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[p5] [1] By a special agreement
signed at Geneva on October 12th, 1926, between the Governments of the
French and Turkish Republics and filed with the Registry of the Court, in
accordance with Article 40 of the Statute and Article 35 of the Rules of
Court, on January 4th, 1927, by the diplomatic representatives at The Hague
of the aforesaid Governments, the latter have submitted to the Permanent
Court of International Justice the question of jurisdiction which has arisen
between them following upon the collision which occurred on August 2nd,
1926, between the steamships Boz-Kourt and Lotus.
[2] According to the special agreement, the Court has to decide the
following questions:
"(1) Has Turkey, contrary to Article 15 of the Convention of Lausanne of
July 24th, 1923, respecting conditions of residence and business and
jurisdiction, acted in conflict with the principles of international law �
and if so, what principles - by instituting, following the collision which
occurred on August 2nd, 1926, on the high seas between the French steamer
Lotus and the Turkish steamer Boz-Kourt and upon the arrival of the French
steamer at Constantinople as well as against the captain of the Turkish
steamship-joint criminal proceedings in pursuance of Turkish law against M.
Demons, officer of the watch on board the Lotus at the time of the
collision, in consequence of the loss of the Boz-Kourt having involved the
death of eight Turkish sailors and passengers?
(2) Should the reply be in the affirmative, what pecuniary reparation is due
to M. Demons, provided, according to the principles of international law,
reparation should be made in similar cases?�
[3] Giving effect to the proposals jointly made by the Parties to the
special agreement in accordance with the terms of Article 32 of the Rules,
the President, under Article 48 of the Statute and Articles 33 and 39 of the
Rules, fixed the dates for the filing by each Party of a Case and
Counter-Case as March 1st and May 24th, 1927, respectively; no time was
fixed for the submission of replies, as the Parties had expressed the wish
that there should not be any.
[4] The Cases and Counter-Cases were duly filed with the Registry by the
dates fixed and were communicated to those concerned as provided in Article
43 of the Statute.
[5] In the course of hearings held on August 2nd, 3rd, 6th, and 8th-10th,
1927, the Court has heard the oral pleadings, reply and rejoinder submitted
by the above-mentioned Agents for the Parties. [p6]
[6] In support of their respective submissions, the Parties have placed
before the Court, as annexes to the documents of the written proceedings,
certain documents, a list of which is given in the annex.
[7] In the course of the proceedings, the Parties have had occasion to
define the points of view respectively adopted by them in relation to the
questions referred to the Court. They have done so by formulating more or
less developed conclusions summarizing their arguments. Thus the French
Government, in its Case, asks for judgment to the effect that:
"Under the Convention respecting conditions of residence and business and
jurisdiction signed at Lausanne on July 24th, 1923, and the principles of
international law, jurisdiction to entertain criminal proceedings against
the officer of the watch of a French ship, in connection with the collision
which occurred on the high seas between that vessel and a Turkish ship,
belongs exclusively to the French Courts;
"Consequently, the Turkish judicial authorities were wrong in prosecuting,
imprisoning and convicting M. Demons, in connection with the collision which
occurred on the high seas between the Lotus and the Boz-Kourt, and by so
doing acted in a manner contrary to the above-mentioned Convention and to
the principles of international law;
�Accordingly the Court is asked to fix the indemnity in reparation of the
injury thus inflicted upon M. Demons at 6�000 Turkish pounds and to order
this indemnity to be paid by the Government of the Turkish Republic to the
Government of the French Republic."
[8] The Turkish Government, for its part, simply asks the Court in its Case
to "give judgment in favour of the jurisdiction of the Turkish Courts".
[9] The French Government, however, has, in its Counter-Case, again
formulated the conclusions, already set out in its Case, in a slightly
modified form, introducing certain new points preceded by arguments which
should be cited in full, seeing that they summarize in a brief and precise
manner the point of view taken by the French Government ; the new arguments
and conclusions are as follows:
�Whereas the substitution of the jurisdiction of the Turkish Courts for that
of the foreign consular courts in criminal proceedings taken against
foreigners is the outcome of the consent given by the Powers to this
substitution in the Conventions signed at Lausanne on July 24th, 1923; [p7]
"As this consent, far from having been given as regards criminal proceedings
against foreigners for crimes or offences committed abroad, has been
definitely refused by the Powers and by France in particular;
"As this refusal follows from the rejection of a Turkish amendment
calculated to establish this jurisdiction and from the statements made in
this connection;
"As, accordingly, the Convention of Lausanne of July 24th, 1923, construed
in the light of these circumstances and intentions, does not allow the
Turkish Courts to take cognizance of criminal proceedings directed against a
French citizen for crimes or offences committed outside Turkey;
"Furthermore, whereas, according to international law as established by the
practice of civilized nations, in their relations with each other, a State
is not entitled, apart from express or implicit special agreements, to
extend the criminal jurisdiction of its courts to include a crime or offence
committed by a foreigner abroad solely in consequence of the fact that one
of its nationals has been a victim of the crime or offence;
"Whereas acts performed on the high seas on board a merchant ship are, in
principle and from the point of view of criminal proceedings, amenable only
to the jurisdiction of the courts of the State whose flag the vessel flies ;
"As that is a consequence of the principle of the freedom of the seas, and
as States, attaching especial importance thereto, have rarely departed
therefrom;
"As, according to existing law, the nationality of the victim is not a
sufficient ground to override this rule, and seeing that this was held in
the case of the Costa Ricca Packet;
"Whereas there are special reasons why the application of this rule should
be maintained in collision cases, which reasons are mainly connected with
the fact that the culpable character of the act causing the collision must
be considered in the light of purely national regulations which apply to the
ship and the carrying out of which must be controlled by the national
authorities;
"As the collision cannot, in order thus to establish the jurisdiction of the
courts of the country to which it belongs, be localized in the vessel sunk,
such a contention being contrary to the facts;
"As the claim to extend the jurisdiction of the courts of the country to
which one vessel belongs, on the ground of the �connexity" (connexite) of
offences, to proceedings against an officer of the other vessel concerned in
the collision, when the two vessels are not of the same nationality, has no
support in international law ;
"Whereas a contrary decision recognizing the jurisdiction of the Turkish
Courts to take cognizance of the criminal proceedings against the officer of
the watch of the French ship involved in the collision would amount to
introducing an innovation entirely at variance with firmly established
precedent; [p8]
"Whereas the special agreement submits to the Court the question of an
indemnity to be awarded to Monsieur Demons as a consequence of the decision
given by it upon the first question;
"As any other consequences involved by this decision, not having been
submitted to the Court, are ipso facto reserved;
"As the arrest, imprisonment and conviction of Monsieur Demons are the acts
of authorities having no jurisdiction under international law, the principle
of an indemnity enuring to the benefit of Monsieur Demons and chargeable to
Turkey, cannot be disputed;
"As his imprisonment lasted for thirty-nine days, there having been delay in
granting his release on bail contrary to the provisions of the Declaration
regarding the administration of justice signed at Lausanne on July 24th,
1923 ;
"As his prosecution was followed by a conviction calculated to do Monsieur
Demons at least moral damage;
"As the Turkish authorities, immediately before his conviction, and when he
had undergone detention about equal to one half of the period to which he
was going to be sentenced, made his release conditional upon ball in 6�000
Turkish pounds;
����������������������������
"Asks for judgment, whether the Government of the Turkish Republic be
present or absent, to the effect:
"That, under the rules of international law and the Convention respecting
conditions of residence and business and jurisdiction signed at Lausanne on
July 24th, 1923, jurisdiction to entertain criminal proceedings against the
officer of the watch of a French ship, in connection with the collision
which occurred on the high seas between that ship and a Turkish ship,
belongs exclusively to the French Courts;
"That, consequently, the Turkish judicial authorities were wrong in
prosecuting, imprisoning and convicting Monsieur Demons, in connection with
the collision which occurred on the high seas between the Lotus and the
Boz-Kourt, and by so doing acted in a manner contrary to the principles of
international law and to the above-mentioned Convention;
"Accordingly, the Court is asked to fix the indemnity in reparation of the
injury thus inflicted on Monsieur Demons at 6,000 Turkish pounds and to
order this indemnity to be paid by the Government of the Turkish Republic to
the Government of the French Republic within one month from the date of
judgment, without prejudice to the repayment of the bail deposited by
Monsieur Demons.
"The Court is also asked to place on record that any other consequences
which the decision given might have, not having been submitted to the Court,
are ipso facto reserved."
[10] The Turkish Government. in its Counter-Case, confines itself to
repeating the conclusion of its Case, preceding it, however, by [p9] a short
statement of its argument, which statement it will be well to reproduce,
since it corresponds to the arguments preceding the conclusions of the
French Counter-Case:
�1.-Article 15 of the Convention of Lausanne respecting conditions of
residence and business and jurisdiction refers simply and solely, as regards
the jurisdiction of the Turkish Courts, to the principles of international
law, subject only to the provisions of Article 16. Article 15 cannot be read
as supporting any reservation whatever or any construction giving it another
meaning. Consequently, Turkey, when exercising jurisdiction in any case
concerning foreigners, need, under this article, only take care not to act
in a manner contrary to the principles of international law.
�2.-Article 6 of the Turkish Penal Code, which is taken word for word from
the Italian Penal Code, is not, as regards the case, contrary to the
principles of international law.
�3.-Vessels on the high seas form part of the territory of the nation whose
flag they fly, and in the case under consideration, the place where the
offence was committed being the S. S. Boz-Kourt flying the Turkish flag,
Turkey's jurisdiction in the proceedings taken is as clear as if the case
had occurred on her territory-as is borne out by analogous cases.
�4.-The Boz-Kourt-Lotus case being a case involving "connected" offences (delits
connexes), the Code of criminal procedure for trial-which is borrowed from
France-lays down that the French officer should be prosecuted jointly with
and at the same time as the Turkish officer; this, moreover ' is confirmed
by the doctrines and legislation of all countries. Turkey, therefore, is
entitled from this standpoint also to claim jurisdiction.
"5.-Even if the question be considered solely from the point of view of the
collision, as no principle of international criminal law exists which would
debar Turkey from exercising the jurisdiction which she clearly possesses to
entertain an action for damages, that country has Jurisdiction to institute
criminal proceedings.
"6.-As Turkey is exercising jurisdiction of a fundamental character, and as
States are not, according to the principles of international law, under an
obligation to pay indemnities in such cases, it is clear that the question
of the payment of the indemnity claimed in the French Case does not arise
for the Turkish Government, since that Government has jurisdiction to
prosecute the French citizen Demons who, as the result of a collision, has
been guilty of manslaughter.
"The Court is asked for judgment in favour of the jurisdiction of the
Turkish Courts." [p10]
[11] During the oral proceedings, the Agent of the French Government
confined himself to referring to the conclusions submitted in the
Counter-Case, simply reiterating his request that the Court should place on
record the reservations made therein as regards any consequences of the
judgment not submitted to the Court's decision these reservations are now
duly recorded.
[12] For his part, the Agent for the Turkish Government abstained both in
his original speech and in his rejoinder from submitting any conclusion. The
one he formulated in the documents filed by him in the written proceedings
must therefore be regarded as having been maintained unaltered.
The Facts
[13] According to the statements submitted to the Court by the Parties'
Agents in their Cases and in their oral pleadings, the facts in which the
affair originated are agreed to be as follows:
[14] On August 2nd, 1926, just before midnight, a collision occurred between
the French mail steamer Lotus, proceeding to Constantinople, and the Turkish
collier Boz-Kourt, between five and six nautical miles to the north of Cape
Sigri (Mitylene). The Boz-Kourt, which was cut in two, sank, and eight
Turkish nationals who were on board perished. After having done everything
possible to succour the shipwrecked persons, of whom ten were able to be
saved, the Lotus continued on its course to Constantinople, where it arrived
on August 3rd.
[15] At the time of the collision, the officer of the watch on board the
Lotus was Monsieur Demons, a French citizen, lieutenant in the merchant
service and first officer of the ship, whilst the movements of the Boz-Kourt
were directed by its captain, Hassan Bey, who was one of those saved from
the wreck.
[16] As early as August 3rd the Turkish police proceeded to hold an enquiry
into the collision on board the Lotus ; and on the following day, August
4th, the captain of the Lotus handed in his master's report at the French
Consulate-General, transmitting a copy to the harbour master.
[17] On August 5th, Lieutenant Demons was requested by the Turkish
authorities to go ashore to give evidence. The examination, the length of
which incidentally resulted in delaying the departure of [p11] the Lotus,
led to the placing under arrest of Lieutenant Demons without previous notice
being given to the French Consul-General - and Hassan Bey, amongst others.
This arrest, which has been characterized by the Turkish Agent as arrest
pending trial (arrestation preventive), was effected in order to ensure that
the criminal prosecution instituted against the two officers, on a charge of
manslaughter, by the Public Prosecutor of Stamboul, on the complaint of the
families of the victims of the collision, should follow its normal course.
[18] The case was first heard by the Criminal Court of Stamboul on August -
28th. On that occasion, Lieutenant Demons submitted that the Turkish Courts
had no jurisdiction; the Court, however, overruled his objection. When the
proceedings were resumed on September 11th, Lieutenant Demons demanded his
release on bail: this request was complied with on September I3th, the bail
being fixed at 6�000 Turkish pounds.
[19] On September 15th, the Criminal Court delivered its judgment, the terms
of which have not been communicated to the Court by the Parties. It is,
however, common ground, that it sentenced Lieutenant Demons to eighty days�
imprisonment and a fine of twenty-two pounds, Hassan Bey being sentenced to
a slightly more severe penalty.
[20] It is also common ground between the Parties that the Public Prosecutor
of the Turkish Republic entered an appeal against this decision, which had
the effect of suspending its execution until a decision upon the appeal had
been given; that such decision has not yet been given; but that the special
agreement of October 12th, 1926, did not have the effect of suspending "the
criminal proceedings .... now in progress in Turkey".
[21] The action of the Turkish judicial authorities with regard to
Lieutenant Demons at once gave rise to many diplomatic representations and
other steps on the part of the French Government or its representatives in
Turkey, either protesting against the arrest of Lieutenant Demons or
demanding his release, or with a view to obtaining the transfer of the case
from the Turkish Courts to the French Courts.
[22] As a result of these representations, the Government of the Turkish
Republic declared on September 2nd, 1926, that "it would have no objection
to the reference of the conflict of jurisdiction to the Court at The Hague".
[p12]
[23] The French Government having, on the 6th of the same month, given "its
full consent to the proposed solution", the two Governments appointed their
plenipotentiaries with a view to the drawing up of the special agreement to
be submitted to the Court; this special agreement was signed at Geneva on
October 12th, 1926, as stated above, and the ratifications were deposited on
December 27th, 1926.
The Law
I. [Position of the Parties Pursuant to the Special Agreement]
[24] Before approaching the consideration of the principles of international
law contrary to which Turkey is alleged to have acted thereby infringing the
terms of Article 15 of the Convention of Lausanne of July 24th, 1923,
respecting conditions of residence and business and, jurisdiction - , it is
necessary to define, in the light of the written and oral proceedings, the
position resulting from the special agreement. For, the Court having
obtained cognizance of the present case by notification of a special
agreement concluded between the Parties in the case, it is rather to the
terms of this agreement than to the submissions of the Parties that the
Court must have recourse in establishing the precise points which it has to
decide. In this respect the following observations should be made:
[25] 1. � The collision which occurred on August 2nd, 1926, between the S.
S. Lotus, flying the French flag, and the S. S. Boz-Kourt, flying the
Turkish flag, took place on the high seas: the territorial jurisdiction of
any State other than France and Turkey therefore does not enter into
account.
[26] 2. � The violation, if any, of the principles of international law
would have consisted in the taking of criminal proceedings against
Lieutenant Demons. It is not therefore a question relating to any particular
step in these proceedings - such as his being put to trial, his arrest, his
detention pending trial or the judgment given by the Criminal Court of
Stamboul - but of the very fact of the Turkish Courts exercising criminal
jurisdiction. That is why the arguments put forward by the Parties in both
phases of [p13] the proceedings relate exclusively to the question whether
Turkey has or has not, according to the principles of international law,
jurisdiction to prosecute in this case.
[27] The Parties agree that the Court has not to consider whether the
prosecution was in conformity with Turkish law; it need not therefore
consider whether, apart from the actual question of jurisdiction, the
provisions of Turkish law cited by Turkish authorities were really
applicable in this case, or whether the manner in which the proceedings
against Lieutenant Demons were conducted might constitute a denial of
justice, and accordingly, a violation of international law. The discussions
have borne exclusively upon the question whether criminal jurisdiction does
or does not exist in this case.
[28] 3. � The prosecution was instituted because the loss of the Boz-Kourt
involved the death of eight Turkish sailors and passengers. It is clear, in
the first place, that this result of the collision constitutes a factor
essential for the institution of the criminal proceedings in question;
secondly, it follows from the statements of the two Parties that no criminal
intention has been imputed to either of the officers responsible for
navigating the two vessels; it is therefore a case of prosecution for
involuntary manslaughter. The French Government maintains that breaches of
navigation regulations fall exclusively within the jurisdiction of the State
under whose flag the vessel sails ; but it does not argue that a collision
between two vessels cannot also bring into operation the sanctions which
apply to criminal law in cases of manslaughter. The precedents cited by it
and relating to collision cases all assume the possibility of criminal
proceedings with a view to the infliction of such sanctions, the dispute
being confined to the question of jurisdiction concurrent or exclusive -
which another State might claim in this respect. As has already been
observed, the Court has not to consider the lawfulness of the prosecution
under Turkish law; questions of criminal law relating to the justification
of the prosecution and consequently to the existence of a nexus causalis
between the actions of Lieutenant Demons and the loss of eight Turkish
nationals are not relevant to the issue so far as the Court is concerned.
Moreover, the exact conditions in which these persons perished do not appear
from the documents submitted to the Court ; nevertheless, there is no doubt
that their death may be regarded as the direct [p14] outcome of the
collision, and the French Government has not contended that this relation of
cause and effect cannot exist.
[29] 4. � Lieutenant Demons and the captain of the Turkish steamship were
prosecuted jointly and simultaneously. In regard to the conception of "connexity"
of offences (connexite), the Turkish Agent in the submissions of his
Counter-Case has referred to the Turkish Code of criminal procedure for
trial, the provisions of which are said to have been taken from the
corresponding French Code. Now in French law, amongst other factors,
coincidence of time and place may give rise to "connexity" (connexite). In
this case, therefore, the Court interprets this conception as meaning that
the proceedings against the captain of the Turkish vessel in regard to which
the jurisdiction of the Turkish Courts is not disputed, and the proceedings
against Lieutenant Demons, have been regarded by the Turkish authorities,
from the point of view of the investigation of the case, as one and the same
prosecution, since the collision of the two steamers constitutes a complex
of acts the consideration of which should, from the standpoint of Turkish
criminal law, be entrusted to the same court.
[30] 5. � The prosecution was instituted in pursuance of Turkish
legislation. The special agreement does not indicate what clause or clauses
of that legislation apply. No document has been submitted to the Court
indicating on what article of the Turkish Penal Code the prosecution was
based; the French Government however declares that the Criminal Court
claimed jurisdiction under Article 6 of the Turkish Penal Code, and far from
denying this statement, Turkey, in the submissions of her Counter-Case,
contends that that article is in conformity with the principles of
international law. It does not appear from the proceedings whether the
prosecution was instituted solely on the basis of that article.
[31] Article 6 of the Turkish Penal Code, Law No. 765 of March 1st, 1926
(Official Gazette No. 320 of March 13th, 1926), runs as follows:
[Translation]
"Any foreigner who, apart from the cases contemplated by Article 4, commits
an offence abroad to the prejudice of Turkey or of a Turkish subject, for
which offence Turkish law prescribes a penalty involving loss of freedom for
a [p15] minimum period of not less than one year, shall be punished in
accordance with the Turkish Penal Code provided that he is arrested in
Turkey. The penalty shall however be reduced by one third and instead of the
death penalty, twenty years of penal servitude shall be awarded.
"Nevertheless, in such cases, the prosecution will only be instituted at the
request of the Minister of Justice or on the complaint of the injured Party.
"If the offence committed injures another foreigner, the guilty person shall
be punished at the request of the Minister of Justice, in accordance with
the provisions set out in the first paragraph of this article, provided
however that:
"(1) the article in question is one for which Turkish law prescribes a
penalty involving loss of freedom for a minimum period of three years;
"(2) there is no extradition treaty or that extradition has not been
accepted either by the government of the locality where the guilty person
has committed the offence or by the government of his own country."
