S.S. LOTUS (FRANCE V. TURKEY)

S.S. LOTUS (FRANCE V. TURKEY)

 

FACTS

Collision between French and Turkish ships on the high seas - killed Turkish nationals on the Turkish vessel - Turkey prosecuted and sentenced a French national - France protested, demanded the release - both referred the matter to PCIJ

ISSUE

Did Turkey violate international law when Turkish courts exercised jurisdiction over a crime committed by a French national, outside Turkey?

HELD

• Opinio Juris is reflected not only in acts of States (Nicaragua Case), but also in omissions when those omissions are made following a belief that the said State is obligated by law to refrain  from acting in a particular way.
• Even if consistent state practise, must show opinion juris
• Merely shows that States had often, in practice, abstained from instituting criminal proceedings, and not that they recognised themselves as being obliged to do so - no sense of duty to abstain.
• Jurisdiction is territorial - A State cannot exercise its jurisdiction outside its territory unless an  international treaty or customary law permits it to do so.
• Within its territory, a State may exercise its jurisdiction, in any matter, even if there is no specific rule of international law permitting it to do so - a wide measure of discretion - only limited by the prohibitive rules of international law.
• A ship in the high seas is assimilated to the territory of the flag State.
• A State would have territorial jurisdiction, even if the crime was committed outside its territory, so long as a constitutive element (the element of the crime and the actual crime are entirely inseparable) of the crime was committed in that State - subjective territorial jurisdiction.