem as one of objective territorial jurisdiction since one state's activity was inextricably linked to its impact on another state's territory.

This contentious case caused international law on the subject of criminal jurisdiction over collisions on the high seas and shocked the maritime industry. On the other hand, the judges who dissented contended that, in conformity with international law, a nation's laws should not be enlarged to cover alleged crimes allegedly committed by foreigners outside the nation's borders. They claimed that Turkey attempted to exercise jurisdiction based solely on the aforementioned authority rather than on the territorial effects principle, and that such an exercise of jurisdiction was forbidden by customary international law.

It is important to remember that the Convention of the High Seas, 1958, upheld the dissent's point of view and determined that the state of the officer in charge's residence or the flag state might bring a claim for accidents that occurred on the high seas. Because France is both Lieutenant Demons' home country and the flag state of the Lotus, if the Lotus and the Boz-Kourt had collided now, France would have been in charge of resolving the situation.

Critical Analysis

The S.S. Lotus Case was an important landmark for the development of international customary law, and its principles have had a major impact on different aspects of international law and jurisdiction.

By exercising jurisdiction over a French national, the Turkish courts did not transgress any international law. The case's justification was based on three main principles:

• The first principle is that a State does not have the power to exercise jurisdiction outside of its borders unless it has been authorised by an international convention or customary law.
• Second principle: A State may, in any of the areas to which they are subject, apply its jurisdiction within their borders regardless of whether or not there is a specific rule on International Law allowing that.
• The third principle is that the flag flying on a ship shall have jurisdiction over it in international waters. Where the vessel's operations are affecting another State, that State shall also be competent to decide on a complaint.

The case of Lotus changed the way customary law was being developed around the world. This is, to put it mildly, the basis of public international law. It has been involved in a number of cases and principles.

Firstly, it is necessary that the International Court of Justice determine if Kosovo's unilaterally declared independence in February 2008 was "in accordance with" international law. This decision has been referred to on the basis of the principles set out in the Lotus case. A unilateral declaration of independence is not prohibited by international law, according to the Kosovo Advisory Opinion of the Court of Justice of 2010.

The applicability of that concept following the Lotus case has been changed by Article 11 of the 1958 High Seas Convention, as a result of subsequent developments which raise questions about jurisdiction in relation to individuals on high sea.

Since then, this principle of "flag state" has been incorporated into UN Conventions on the Law of the Sea UNCLOS in specific articles 92 and 217 to deal with implementing environmental legislation. Against the arguments put forward by the United States government as to why it opposed the ICC, this idea was also used.

Suggestions

Discussions on a different jurisdictional allocation for high-seas crashes have been generated by the PCIJ's ruling in the Lotus case. In a territorial system, encouraging sovereign states to settle disputes between competing claims of jurisdiction is preferable to the Court making those decisions.

The fact that states would be less likely to come to a court that overuses its authority makes it even more desirable from the perspective of a court without required jurisdiction. Given that the PCIJ was only recently constituted when it was presented with the Lotus case, which is also unique in its sort, it is not surprising that it took this position.

Conclusion

According to the Lotus case between France and Turkey, high seas crashes and territorial disputes are now covered by a new area of international law. In the present case, it was established that, because Lotus caused damage to the Turkish vessel, Turkey had the right to bring an action against the two parties concerned even if the incident had taken place outside their respective jurisdictions. It is decided at the time that the judgment in this case will apply to all subsequent cases involving or relating to it. Since then, the Lotus case has been raised in court proceedings and criminal proceedings as well. There was a critical choice between what region or country would occupy.

France has long maintained that legal arguments in disputes involving accidents are normally heard at criminal proceedings as most countries only prosecute issues before the State flag. The High Seas Treaty, which had been agreed upon in Geneva following the Lotus case and explicitly provided that the collision of ships at high sea should be governed by Article 11, was ratified in 1958. If the conference had taken place prior to the accident at Lotus, the PCIJ decision would have been different.

Bibliography

[1]   Staker, Jurisdiction, 322; Crawford, Brownlie’s Principles of Public International Law, 467ff; Third Restatement (Foreign Relations) (1986) s.404; Bowett, Jurisdiction: Changing Patterns of Authority, 11; Akehurst, Jurisdiction in International Law, 160ff.

[2] F A Mann, ‘The Doctrine of Jurisdiction in International Law’, in Studies in International Law (Clarendon Press, 1973) 27 (previously published in (1964-I) 111 Recueil des Cours 1).

[3] Berge, G. W. (1927), The Case of the S.S. Lotus. Am. J. Int'l L 21(3), 569-575.

[4] Kwiecień, R. (2013), On Some Contemporary Challenges to Statehood in the International Legal Order: International Law Between Lotus and Global Administrative Law. Archiv Des Völkerrechts, 51(3), 279–311.

[5] Andrew L Strauss, ‘Beyond National Law: The Neglected Role of the International Law of Personal Jurisdiction in Domestic Courts’ (1995) 36 Harvard International Law Journal 373

[6] Kofi Annan, ‘Two Concepts of Sovereignty’ (1999), The Economist, 16 September 1999 (available at www.economist.com/node/324795 ) (‘States are now widely understood to be instruments at the service of their peoples, and not vice versa. … When we read the Charter today, we are more than ever conscious that its aim is to protect individual human beings, not to protect those who abuse them.’

[7] International Law Reports, Volume 3 (1927), edited by H. Lauterpacht. Cambridge University Press. Contains a report and analysis of the case.

[8] The Lotus Case and the Limits of International Law by Jan Wouters, in International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne, edited by Y. Dinstein and M. Tabory, p. 223-246. Brill, 1989.

[9] The Lotus Principle: Its Contemporary Relevance and Limitations by Robert Cryer, in International Law and International Relations: Bridging Theory and Practice, edited by T. Dunne, M. Kurki, and S. Smith, p. 117-134. Oxford University Press, 2005.

[10] The International Law Foundations of the Lotus Principle by Michael Wood, in International Law at the Time of Its Codification: Essays in Honor of Roberto Ago, edited by E. Jiménez de Aréchaga, p. 269-283. Martinus Nijhoff, 1987.

[11] James R. Crawford, "The International Court of Justice and the Sources of International Law," 32 Virginia Journal of International Law 1, 22-23. (1993)

[12] Anyanova, E.S., 2015. The “Lotus”-case and the US Control on the High Seas. Moscow Journal of International Law, (1), pp.87-106.

[13] Hugh Handeyside, The Lotus Principle in ICJ Jurisprudence: Was the Ship ever Afloat, 29 MICH. J. INT'l L. 71 (2007).

[14] Hesse, P., 2018, April. Comment: neither Sunken Vessel nor Blooming Flower! The Lotus Principle and International Humanitarian Law. In International Humanitarian Law in Areas of Limited Statehood (pp. 80-86)

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