[32] Even if the Court must hold that the Turkish authorities had seen fit
to base the prosecution of Lieutenant Demons upon the above-mentioned
Article 6, the question submitted to the Court is not whether that article
is compatible with the principles of international law; it is more general.
The Court is asked to state whether or not the principles of international
law prevent Turkey from instituting criminal proceedings against Lieutenant
Demons under Turkish law. Neither the conformity of Article 6 in itself with
the principles of international law nor the application of that article by
the Turkish authorities constitutes the point at issue ; it is the very fact
of the institution of proceedings which is held by France to be contrary to
those principles. Thus the French Government at once protested against his
arrest, quite independently of the question as to what clause of her
legislation was relied upon by Turkey to justify it. The arguments put
forward by the French Government in the course of the proceedings and based
on the principles which, in its contention, should govern navigation on the
high seas, show that it would dispute Turkey's jurisdiction to prosecute
Lieutenant Demons, even if that prosecution were based on a clause of the
Turkish Penal Code other than Article 6, assuming for instance that the
offence in question should be regarded, by reason of its consequences, to
have been actually committed on Turkish territory. [p16]
II. [Violated Principles of International Law]
[33] Having determined the position resulting from the terms of the special
agreement, the Court must now ascertain which were the principles of
international law that the prosecution of Lieutenant Demons could
conceivably be said to contravene.
[34] It is Article 15 of the Convention of Lausanne of July 24th, 1923,
respecting conditions of residence and business and jurisdiction, which
refers the contracting Parties to the principles of international law as
regards the delimitation of their respective jurisdiction.
[35] This clause is as follows:
"Subject to the provisions of Article 16, all questions of jurisdiction
shall, as between Turkey and the other contracting Powers, be decided in
accordance with the principles of international law."
[36] The French Government maintains that the meaning of the expression
"principles of international law" in this article should be sought in the
light of the evolution of the Convention. Thus it states that during the
preparatory work, the Turkish Government, by means of an amendment to the
relevant article of a draft for the Convention, sought to extend its
jurisdiction to crimes committed in the territory of a third State, provided
that, under Turkish law, such crimes were within the jurisdiction of Turkish
Courts. This amendment, in regard to which the representatives of France and
Italy made reservations, was definitely rejected by the British
representative ; and the question having been subsequently referred to the
Drafting Committee, the latter confined itself in its version of the draft
to a declaration to the effect that questions of jurisdiction should be
decided in accordance with the principles of international law. The French
Government deduces from these facts that the prosecution of Demons is
contrary to the intention which guided the preparation of the Convention of
Lausanne.
[37] The Court must recall in this connection what it has said in some of
its preceding judgments and opinions, namely, that there is no occasion to
have regard to preparatory work if the text of a convention is sufficiently
clear in itself. Now the Court considers that the words "principles of
international law", as ordinarily used, can only mean international law as
it is applied between all nations belonging to the community of States. This
interpretation [p17] is borne out by the context of the article itself which
says that the principles of international law are to determine questions of
jurisdiction - not only criminal but also civil - between the contracting
Parties, subject only to the exception provided for in Article 16. Again,
the preamble of the Convention says that the High Contracting Parties are
desirous of effecting a settlement in accordance "with modem international
law", and Article 28 of the Treaty of Peace of Lausanne, to which the
Convention in question is annexed, decrees the complete abolition of the
Capitulations �in every respect". In these circumstances it is impossible -
except in pursuance of a definite stipulation - to construe the expression
"principles of international law" otherwise than as meaning the principles
which are in force between all independent nations and which therefore apply
equally to all the contracting Parties.
[38] Moreover, the records of the preparation of the Convention respecting
conditions of residence and business and jurisdiction would not furnish
anything calculated to overrule the construction indicated by the actual
terms of Article 15. It is true that the representatives of France, Great
Britain and Italy rejected the Turkish amendment already mentioned. But only
the British delegate - and this conformably to British municipal law which
maintains the territorial principle in regard to criminal jurisdiction -
stated the reasons for his opposition to the Turkish amendment ; the reasons
for the French and Italian reservations and for the omission from the draft
prepared by the Drafting Committee of any definition of the scope of the
criminal jurisdiction in respect of foreigners, are unknown and might have
been unconnected with the arguments now advanced by France.
[39] It should be added to these observations that the original draft of the
relevant article, which limited Turkish jurisdiction to crimes committed in
Turkey itself, was also discarded by the Drafting Committee; this
circumstance might with equal justification give the impression that the
intention of the framers of the Convention was not to limit this
jurisdiction in any way.
[40] The two opposing proposals designed to determine definitely the area of
application of Turkish criminal law having thus been discarded, the wording
ultimately adopted by common consent for Article 15 can only refer to the
principles of general international law relating to jurisdiction. [p18]
III. [Fundamental Principles of International Law]
[41] The Court, having to consider whether there are any rules of
international law which may have been violated by the prosecution in
pursuance of Turkish law of Lieutenant Demons, is confronted in the first
place by a question of principle which, in the written and oral arguments of
the two Parties, has proved to be a fundamental one. The French Government
contends that the Turkish Courts, in order to have jurisdiction, should be
able to point to some title to jurisdiction recognized by international law
in favour of Turkey. On the other hand, the Turkish Government takes the
view that Article 15 allows Turkey jurisdiction whenever such jurisdiction
does not come into conflict with a principle of international law.
[42] The latter view seems to be in conformity with the special agreement
itself, No. I of which asks the Court to say whether Turkey has acted
contrary to the principles of international law and, if so, what principles.
According to the special agreement, therefore, it is not a question of
stating principles which would permit Turkey to take criminal proceedings,
but of formulating the principles, if any, which might have been violated by
such proceedings.
[43] This way of stating the question is also dictated by the very nature
and existing conditions of international law.
[44] International law governs relations between independent States. The
rules of law binding upon States therefore emanate from their own free will
as expressed in conventions or by usages generally accepted as expressing
principles of law and established in order to regulate the relations between
these co-existing independent communities or with a view to the achievement
of common aims. Restrictions upon the independence of States cannot
therefore be presumed.
[45] Now the first and foremost restriction imposed by international law
upon a State is that � failing the existence of a permissive rule to the
contrary � it may not exercise its power in any form in the territory of
another State. In this sense jurisdiction is certainly territorial; it
cannot be exercised by a State outside its territory [p19] except by virtue
of a permissive rule derived from international custom or from a convention.
[46] It does not, however, follow that international law prohibits a State
from exercising jurisdiction in its own territory, in respect of any case
which relates to acts which have taken place abroad, and in which it cannot
rely on some permissive rule of international law. Such a view would only be
tenable if international law contained a general prohibition to States to
extend the application of their laws and the jurisdiction of their courts to
persons, property and acts outside their territory, and if, as an exception
to this general prohibition, it allowed States to do so in certain specific
cases. But this is certainly not the case under international law as it
stands at present. Far from laying down a general prohibition to the effect
that States may not extend the application of their laws and the
jurisdiction of their courts to persons, property and acts outside their
territory, it leaves them in this respect a wide measure of discretion,
which is only limited in certain cases by prohibitive rules; as regards
other cases, every State remains free to adopt the principles which it
regards as best and most suitable.
[47] This discretion left to States by international law explains the great
variety of rules which they have been able to adopt without objections or
complaints on the part of other States ; it is in order to remedy the
difficulties resulting from such variety that efforts have been made for
many years past, both in Europe and America, to prepare conventions the
effect of which would be precisely to limit the discretion at present left
to States in this respect by international law, thus making good the
existing lacun� in respect of jurisdiction or removing the conflicting
jurisdictions arising from the diversity of the principles adopted by the
various States.
In these circumstances all that can be required of a State is that it should
not overstep the limits which international law places upon its jurisdiction
; within these limits, its title to exercise jurisdiction rests in its
sovereignty.
[48] It follows from the foregoing that the contention of the French
Government to the effect that Turkey must in each case be able to cite a
rule of international law authorizing her to exercise jurisdiction, is
opposed to the generally accepted international law to which Article 13 of
the Convention of Lausanne refers. Having regard to the terms of Article 15
and to the construction which [p20] the Court has just placed upon it, this
contention would apply in regard to civil as well as to criminal cases, and
would be applicable on conditions of absolute reciprocity as between Turkey
and the other contracting Parties; in practice, it would therefore in many
cases result in paralysing the action of the courts, owing to the
impossibility of citing a universally accepted rule on which to support the
exercise of their jurisdiction.
*
[49] Nevertheless, it has to be seen whether the foregoing considerations
really apply as regards criminal jurisdiction, or whether this jurisdiction
is governed by a different principle: this might be the outcome of the close
connection which for a long time existed between the conception of supreme
criminal jurisdiction and that of a State, and also by the especial
importance of criminal jurisdiction from the point of view of the
individual.
[50] Though it is true that in all systems of law the principle of the
territorial character of criminal law is fundamental, it is equally true
that all or nearly all these systems of law extend their action to offences
committed outside the territory of the State which adopts them, and they do
so in ways which vary from State to State. The territoriality of criminal
law, therefore, is not an absolute principle of international law and by no
means coincides with territorial sovereignty.
[51] This situation may be considered from two different standpoints
corresponding to the points of view respectively taken up by the Parties.
According to one of these standpoints, the principle of freedom, in virtue
of which each State may regulate its legislation at its discretion, provided
that in so doing it does not come in conflict with a restriction imposed by
international law, would also apply as regards law governing the scope of
jurisdiction in criminal cases. According to the other standpoint, the
exclusively territorial character of law relating to this domain constitutes
a principle which, except as otherwise expressly provided, would, ipso
facto, prevent States from extending the criminal jurisdiction of their
courts beyond their frontiers; the exceptions in question, which include for
instance extraterritorial jurisdiction over nationals and over crimes
directed against public safety, would therefore rest on special permissive
rules forming part of international law. [p21]
[52] Adopting, for the purpose of the argument, the standpoint of the latter
of these two systems, it must be recognized that, in the absence of a treaty
provision, its correctness depends upon whether there is a custom having the
force of law establishing it. The same is true as regards the applicability
of this system - assuming it to have been recognized as sound - in the
particular case. It follows that, even from this point of view, before
ascertaining whether there may be a rule of international law expressly
allowing Turkey to prosecute a foreigner for an offence committed by him
outside Turkey, it is necessary to begin by establishing both that the
system is well-founded and that it is applicable in the particular case.
Now, in order to establish the first of these points, one must, as has just
been seen, prove the existence of a principle of international law
restricting the discretion of States as regards criminal legislation.
[53] Consequently, whichever of the two systems described above be adopted,
the same result will be arrived at in this particular case: the necessity of
ascertaining whether or not under international law there is a principle
which would have prohibited Turkey, in the circumstances of the case before
the Court, from prosecuting Lieutenant Demons. And moreover, on either
hypothesis, this must be ascertained by examining precedents offering a
close analogy to the case under consideration; for it is only from
precedents of this nature that the existence of a general principle
applicable to the particular case may appear. For if it were found, for
example, that, according to the practice of States, the jurisdiction of the
State whose flag was, flown was not established by international law as
exclusive with regard to collision cases on the high seas, it would not be
necessary to ascertain whether there were a more general restriction; since,
as regards that restriction-supposing that it existed-the fact that it had
been established that there was no prohibition in respect of collision on
the high seas would be tantamount to a special permissive rule.
[54] The Court therefore must, in any event ascertain whether or not there
exists a rule of international law limiting the freedom of States to extend
the criminal jurisdiction of their courts to a situation uniting the
circumstances of the present case. [p22]
IV. [Prohibition of Prosecution under International Law]
[55] The Court will now proceed to ascertain whether general international
law, to which Article 15 of the Convention of Lausanne refers, contains a
rule prohibiting Turkey from prosecuting Lieutenant Demons.
[56] For this purpose, it will in the first place examine the value of the
arguments advanced by the French Government, without however omitting to
take into account other possible aspects of the problem, which might show
the existence of a restrictive rule applicable in this case.
[57] The arguments advanced by the French Government, other than those
considered above, are, in substance, the three following:
(1) International law does not allow a State to take proceedings with regard
to offences committed by foreigners abroad, simply by reason of the
nationality of the victim ; and such is the situation in the present case
because the offence must be regarded as having been committed on board the
French vessel.
(2) International law recognizes the exclusive jurisdiction of the State
whose flag is flown as regards everything which occurs on board a ship on
the high seas.
(3) Lastly, this principle is especially applicable in a collision case.
***
[58] As regards the first argument, the Court feels obliged in the first
place to recall that its examination is strictly confined to the specific
situation in the present case, for it is only in regard to this situation
that its decision is asked for.
[59] As has already been observed, the characteristic features of the
situation of fact are as follows: there has been a collision on the high
seas between two vessels flying different flags, on one of which was one of
the persons alleged to be guilty of the offence, whilst the victims were on
board the other.
[60] This being so, the Court does not think it necessary to consider the
contention that a State cannot punish offences committed abroad by a
foreigner simply by reason of the nationality of the [p23] victim. For this
contention only relates to the case where the nationality of the victim is
the only criterion on which the criminal jurisdiction of the State is based.
Even if that argument were correct generally speaking - and in regard to
this the Court reserves its opinion - it could only be used in the present
case if international law forbade Turkey to take into consideration the fact
that the offence produced its effects on the Turkish vessel and consequently
in a place assimilated to Turkish territory in which the application of
Turkish criminal law cannot be challenged, even in regard to offences
committed there by foreigners. But no such rule of international law exists.
No argument has come to the knowledge of the Court from which it could be
deduced that States recognize themselves to be under an obligation towards
each other only to have regard to the place where the author of the offence
happens to be at the time of the offence. On the contrary, it is certain
that the courts of many countries, even of countries which have given their
criminal legislation a strictly territorial character, interpret criminal
law in the sense that offences, the authors of which at the moment of
commission are in the territory of another State, are nevertheless to be
regarded as having been committed in the national territory, if one of the
constituent elements of the offence, and more especially its effects, have
taken place there. French courts have, in regard to a variety of situations,
given decisions sanctioning this way of interpreting the territorial
principle. Again, the Court does not know of any cases in which governments
have protested against the fact that the criminal law of some country
contained a rule to this effect or that the courts of a country construed
their criminal law in this sense. Consequently, once it is admitted that the
effects of the offence were produced on the Turkish vessel, it becomes
impossible to hold that there is a rule of international law which prohibits
Turkey from prosecuting Lieutenant Demons because of the fact that the
author of the offence was on board the French ship. Since, as has already
been observed, the special agreement does not deal with the provision of
Turkish law under which the prosecution was instituted, but only with the
question whether the prosecution should be regarded as contrary to the
principles of international law, there is no reason preventing the Court
from confining itself to observing that, in this case, a prosecution may
also be justified from the point of view of the so-called territorial
principle. [p24]
[61] Nevertheless, even if the Court had to consider whether Article 6 of
the Turkish Penal Code was compatible with international law, and if it held
that the nationality of the victim did not in all circumstances constitute a
sufficient basis for the exercise of criminal jurisdiction by the State of
which the victim was a national, the Court would arrive at the same
conclusion for the reasons just set out. For even were Article 6 to be held
incompatible with the principles of international law, since the prosecution
might have been based on another provision of Turkish law which would not
have been contrary to any principle of international law, it follows that it
would be impossible to deduce from the mere fact that Article 6 was not in
conformity with those principles, that the prosecution itself was contrary
to them. The fact that the judicial authorities may have committed an error
in their choice of the legal provision applicable to the particular case and
compatible with international law only concerns municipal law and can only
affect international law in so far as a treaty provision enters into
account, or the possibility of a denial of justice arises.
[62] It has been sought to argue that the offence of manslaughter cannot be
localized at the spot where the mortal effect is felt ; for the effect is
not intentional and it cannot be said that there is, in the mind of the
delinquent, any culpable intent directed towards the territory where the
mortal effect is produced. In reply to this argument it might be observed
that the effect is a factor of outstanding importance in offences such as
manslaughter, which are punished precisely in consideration of their effects
rather than of the subjective intention of the delinquent. But the Court
does not feel called upon to consider this question, which is one of
interpretation of Turkish criminal law. It will suffice to observe that no
argument has been put forward and nothing has been found from which it would
follow that international law has established a rule imposing on States this
reading of the conception of the offence of manslaughter.
***
[63] The second argument put forward by the French Government is the
principle that the State whose flag is flown has exclusive jurisdiction over
everything which occurs on board a merchant ship on the high seas. [p25]
[64] It is certainly true that � apart from certain special cases which are
defined by international law - vessels on the high seas are subject to no
authority except that of the State whose flag they fly. In virtue of the
principle of the freedom of the seas, that is to say, the absence of any
territorial sovereignty upon the high seas, no State may exercise any kind
of jurisdiction over foreign vessels upon them. Thus, if a war vessel,
happening to be at the spot where a collision occurs between a vessel flying
its flag and a foreign vessel, were to send on board the latter an officer
to make investigations or to take evidence, such an act would undoubtedly be
contrary to international law.
[65] But it by no means follows that a State can never in its own territory
exercise jurisdiction over acts which have occurred on board a foreign ship
on the high seas. A corollary of the principle of the freedom of the seas is
that a ship on the high seas is assimilated to the territory of the State
the flag of which it flies, for, just as in its own territory, that State
exercises its authority, upon it, and no other State may do so. All that can
be said is that by virtue of the principle of the freedom of the seas, a
ship is placed in the same position as national territory but there is
nothing to support the claim according to which the rights of the State
under whose flag the vessel sails may go farther than the rights which it
exercises within its territory properly so called. It follows that what
occurs on board a vessel on the high seas must be regarded as if it occurred
on the territory of the State whose flag the ship flies. If, therefore, a
guilty act committed on the high seas produces its, effects on a vessel
flying another flag or in foreign territory, the same principles must be
applied as if the territories of two different States were concerned, and
the conclusion must therefore be drawn that there is no rule of
international law prohibiting the State to which the ship on which the
effects of the offence have taken place belongs, from regarding the offence
as having been committed in its territory and prosecuting, accordingly, the
delinquent.
[66] This conclusion could only be overcome if it were shown that there was
a rule of customary international law which, going further than the
principle stated above, established the exclusive jurisdiction of the State
whose flag was flown. The French Government has endeavoured to prove the
existence of such a rule, having recourse for this purpose to the teachings
of publicists, to decisions [p26] of municipal and international tribunals,
and especially to conventions which, whilst creating exceptions to the
principle of the freedom of the seas by permitting the war and police
vessels of a State to exercise a more or less extensive control over the
merchant vessels of another State, reserve jurisdiction to the courts of the
country whose flag is flown by the vessel proceeded against.
[67] In the Court's opinion, the existence of such a rule has not been
conclusively proved.
[68] In the first place, as regards teachings of publicists, and apart from
the question as to what their value may be from the point of view of
establishing the existence of a rule of customary law, it is no doubt true
that all or nearly all writers teach that ships on the high seas are subject
exclusively to the jurisdiction of the State whose flag they fly. But the
important point is the significance attached by them to this principle; now
it does not appear that in general, writers bestow upon this principle a
scope differing from or wider than that explained above and which is
equivalent to saying that the jurisdiction of a State over vessels on the
high seas is the same in extent as its jurisdiction in its own territory. On
the other hand, there is no lack of writers who, upon a close study of the
special question whether a State can prosecute for offences committed on
board a foreign ship on the high seas, definitely come to the conclusion
that such offences must be regarded as if they had been committed in the
territory of the State whose flag the ship flies, and that consequently the
general rules of each legal system in regard to offences committed abroad
are applicable.
[69] In regard to precedents, it should first be observed that, leaving
aside the collision cases which will be alluded to later, none of them
relates to offences affecting two ships flying the flags of two different
countries, and that consequently they are not of much importance in the case
before the Court. The case of the Costa Rica Packet is no exception, for the
prauw on which the alleged depredations took place was adrift without flag
or crew, and this circumstance certainly influenced, perhaps decisively, the
conclusion arrived at by the arbitrator.
[70] On the other hand, there is no lack of cases in which a State has
claimed a right to prosecute for an offence, committed on board a foreign
ship, which it regarded as punishable under its legislation. Thus Great
Britain refused the request of the United [p27] States for the extradition
of John Anderson, a British seaman who had committed homicide on board an
American vessel, stating that she did not dispute the jurisdiction of the
United States but that she was entitled to exercise hers concurrently. This
case, to which others might be added, is relevant in spite of Anderson's
British nationality, in order to show that the principle of the exclusive
jurisdiction of the country whose flag the vessel flies is not universally
accepted.
