This paper seeks to delve into the aspects of international law from the viewpoint of the lotus principle, instituted after the tragic collision of the SS Lotus of France and an ill-fated Turkish collier, Boz-Kourt way back in 1928.
While enunciating the legal grounds for the court’s decision in this case, it is seen that the Lotus principle has limited application in the international legal context, being superseded by several conventions and country-specific agreements, post World War II. International laws leave much to the independent minds of the counties to decide and deploy and therefore it is necessary that countries need to show tact and forbearance while dealing with issues arising out of global endeavors.
It is seen that peaceful mediation and arbitration are strong instruments that could possibly usher in a climate of international peace and understanding.
Public international law (PIL) could be seen as a set of rules and principles of the general and specific application that governs and binds the conduct of States among themselves, and also oversees the behavior of sovereign countries in their interfacing with other States.
It could also be seen in terms of authority that could monitor the identification and territorial jurisdiction of discrete States, and also the rights and privileges of individuals residing in specific regions in terms of group rights, alien rights and their treatment, privileges of asylum seekers and refugees in other countries and other matters concerning individuals that are of international significance.
International law also considers itself with the enforcement of international conventions, treaties and pacts, both of war and peace, and how it impinges upon individuals and States who are party to such conventions.
However, public international laws limit themselves to countries, or States, and not individuals residing in such States. Thus its scope is wider and entails the entire gamut of specialized jurisdictional processes and laws which have international implications and Impact across global nations.
The S.S. Lotus Case PJID (1928)
The facts of this case were that a high seas collision took place in the high seas involving a Turkish collier, Boz-Kourt and a French steam ship, SS Lotus, killing eight crew members of the ill-fated Turkish vessel. (Handeyside 2008). The Lotus Principle in ICJ Jurisprudence: Was the ship ever afloat)
Turkish authorities arrested, tried two officers of the French ship and subsequently sentenced them to imprisonment. The French Government was aghast and promptly condemned the detention stating that under Article 15 of the 1923 Convention of Lausanne, “all questions of jurisdiction shall, as between Turkey and the other contracting Powers, be decided in accordance with the principles of international law.”
France strongly affirmed that this did not include criminal detention.
Turkey held that there was no specific international law that prevented her from trying these French officers, including understanding between turkey and France to that effect.
Their argument was France needs to invoke the existence of any international law which could possibly prevent Turkey from proceeding legally against officers of the flag ship country.
This was also reinforced by the Court which ruled that that it (Court) deduce no rule or principle of international law preventing Turkey from exercising jurisdiction, and that under the circumstances France and Turkey had “concurrent jurisdiction.” (Handeyside 2008, p.74).
The Lotus principle seems to be suggestive of the fact that according to international law, matters which are not specifically prohibited under international law, could be said to have been accepted by it, since no prohibited laws exist to disallow such actions.
Turkey’s argument was that since international laws did not prohibit Turkey from proceeding legally against France, it could be said to have been accepted by it.
However, over the years, this did not find favour with relevant courts trying cases of collision on the high seas, since the laws would definitely favour the host country, and each country would evolve shipping laws that could best serve their own national interests and not the interests of the other ship’s flag state. This is despite that fact that public international laws seek to honour laws that emanate form their own volition and conventions and is not enforced on them through any international bodies, or agencies.
The idea that, in a way, international laws does not seek to dissuade actions, arising out of conduct, or collision in the enforcement of international laws, does not, by any stretch of imagination mean that it is allowed to do so. Thus one could argue, that ok it is not disallowed, but where is international law has it been specifically allowed. However, it is seen that the principle of coexisting authority was scrapped and made way for Geneva Conventions on High Seas, which made rules by which only the Courts of the Ship’s flag state or the State of which such person is a national could, bring legal action “No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State.“ (Convention on the High Seas Done at Geneva on 29 April 1958: Article 8. 2005).
Over the years it is seen that although the main aims of international law has been the international treaties and conventions, customs and protocols and the general principles of laws do play a second role in alliances that that bind nations in the fabric of global conventions and covenants. “General principles common to systems of national law is a secondary source of international law. There are situations where neither conventional nor customary international law can be applicable. In this case a general principle may be invoked as a rule of international law because it is a general principle common to the major legal systems of the world and not inappropriate for international claims.” (International Law: An Overview).
The principles of Geneva Conventions and the role of international agencies like the UN with its multifarious specialised organs, and also the International court of Justice (ICJ) are major arbiters of international peace accord laws and their enforcement over the global networks.
However, laying of laws could be one thing, and the enforcement in a localised context could be something entirely different. Even considering the case of Lotus principle post the verdict in SS Lotus (1928), it is seen that this principle has not been called on in many subsequent cases akin to that of this case, Although determined as a residual principle, which may depend on several more important constraints, lotus principle could not be applied in the case of granting political asylum by Colombia embassy in Lima to a political figure, or his safe conduct to Colombia.
The local Courts ruled against the granting stating that it would constitute “an infringement of Peru’s territorial sovereignty and required Colombia to show that its conduct was permitted under international law.“ (Handeyside 2008, p.83).
However in a case related to whether the UN could bring about action against a country whose duty entailed protection of UN peace keeping force that was stationed in that country, but sustained injuries, the Courts ruled that it was indeed intra vires to enforce such actions. Thus it is seen that in this case, the question of whether there were international laws specifically allowing such action to be taken under such circumstances did not arise. Thus, a lot would definitely depend upon the circumstances of the case, conduct of the parties, the quantum of damages or losses suffered and the roles of the alleged guilty parties. It could also be seen in terms of the totality of the case and its impact on international law.
It could also be seen that international laws are dynamic and also in a state of constant flux. With the configuration and reconfiguration of global settings, annihilation of geographical and cultural differences, and use of intent technology, the world today is indeed a small place, bereft of distance barriers.
Moreover, with technological enhancement and development, it is seen that international laws do need to change from a punitive form to a constructive norms that intend to serve the international community through growth stimuli.
Laws should cease to serve as policing States and countries, rather their role need to be of a mediator or negotiator.
In today’s fast paced legal regulatory world, it is necessary that international conflicts and issues need to be ironed out through mediation, arbitration and dialogue rather than in Court rooms. This could not only give the judiciary system a well deserved rest but would also inject moderation and calm amidst acrimony and aggressive postures.
Further, the question of international laws needs to arise when issues cannot be solved at State level, it is believed that though a process of effective mediation and arbitration the bureaucratic aspects of resolving issues at Court would be considerably reduced and this would save efforts, funds and time of most parties.
Moreover, international laws serve to bring about stability, transparency and coherence in country- specific wrangles, and could serve to bring about an amicable and amiable solution that would be acceptable to all parties.
Convention on the High Seas Done at Geneva on 29 April 1958: Article 8. (2005). United Nations. Web.
HANDEYSIDE, Hugh. (2008). The Lotus Principle in ICJ Jurisprudence: Was the Ship Ever Afloat. Michigan Journal of International Law, 29 (71). Web.
HANDEYSIDE, Hugh. (2008). The Lotus Principle in ICJ Jurisprudence: Was the Ship Ever Afloat. Michigan Journal of International Law, 29 (71), 74. Web.
HANDEYSIDE, Hugh. (2008). The Lotus Principle in ICJ Jurisprudence: Was the Ship Ever Afloat. Michigan Journal of International Law, 29 (71), 83. Web.
International Law: An Overview. Cornell University: Law School. Web.