[71] The cases in which the exclusive jurisdiction of the State whose flag
was flown has been recognized would seem rather to have been cases in which
the foreign State was interested only by reason of the nationality of the
victim, and in which, according to the legislation of that State itself or
the practice of its courts, that ground was not regarded as sufficient to
authorize prosecution for an offence committed abroad by a foreigner.
[72] Finally, as regards conventions expressly reserving jurisdiction
exclusively to the State whose flag is flown, it is not absolutely certain
that this stipulation is to be regarded as expressing a general principle of
law rather than as corresponding to the extraordinary jurisdiction which
these conventions confer on the state-owned ships of a particular country in
respect of ships of another country on the high seas. Apart from that, it
should be observed that these conventions relate to matters of a particular
kind, closely connected with the policing of the seas, such as the slave
trade, damage to submarine cables, fisheries, etc., and not to common-law
offences. Above all it should be pointed out that the offences contemplated
by the conventions in question only concern a single ship; it is impossible
therefore to make any deduction from them in regard to matters which concern
two ships and consequently the jurisdiction of two different States.
[73] The Court therefore has arrived at the conclusion that the second
argument put forward by the French Government does not, any more than the
first, establish the existence of a rule of international law prohibiting
Turkey from prosecuting Lieutenant Demons.
***
[74] It only remains to examine the third argument advanced by the French
Government and to ascertain whether a rule specially [p28] applying to
collision cases has grown up, according to which criminal proceedings
regarding such cases come exclusively within the jurisdiction of the State
whose flag is flown.
[75] In this connection, the Agent for the French Government has drawn the
Court's attention to the fact that questions of jurisdiction in collision
cases, which frequently arise before civil courts, are but rarely
encountered in the practice of criminal courts. He deduces from this that,
in practice, prosecutions only occur before the courts of the State whose
flag is flown and that that circumstance is proof of a tacit consent on the
part of States and, consequently, shows what positive international law is
in collision cases.
[76] In the Court's opinion, this conclusion is not warranted. Even if the
rarity of the judicial decisions to be found among the reported cases were
sufficient to prove in point of fact the circumstance alleged by the Agent
for the French Government, it would merely show that States had often, in
practice, abstained from instituting criminal proceedings, and not that they
recognized themselves as being obliged to do so; for only if such abstention
were based on their being conscious of having a duty to abstain would it be
possible to speak of an international custom. The alleged fact does not
allow one to infer that States have been conscious of having such a duty; on
the other hand, as will presently be seen, there are other circumstances
calculated to show that the contrary is true.
[77] So far as the Court is aware there are no decisions of international
tribunals in this matter; but some decisions of municipal courts have been
cited. Without pausing to consider the value to be attributed to the
judgments of municipal courts in connection with the establishment of the
existence of a rule of international law, it will suffice to observe that
the decisions quoted sometimes support one view and sometimes the other.
Whilst the French Government have been able to cite the Ortigia-Oncle-Joseph
case before the Court of Aix and the Franconia-Strathclyde case before the
British Court for Crown Cases Reserved, as being in favour of the exclusive
jurisdiction of the State whose flag is flown, on the other hand the
Ortigia-Oncle-Joseph case before the Italian Courts and the
Ekbatana-West-Hinder case before the Belgian Courts have been cited in
support of the opposing contention.
[78] Lengthy discussions have taken place between the Parties as to the
importance of each of these decisions as regards the details [p29] of which
the Court confines itself to a reference to the Cases and Counter-Cases of
the Parties. The Court does not think it necessary to stop to consider them.
It will suffice to observe that, as municipal jurisprudence is thus divided,
it is hardly possible to see in it an indication of the existence of the
restrictive rule of international law which alone could serve as a basis for
the contention of the French Government.
[79] On the other hand, the Court feels called upon to lay stress upon the
fact that it does not appear that the States concerned have objected to
criminal proceedings in respect of collision cases before the courts of a
country other than that the flag of which was flown, or that they have made
protests: their conduct does not appear to have differed appreciably from
that observed by them in all cases of concurrent jurisdiction. This fact is
directly opposed to the existence of a tacit consent on the part of States
to the exclusive jurisdiction of the State whose flag is flown, such as the
Agent for the French Government has thought it possible to deduce from the
infrequency of questions of jurisdiction before criminal courts. It seems
hardly probable, and it would not be in accordance with international
practice that the French Government in the Ortigia-Oncle-Joseph case and the
German Government in the Ekbalana-West-Hinder case would have omitted to
protest against the exercise of criminal jurisdiction have by the Italian
and Belgian Courts, if they had really thought that this was a violation of
international law.
[80] As regards the Franconia case (R. v. Keyn 1877, L.R. 2 Ex. Div. 63)
upon which the Agent for the French Government has particularly relied, it
should be observed that the part of the decision which bears the closest
relation to the present case is the part relating to the localization of the
offence on the vessel responsible for the collision.
[81] But, whatever the value of the opinion expressed by the majority of the
judges on this particular point may be in other respects, there would seem
to be no doubt that if, in the minds of these judges, it was based on a rule
of international law, their conception of that law, peculiar to English
jurisprudence, is far from being generally accepted even in common-law
countries. This view seems moreover to be borne out by the fact that the
standpoint taken by the majority of the judges in regard to the localization
of an offence, the author of which is situated in the territory of one [p30]
State whilst its effects are produced in another State, has been abandoned
in more recent English decisions (R. v. Nillins, 1884, 53 L. J. 157; R. v.
Godfrey, L. R. 1923, 1 K. B. 24). This development of English case-law tends
to support the view that international law leaves States a free hand in this
respect.
[82] In support of the theory in accordance with which criminal jurisdiction
in collision cases would exclusively belong to the State of the flag flown
by the ship, it has been contended that it is a question of the observance
of the 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 in the cancellation of his certificate as
master, that is to say, in depriving him of the command of his ship.
[83] In regard to this, the Court must observe that in the present case a
prosecution was instituted for an offence at criminal law and not for a
breach of discipline. Neither the necessity of taking administrative
regulations into account (even ignoring the circumstance that it is a
question of uniform regulations adopted by States as a result of an
international conference) nor the impossibility of applying certain
disciplinary penalties can prevent the application of criminal law and of
penal measures of repression.
[84] The conclusion at which the Court has therefore arrived is that there
is no rule of international law in regard to collision cases to the effect
that criminal proceedings are exclusively within the jurisdiction of the
State whose flag is flown.
[85] This conclusion moreover is easily explained if the manner in which the
collision brings the jurisdiction of two different countries into play be
considered.
[86] The offence for which Lieutenant Demons appears to have been prosecuted
was an act � of negligence or imprudence � having its origin on board the
Lotus, whilst its effects made themselves felt on board the Boz-Kourt. These
two elements are, legally, entirely inseparable, so much so that their
separation renders the offence non-existent. Neither the exclusive
jurisdiction of either State, nor the limitations of the jurisdiction of
each to the occurrences which took place on the respective ships would
appear calculated to satisfy the requirements of justice and effectively to
protect the interests of the two States. It is only natural that each should
be able to exercise jurisdiction and to do so in respect [p31] of the
incident as a whole. It is therefore a case of concurrent jurisdiction.
***
[87] The Court, having arrived at the conclusion that the arguments advanced
by the French Government either are irrelevant to the issue or do not
establish the existence of a principle of international law precluding
Turkey from instituting the prosecution which was in fact brought against
Lieutenant Demons, observes that in the fulfilment of its task of itself
ascertaining what the international law is, it has not confined itself to a
consideration of the arguments put forward, but has included in its
researches all precedents, teachings and facts to which it had access and
which might possibly have revealed the existence of one of the principles of
international law contemplated in the special agreement. The result of these
researches has not been to establish the existence of any such principle. It
must therefore be held that there is no principle of international law,
within the meaning of Article 15 of the Convention of Lausanne of July 24th,
1923, which precludes the institution of the criminal proceedings under
consideration. Consequently, Turkey, by instituting, in virtue of the
discretion which international law leaves to every sovereign State, the
criminal proceedings in question, has not, in the absence of such
principles, acted in a manner contrary to the principles of international
law within the meaning of the special agreement.
[88] In the last place the Court observes that there is no need for it to
consider the question whether the fact that the prosecution of Lieutenant
Demons was "joint" (connexe) with that of the captain of the Boz-Kourt would
be calculated to justify an extension of Turkish jurisdiction. This question
would only have arisen if the Court had arrived at the conclusion that there
was a rule of international law prohibiting Turkey from prosecuting
Lieutenant Demons; for only in that case would it have been necessary to ask
whether that rule might be overridden by the fact of the connexity"
(connexite) of the offences. [p32]
V. [Disposition]
[89] Having thus answered the first question submitted by the special
agreement in the negative, the Court need not consider the second question,
regarding the pecuniary reparation which might have been due to Lieutenant
Demons.
[90] FOR THESE REASONS,
The Court, having heard both Parties,
gives, by the President's casting vote - the votes being equally divided -,
judgment to the effect
(1) that, following the collision which occurred on August 2nd, 1926, on the
high seas between the French steamship Lotus and she Turkish steamship
Boz-Kourt, and upon the arrival of the French ship at Stamboul, and in
consequence of the loss of the Boz-Kourt having involved the death of eight
Turkish nationals, Turkey, by instituting criminal proceedings in pursuance
of Turkish law against Lieutenant Demons, officer of the watch on board the
Lotus at the time of the collision, has not acted in conflict with the
principles of international law, contrary to Article 15 of the Convention of
Lausanne of July 24th, 1923, respecting conditions of residence and business
and jurisdiction;
(2) that, consequently, there is no occasion to give judgment on the
question of the pecuniary reparation which might have been due to Lieutenant
Demons if Turkey, by prosecuting him as above stated, had acted in a manner
contrary to the principles of international law.
[91] This judgment having been drawn up in French in accordance with the
terms of Article 39, paragraph 1, second sentence, of the Statute of the
Court, an English translation is attached thereto. [p33]
[92] Done at the Peace Palace, The Hague, this seventh day of September,
nineteen hundred and twenty-seven, in three copies, one of which is to be
placed in the archives of the Court, and the others to be transmitted to the
Agents of the respective Parties.
(Signed) Max Huber,
President.
(Signed) A. Hammarskjold,
Registrar.
[93] MM. Loder, former President, Weiss, Vice-President, and Lord Finlay,
MM. Nyholm and Altamira, Judges, declaring that they are unable to concur in
the judgment delivered by the Court and availing themselves of the right
conferred on them by Article ,of the Statute, have delivered the separate
opinions which follow hereafter.
[94] Mr. Moore, dissenting from the judgment of the Court only on the ground
of the connection of the criminal proceedings in the case with Article 6 of
the Turkish Penal Code, also delivered a separate opinion.
(Initialled) M. H.
(Initialled) A. H. [p34]
Dissenting Opinion by M. Loder
[Translation]
[95] Turkey, having arrested, tried and convicted a foreigner for an offence
which he is alleged to have committed outside her territory, claims to have
been authorized to do so by reason of the absence of a prohibitive rule of
international law.
[96] Her defence is based on the contention that under international law
everything which is not prohibited is permitted.
[97] In other words, on the contention that, under international law, every
door is open unless it is closed by treaty or by established Custom.
[98] The Court in its judgment holds that this view is correct,
well-founded, and in accordance with actual facts.
[99] I regret that I am unable to concur with the opinion of the Court.
[100] It seems to me that the contention is at variance with the spirit of
international law. This law is for the most part unwritten and lacks
sanctions; it rests on a general consensus of opinion; on the acceptance by
civilized States, members of the great community, of nations, of rules,
customs and existing conditions which they are bound to respect in their
mutual relations, although neither committed to writing nor confirmed by
conventions. This body of rules is called international law.
[101] These rules may be gradually modified, altered or extended, in
accordance with the views of a considerable majority of these States, as
this consensus of opinion develops, but is seems to me incorrect to say that
the municipal law of a minority of States suffices to abrogate or change
them.
[102] It also appears to me incorrect to claim that the absence of
international disputes or diplomatic difficulties in regard to certain
provisions of the laws of some States, which are at variance with generally
accepted ideas, can serve to show the development or modification of such
ideas.
[103] International disputes only arise when a particular application of the
laws in question shows them to be at variance with international law.
[104] The family of nations consists of a collection of different sovereign
and independent States. [p35]
[105] The fundamental consequence of their independence and sovereignty is
that no municipal law, in the particular case under consideration no
criminal law, can apply or have binding effect outside the national
territory.
[106] This fundamental truth, which is not a custom but the direct and
inevitable consequence of its premise, is a logical principle of law, and is
a postulate upon which the mutual independence of States rests.
[107] The criminal law of a State applies in the first place to all persons
within its territory, whether nationals or foreigners, because the right of
jurisdiction over its own territory is an attribute of its sovereignty.
[108] The criminal law of a State may extend to crimes and offences
committed abroad by its nationals, since such nationals are subject to the
law of their own country; but it cannot extend to offences committed by a
foreigner in foreign territory, without infringing the sovereign rights of
the foreign State concerned, since in that State the State enacting the law
has no jurisdiction.
[109] Nor can such a law extend in the territory of the State enacting it to
an offence committed by a foreigner abroad should the foreigner happen to be
in this territory after the commission of the offence, because the guilty
act has not been committed within the area subject to the jurisdiction of
that State and the subsequent presence of the guilty person cannot have the
effect of extending the jurisdiction of the State.
[110] It seems to me clear that such is the logical consequence of the
fundamental principle above enunciated.
[111] It however is also clear that this consequence can be overridden by
some convention to the contrary effect or by some exception generally and
even tacitly recognized by international law.
[112] Like all exceptions, however, such an exception must be strictly
construed and cannot be substituted for the well-established rule, to which
it is an exception.
[113] Now, the rule has gradually undergone an important modification in the
legislation of a somewhat large majority of civilized States, a modification
which does not seem to have encountered objections and which may be regarded
as having been accepted. This modification tends to except from the strict
rule governing the jurisdiction over offences committed by foreigners abroad
such offences, in so far as they are directed against the State itself or
[p36] against its security or credit. The injured State may try the guilty
persons according to its own law if they happen to be in its territory or,
if necessary, it may ask for their extradition.
[114] Apart from this exception, the rule holds good.
[115] The so-called system of "protection" which Turkey claims to be
entitled to apply and which is tantamount to the abrogation of the rule
itself, is very far from being accepted by the great majority of States and
is not in my opinion in harmony with positive international law.
[116] The alleged offence with which M. Demons is charged by Turkey, namely,
involuntary manslaughter, does not fall within the scope of the exception
which I have mentioned. Turkey admits that she is applying the so-called
system of "protection" in pursuance of her municipal law and she holds that
she is authorized to do so because she has found nowhere a positive and
accepted rule prohibiting her from so doing.
[117] It will appear from the foregoing that I am of opinion that for this
reason alone, Turkey must be held to have acted in contravention of [p37]
the principles of international law.
***
[118] The Court has been made cognizant of a definite occurrence; it has to
give judgment upon a particular case. This case is the collision between the
French ship Lotus and the Turkish ship Boz-Kourt.
[119] Turkey claims that both vessels, owing to faulty navigation, were
jointly to blame for this collision.
[120] The result of the collision was that the Boz-Kourt sank, and that some
members of the crew and passengers were drowned.
[121] Turkey argues from these facts that M. Demons, officer of the watch on
board the Lotus, is guilty of manslaughter and that he is responsible for
the death of the persons above mentioned.
[122] She argues that this offence took place on board the Boz-Kourt because
it was there that the effects of the alleged negligence were felt.
[123] She therefore contends that the wrongful act having taken place on
board the Turkish ship, its author is amenable to the jurisdiction of the
Turkish Courts.
[124] If this argument be sound, in point of fact the deduction made from it
is correct and the accusation of having acted contrary to the principles of
international law at once falls to the ground, because every State is
entitled to prosecute and sentence any foreigner who commits an offence
within its territory. And the vessel Boz-Kourt must be regarded as Turkish
territory.
[125] The question of the localization of the offence is therefore of
capital importance for the purposes of the decision of the dispute before
the Court.
[126] It is clear that the place where an offence has been committed is
necessarily that where the guilty person is when he commits the act. The
assumption that the place where the effect is produced is the place where
the act was committed is in every case a legal fiction. It is, however
justified where the act and its effect are indistinguishable, when there is
a direct relation between them; for instance, a shot fired at a person on
the other side of a frontler; a parcel containing an infernal machine
intended to explode on being opened by the person to whom it is sent. The
author of the crime intends in such cases to inflict injury at a place other
than that where he himself is.
[127] But the case which the Court has to consider bears no resemblance to
these instances. The officer of the Lotus, who had never set foot on board
the Boz-Kourt, had no intention of injuring anyone, and no such intention is
imputed to him. The movements executed in the navigation of a vessel are
only designed to avoid an accident.
[128] Only an investigation by naval experts into the circumstances can show
whether the manner in which the ship was navigated is to be regarded as
contrary to the regulations or negligent in some respect, or whether some
unforeseen movement by the other vessel contributed to the accident - and
this investigation is a matter solely for the naval authorities of the
country of the person responsible for navigating the ship.
[129] In these circumstances, it seems to me that the legal fiction whereby
the act is held to have been committed at the place where the effect is
produced must be discarded.
***
[130] Turkey seeks to base her jurisdiction upon an alleged "connexity"
between the movements of the two vessels. [p38]
[131] She, in fact, claims that the offence of involuntary manslaughter,
imputed to M. Demons, is "connected" (connexe) with the identical charge
against the captain of the Boz-Kourt and that the Turkish court has
jurisdiction on this ground.
[132] This argument is also unsound.
[133] Simultaneousness is not the same as "connexity".
[134] The movements of the two vessels were independent of each other: the
movement of each ship was even unknown to the officer commanding the other.
[135] The result of both movements may have been the collision, but there is
no kind of "connexity" between them.
[136] A municipal statute, or a code of procedure, may, in order to simplify
the conduct of two or more cases and to facilitate their examination,
provide for the possibility of their joinder by reason of their being
connected. Proceedings must then have been instituted in both cases before
they can be joined on the ground of connection between them (connexite). And
joinder will only be possible if the judge before whom the joined causes are
brought has jurisdiction in respect of each of them separately.
[137] Joinder on the ground of "connexity" is a proceeding under municipal
law; "connexity" doe not create jurisdiction.
***
[138] The general rule that the criminal law of a State loses its compelling
force and its applicability in relation to offences committed by a foreigner
in foreign territory, a rule derived from the basic principle of the
sovereignty and independence of States, has indeed undergone modifications
and has been made subject to exceptions restricting its scope by the mutual
consent of the different Powers in so far as territory properly so called is
concerned.
[139] But according to a generally accepted view, this is not the case as
regards the high seas. There the law of the flag and national jurisdiction
have retained their indisputable authority to the exclusion of all foreign
law or jurisdiction. I lay special stress on the word "foreign". A guilty
person on board a ship flying the flag of a State other than the one to
which he owes allegiance, may of course be indicted and sentenced by the
State of which he is a national. In that case, but only then, there will be
concurrent jurisdiction. [p39]
[140] But that is not M. Demons' case.
[141] A merchant ship being a complete entity, organized and subject to
discipline in conformity with the laws and subject to the control of the
State whose flag it flies, and having regard to the absence of all
territorial sovereignty upon the high seas, it is only natural that as far
as concerns criminal law this entity should come under the jurisdiction of
that State. This applies with especial force to the case now before the
Court. The accusation against Lieutenant Demons is that whilst navigating
his ship he gave an order for a wrong manoeuvre.
[142] The rules for navigation which he was obliged to follow were those
contained in his national regulations. He was responsible to his national
authorities for the observance of these rules. It was solely for these
authorities to consider whether the officer had observed these rules,
whether he had done his duty, and, if not, whether he had neglected their
observance to such a degree as to have incurred criminal responsibility.
[143] It consequently seems to me that Turkey, in arrogating to herself
jurisdiction over the acts of a foreign officer doing duty on the high seas
on a ship carrying a foreign flag, has acted in contravention of the
principle of international law set out above.
[144] On these grounds I regret that I am unable to concur with the Court in
its present judgment. [p40]
Dissenting Opinion by M. Weiss
[Translation]
[145] I also, to my very keen regret, am unable, in the case now before the
Court, to share the opinion of the majority of my colleagues.
[146] The reasons which induce me to adopt this conclusion are briefly as
follows:
The Peace Treaty signed at Lausanne, on July 24th, 1923, between Turkey and
the Allied Powers, terminated completely and once and for all the regime
established centuries ago known as the Capitulations which from the days of
Francis I and until the conclusion of this Treaty had governed the legal and
judicial relations between the Ottoman Empire and Christendom.
[147] Article 28 of the Treaty is as follows:
"Each of the High Contracting Parties hereby accepts, in so far as it is
concerned, the complete abolition of the Capitulations in Turkey in every
respect."
[148] The new Turkey therefore finds herself freed from the hampering
servitudes which for so long had placed her in a situation apart, in an
inferior position amongst the nations; she now becomes their equal, having
like them no other sovereign than international law. And it is precisely
this subjection to international law which is laid down in the Convention
respecting conditions of residence and business and jurisdiction, concluded
at Lausanne on the same day as the Peace Treaty.
[149] The intention of bringing Turkish law into harmony with the
international law, which has hitherto governed intercourse between the
Western States, is in the first place announced in the preamble of this
Convention: "Being desirous of prescribing, in accordance with modern
international law, the. conditions under which nationals of the other
contracting Powers may settle in Turkey and Turkish nationals may settle in
the territory of those Powers, as well as certain questions relating to
jurisdiction," etc.
[150] This preliminary declaration is given full effect and put into
practical application by, amongst others, Articles 15 and 17 of the
Convention, which run as follows: [p41]
Article 15. � �Subject to the provisions of Article 16 [pwhich relates to
questions of personal status], all questions of jurisdiction shall, as
between Turkey and the other contracting Powers, be decided in accordance
with the principles of international law.�
Article 17. � �The Turkish Government declares that the Turkish Courts will
ensure to foreigners in Turkey, both as regards person and property,
protection in accordance with international law and the principles and
methods generally adopted in other countries.�
[151] Of those two clauses of the Convention of Lausanne only the first-
namely Article 15 - is of direct interest for the case before the Court. It
follows from it that in all cases, that is to say, in criminal cases as well
as in cases of civil and commercial law, conflicts of jurisdiction which may
arise between Turkey and the other signatory States are to be settled in
accordance with the principles of international law.
[152] These principles � and it is quite certain that, as the Court has not
failed to bring out, in this connection, the principles of general
international law and no others are meant - , which are they in the present
case and where are they written?
[153] The clause on which the judgment given against Lieutenant Demons
appears with certainty to have been based, although no authentic copy of
this judgment has been placed before us, belongs to Turkish municipal law;
it is Article 6 of the Criminal Code which has been taken from the Italian
Code and runs as follows:
[Translation.]
"Any foreigner who commits an offence abroad to the prejudice of a Turkish
subject, for which offence Turkish law prescribes a penalty involving loss
of freedom for a minimum period of not less than one year, shall be punished
by the Turkish Courts and in accordance with the Turkish Penal Code provided
that he is arrested in Turkey. In such cases, the prosecution will only be
instituted at the request of the Minister of justice or on the complaint of
the injured Party."
[154] But this Article 6 is not, according to Article 15 of the Convention
of Lausanne, self-contained; it must, as regards relations between Turks and
foreigners, be supplemented by, and read in the light of, the principles of
international law. [p42]
[155] Does international law authorize the application of Turkish law and
the intervention of Turkish Courts for the repression of offences or crimes
committed by a foreign subject outside Turkey, as is possible under the
above-mentioned Article 6? Without attributing to the records of the
preparatory work in such case a weight which might be disputed, I may well
venture to recall that this was the claim put forward by the Turkish
plenipotentiaries from the outset of the Conference of Lausanne. The
amendment submitted by them at the request of Ismet Pasha leaves no room for
doubt on this point: In Turkey � we read in this document � �the Turkish
Courts will, in criminal matters, have jurisdiction over all charges arising
in Turkey against nationals of the other contracting countries, out of
crimes, offences or contraventions committed by them in Turkey, as well as
over charges arising out of acts committed by them in the territory of a
third State, and which, according to Turkish law, fall within the
jurisdiction of those Courts��
[156] This proposal the terms of which, it should be observed in passing,
leave offences committed by a foreigner upon the high seas and not upon the
territory of a third State outside the limits of the cases expressly
provided for therein, induced the British Delegate, Sir Horace Rumbold, to
make a strong protest: he declared that it could not be accepted; and his
French and Italian colleagues added their reservations in this regard to
his. In view of this opposition Turkey did not insist, and Article 15 was
drafted in its final form. From the absence of any reference in this article
to the jurisdiction of the Turkish Courts to take cognizance of crimes or
offences committed by foreigners on foreign territory, it therefore follows
that no such jurisdiction was recognized as being a rule of international
law.
[157] Being unable to find any support for her claim in treaty law, Turkey
considerably enlarged the field of discussion; she had recourse to the
general principles of international law; she pleaded the sovereignty of
States upon which this law is based.
[158] Every State, she claimed, and Turkey herself from the time of the
annulment of the servitudes which have for so long been a burden upon her
international life, is ipso facto sovereign; this implies that she can do as
she thinks fit as regards persons or things unless a specific provision in a
treaty or an established custom in international relations prevents her from
so doing. This power is thus in its essence unlimited, and it implies as
regards the young Turkish Republic, if no prohibition prevents its being
exercised, [p43] an absolute right of jurisdiction over the high seas, as
well as over such of her nationals as may be upon foreign territory as
residents or as visitors, and even over foreigners living abroad who may
have been guilty of an offence injurious to Turkey or to one of her
subjects.
[159] In support of this contention and of the inferences which she deduced
therefrom especially in reference to the Lotus case, Turkey .has also, with
the aid of numerous quotations from authors and judicial decisions, taken
from the theory and practice of many countries, brought forward a certain
number of considerations or systems which, in her view, demonstrate that the
proceedings instituted at Stamboul against the French officer Demons, and
the sentence which was rendered against him, not only did not contravene any
prohibition in international law, but were besides entirely in conformity
with the practice universally followed by States. It was thus that she
endeavoured to rest the jurisdiction of the Turkish Court in this case upon
the duty of protection which was alleged to be incumbent upon every State as
regards its nationals in foreign territory; or upon the localization of the
facts constituting the offence of causing the collision, on the ship that
was sunk; or finally upon the principles followed in the legislation of many
countries and by French legislation in particular, relating to "connected"
offences (infractions connexes).
[160] Without entering at the present moment into the details of this
threefold argument which the Court has, moreover, taken care not to endorse
entirely, it will be sufficient for me to observe that the Turkish
Government, had it been quite certain that its contention was supported by
international law, would no doubt not have thought it necessary to bring
forward in addition more or less disputable reasons and theories, which
could only weaken the force of the contention pleaded in its name, by
revealing its weak points.
[161] The fundamental error of this contention is its endeavour to find
sources of international law in places where they do not exist.
International law is not created by an accumulation of opinions and systems;
neither is its source a sum total of judgments, even if they agree with each
other. Those are only methods of discovering some of its aspects, of finding
some of its principles, and of formulating these principles satisfactorily.
[162] In reality the only source of international law is the consensus [p44]
omnium. Whenever it appears that all nations constituting the international
community are in agreement as regards the acceptance or the application in
their mutual relations of a specific rule of conduct, this rule becomes part
of international law and becomes one of those rules the observance of which
the Lausanne Convention recommends to the signatory States.
[163] Among the foremost of these rules there is one which is paramount and
which does not even require to be embodied in a treaty: that is the rule
sanctioning the sovereignty of States. If States were not sovereign, no
international law would be possible, since the purpose of this law precisely
is to harmonize and reconcile the different sovereignties over which it
exercises its sway.
[164] Turkey also admits, as I have just stated, the principle of the
sovereignty of States, but she applies it beyond its due limits making its
action to be felt in a field which is outside its proper scope.
[165] By virtue of sovereignty such as we understand it, every State has
jurisdiction to sentence and punish the perpetrators of offences committed
within its territory; indeed, this is a question of public security, and of
public order, which a State cannot ignore without neglecting its duty as a
State, and one which arises whatever the nationality of the delinquent may
be.
[166] But, outside the territory, the frontier having once been traversed,
the right of States to exercise police duties and jurisdiction ceases to
exist; their sovereignty does not operate, and crimes and offences, even in
the case of those inflicting injury upon the States themselves, fall
normally outside the sanctioning force of their courts. Extra territorium
jus diceni impune non paretur.
[167] That is the principle upon which case-law in the United States is
based (see Cutting case) and which appears to have been sanctioned by the
Treaty of International Penal Law signed at Montevideo on January 23rd,
1889, between the Argentine Republic, Bolivia, Paraguay, Peru and Uruguay.
Many other States in their international legislation also admit the
principle of the exclusively and absolutely territorial character of
criminal jurisdiction: that is the case in Great Britain, and it was also
the case for a long time in France: the right of inflicting punishment, the
Cour de cassation declares in its judgment of January 10th, 1873 (Dalloz,
1873, I. 4I), is derived from the right of sovereignty, which does not
extend beyond the territorial limits. [p45]
[168] It is true that of late years new rules have penetrated into the penal
legislation of various countries. It is now, by a noteworthy extension of
territorial jurisdiction, readily recognized that a person may be prosecuted
before the courts of his own country for an offence committed abroad either
against a compatriot or against the institutions, security or credit of the
State of which he is a national. (See especially Articles 5 and 7 of the
French Code of procedure for trial.) But this extension, which is not even
always confined to nationals, and which has, properly speaking, nothing to
do with the principle of the sovereignty of States in criminal matters,
which it may rather be said to contradict, is explained by special
considerations entirely irrelevant to the Lotus case, and this extension, to
obtain its full force and to become a rule of international law, would
require, as has been pointed out by the United States Department of State in
its report on the Cutting case, �the general consent of the nations or a
special convention�; moreover, the reasons of expediency on which it is
based are themselves very debatable in law.
[169] The criminal jurisdiction of a State therefore is based on and limited
by the territorial area over which it exercises sovereignty. This is the
principle, and it is an indisputable principle of international law.
[170] But what happens to this principle when the offence committed takes
place not on terra firma, which is subject to the sovereignty of the State
occupying it, but on the high seas outside the zone of territorial waters
over which it is generally held that a State exercises rights of police and
jurisdiction ?
[171] Here we come face to face with another and equally definite principle
of international law: the principle of the freedom of the high seas. The
high seas are free and res nullius, and, apart from certain exceptions or
restrictions imposed in the interest of the common safety of States, they
are subject to no territorial authority. Since, however, it is impossible to
allow free scope to all the enterprises and attacks which might be
undertaken against the persons and property of those voyaging upon the seas,
it has appeared expedient to extend to merchant vessels on the high seas the
jurisdiction of the authorities of the State whose flag they fly. These
vessels and their crews are answerable only to the law of the flag, a
situation which is often described by saying, with more or less [p46]
accuracy, that these vessels constitute a detached and floating portion of
the national territory. The effect of this is to exclude, just as much as on
the national territory itself, and apart from certain exceptional cases, the
exercise of any jurisdiction other than that of the flag, and in particular
that of a foreign port at which a vessel may touch after the commission of
some offence on the high seas. (Rules drawn up at The Hague by the Institute
of International Law in 1908.)
[172] This principle has been fairly frequently applied in international
cases, especially in collision cases (see the precedent of the Costa Rica
Packet referred for arbitration to my illustrious colleague, Frederic de
Martens); and it would not appear that there is any reason for not applying
it in the case of the Boz-Kourt and Lotus. Assuming that the destruction of
the former vessel was the result of a wrong manoeuvre, of an error in
navigation, of an offence committed on the high seas, for which Lieutenant
Demons was responsible, it is the national law, the law of the flag under
which he was sailing, which alone is applicable to him, since there is in
this case no territorial law or territorial sovereignty.
[173] The Turkish Government has not denied the jurisdiction of the law of
the flag as regards the repression of offences committed on the high seas,
especially in the case of collision between two vessels of different
nationality; it has not denied that the French Courts have the right of
convicting and sentencing Lieutenant Demons who was officer of the watch on
board the Lotus at the time of the collision, should his guilt appear to
them established. But the Turkish Government holds that this jurisdiction is
not exclusive. And it alleges various circumstances arising in the
particular case and various theories of international law, with a view to
showing that Turkey and its courts possess concurrent rights of
jurisdiction, in virtue of the general right of sovereignty which Turkey
assumes even outside her own territory.
[174] It has been argued by Turkey � but the judgment which has been read
does not go as far as that � that the jurisdiction claimed by the courts of
Stamboul in the Lotus case was justified by the right of protection
possessed by every State in respect of its nationals even beyond its
frontiers. Turkey contends that the fact that the offence committed on the
high seas by a foreigner should have injured some of her nationals suffices
to give her power and to make it her duty to punish the offence. And this is
precisely what happened in the [p47] Lotus case. This system, which has
found favour in the positive legislations of some countries, is not in
itself contrary to international law, but it is outside the scope of
international law: it does not in itself constitute a principle of
international law capable of overcoming the principle of the freedom of the
seas and that of the law of the flag which is the corollary of the former.
None of the legislative or judicial evidence cited by Turkey in support of
the right of protection of nationals, establishes the existence of such a
principle, and it is moreover in contradiction with the rules consistently
applied by courts in maritime cases for the repression of crimes and
offences committed on the high seas and especially in collision cases. It
will suffice for me to allude in this respect to the arbitral award given by
M. de Martens in the case of the Costa Rica Packet, to which I have already
referred.
[175] Other titles to jurisdiction, intended to support the argument based
on Turkish sovereignty, have been put forward by the representatives of that
country. They endeavoured to localize the offence, which it was sought to
punish, upon the vessel which sustained the injurious result, that is to say
on the vessel run down. They argued that it was the Boz-Kourt which perished
in the collision of August 2nd, 1926, and that it was the passengers and
sailors of that vessel who met their deaths. The offence therefore produced
its effects in the Boz-Kourt, i.e., according to the generally accepted
legal fiction, on Turkish territory. Consequently, it was quite natural that
the Turkish Courts, that is to say the territorial courts, should exercise
jurisdiction. The error here is clear and it has been fully brought out in
the famous decision given in the Franconia case by the British Court for
Crown Cases Reserved. In fixing the place where an offence has occurred, it
is not to the place where the offence, often contrary to any reasonable
anticipation, produces its injurious effects upon persons or things, that
attention must be directed, but solely to the place where the punishable act
has been committed and where the person responsible for that act was at the
time when it was committed; it is there that the offence has really taken
place.
[176] Now, in the case of the running down of the Boz-Kourt by the Lotus,
the errors of navigation, with which Turkey has charged the officer of the
latter vessel, and which may have led to the destruction of the Turkish
collier and to the loss of several lives, could only have taken place at the
spot where Lieutenant Demons exercised [p48] his command, i.e. in the vessel
responsible for the collision. He never set foot on board the Boz-Kourt, and
there is nothing to show that it was on board the ship and not at the bottom
of the sea, into which they were no doubt immediately thrown by the force of
the impact, that the seamen and passengers perished.
[177] It is therefore on the vessel responsible for the collision and not on
the vessel run down that the disaster should have been localized, if any
importance were attached to such localization from the point of view of
jurisdiction; the law and jurisdiction of the flag under which Lieutenant
Demons sailed would then apply perfectly naturally. But that is only a
secondary consideration, which, in the case before the Court, tends further
to support the jurisdiction of the law of the flag.
[178] What makes the application on the high seas of the law of the flag in
respect of occurrences on board a merchant vessel essential, is the fact
that such a vessel is not directly subject to any territorial sovereignty,
but that on the other hand, regarding it as an extension of territory, it
constitutes an organized entity, subject to the discipline and control of
the State whose flag it flies, which State therefore is both more qualified
and has more interest than any other to ensure the maintenance of order on
board.
[179] The Turkish Government had finally endeavoured to link up the
proceedings taken against the French officer with a theory of �connexity"
(connexit�), making these proceedings dependent upon those taken in
pursuance of Turkish law against the Turkish officer of the Boz-Kourt; does
not the close connection existing between these two sets of proceedings
taken as a result of one and the same act in different countries, require
indeed, in the interests of justice, that they should come before the same
judge? It is easy to reply, although the Court has not seen fit to consider
this question., that �connexity� implying extension of jurisdiction only
takes effect in relations between two or more courts of the same instance,
sitting within the boundaries of the same State and that, according to an
opinion unanimously held, this conception is completely foreign to
international relations, by reason of the modifications which it would
involve both as regards the law applicable to offences alleged to be
"connected" (connexes) and the system of penalties which would be applicable
to them. "Connexity" (connexit�) is a rule of internal convenience
applicable in those States which have included it in their codes of
procedure ; it is ineffective outside their frontiers. [p49]
[180] None of the various grounds advanced by Turkey in support of her claim
to jurisdiction � some of which have been held to be well founded by the
Court � therefore remain to authorize the penal measures takn against the
French officer Demons, in consequence of the loss of the Boz-Kourt.
[181] Two principles of international law clearly emerge from the
controversial doctrine and contradictory judicial decisions which have been
invoked as authority by both Parties in the course of the hearings:
1. First of all, there is the principles of the sovereignty of States in
criminal matters, not a universal, undefined, unlimited sovereignty such as
Turkey adduced, but a sovereignty founded upon and limited by the territory
over which the State exercises its dominion, that is to say, territorial
sovereignty.
2. Secondly, there is the principle of the freedom of the high seas,
including the application of the law of the flag which is its corollary.
[182] The Turkish Government, in proceeding against the French Lieutenant
Demons upon the basis of acts which had taken place outside Turkish
territory on a vessel flying the French flag has disregarded those two
fundamental principles of international law; it has consequently acted in
contravention of Article 15 of the Lausanne Convention. And my conscience as
a jurist and judge does not allow me to subscribe to the approval bestowed
upon its action by the Court. [p50]
Dissenting Opinion by Lord Finlay
[183] This case arose out of a collision between the Lotus, a French liner,
and the Turkish steamer Boz-Kourt. It took place off Cape Sigri, in
Mitylene, not within territorial waters but on the high seas. The Boz-Kourt
was sunk and eight persons, sailors and passengers, were drowned. The
officer of the watch on board the Lotus was Lieutenant Demons, and on the
arrival of the Lotus at Constantinople, he was arrested by the Turkish
authorities and put on his trial on charge of having committed an offence
under Article 6 of the Turkish Penal Code.
[184] That article is as follows:
�Quand un �tranger commet contre un Turc en pays �tranger un acte
susceptible d'entra�ner pour son auteur, d'apr�s les dispositions du Code
p�nal turc, un emprisonnement de plus d'une ann�e, cet �tranger sera jug�
par les tribunaux et conform�ment aux lois p�nales de Turquie, s'il est
trouv� sur le territoire turc.
�En pareil cas, les poursuites ne peuvent avoir lieu que sur la plainte de
la Partie l�s�e ou sur celle du ministre de la Justice. �
[185] We have not got before us the documents in the proceedings before the
Turkish Courts, but it is clear that Demons was charged with having brought
about the collision by his negligence and thereby causing the death of the
eight Turks who were drowned. He was convicted and sentenced to fine and
imprisonment.
[186] The French Government alleged that the proceedings in the Turkish
Courts were without jurisdiction, and by the compromis dated October 12th,
1926, made between the French and the Turkish Governments, the dispute was
referred to the Permanent Court of International Justice. Article 1 of the
compromis is as follows:
�La Cour permanente de justice internationale sera pri�e de statuer sur les
questions suivantes:
�1) La Turquie a-t-elle, contrairement � 1'article 15 de la Convention de
Lausanne du. 24 juillet 1923 relative � 1'etablissement et � la comp�tence
judiciaire, agi en contradiction des [p51] principes du droit international
� et, si oui, de quels principes � en exer�ant, � la suite de la collision
survenue le 2 ao�t 1926 en haute mer entre le vapeur fran�ais Lotus et le
vapeur Boz-Kourt et lors de l�arriv�e du navire fran�ais � Stamboul, en m�me
temps que contre le capitaine du vapeur turc, des poursuites p�nales
connexes en vertu de la l�gislation turque, contre le sieur Demons, officier
de quart � bord du Lotus au moment de la collision, en raison de la perte de
Boz-Kourt ayant entra�n� la mort de huit marins et passagers turcs?
� 2) ������������������ . �
[187] The question for the Court is whether Turkey in this matter acted in
contravention of the principles of international law; in other words, had
the Turkish Courts Jurisdiction to try and convict Demons?
[188] Article 15 of the Convention of Lausanne provides that �in all matters
under reserve of Article 16 questions of judicial competence shall, in the
relations between Turkey and the other contracting Powers, be regulated
conformably to the principles of international law�.
[189] This clearly refers to the general principles of international law in
the ordinary sense of the term and it applies to criminal as well as to
civil proceedings. Article 16 is for present purposes irrelevant.
[190] The question for the Court is one purely of criminal law. The practice
with regard to crimes committed at sea has been that the accused should be
tried by the courts of the country to which his ship belongs, with the
possible alternative of the courts of the country to which the offender
personally belongs, if his nationality is different from that of the ship.
There has been only one exception: pirates have been regarded as hostes
humai generis and might be tried in the courts of any country.
[191] In the ordinary course any trial of Demons on a charge of having by
criminal negligence in navigation caused the sinking of the. Turkish vessel
by collision would have been held in a French court, as France was his
country as well as that of the flag of the ship. He was tried and convicted
by a Turkish court and according to Turkish law. [p52]
[192] The first point with which the Court has to deal is this: What is the
exact meaning of the question put in the compromis: La Turquie a-t-elle agi
en contradiction des principes du droit international ?
[193] It has been argued for Turkey that this question implies that France,
in order to succeed, must point to some definite rule of international law
forbidding what Turkey did. I am unable to read the compromis in this sense.
What it asks is simply whether the Turkish Courts had jurisdiction to try
and punish Demons; if international law authorizes this, the question would
be answered in the affirmative, otherwise in the negative. The compromis.
cannot, with any fairness, be read so as to require France to produce some
definite rule forbidding what was done by Turkey. If the Turkish proceedings
were not authorized by international law, Turkey acted en contradiction des
principes du droit international. There is no mention of any "rule" but only
of "principles".
[194] The question is put in the compromis with perfect fairness as between
the two countries and the attempt to torture it into meaning that France
must produce a rule forbidding what Turkey did arises from a misconception.
The question is whether the principles of international law authorize what
Turkey did in this matter.
I. [Turkish Jurisdiction Argument No. 1]
[195] It was argued for Turkey that the d�lit committed by Demons was
committed on board the Boz-Kourt when by a faulty manoeuvre of his she was
struck by the Lotus, and as the Boz-Kourt was a Turkish ship she must, it
was said, be regarded as part of Turkish territory and the d�lit was
therefore committed. on Turkish territory as much as if it had been
committed on shore within the territorial limits of Turkey.
[196] This is a new and startling application of a metaphor and, if it is
held good, it would mean that if there is a collision on the high seas
between a Turkish vessel and a ship of any other nationality, any of the
officers and crew of that other ship may be arrested in any Turkish port and
put on their trial before a Turkish court on a [p53] criminal charge of
having caused the collision by their negligence. This view appears to be
based on a misconception of the proposition that a ship on the high seas may
be regarded as part of the territory of the country whose flag she flies.
[197] Turkey's case is that the crime was committed in Turkish territory,
namely, on a Turkish ship on the high seas, and that the Turkish Courts
therefore have a territorial jurisdiction. A ship is a movable chattel, it
is not a place; when on a voyage it shifts its place from day to day and
from hour to hour, and when in dock it is a chattel which happens at the
time to be in a particular place. The jurisdiction over crimes committed on
a ship at sea is not of a territorial nature at all. It depends upon the law
which for convenience and by common consent is applied to the case of
chattels of such a very special nature as ships. It appears to me to be
impossible with any reason to apply the principle of locality to the case of
ships coming. into collision for the purpose of ascertaining what court has
jurisdiction; that depends on the principles of maritime law. Criminal
jurisdiction for negligence causing a collision is in the courts of the
country of the flag, provided that if the offender is of a nationality
different from that of his ship, the prosecution may alternatively be in the
courts of his own country.
[198] The case seems to me clear on principle, but there is also authority
which points to the same conclusion.
[198] In the Franconia case (R. v. Keyn, 1877, 2 Ex. Div. 63), it was argued
for the Crown that there was jurisdiction in the English Courts to try a
charge of manslaughter on the very ground which we are now considering.
[199] Keyn was in command of a German ship and by his negligence he came
into collision with a British vessel, the Strathclyde; the Strathclyde was
sunk and an English passenger on board her was drowned. Keyn was found
guilty of manslaughter at the Central Criminal Court. The question of
jurisdiction was argued in the Court for Crown Cases Reserved. It was urged
that there was jurisdiction in the English Courts on the ground that Keyn
had committed manslaughter on board a British ship. The collision took place
within the territorial waters but this for present [p54] purposes is
immaterial. As Amphlett, J.A., said (page. 118 of the Report in 2 Ex. Div.),
the ground was quite independent of the three-mile zone and if valid would
justify the conviction of the prisoner, had the offence been committed in
the middle of the ocean. It was decided by eleven out of the thirteen judges
who formed the Court that the conviction could not be supported on this
ground.
[200] The point so decided is exactly the same as that which arises in the
present case. The decision was that the fact that death was caused on board
the British ship by the criminal negligence of the captain of the foreign
ship did not give jurisdiction to the English Courts to try him on the
criminal charge. This was the case of a collision between a German and a
British ship and on the face of it raised a question of international law.
By eleven judges to two it was held that this did not give jurisdiction to
the English Court. I do not think it is correct to say that this raised only
a question of English law. As the ships were of different nationalities, the
decision depended on the principles of international law. International law,
wherever applicable, is considered as part of the law of England, and our
judges must apply it accordingly. It seems to me that it is not right to
treat R. v. Keyn as if it had been a decision merely on a question of
English municipal law. The judges cannot have overlooked the fact that they
were dealing with vessels of different nationalities and the decision must
have proceeded on the law applicably to such a case. The decision of course
proceeded upon the view which the English Court took of the international
law on the point, but it was international law which they had to apply. The
decision is not binding upon this Court but it must be regarded as of great
weight and cannot be brushed aside as turning merely on a point of English
municipal law. Some expressions used by one of the two dissentient judges
(Denman, J.) might give rise on a hasty perusal to the idea that the case
turned on English law. These expressions occur on page 100 and page 101 of
the Report (ubi supra). The learned judge was discussing the meaning of
Section 22 of the Statute 4 and 5 William IV, Chapter 36, giving
jurisdiction tot he Central Criminal Court to try offences committed on the
high seas. He said: �This question appears to me to turn mainly upon the
question: where is the offence committed? And in deciding this question I
think we are bound to decide according to the principles of English law.� He
we on to say that one prin[p55]ciple of English law is that a British ship
as regards criminal offences committed on board of her is to be treated as
British territory, and as much subject to our law as any other part of the
Queen's dominions. These expressions of Mr. Justice Denman do not appear to
me to have any relevance to the question of the law applicable in the case
of a collision between a British and a foreign ship.
II. [Turkish Jurisdiction Argument No. 2]
[201] Turkey however, has another ground upon which she contends that there
was jurisdiction. The judgment of the Permanent Court is silent with
reference to this point; as the Court was in favour of Turkey upon the first
point, - that with which I have been hitherto dealing, - it was thought
unnecessary for them to pronounce upon this further point. But as I have the
misfortune to differ from the conclusion at which the Court arrived on the
first point, it is necessary for me to deal with this further point. We have
had the advantage of very full and most elaborate arguments upon it.
[202] Turkey asserts that the trial of Demons before the Turkish Courts was
justified by Article 6 of the Turkish Penal Code, above set out, on the
ground that Demons, by his negligent navigation of the Lotus resulting in
the collision and loss of Turkish lives, had been guilty of an act which, by
Turkish law when he came to Turkey, rendered him liable to prosecution for
it in the Turkish Courts according to that article. It has by consent been
assumed for the purposes of the case that the collision off Cape Sigri was
en pays �tranger within the meaning of the article and the question for us
is one of international law only.
[203] The passing of such laws to affect aliens is defended on the ground
that they are necessary for the �protection� of the national. Every country
has the light and the duty to protect its nationals when out of their own
country. If crimes are committed against them when abroad, it may insist on
the offenders being brought to justice, but [p56] this must be done in the
proper way and before tribunals having jurisdiction. The government of the
country of the injured person is entitled to bring pressure to bear upon the
government of the offender to have him brought to justice, but it has no
right to assert for this purpose in its own courts a jurisdiction which they
do not possess.
[204] The Law of Nations does not recognize the assumption of jurisdiction
for �protection�; there never has been any such general consent by the
nations as would be required to make this doctrine a part of international
law. Any State which finds it necessary to acquire such a power should by
convention get the consent of the other States affected. Such a convention
would of course have to define the limits and conditions affecting the
exercise of the power. A country is no more entitled to assume jurisdiction
over foreigners than it would be to annex a bit of territory which happened
to be very convenient for it. Any such convention affecting the jurisdiction
to try crimes by negligence in navigation would of course require the most
careful consideration as to the definition of what .amounted to criminal
negligence for this. purpose. It would be extraordinary if it should appear
that jurisdiction had been conferred, leaving it to the court of the country
in each case to determine what was criminal negligence for the purposes of
such jurisdiction.
[205] I desire to refer to what was said by Mr. Oppenheim on this subject of
"Protection" (Vol. 1, "Peace", p. 239, paragraph 147):
"Many States claim jurisdiction and threaten punishment for certain acts
committed by a foreigner in foreign countries. States which claim
jurisdiction of this kind threaten punishment for certain acts either
against the State itself, such as high treason, forging bank-notes, and the
like, or against its citizens, such as murder or arson, libel and slander,
and the like. These States cannot, of course, exercise this jurisdiction as
long as the foreigner concerned remains outside their territory. But if,
after the committal of such act, he enters their territory and comes thereby
under their territorial supremacy, they have an opportunity of inflicting
punishment. The question is, therefore, whether States have a right [p57] to
jurisdiction over acts of foreigners committed in foreign countries, and
whether the home State of such an alien has a duty to acquiesce in the
latter's punishment into the power of these States. The question, which is
controversial, ought to be answered in the negative. For at the time such
criminal acts are committed, the perpetrators are neither under the
territorial nor under personal supremacy of the States concerned. And a
State can only require respect for its laws from such aliens as are
permanently or transiently within its territory. No right for a State to
extend its jurisdiction over acts of foreigners committed in foreign
countries can be said to have grown up according to the Law of Nations, and
the right of protection over citizens abroad held by every State would
justify it in an intervention in case one of its citizens abroad should be
required to stand this trial before the courts of another State for criminal
acts which he did not commit during the time he was under the territorial
supremacy of such State.�
[206] This passage, in my opinion, is an accurate statement of the
international law applicable. Its value is not affected by the fact referred
to in the notes on page 240 that continental publicists have thought
otherwise; we are concerned with the question what international law is, not
what it ought to be.
[207] Mr. Oppenheim went on to refer to the case of Cutting, which arose
between Mexico and the United States in 1886, the facts of which have been
already stated in the course of the present proceedings. Nothing was decided
in the Cutting case and the question of jurisdiction continued to form a
subject of discussion among jurists. In the British Year Book of
International Law for 1925 there will be found on page 44 et sqq. an article
by Mr. W. E. Beckett on "The Exercise of Criminal jurisdiction over
Foreigners", in which the history of the controversy up to date is given.
[208] This Court never can have to consider whether �protection� of this
sort is or is not desirable. The question for the Court must always be, in
the absence of convention, simply whether it has been adopted by the common
consent of nations as a part of international law. As a plain matter of
fact, it appears to me [p58] that it has not yet been so adopted. The Court,
of course, could never allow itself to be entangled in arguments for and
against the theory. The question simply is whether, by general consent,
�protection� of this kind has become a part of international law. If that
question is answered in the negative, as I think it must be, Article 6 of
the Turkish Penal Code did not bind France, and the jurisdiction of the
Turkish Court to try Demons could not be supported on this ground.
[209] Of course, every country has the right to protect the persons and the
property of its citizens. If a wrong is done, the State may demand redress
and enforce it, but the assertion that any State can by any law of its own
assume criminal jurisdiction in respect of alleged crimes committed abroad
or on the high seas is a new one. The government of the country of the
injured person may call, upon the government of the country where the injury
was committed to have the offenders punished in due course by law, but it
cannot make laws for their punishment in its own courts, except in pursuance
of a convention with the other Power affected.
[210] In my opinion, both the grounds on which Turkey has tried to support
the conviction are unsound and France is entitled to the judgment of this
Court.
(Signed) Finlay. [p59]
Dissenting Opinion by M. Nyholm
[Translation]
[211] In order to reply to the question under consideration, it is necessary
in the first place to ascertain whether Turkey's action falls within a
domain governed by the Law of Nations and whether there exists not only a
principle but a rifle of the Law of Nations which would thus represent the
positive public law applicable to the particular case.
[212] In endeavouring to trace the general lines along which public
international law is formed, two principles will be found to exist the
principle of sovereignty and the territorial principle, accordance to which
each nation has dominion over its territory and � on the other hand - has no
authority to interfere in any way in matters taking place on the territories
of other nations. There exists between countries an empty space over which
no authority extends. In consequence of the relations which owing to the
exigencies of life must necessarily be formed between nations, this empty
space must be filled up by the creation of rules fixing the method to be
followed in order to treat similarly, on the one hand, the material problems
which arise simultaneously and often in an identical manner in the different
countries, and, on the other, personal problems, namely the treatment of
individuals on foreign territory, which is actually the problem in this
case. As a method of regulating the relations between countries, in the
first place should be mentioned more or less universal conventions concluded
between States and serving to bridge over the domain not subject to any
regulation. Universal laws adopted by all countries and having as their
object the creation or the codification of international law would
constitute a solution of the problem, but they do not exist and one can only
endeavour to establish international law by custom.
[213] The ascertainment of a rule of international law implies consequently
an investigation of the way in which customs acquire consistency and thus
come to be considered as constituting rules governing international
relations. A series of definitions tend to fix the elements necessary for
the establishment of an international custom. There must have been acts of
State accomplished in the domain of international relations, whilst mere
municipal laws [p60] are insufficient; moreover, the foundation of a custom
must be the united will of several and even of many States constituting a
union of wills, or a general consensus of opinion among the countries which
have adopted the European system of civilization, or a manifestation of
international legal ethics which takes place through the continual
recurrence of events with an innate consciousness of their being necessary.
[214] These different theories give a general idea of the necessary
conditions for the existence of an international law and they show the
necessity of some action ("acts", "will", "agreement") on the part of
States, without which a rule of international law cannot be based on custom.
This result is the consequence of the initial principle which limits every
State to its territory as regards the exercise of its right of sovereignty
and of its territorial jurisdiction, principles which have been definitely
recognized in international law. The present case, which concerns the fact
of a nation having extended its jurisdiction to a foreigner in regard to
acts committed by the latter in his own country, supplies an example of an
actual infringement of the principle of territoriality. This infringement
cannot be legalized by mere tacit acceptance. Among nations consent must not
merely be tacit, but, in most cases, express, if the situation provided by
the above example is to be recognized as being authorized by public
international law.
[215] Thenceforward it cannot be maintained - as the judgment sets out �
that, failing a positive restrictive rule, States leave other States free to
edict their legislations as they think fit and to act accordingly, even
when, in contravention of the principle of territoriality, they assume
rights over foreign subjects for acts which the latter have committed
abroad. The reasoning of the judgment appears to be that, failing a rule of
positive law, the relations between States in the matter under consideration
are governed by an absolute freedom. If this reasoning be followed out, a
principle of public international law is set up that where there is no
special rule, absolute freedom must exist. The basis of this reasoning
appears to be that it is vaguely felt that, even outside the domain of
positive public international law, the situation of fact as regards
relations between nations in itself embodies a principle of public law. But
that is a confusion of ideas. In considering the existing situation of fact,
a distinction should be drawn between that which is merely an
inter[p61]national situation of fact and that which constitutes a rule of
international law. The latter can only be created by a special process and
cannot be deduced from a situation which is merely one of fact.
***
[216] From the application of the principles set out above the following
conclusions can be drawn. In the first place, two preliminary questions must
be dealt with, which would, if answered in the affirmative, exercise a
decisive effect upon the case.
[217] In agreement with the judgment, it must be recognized that Article 15
of the Convention of Lausanne does not constitute a special convention
between France and Turkey. This provision is merely a statement of a general
application of international law. Another question is raised by Turkey, who
argues that the offence was committed on Turkish territory, that is to say
on the Turkish ship, which, according to the accepted international law,
constitutes a floating extension of Turkish territory. Without going into
the various theories regarding offences producing their effect at a distance
and regarding the direct and indirect effect of such offences, it will
suffice to observe that this is in the main a question to be decided on the
merits of the particular case: Did the alleged offence really produce the
effects imputed to it, namely the death of a number of persons - since the
loss of the ship and of its cargo do not come into the question - on board
the ship run down? Turkey has produced no evidence in the form of a maritime
enquiry or otherwise, calculated to establish precisely where death
occurred; and in view of this uncertainty as regards the establishment of
the facts, since it is only the Turkish ship which, by application of a
legal fiction, is to be regarded as Turkish territory, the Turkish
contention is not made out and we may pass to the consideration of the other
aspects of the case.
[218] The case concerns a collision on the high seas between a Turkish ship
and a French ship as a consequence of which, after the arrival of the French
ship in a Turkish port, criminal proceedings were instituted against the
French officer. The jurisdiction of the Turkish Courts, which is disputed by
France, seems to have been based on Article 6 of the Turkish Criminal Code,
which extends their jurisdiction to cover certain acts committed abroad by a
foreigner to the injury of a Turk. [p62]
[219] The jurisdiction claimed by Turkey is an extension of the fundamental
principles of public international law which establish the territorial
system. Is such an extension admissible in collision cases? To decide this
point we must consider (1) the general situation prevailing between States
as regards criminal jurisdiction on land; (2) the same situation as regards
the high seas; (3) the case of collision in particular.
[220] In so doing our starting point is the territorial principle which is
recognized as forming part of positive international law. Some exceptions to
this principle are also recognized, such as jurisdiction over nationals for
acts committed abroad. Is it possible to hold that an exception is also made
as regards acts which are committed by foreigners abroad and by which a
national is injured?
[221] The criteria for the establishment of a rule of positive law have been
indicated above. It is necessary to examine conventions, judicial decisions
and the teachings of publicists. From this examination, in the course of
which the voluminous data at the Court's disposal have been considered, the
details of which, however, cannot be set down here, it follows that, as
regards inter-State relations on land, exceptions in respect of criminal law
have not been recognized generally or in a manner sufficient to establish a
derogation from the territorial principle which is strongly upheld by
important nations. This is proved by, amongst other things, the fact that a
committee of experts appointed to codify international law has set aside the
question of the extension of criminal jurisdiction, as not being for the
moment ready for solution.
[222] As regards the relations prevailing between States at sea, the
situation is more or less the same. International law recognizes that a
vessel is to be regarded as a part of the territory and as subject to the
jurisdiction exercised thereon. Cases of concurrent jurisdiction are so rare
that one is led to the conclusion that there is a tendency towards
recognition of exclusive jurisdiction. But, even as regards relations at
sea, this situation cannot be regarded as already established and as thus
constituting a principle of international law.
[223] As regards collision cases, they may be assimilated either to
relations on sea or to relations on land. Exclusive jurisdiction over a ship
is based on the idea that a ship on the high seas, which are, free to all
and are not subject to the authority of any particular [p63] nation, must
retain its exclusively national character. But in the case of a collision
between two vessels of different nationalities, it might perhaps be said
that, as regards relations between these two vessels, the principle of
exclusive jurisdiction at sea falls to the ground and that a collision
should be dealt with in accordance with the principles applying to relations
on land, since it is no longer a question of a vessel at sea proceeding
alone, the extraterritorial character of which is derived from this
circumstance, but of two vessels in contact just like two nations on land.
[224] The result, however is the same under whichever head the case of a
collision be classified, since under neither is there as yet any positively
established international law. Consequently the same is true as regards
collision cases.
[225] It follows that the exception to the territorial principle which must
be established to provide a legal sanction for the exercise of jurisdiction
by Turkey and which forms the subject of the present dispute, does not
exist. It is impossible to hold with the judgment that, over and above
positive international law, there is a kind of international law which
amounts to this: that the absence of a rule prohibiting an action suffices
to render that action permissible, for not only is it in most cases
inadmissible thus to deduce permission from the absence of a prohibition,
but furthermore in the present case one is confronted with the territorial
principle, which is definitely established, whilst the possible exception to
it � and in particular the exception which would be required to give Turkey
criminal jurisdiction in this case � are not.
[226] It follows from the foregoing that Turkey, by prosecuting Lieutenant
Demons, acted in contravention of the territorial principle as established
at the present time.
[227] It will, however, be well to remember that international law is liable
to continual variations and that there would seem to be a tendency towards a
relaxation in the strict application of this principle.
[228] Though therefore Turkey's action in this is not at present time
justified in law, on the other hand it cannot be regarded as aggressive from
a moral point of view.
[229] By establishing municipal legislation containing, amongst other
things, Article 6 of the Criminal Code, on which she based her action,
Turkey therefore has after all merely followed a tendency [p64] of modern
legislation, to which tendency, however, an important group of nations are
still opposed.
[230] It must therefore be concluded that Turkey - in this case - has acted
in contravention of the principles of international law. [p65]
Dissenting Opinion by Mr. Moore
[231] On the present judgment as a whole, the vote, as appears by the
judgment itself, stood six to six, and, the Court being equally divided, the
President gave, under Article 55 of the Statute, a casting vote, thus
causing the judgment as it stands to prevail. I was one of the dissenting
six ; but I wish at the outset to state that my dissent was based solely on
the connection of the pending case with Article 6 of the Turkish Penal Code,
which I will discuss in due course. In the judgment of the Court that there
is no rule of international law by virtue of which the penal cognizance of a
collision at sea, resulting in loss of life, belongs exclusively to the
country of the ship by or by means of which the wrong was done, I concur,
thus making for the judgment on that question, as submitted by the
compromis, a definitely ascertained majority of seven to five. But, as I
have reached my conclusions, both on the general question and on the point
on which I dissent, by a somewhat independent course of reasoning, I deem it
to be my duty to deliver a separate opinion.
[232] Under the compromis or special agreement signed at Geneva on October
12th, 1926, France and Turkey have submitted to the Permanent Court of
International justice the question of "judicial jurisdiction" (comp�tence
judiciaire) which had arisen between the two Governments as to whether
Turkey had, contrary to Article 15 of the Convention of Lausanne of July
24th, 1923, respecting her judicial establishment (�tablissement) and
jurisdiction, violated the principles of international law - and, if so,
what principles - by instituting against the officer of the watch of the
French steamer Lotus on her arrival at Constantinople, as well as against
the commander of the Turkish steamer Boz-Kourt, criminal proceedings in
pursuance of Turkish legislation in respect of a collision between the two
steamers outside Turkish territorial waters, as the result of which the
Boz-Kourt was lost and eight Turkish sailors and passengers on that vessel
lost their lives. Should the answer be in the [p66] affirmative, the Court
is asked to decide what pecuniary reparation is due to M. Demons, the
officer of the watch, �provided, according to the principles of
international law, reparation should be made in similar cases".
[233] In presenting the case to the Court, neither of the Parties furnished
a copy, authenticated or otherwise, of the decision or decisions of the
Turkish tribunals or of the proceedings, including the evidence, on which
such decision or decisions were based. The Court is not asked to review the
proceedings of the Turkish tribunals or to examine the question whether they
were in conformity with Turkish law. It is agreed that the collision took
place about six miles from Cape Sigri, or perhaps three miles outside
Turkish territorial waters, and the Court is asked to decide whether, by
reason of the fact that the place of the collision was outside such waters,
Turkey violated Article 15 of the Lausanne Convention and the principles of
international law in instituting criminal proceedings in pursuance of
Turkish legislation against the officer of the watch of the ship by which
the Turkish steamer was sunk and lives of Turkish sailors and passengers
were lost.
[234] I will consider, first, the question of the meaning and effect of
Article 15 of the Convention of Lausanne.
I. [Lausanne Convention]
[235] Article 15 of the Lausanne Convention reads as follows:
"En toutes mati�res, sous r�serve de l'article 16, les questions de
comp�tence judiciaire seront, dans les rapports entre la Turquie et les
autres Puissances contractantes, r�gl�es conform�ment aux principes du droit
international."
[Translation.]
"In all matters, under reserve of Article 16, questions of judicial
competence shall, in the relations between Turkey and the other contracting
Powers, be regulated conformably to the principles of international law."
[236] Article 16 of the Convention, to the reservation of which Article 15
is subjected, relates to personal status, and has no bearing upon the
question now before the Court. [p67]
[237] The Preamble of the Lausanne Convention recites that the contracting
States desired to regulate conformably to the modern law of nations (droit
des gens moderne) the conditions of the establishment of their respective
citizens in the territories of the other, as well as certain questions
relative to judicial competence (ainsi que certaines questions relatives �
la comp�tence judiciaire).
[238] In the Case of the French Government, and in the oral arguments made
in behalf of that Government before the Court, it has been contended that a
limited interpretation should be given to Article 15 of the Lausanne
Convention as regards the jurisdictional rights of Turkey under
international law, and this contention has been supported by citations from
the negotiations that led up to the conclusion of the Treaty, but the
passages cited do not in my opinion have the effect which it is sought to
ascribe to them. In so saying I am not to be understood as expressing an
opinion on the question whether such evidence is admissible for the purpose
of throwing light upon the interpretation of treaties. The language of
Article 15 is simple and plain and does not stand in need of interpretation
from any source outside the terms of the Treaty itself. When Article 15
speaks of "the principles of international law", it means the principles of
international law as they exist between independent and sovereign States. It
evidently was intended to recognize the right of Turkey to exercise her
judicial jurisdiction as an independent and sovereign State, except so far
as the exercise of national jurisdiction is limited by the mutual
obligations of States under the law of Nations.
II. [Violation of the Principles of International Law]
[239] I will next consider the broad question submitted under the compromis
as to whether Turkey violated the principles of international law by
instituting criminal proceedings in the present case, and it is obvious
that, under the interpretation I have given to Article 15 of the Lausanne
Convention, this question in effect is, whether an independent State is
forbidden by international law to institute criminal proceedings against the
officer of a ship of another nationality in respect of a collision on the
high seas, by which one of its own ships was sunk and lives of persons on
board were lost. [p68]
[240] The French Government maintains the affirmative in the case before the
Court. In the original protest presented by the French Charg� at Angora on
August 11th, 1926, against the criminal prosecution of M. Demons, the ground
was taken that, the collision having occurred "outside the territorial
waters and jurisdiction of Turkey, the Turkish authorities have no
competence to conduct any penal prosecution whatever against the personnel
of a French ship exclusively justiciable for what takes place on the high
seas (pour faits survenus en haute mer) by the French Courts". The protest,
therefore, declares that M. Demons was "wrongfully arrested, and that he
should be brought before the competent French court for any proceedings that
might eventually be taken against him".
[241] To the broad denial thus made of the right of an independent State, by
means of criminal proceedings against persons voluntarily within its
territory, to protect its ships and the lives of those on board outside
territorial waters, against criminal acts committed and consummated on such
ships by the personnel of a ship of another nationality, I am unable to give
my assent, and in proceeding to discuss the question, I will refer to
certain elementary principles.
[242] 1. It is an admitted principle of international law that a nation
possesses and exercises within its own territory an absolute and exclusive
jurisdiction, and that any exception to this right must be traced to the
consent of the nation, either express or implied (Schooner Exchange v.
McFaddon (1812), 7 Cranch 116, 136). The benefit of this principle equally
enures to all independent and sovereign States, and is attended with a
corresponding responsibility for what takes place within the national
territory.
[243] 2. It is an equally admitted principle that, as municipal courts, the
creatures of municipal law, derive their jurisdiction from that law,
offences committed in the territorial jurisdiction of a nation may be tried
and punished there according to the definitions and penalties of its
municipal law, which, except so far as it may be shown to be contrary to
international law, is accepted by international law as the law properly
governing the case. (Report of Mr. Bayard, Secretary of State, to the
President, case of Antonio Pelletier, January 20th, 1887, Foreign Relations
of the United States, 1887, p. 606, and the numerous authorities there
cited; [p69] Wildenhus' Case, 120, U.S. 1.) This principle is not contrary,
but is correlative, to the principle laid down in numerous decisions of
municipal courts, that international law is to be considered as forming part
of the law of the land, that it is as such to be judicially administered in
all cases to which it is applicable, and that municipal enactments ought not
to be so construed as to violate international any other construction is
possible (Chief justice Marshall, Murray v. Schooner Charming Betsey (1804),
2 Cranch, 64, 118; Sir William Scott, Le Louis (1817), 2 Dodson, 210, 239).
[244] 3. The principle of absolute and exclusive jurisdiction within the
national territory applies to foreigners as well as to citizens or
inhabitants of the country, and the foreigner can claim no exemption from
the exercise of such jurisdiction, except so far as he may be able to show
either:
(1) that he is, by reason of some special immunity, not subject to the
operation of the local law, or (2) that the local law is not in conformity
with international law. No presumption of immunity arises from the fact that
the person accused is a foreigner.
[245] 4. In conformity with the principle of the equality of independent
States, all nations have an equal right to the uninterrupted use of the
unappropriated parts of the ocean for their navigation, and no State is
authorized to interfere with the navigation of other States on the high seas
in the time of peace except in the case of piracy by law of nations or in
extraordinary cases of self-defence (Le Louis (1817), 2 Dodson, 210,
243-244).
[246] 5. It is universally admitted that a ship on the high seas is, for
jurisdictional purposes, to be considered as a part of the territory of the
country to which it belongs; and there is nothing in the law or in the
reason of the thing to show that, in the case of injury to life and property
on board a ship on the high seas, the operation of this principle differs
from its operation on land.
[247] The operation of the principle of absolute and exclusive jurisdiction
on land does not preclude the punishment by a State of an act committed
within its territory by a person at the time corporeally present in another
State. It may be said that there does not exist to-day a law-governed state
in the jurisprudence of which [p70] such a right of punishment is not
recognized. France, by her own Code, asserts in general and indefinite terms
the right to punish foreigners who, outside France, commit offences against
the "safety" of the French State. This claim might readily be found to go in
practice far beyond the jurisdictional limits of the claim of a country to
punish crimes perpetrated or consummated on board its ships on the high seas
by persons not corporeally on board such ships. Moreover, it is evident
that, if the latter claim is not admitted, the principle of territoriality,
when applied to ships on the high seas, must enure solely to the benefit of
the ship by or by means of which the crime is committed, and that, if the
Court should sanction this view, it not only would give to the principle of
territoriality a one-sided application, but would impose upon its operation
at sea a limitation to which it is not subject on land.
[248] There is nothing to show that nations have ever taken such a view. On
the contrary, in the case of what is known as piracy by law of nations,
there has been conceded a universal jurisdiction, under which the person
charged with the offence may be tried and punished by any nation into whose
jurisdiction he may come. I say "piracy by law of nations", because the
municipal laws of many States denominate and punish as "piracy" numerous
acts which do not constitute piracy by law of nations, and which therefore
are not of universal cognizance, so as to be punishable by all nations.
[249] Piracy by law of nations, in its jurisdictional aspects, is sui
generis. Though statutes may provide for its punishment, it is an offence
against the law of nations ; and as the scene of the pirate's operations is
the high seas, which it is not the right or duty of any nation to police, he
is denied the protection of the flag which he may carry, and is treated as
an outlaw, as the enemy of all mankind � hostis humani generis - whom any
nation may in the interest of all capture and punish. Wheaton defines piracy
by law of nations as murder or robbery committed on the high seas by persons
acting in defiance of all law, and acknowledging obedience to no flag
whatsoever (Wheaton's Elements, Dana's ed., 193 et seq.). Dana, 193, Note
83, commenting on this definition, remarks that, while the attempted
definitions of piracy are unsatisfactory, some being [p71] too wide and some
too narrow, the offence cannot be made to embrace "all acts of plunder and
violence .... simply because done on the high seas", since as every crime
may be committed at sea piracy "might thus be extended to the whole criminal
code". Hall says that all acts of piracy by law of nations have one thing in
common, namely, that "they are done under conditions which, render it
impossible or unfair to hold any State responsible for their commission";
that a pirate "either belongs to no State or organized political society, or
by the nature of his act he has shown his intention and his power to reject
the authority of that to which he is properly subject"; that, as the
"distinctive mark" of piracy is �independence or rejection of State or other
equivalent authority", it is not confined to "depredations or acts of
violence done animo furandi�, but that a satisfactory definition "must
expressly exclude all acts by which the authority of the State or other
political society is not openly or by implication repudiated". (Hall,
International Law, 8th ed. (1924), paragraph 81, зз. 310-311.)
[250] It is important to bear in mind the foregoing opinions of eminent
authorities as to the essential nature of piracy by law of nations,
especially for the reason that nations have shown the strongest repugnance
to extending the scope of the offence, because it carried with it not only
the principle of universal jurisdiction but also the right of visit and
search on the high seas in time of peace. For the purpose of protecting
ships on the high seas, we must therefore look to a reasonable and equal
interpretation and application of the principle of the territoriality of
ships.
[251] As affecting this principle, the case of John Anderson has been cited
and discussed in the present proceedings. It appears that Anderson, an
ordinary seaman on the American bark C.O. Whitmore, in 1870, killed the
first officer while the vessel was at sea on a voyage from New York to
Calcutta. On the arrival of the bark at Calcutta, the American
Consul-General sought to have the culprit detained, with a view to his
return to the United States for trial, but the local authorities claimed
jurisdiction of the crime on the ground that Anderson was in fact a British
subject. When advised [p72] of these facts, the Secretary of State of the
United States, in order that the case might not, as he said, be admitted "as
a precedent", instructed the Legation of the United States at London to call
attention to what he declared to be the "universally recognized" principle
that, as merchant vessels on the high seas were under the jurisdiction of
the nation to which they belonged, their national tribunals had "exclusive
jurisdiction" of common crimes on board such vessels on the high seas, and
to represent that the "nationality of the accused" could "have no more to do
with the question of jurisdiction" than if the crime had been committed
"within the geographical territorial limits" of the nation whose laws were
violated. In the drafting of these statements, or perhaps rather in the
signing of them, the fact evidently was overlooked that all nations to some
extent punish their own citizens for crimes committed within the
geographical limits of other States, and that the United States itself
admits and exercises this right; and it is not strange that the British
Government, in its reply, called attention to this fact. It turned out,
however, that the colonial authorities at Calcutta, in holding that the High
Court of that place had jurisdiction of the case, misinterpreted the
Imperial Statute under which they essayed to act, with the result that the
British Government, on the strength of an opinion of the Law Officers of the
Crown that the trial was a nullity, expressed regret that the extradition of
the offender should have been improperly refused and stated that there was
no design "to question the jurisdiction of the United States in this or any
similar case". (Foreign Relations of the United States, 1879, pp. 435, 436 ;
1880, p. 481, quoted in Moore, Digest of International Law, I, 932-935. See
also Foreign Relations, 1887, pp. 754, 770, 779.) It is evident that this
case merely shows that a diversity of nationality, as between the offender
and the place of the offence, may give rise to a concurrent jurisdiction.
This is fully recognized in international law, and does not materially
affect the question before the Court.
[252] In considering the case before the Court, it should be observed that
the question of the proper jurisdiction of the offence of murder, or
manslaughter, where the injury is inflicted in one place or country, and the
victim dies in another place or country, has been much [p73] discussed, and
that different views of it have been taken at different times, even in the
same country. In England it was once held that where a blow was struck in
one county and death ensued in another county, the criminal could not be
tried in either. This impotent result was due to the method of procedure,
under which the grand jury could know only what took place in its own
county; and in order to remedy the defect the Statute of 2 and 3 Edw. VI, c.
24, A.D. 1549, was passed, to enable the criminal to be tried in either
county. Whether, in the case of different countries, where the blow is
struck in one and the death occurs in the other, both or either can try the
person accused of murder or manslaughter, as the case may be, has been
decided differently in different jurisdictions, the decision depending upon
the view taken by the court of the relation of the death to the infliction
of the injury. But it appears to be now universally admitted that, where a
crime is committed in the territorial jurisdiction of one State as the
direct result of the act of a person at the time corporeally present in
another State, international law, by reason of the principle of constructive
presence of the offender at the place where his act took effect, does not
forbid the prosecution of the offender by the former State, should he come
within its territorial jurisdiction.
[253] This question, as applied to ships of different nationality on the
open sea, was much discussed in 1877 by the judges in the case of The Queen
v. Keyn, L.R. 2 Exch. Div. 63, commonly called the case of the Franconia ;
but, before discussing this case and other judicial decisions bearing on the
question at issue, I will make one observation on the position and effect of
the decisions of municipal or national courts in international
jurisprudence. The Statute of the Court (Article 38), after providing that
the Court shall apply (1) international conventions, whether general or
special, establishing rules expressly recognized by the States in
controversy, (2) international custom, as evidence of a general practice
accepted as law and (3) the general principles of law recognized by
civilized nations, further provides that the Court shall apply (4) "judicial
decisions and the teachings of the most highly qualified publicists of the
[p74] various nations", as a "subsidiary means for the determination of
rules of law". These directions merely conform to the well-settled rule that
international tribunals, whether permanent or temporary, sitting in judgment
between independent States, are not to treat the judgments of the courts of
one State on questions of international law as binding on other States, but,
while giving to such judgments the weight due to judicial expressions of the
view taken in the particular country, are to follow them as authority only
so far as they may be found to be in harmony with international law, the law
common to all countries.
[254] In the case of the Franconia, the captain of a German steamer bearing
that name was convicted in an English criminal court of manslaughter for
negligently sinking the British ship Strathclyde in the open sea, but within
the three-mile belt, with the consequent death by drowning of a number of
persons on board the latter ship. The case was then carried before the Court
for Crown Cases Reserved. In this Court various questions were discussed,
but only two need here be mentioned. One, which may be called the main
question, was whether the offence, committed within the three-mile belt,
could be punished under British Law as it then stood; and to this question
the Court, consisting of thirteen judges, gave, by a bare majority of seven
to six, a negative answer. By this conclusion, it must be admitted that the
long established principle, with which the great names of Holt, Hardwicke
and Mansfield were associated, that international law, in its full extent,
was part of the law of England (Triquet v. Bath (1764), 3 Burrows, 1478;
Emperor of Austria v. Day and Kossuth (1861), 2 Giffard, 628), suffered a
temporary eclipse, while the rules of municipal law governing criminal
jurisdiction received an evidently technical application. The sense of
surprise, and indeed of apprehension, with which the judgment was received
by the bar and the public, was expressed by Lord Cairns, then holding the
high office of Lord Chancellor, who, in presenting in the House of Lords the
bill by the enactment of which, under the title of the "Territorial Waters
Jurisdiction Act, 1878", the law as previously understood was reestablished,
declared that, while the question "at first sight" appeared to be and no
doubt was a question of law, [p75] "he rather thought that it was a question
of that which had been described as the first law of nature - the law of
self-preservation"; and, while remarking that, but for the case of the
Franconia, it would "hardly have been necessary to detain their lordships by
offering any observations", said that it would have been "fortunate for the
vindication of the law" if the fact had been brought to the attention of the
Court that by a warrant published in 1848, under the Customs Regulations Act
of that year, the limits of the Port of Dover were declared to extend three
miles out to sea, thus covering the waters in which the Strathclyde was
sunk. Lord Selborne, a former Lord Chancellor, supporting the view of Lord
Cairns, stated that, until he read the judgment in question, "he had not
supposed that there was any doubt among lawyers" as to the existence of the
right of sovereignty over territorial waters (Hansard, Parl. Debates, Vol.
237, 3rd series, pp. 1601-1616). Indeed, on a careful study of the case, it
is difficult to avoid the conclusion that the vote of the majority was in no
small measure determined by a powerful, but composite and somewhat
torrential opinion of eighty pages delivered by Sir Alexander Cockburn, then
Chief Justice of the King's Bench, the disturbing effects of which it was
necessary to remove in order that the majestic stream of the common law,
united with international law, might resume its even and accustomed flow.
This was done by the Act of Parliament above mentioned which declared that
the "rightful jurisdiction" of Her Majesty not only extended but had "always
extended" over her coastal waters, and made British criminal law applicable
to all offences committed on the open sea within a marine league of the
coast measured from low-water mark.
[255] The negative answer of the majority to the right of jurisdiction over
territorial waters led to the discussion, subsidiarily, of the question
whether, even though British law as such did not operate on foreign ships
within the three-mile belt, the British Courts might not uphold the
conviction on the ground that the offence was to be considered as having
been committed on a British ship and therefore within British jurisdiction.
An examination of the opinions of the judges on this point, so far as they
definitely expressed any, will show that a mere count of hands would be
altogether misleading, and that, taking together [p76] their reasons and
their conclusions, if certain principles of law, now definitely established
in England, had then been applied, the conclusions would have been
different.
[256] On the point subsidiarily discussed, Sir Robert Phillimore took the
view that, as the collision was caused by defendant's "negligence", the act
by which death was caused "was not his act, nor was it a consequence
immediate or direct of his act", and that, as he "never left the deck of his
own ship", or sent "any missile from it to the other ship, neither in will
nor in deed" could he be it �considered to have been on board the British
vessel". Had the offence been wilfully committed on the British ship, the
language and reasoning of the learned judge lead to the conclusion that he
would have voted to sustain the conviction. Lindley, J., while citing the
case of United States v. Davis, 2 Sumner, 482, in which, in a case of
manslaughter, Mr. Justice Story, of the Supreme Court of the United States,
held that the offence was committed on board the ship on which the fatal act
took effect, said he was �not satisfied on this point� but preferred to rest
his judgment on the "broader ground" of jurisdiction over territorial waters
and the liability to punishment under English law of "all persons, whether
English or foreign, who recklessly navigate those waters and thereby cause
others to lose their lives".
[257] Denman, J., citing as "good sense and sound law", Coombes�s case, 1
Lea Cr. C. 388, holding that a person standing on shore and shooting another
in the sea who died on board a ship was within the jurisdiction of the
Admiralty, declared that he saw no distinction in principle between a fatal
act committed deliberately and one committed recklessly; that the defendant
in so directing his ship "as to cause her bow to penetrate the Strathclyde"
and make a hole through which the water rushed in, committed a "negligent
act done within British jurisdiction"; and that he felt bound to make the
point clear, because it was "of vast importance to the security of British
seamen and of persons of all nations sailing on British ships, and therefore
entitled to the protection of our laws, throughout the world". Lord
Coleridge, Chief Justice of the Common [p77] Pleas, declared himself to be
"though with some doubt", of the same opinion. On the strength of Reg. v.
Armstrong,13 Cox Cr. C. 184, the case would, he said, be clear, if the
offence had been murder; but he thought that "the same rule should apply in
manslaughter which applies in murder", and that, on this point, "the
conviction was right and should be affirmed". Grove, J., having arrived at
the conclusion that as the offence, "although committed by a foreigner in a
foreign ship", was "committed dehors the vessel upon a British subject in
the Queen's peace, within the three-mile belt", the English Court had
jurisdiction, said it was unnecessary for him to give an opinion on the
question whether the offence was "committed on board of a British ship".
Amphlett, J., who also sustained the conviction on the ground of
jurisdiction over the three-mile belt, said that he could "find no
authority" for holding that a State could "punish a foreigner who at the
time of the commission of the offence was not within the territory and
consequently not owing it any allegiance", and that he therefore had, "with
some doubt", come to the conclusion that "a foreigner who committed the
offence while he was de facto outside the English territory", could not "be
made amenable to British law". Brett, J. A., thought that, as between the
two ships, the offence "was not committed on board of either", and that
"there was no jurisdiction therefore given in respect of a complete offence
committed locally within the British ship". Bramwell, J., took the purely
aqueous view that as the death, resulting from a wrongful act on a Prussian
ship, "was in the water", it could not be said to have taken place on a
British ship. Kelly, C. B., declaring that "not one single instance" could
be found "in the history of the world from the beginning of time" of the
exercise by a nation of "criminal jurisdiction over the ships of other
nations.... passing through the high seas (without casting anchor or
stopping) between one foreign port and another", held that the right to
arrest and try the defendant in England could, in his opinion, no more exist
than the right to seize and try in England any foreigner for an act done in
his own country .... which act may happen to constitute a criminal offence
by the law of England". On the other hand, Sir Alexander Cockbum, in whose
judgment Pollock, B., and Field, J., concurred, broadly taking the ground,
as Bramwell, J., had done, that, unless the defendant, when the offence was
committed, "was on British territory or on board of a British ship, he could
not be properly brought to [p78] trial under English law, in the absence of
express legislation", held that the conviction could not be sustained. He
also questioned the right of the British Government, under international
law, to enact such legislation in respect of the open sea even within the
three-mile belt. Nevertheless, he declared that, "if the defendant had
purposely run into the Strathclyde", he should, on the principle laid down
in Coombes' case, "have been prepared to hold that the killing of the
deceased was his act where the death took place, and consequently that....
the offence.... had been committed on board a British ship". Whether this
applied to "the running down of another ship through negligence" was, he
said, "a very different thing, and may, indeed, admit of serious doubt". But
he found a greater difficulty in the fact that the defendant, at the time of
the occurrence, was corporeally, not on an English ship, but on a foreign
ship, and that a person who in one jurisdiction begins a continuous act
which extends into another jurisdiction "cannot himself be at the time in
both". Protection and "allegiance" being, as he said, "correlative", he
thought that a foreigner could be made amenable to British jurisdiction only
for acts done when he was corporeally "within the area over which the
authority of British law extends". He therefore condemned and rejected, as
"remarkable for much loose reasoning and idle talk about the law of nature",
the decision in the leading American case of Adams v. The People, 1 Comstock
(N. Y.) 173, in which a citizen of the State of Ohio who, through the
instrumentality of an innocent agent, obtained money by false pretences in
the State of New York, was held to have committed the offence in the latter
State, and, being found there, was arrested, tried and punished. Mr. Justice
Lush "agreed entirely" in the conclusions and "in the main with the reasons"
of the Lord Chief Justice, but disassociated himself from the expressions of
doubt as to the right of Parliament, without violating international law, to
legislate as it might think fit for territorial waters. But none of the
learned judges questioned, on the contrary they strongly emphasized, the
full and equal applicability of the principle of national jurisdiction to
all ships on the high seas, in determining the place, where an offence is
committed. [p79]
[258] The principle laid down in Adams v. The People is now definitely
recognized and established in English law. The first step in this direction
was taken in 1884 in the case of a person who, by means of false pretences,
contained in letters written and sent by him from Southampton in England to
certain persons carrying on business in Germany, had by that means induced
persons carrying on business in Germany to part with certain goods, some of
which were delivered to the prisoner's order at places in Germany and some
at places in England. It was contended on the part of the prisoner (1) that
the crime was committed in England by posting the letters there and (2)
that, as the preamble of the extradition treaty between Great Britain and
Germany referred to "fugitives from justice� the prisoner could not be said
to be a fugitive from Germany, as he had committed the crime in England and
had not been in Germany. The Court, however, held unanimously, although with
some doubt on the part of one of the judges on the second point, that the
crime was committed in Germany and that the prisoner was a fugitive from
justice within the definition of that term given in Section 26 of the
Extradition Act of 1870 and in the treaty (Reg. v. Nillins, 1884, 53, L. J.
157). This decision, perhaps by reason of its local novelty, was the subject
of some adverse criticism (Clarke, on Extradition, 3rd edition, p. 225), but
it was reaffirmed and followed only four years ago in another case in which
the prisoner was charged with obtaining goods by false pretences in
Switzerland, the pretences having been made in Switzerland by a partner at
the procuration of the prisoner in England. The prisoner was not physically
in Switzerland at the time when the pretences were made, nor had he been
there since. He was arrested in England. The case decided by Lord Hewart,
Lord Chief Justice, and Justices Avory and Sankey. The Lord Chief Justice,
after expressing the opinion that the words of the treaty and the statute
were [p80] �equally satisfied whether the man had physically been present in
that other country or not, if he committed the crime there", said: "I do not
differ in the smallest degree from the decision in Reg. v. Nillins." Mr.
justice Avory said: "I think we are bound by Reg. v .Nillins, but in any
case I am prepared to follow it, notwithstanding the criticism to which it
has been subjected." Mr. Justice Sankey took the same view, saying: "I think
we are bound by that decision, and moreover, in my view it is correct."
[259] Had the principle laid down in Adams v. The People and since
established in England by Reg. v. Nillins and R. v. Godfrey been established
there prior to 1877, it is to be inferred that there would have been in the
case of The Queen v. Keyn a substantial majority in favour of the
jurisdiction in the case of death resulting from a wilful collision and
probably also in that of death resulting from a collision caused by criminal
negligence. In connection with the doubts expressed by some of the judges in
The Queen v. Keyn as to whether a ship could properly be regarded as an
instrumentality for the commission of an offence, it will be observed that
the Territorial Waters Jurisdiction Act, in defining an "offence" by a
"person", expressly includes an act "committed on board or by means of a
foreign ship", and defines an "offence" as meaning "an act, neglect or
default of such a description as would, if committed within the body of a
county in England, be punishable on indictment according to the law of
England for the time being in force".
[260] That this principle embraces, not only acts done directly by means of
the ship itself, but also acts done by means of boats belonging to the ship,
was definitely held by the British Government in the well-known case of the
British Columblan schooner Araunah, seized by the Russian authorities in
1888 outside territorial waters for the unlicensed taking of seals within
such waters. The schooner was seized, probably six or more miles from the
nearest land, by a steamer belonging to the Alaska Commercial Company, an
American Corporation, but flying the Russian flag and having on board the
superintendent of the Commander Islands, and was taken, with her officers
and crew, to Petropau[p81]lovski, where she was condemned on the ground
that, even if she was not herself within Russian territorial waters, she was
taking seals there by means of her boats, which were found fishing in such
waters. Lord Salisbury, then Secretary for Foreign Affairs, after consulting
the Law Officers of the Crown, instructed the British Ambassador at St.
Petersburg that Her Majesty's Government were "of the opinion that, even if
the Araunah at the time of the seizure was herself outside the three-mile
limit, the fact that she was by means of her boats carrying on fishing
within Russian waters without the prescribed license warranted her seizure
and confiscation according to the provisions of the municipal law regulating
the use of those waters", and that they did not, as at present advised,
"propose to address any further representation to the Russian Government in
regard to this case". (State Papers, vol. 92 pp. 1043-1059). This precedent
was followed In subsequent cases of a similar kind. (Parl. Paper, Russia,
No. 3, 1893.)
[261] Recurring to the jurisdictional limitation sought to be based on the
distinction between murder and manslaughter, I will cite a leading and
pertinent decision which, although given nearly sixty years ago, has not
been internationally contested. I refer to the case of Commonwealth v.
Macloon et al., 101 Mass., 1, decided by the Supreme Judicial Court of
Massachusetts in 1869. In this case the defendants, one a citizen of the
State of Maine and the other a British subject, were convicted in the
Superior Court of Suffolk County, Massachusetts, of the manslaughter of a
man who died in that county, in consequence of injuries inflicted on him by
the defendants in a British merchant ship on the high seas. The defendants
were tried and convicted under a Massachusetts Statute which provided that
"if a mortal wound is given, or other violence or injury inflicted, or
poison administered on the high seas, or on land either within or without
the limits of this State, by means whereof death ensues in any county
thereof, such offence may be prosecuted and punished in the county where the
death happens". (Gen. Stats., c. 171, par. 19) The decision of the Supreme
Judicial Court was delivered by Gray, J., later a Justice of the Supreme
Court of the United States, who, speaking for the Court, stated that the
principal question in the case was "that of jurisdiction, which touches the
sovereign power of the Commonwealth to bring [p82] to justice the murderers
of those who die within its borders". It was not, he said, pretended that a
foreigner could be punished in Massachusetts for an act done by him
elsewhere; but the Court held that, where a mortal blow was given outside
and death ensued within the State, the offender committed a crime there. He
further said: "Criminal homicide consists in the unlawful taking by one
human being of the life of another in such a manner that he dies within a
year and a day from the time of the giving of the mortal wound. If committed
with malice, express or implied by law, it is murder; if without malice, it
is manslaughter .... The unlawful intent with which the wound is made or the
poison administered attends and qualifies the act until its final result. No
repentance or change of purpose, after inflicting the injury or setting in
motion the force by means of which it is inflicted, will excuse the
criminal. If his unlawful act is the efficient cause of the mortal injury,
his personal presence at the time of its beginning, its continuance, or its
result is not essential."
[262] In reality. the view that national jurisdiction, in the case of a
foreigner not corporeally present, depends on the will of the criminal to
commit his act within the particular jurisdiction is opposed to authority
and is obsolete and obviously fallacious, in the case of manslaughter as
well as in other cases. In the case of criminal homicide, the element of
will affects the question of the degree of the offence and the penalty to be
imposed rather than the question of the place where the offence is to be
considered as having been committed. Manslaughter, as has been well said,
may come within a hair's breadth of murder; it may be a nice and difficult
question to decide, depending upon the presence or absence of �malice
prepense�, on considerations of recklessness, or of negligence, gross or
slight, all of which affect the quality of the act, but not the place of its
consummation. It is a notorious fact that, at common law, a defendant
indicted for a certain offence may be convicted of a cognate offence of a
less aggravated nature, if the words of the indictment are wide enough to
cover the latter, so that., on an indictment for murder, a defendant may be
convicted of manslaughter. (Halsbury's Laws of England (1909) Vol. 9, p.
971, citing Mackalley's case (1611), 9 Coke's Reports, 65 a., 67 b.) [p83]
And yet, on the theory that jurisdiction depends upon the will of the
criminal as to the place at which his act is to take effect, rather than
upon the direct result of his criminal activity, a person who, firing across
a boundary, killed his victim would, though validly indicted for murder in
the place where the shot took effect, be entitled to his discharge on
jurisdictional grounds if the jury should find that the killing was
negligent. Such a theory would lead to other astonishing consequences. For
instance, a person who placed an infernal machine in the pocket or in the
automobile of a person whom he intended to injure would be exempt from
punishment in the place where the injury occurred if his victim should,
before the explosion took place, unexpectedly cross an international
boundary. The fact may be mentioned that the master of the Araunah alleged,
in exculpation of the ship, that the small boats unintentionally drifted
into Russian territorial waters in a fog. It may be that the British
Government did not believe him, but, had his assertion been credited, it is
most improbable that that Government would have advanced the contention that
the schooner was exempt from seizure because her boats were fishing in
Russian waters negligently.
[263] The case of the Costa Rica Packet, so strongly urged in support of the
claim of exclusive jurisdiction of the country to which an offending ship
belongs, will upon examination be found to be valueless as an authority for
that contention. The Costa Rica Packet, a British whaler, belonging to
Sydney, New South Wales, sighted on January 24th, 1888, when perhaps 30
miles from the nearest land, what at first appeared to be a log, but was
afterwards found to be a small water-logged derelict prauw (native Malayan
boat) of about a ton's burden. Two boats were put off, which, finding goods
aboard the prauw, towed it alongside the ship, and there were then
transferred from the prauw to the deck of the Costa Rica Packet 10 cases of
gin, 3 cases of brandy, and a can of kerosene oil. The prauw was then cast
loose, being of no value. The gin and brandy were damaged by sea water; but
the ship's crew, by indulging in the admixture, soon became drunk and got to
fighting, and the spirits were by order of the captain thrown overboard,
except a small quantity which the crew secreted. During the next four [p84]
years the ship from time to time visited Dutch East Indian ports; but in
November, 1891, at Ternate, where the ship had put in for provisions, the
captain was arrested and sent to Macassar, 1000 miles away, on a charge of
theft, in having seized the prauw and maliciously appropriated the goods in
it. The warrant charged that the alleged criminal act was committed not more
than three miles from land, but the evidence showed that it was at least
fifteen or twenty. The captain was held in prison at Macassar until November
28th, 1891, when he was released through the intercession of the governor of
the Straits Settlements. The British Government preferred a diplomatic claim
for damages, and, after a prolonged discussion, the two Governments signed
on May 16th, i895, a convention of arbitration by which they agreed to
invite the government of a third Power to select the arbitrator. The
selection eventually fell to the Russian Government, which named as
arbitrator M. F. de Martens, counsellor to the Russian Foreign Office. In
his award, dated February 13th (25th), 1897, M. de Martens, after reciting
that the prauw, when taken possession of, not only was "floating derelict at
sea" but was "incontrovertibly outside the territorial waters of the Dutch
Indies"; that "the appropriation of the cargo of the aforesaid prauw ....
having taken place on the high seas, was only justiciable by the English
tribunals, and in nowise by the Dutch tribunals"; that "even the identity of
the above-mentioned derelict" with the prauw claimed by a Dutch subject was
"nowise proved", and that all the evidence went to prove "the absence of any
real cause for arresting" the captain of the Costa Rica Packet, allowed
damages for his arrest and detention, and for the consequent losses of the
ship's owners, officers and crew. In his recitals the arbitrator also stated
that "the right of sovereignty of the State over territorial waters is
determined by the range of cannon measured from low-water mark", and that
"on the high seas even merchant vessels constitute detached, portions of the
territory of the State whose flag they bear, and, consequently, are only
justiciable by their respective national authorities for acts committed on
the high seas". As to the first recital, it may be observed that the
arbitrator's statement regarding the extent of territorial waters, if it
meant the range of cannon in 1897, was not in conformity with international
law as then or as now existing. The second recital may be accepted as
affirming the general'principle of the quasi-territorial jurisdiction of
[p85] nations over their ships at sea; but it is also to be taken in
connection with the arbitrator's other recital that the prauw, when found,
was "derelict". The word "derelict", in maritime law, means "a boat or
vessel found entirely deserted or abandoned on the sea, without hope or
intention of recovery or return by the master or crew, whether resulting
from wreck, accident, necessity, or voluntary abandonment". (Black's Law
Dictionary, 2nd ed., 1910, s. v. "Derelict". See, to the same effect,
Bouvier's Law Dictionary and the cases there cited, and the Oxford
Dictionary.)
[264] Without regard to any question as to the proper disposition of goods
found derelict at sea, and the right of the owner to claim them on payment
of salvage (The King v. Properly Derelic (1825), 1 Haggard's Adm. 383), it
might not be unreasonable to maintain that, on the facts as the arbitrator
declared them to be, the principle of territoriality and national
jurisdiction could no more be invoked for the protection of the derelict
prauw than it could have been for the floating log which the prauw was at
first supposed to be; but, in order to determine the weight to be given to
what the arbitrator said as to the operation of the principle of
territoriality at sea it is not necessary to decide that question. The prauw
either was to be treated as a subject for the application of the principle
of national jurisdiction, or it was not to be so treated. If the arbitrator
considered the principle to be applicable, he violated it in holding that
the persons, no matter from what quarter they came, who boarded the prauw,
took possession of her and transferred her cargo to the ship, did not in so
doing place themselves under the dominion of Dutch laws, and his ruling on
this point cannot be accepted as law. If, on the other hand, he did not
consider the principle of territoriality to be applicable to the prauw,
there was no room for jurisdictional competition, and his decision has no
bearing on the question now before the Court. [p86]
[265] I will next consider three cases discussed in the documents before the
Court and mentioned in its judgment. The first is that of the collision
between the ships Ange-Schiaffino and Gironde, in 1904, tried by the French
courts in Algiers. The collision took place 7 miles off the Algerian coast,
and the Gironde was sunk with loss of life. The Correctional Court at B�ne,
by which the two captains, one of whom was of Italian origin, were jointly
tried for involuntary homicide, overruled an exception to the jurisdiction
of the Court based on the ground that the collision occurred outside
territorial waters and this decision was affirmed on appeal by the Cour
d'Alger. In the Turkish M�moire, the case is cited as relating to ships of
different nationality, one French, the other foreign; but in a letter from
the procureur g�n�ral near the Cour d'Alger of May 6th, 1927, addressed to
the Agent of the French Government, it is stated that both ships were
French. The case therefore need not be further considered in this place.
(See Turkish M�moire, pp. 15-17, 22-23, citing Clunet, Journal du Droit
international priv�, vol. 36 (1909), p. 735 ; French Contre- M�moire, pp.
13, 15, 42.)
[266] The second case is that of the ships Ortigia and Oncle-Joseph, one
Italian and the other French, which collided on the high seas in 1880. The
0ncle-Joseph was sunk, with much loss of life. The survivers from the
Oncle-Joseph, including the captain, were taken on the Ortigia to Leghorn,
where the two captains were jointly prosecuted for want of skill and failure
to observe the rules of navigation. The Court at Leghorn, finding that the
collision was due to the fault of the captain of the French ship, condemned
him to four months� imprisonment, two months' suspension of rank, and
payment of damages. This decision was affirmed on appeal by the Court of
Florence in 1882. Subsequently, however, the French Court of Aix declined to
enforce the judgment in France on the ground that, the offence having been
committed on the high seas, the captain of the 0ncle-Joseph was not
justiciable by the tribunal at Leghorn, and that, besides, the article of
the Italian Code on which the prosecution was based was exclusively
applicable to Italian ships and sailors. It does not appear that the case
gave rise to diplomatic correspondence. (See Turkish M�moire, pp. 16-17,
citing Clunet, 1885, p. 287; French M�moire, citing Clunet, [p87] 1885, p.
286, and Sirey, 1887, 2, 217; French Contre- M�moire, pp. 16, 21, 38.)
[267] In the third case, a tender, in tow of the German steamer Ekbatana, on
the night of December 14th-15th, 1912, ran into the Belgian lightship
West-Hinder, moored on the high seas about 19 miles from the Belgian coast.
The West-Hinder was sunk, and her crew of ten men perished. The Correctional
Court at Bruges entertained a criminal prosecution of the captain of the
German ship, on the charge of having negligently caused the death of the
crew of the West-Hinder. The case does not appear to have given rise to any
diplomatic representations. The Agent of the French Government, however,
lays emphasis upon the fact that the Belgian court in its judgment refers to
the lightship as having been installed by the Belgian State in the interest
of the safety of navigation, with due notice abroad, and as having been
entitled, both as an extension of Belgian territory and as a ship engaged in
the public service of the State, to special protection and immunities. For
this reason the Agent of the French Government maintains that the case was
not altogether comparable with that of a Belgian commercial vessel from the
point of view of the competence of the Belgian Government to deal with facts
affecting it. (See Turkish M�moire, pp. 18-21, citing Clunet, 1912, p. 1328;
French Contre- M�moire, pp. 17-21, with additional citations.) But while it
is undoubtedly true that public ships enjoy, not only at sea but also in
foreign ports, jurisdictional immunities to which a merchant vessel is not
entitled, it is necessary to point out that those immunities are not
considered as conferring on such ships, or on the countries to which they
belong, jurisdiction over the vessels, public or private, of other nations
on the high seas.
[268] In the discussion of questions similar to that now before the Court,
considerations of convenience have been invoked on the one side and on the
other. This was so in the case of The Queen v. Keyn, where those who were
against sustaining the conviction strongly urged the inconveniences that
might ensue from holding the entire body of English penal law to be
applicable to foreign ships in territorial waters; and the force of the
argument was recognized in the clause of the Territorial Waters Jurisdiction
Act, requiring, in the case of a foreign prisoner a certificate by a
Principal [p88] Secretary of State that in his opinion the trial of the
prisoner is expedient. Immense quantities of shipping, bound from one
foreign port to another, daily pass, on their regular course, through, the
territorial waters of third States; and yet international law permits such
third States to enforce their municipal law upon such shipping. On the other
hand, in the case of many countries with long coast lines, a vast tonnage in
the coastwise trade daily passes, in regular course, in and out of the
three-mile belt ; and is it to be said that, save in the extreme and
exceptional case of piracy by law of nations, international law forbids the
country, to which this coastwise shipping belongs, to take cognizance of
criminal acts done in or upon it by or from foreign ships, when it is
temporarily outside territorial waters, should the offenders afterwards
voluntarily come within such waters? A collision may result from chance,
from negligence, or from a wilful act. By the rules of navigation a ship is
required to avoid a collision if it can do so, even though the other ship is
faultily navigated ; and a navigating officer who, from anger or other
cause, violated this rule, would, I assume, be chargeable with something
more than negligence. The importance of such considerations is not lessened
by the increase in the number and size of the ships and the vast increase in
the number of persons daily transported at sea. Nor is the advantage of a
trial near the scene of a disaster, with witnesses on both sides available,
over a proceeding in a distant place, perhaps with the witnesses on only one
side present, to be overlooked. More than a hundred years ago a great judge,
of unsurpassed experience in Admiralty cases, commented upon the "great
discordance of evidence" frequently existing in such cases as to the person
at fault, and upon the fact that the testimony of the witnesses was �apt to
be discoloured by their feelings and the interest which they take in the
success of the cause". (Sir William Scott, case of the Woodrop Sims (1815),
2 Dodson, 83.)
[269] It is well settled that a State is bound to use due diligence to
prevent the commission within its dominions of criminal acts against another
nation or its people (United States v. Arjona [p89] (1887), 120 U. S. 479),
and if the principle of territorial jurisdiction, as it exists in respect of
ships on the high seas, has a special and one-sided operation in favour of
the nation to which the offending ship belongs, one might expect to find a
corresponding special liability. But this is not the case. In the
negotiation of the Treaty concluded between the United States and Great
Britain on February 29th, 1892, for the arbitration of the fur-seal
question, the United States proposed to empower the arbitrators to award
compensation not only to British subjects whose vessels should be found to
have been unwarrantably seized, but also to the United States, for any
injuries resulting to the United States, or its lessees of the seal islands,
by reason of the killing of seals in Behring Sea, outside territorial
waters, "by persons acting under the protection of the British flag", if
such killing should "be found to have been an infraction of the rights of
the United States". (Blue Book, "United States, No. 3 (1892)", 72.) To this
proposal the British Government objected on the ground that it appeared "to
imply an admission on their part of a doctrine respecting the liability of
governments for the acts of their nationals or other persons sailing under
their flag on the high seas, which is not warranted by international law,
and to which they cannot subscribe". The claim was not pressed, the
discussion of it ending with the insertion in the treaty of a stipulation to
the effect that, the Parties having been unable to agree on the point,
either Party might submit to the tribunal "any question of fact involved in
said claims, and ask for a finding thereon, the question of the liability of
either Government upon the fact found to be the subject of further
negotiation�.
III. [Turkish Penal Code]
[270] I now come to Article 6 of the Turkish Penal Code. The judgment of the
Court expresses no opinion on the question whether the provisions of that
article are in conformity with the rules of inter[p90]national law. This
abstention appears to be based (1) upon the fact that the article is not
mentioned in the compromis, and (2) on the view that an error in the choice
of the legal provision applicable to the case was essentially a matter of
internal law which could affect international law only so far as a
conventional rule or the possibility of a denial of justice should enter
into account.
[271] The compromis asks the Court to find whether Turkey violated
international law "by instituting .... joint criminal proceedings in
pursuance of Turkish legislation" (en vertu de la I�gislation turque)
against the watch officer of the Lotus. No doubt this may be so interpreted
as to mean that the Court is asked solely to say whether Turkey was
precluded from taking any criminal proceedings whatever against the officer.
But the compromis speaks of proceedings under Turkish legislation, and,
although the Court has not been furnished with a copy of the actual
proceedings, Article 6 is, as an integral part of them, before the Court in
the documents submitted by the Parties, and forms the subject of much of
their arguments. This being so, I am unable to concur in the view that the
question of the international validity of the article is not before the
Court under the terms of the compromtis.
[272] Article 6 reads as follows:
[Translation.]
"Any foreigner who, apart from the cases contemplated by Article 4, commits
an offence abroad to the prejudice of Turkey or of a Turkish subject, for
which offence Turkish law prescribes a penalty involving loss of freedom for
a minimum period of not less than one year, shall be punished in accordance
with the Turkish Penal Code provided that he is arrested in Turkey. The
penalty shall however be reduced by one third and instead of the death
penalty twenty years of penal servitude shall be awarded.
"Nevertheless, in such cases, the prosecution will only be instituted at the
request of the Minister of Justice or on the complaint of the injured Party.
"If the offence committed injures another foreigner, the guilty person shall
be punished at the request of the Minister of Justice, in accordance with
the provisions set out in the first paragraph of this article, provided
however that: [p91]
"(1) the article in question is one for which Turkish law prescribes a
penalty involving loss of freedom for a minimum period of three years;
"(2) there is no extradition treaty, or that extradition has not been
accepted either by the government of the locality where the guilty person
has committed the offence or by the government of his own country."
[273] The Court, not being empowered by the compromis to inquire into the
regularity of the proceedings under Turkish law, or into the question of the
applicability of the terms of Article 6 to the facts in the case, must take
the article and its jurisdictional claim simply as they stand. The substance
of the jurisdictional claim is that Turkey has a right to try and punish
foreigners for acts committed in foreign countries not only against Turkey
herself, but also against Turks, should such foreigners afterwards be found
in Turkish territory. In saying that Turkey makes this claim, I intend
nothing invidious. The same claim is made by a number of other countries,
and it is from the codes of these countries that Article6 was taken. But,
without regard to the source from which the claim was derived, I cannot
escape the conclusion that it is contrary to well-settled principles of
international law.
[274] Without entering at this time into an elaborate exposition of the
reasons on which this conclusion is based, I will quote from Hall, an
eminent authority on international law, the following passage:
"The municipal law of the larger number of European countries enables the
tribunals of the State to take cognizance of crimes committed by foreigners
in foreign jurisdiction. Sometimes their competence is limited to cases in
which the crime has been directed against the safety or high prerogatives of
the State inflicting the punishment, but it is sometimes extended over a
greater or less number of crimes directed against individuals ... Whether
laws of this nature are good internationally; whether, in other words, they
can be enforced adversely to a State which may choose to object to their
exercise, appears, to say the least, to be eminently doubtful. It is indeed
difficult to see on what they can be supported. It would seem that their
theoretical justification, as against an objecting country, if any is
alleged at all, must be that the exclusive [p92] territorial jurisdiction of
a State gives complete control over all foreigners, not protected by special
immunities, while they remain on its soil. But to assert that this right of
jurisdiction covers acts done before the arrival of the foreign subjects in
the country is in reality to set up a claim to concurrent jurisdiction with
other States as to acts done within them, and so to destroy the very
principle of exclusive territorial jurisdiction to which the alleged right
must appeal for support." (Hall, International Law, 8th edition (1924),
paragraph 62, pp. 261, 263, citing Westlake (Peace, 261-263), Appendices (1,
paragraph 147), Fauchille, paragraphs 264, 267.)
[275] It will be observed that Hall founds his disapproval of the claim
mainly on its assertion by one nation of a right of concurrent jurisdiction
over the territory of other nations. This claim is defended by its
advocates, and has accordingly been defended before the Court, on what is
called the "protective" principle; and the countries by which the claim has
been espoused are said to have adopted the "system of protection".
[276] What, we may ask, is this system? In substance, it means that the
citizen of one country, when he visits another country, takes with him for
his "protection" the law of his own country and subjects those with whom he
comes into contact to the operation of that law. In this way an inhabitant
of a great commercial city, in which foreigners congregate, may in the
course of an hour unconsciously fall under the operation of a number of
foreign criminal codes. This is by no means a fanciful supposition; it is
merely an illustration of what is daily occurring, if the "protective"
principle is admissible. It is evident that this claim is at variance not
only with the principle of the exclusive jurisdiction of a State over its
own territory, but also with the equally well-settled principle that a
person visiting a foreign country, far from radiating for his protection the
jurisdiction of his own country, falls under the dominion of the local law
and, except so far as his government may diplomatically intervene in case of
a denial of justice, must look to that law for his protection.
[277] No one disputes the right of a State to subject its citizens abroad to
the operations of its own penal laws, if it sees fit to do so. This concerns
simply the citizen and his own government, and no other [p93] government can
properly interfere. But the case is fundamentally different where a country
claims either that its penal laws apply to other countries and to what takes
place wholly within such countries or, if it does not claim this, that it
may punish foreigners for alleged violations, even in their own country, of
laws to which they were not subject.
[278] In the discussions of the present case, prominence has been given to
the case of the editor Cutting, a citizen of the United States, whose
release was demanded when he was prosecuted in Mexico, under a statute
precisely similar in terms to Article 6 of the Turkish Penal Code, for a
libel published in the United States to the detriment of a Mexican. It has
been intimated that this case was "political", but an examination of the
public record (Foreign Relations of the United States, 1887, p. 751 ;
idem,1888, 11, pp. 1114, 1180) shows that it was discussed by both
Governments on purely legal grounds, although in the decision an appeal, by
which the prisoner was discharged from custody, his release was justified on
grounds of public interest. In its representations to the Mexican
Government, the Government of the United States, while maintaining that
foreigners could not be "protected in the United States by their national
laws", and that the Mexican courts might not, without violating
international law, "try a citizen of the United States for an offence
committed and consummated in his own country, merely because the person
offended happened to be a Mexican", pointed out that it nowhere appeared
that the alleged libel "was ever circulated in Mexico so as to constitute
the crime of defamation under the Mexican law�, or "that any copies were
actually found .... in Mexico". The United States thus carefully limited its
protest to offences "committed and consummated" within its territory ; and,
in conformity with this view, it was agreed in the extradition treaty
between the two countries of February 22nd, 1889, that except in the case of
"embezzlement or criminal malversation of public funds committed within the
jurisdiction of either Party by public officers or depositaries", neither
Party would "assume jurisdiction in the punishment of crimes committed
exclusively within the territory of the other". (Moore, Digest of
International Law, 11, pp. 233, 242.) [p94]
[279] For the reasons which I have stated, I am of opinion that the criminal
proceedings in the case now before the Court, so far as they rested on
Article 6 of the Turkish Penal Code, were in conflict with the following
principles of international law:
(1) that the jurisdiction of a State over the national territory is
exclusive;
(2) that foreigners visiting a country are subject to the local law, and
must look to the courts of that country for their judicial protection;
(3) that a State cannot rightfully assume to punish foreigners for alleged
infractions of laws to which they were not, at the time of the alleged
offence, in any wise subject.
(Signed)
B. Moore. [p95]
Dissenting Opinion by M. Altamira
[Translation]
[280] I regret that I am unable, to agree with the foregoing judgment. I
therefore consider it my duty both to the Court and to my conscience to
state the reasons which prevent me from subscribing not only to the
operative part but also to several of the grounds on which it is based.
I. [Principles of International Law]
[281] It is certain that amongst the most widely recognized principles of
international law are the principles that the jurisdiction of a State is
territorial in character and that in respect of its nationals a State has
preferential, if not sole jurisdiction. It is also certain that, arising out
of the very natural combination of these two principles, persistent and well
known efforts have been made to extend their field of application beyond the
purely geographical conception of territorial limits, by causing them as it
were to accompany, as a protecting shadow, the persons of a State's
nationals on their travels, in so far as has been possible under the
material conditions of international intercourse.
[282] Therefore, exceptions to these principles, in so far as they allow a
foreign jurisdiction to be exercised over the citizens of a given State,
have only been recognized in extreme cases where it has been absolutely
necessary or inevitable. This applies for instance to the case of a general
need of mankind or of a common danger (the slave trade, piracy, etc.), and
also to the want of conformity with the territorial principle itself which
would ensue were the jurisdiction of other States not allowed to operate in
the case of foreigners who having entered the territory of such States in
order to reside there for a certain period and carry on their occupations
there commit acts bringing them within the arm of the law. But directly one
of these fundamental reasons fails to apply, the principle of the
territorial jurisdiction of the country of origin recovers its force. That
is why I should have much difficulty in recognizing as well founded an
attempt for instance on the part of a court, on the basis of a municipal
law, to exercise jurisdiction over a foreigner, who resided [p96] on board a
vessel flying the flag of his own country and did not land with the
intention of remaining ashore, and that for an alleged offence committed
outside the territory of the country which claimed to exercise jurisdiction
over him. Such an extension of the exceptions hitherto accepted in respect
of the principle of territorial and national jurisdiction appears to me to
be altogether unwarranted.
[283] There can be no doubt that exceptions of this nature must necessarily
be exceptions recognized by international law, that is to say, they must
have their origin in relations between sovereign States, either in the form
of a treaty or of international custom. It is not without interest to
observe here that a custom must by its nature be positive in character and
that consequently it is impossible to classify as a custom the fact that in
a certain respect there is a total absence of the recurrence of more or less
numerous precedents which are generally regarded as necessary to establish a
custom. The rule which it is desired to discover must be positively
supported by the acts which have occurred, and, of course, as regards
international law these acts must also be international in character.
[284] It follows that the municipal legislation of different countries, as
it does not by its nature belong to the domain of international law, is not
capable of creating an international custom, still less a law. Of course it
may touch and in fact does in several respects touch upon legal questions
which affect or may affect other States or foreign subjects, and thus it
encroaches upon a domain which is practically speaking international. But it
cannot simply on this ground be held to possess a character placing it on
the same plane as conventions or international customs.
[285] It may however be of considerable value in showing what in actual fact
is the opinion of States as concerns certain international questions in
regard to which States have not yet committed themselves by means of a
convention prohibiting them from enacting a municipal law in conflict with
the obligation assumed, or in regard to which no custom recognized by States
has so far been built up. It is only in this way that it is legitimate to
use municipal legislation and to apply it for the purposes of a question
like that under consideration. It is of no value for any other purpose in
connection with international law, - unless it has been duly ascertained
that general agreement prevails, - because it only expresses the wish or
[p97] intention of one State in the form of a municipal rule representing
the opinion of a greater or smaller majority of the political community
constituting a nation. For these reasons it is of particular interest to
ascertain whether, - in cases where it has been sought, contrary to a
general principle of international law not established by convention or
custom, to impose such legislation in concrete form upon other States,- the
attempt, whether simply intended or actually carried out, has encountered
consent or protest on the part of the consensus of opinion in the country
affected. Leaving aside all difficulties of this kind which are so general
in character as to be too remote from the category of questions to which the
collision case under consideration belongs and which would therefore be of
little value as a basis for the solution of the particular question before
us, I will begin by saying that, within the limits of the precedents
considered by the Parties, what I find in general is either that there has
been protest against the exercise of any jurisdiction other than that of the
nation of the person alleged to be responsible or of the flag under which he
sails, or else that this principle of the flag has been applied.
[286] An analysis of these precedents produces the following result:
I. Cases where governments as such have protested
1. Cutting's case. - 2. L�on XIII.
II. Cases where the protest has been made by the local courts or authorities
of the State of the person convicted.
1. Ortigia- Oncle-Joseph. - 2.Hamburg.
III. Cases where a State, through either its government or a tribunal, has
recognized in the particular case the prior claim of the jurisdiction of the
flag of another State.
1. Costa Rica Packet. - 2. Franconia. - 3. Cr�ole. - 4. The Bordeaux
judgment. - 5. The Santiago de Chile judgment. - 6. The judgment of the
Court of Appeal of Turin (1903).
[287] In spite of the differences in character which these ten cases
represent from other points of view, it will be found that they all agree in
that they invoke, or recognize (which is the same thing), the prior or
exclusive claim of the law of the flag as regards certain acts done on board
a ship. It is only for this reason that they are cited here ; and the very
diversity of the questions of jurisdiction [p98] which they concern only
serves to affirm the importance of the principle which unites them. There
are certainly cases with a contrary tendency such as the Bruges or
West-Hinder case, but of all those cited the majority are certainly in
favour of the principle indicated above.
[288] It must also be admitted that there are only two cases where
governments themselves have protested; but I do not see that it is
necessary, for the purposes of the present question, that governments should
always be the mouthpiece for the expression of a legal opinion prevailing in
a country. The small number of protests by governments can in my opinion be
easily explained. It is due firstly to the infrequency of the occasions on
which encroachments upon jurisdiction have actually occurred, judging from
the cases known and cited by the Parties. It is due above all to the
frequency with which governments (and especially those of some countries)
have shown themselves insensible to the injury sustained by their subjects
as a result of occurrences abroad. Almost every country has a long and
unhappy experience in this connection. Either from indolence or from anxiety
to avoid diplomatic complications or for other reasons, political rather
than legal, governments often refrain from openly protecting their subjects
and only make up their minds to do so when things have developed into a
public scandal, or when the injured persons have made great and persistent
efforts to attract the attention of political circles in their country.
Failing such intervention by governments, sometimes municipal courts have
intervened and certainly no one will refuse to recognize these as officially
representing the legal opinion of their country.
[289] Again, some of the cases cited under No. III, though in a form other
than that of a protest for which there was no occasion, have the same
essential significance as those set out under No. I.
[290] In view of the foregoing, I have a very strong hesitation to admit, as
a matter of course, and as subject to no doubt, exceptions to the
territorial principle (in the application of that principle to the present
case), exceptions which it is sought, simply by the will of one State, to
extend beyond the limits of those hitherto expressly agreed to in
conventions, or tacitly established by means of the recurrence of certain
clearly defined and undisputed cases in the majority of systems of municipal
law. [p99]
[291] In regard to criminal law in general, it is easy to observe that in
municipal law, with the exception of that of a very small number of States,
jurisdiction over foreigners for offences committed abroad has always been
very limited: It has either (1) been confined to certain categories of
offences ; or (2) been limited, when the scope of the exception has been
wider, by special conditions under which jurisdiction must be exercised and
which very much limit its effects. It is but seldom that, on this
hypothesis, jurisdiction over foreigners in respect of offences committed
abroad is claimed in general terms without even formal limits or with limits
such as that represented b a minimum penalty, which only very remotely
correspond to the question of jurisdiction arising under international law.
[292] As regards the categories of disputes contemplated by the exceptions
and to which I alluded just now, it may readily be observed that for the
most part these comprise offences against the State itself. Again, it seems
to me that even when an exception to the territorial principle has been
extended to cover offences against individuals by application of the
principle of the protection of nationals (which is the principle which is
most likely to come into conflict with the territorial principle), the
municipal legislation in question has been visibly designed to cover
offences properly so-called - i.e. those in which evil intent and perversity
constitute the outstanding characteristic - and especially more serious
offences constituting crimes (as regards offences of violence), as well as
certain offences of a financial character in which the circumstances
characteristic of the category of offences producing their effects at a
distance (d�lits � distance) are present. I cannot believe that the
legislations of which I am now speaking have ever been really intended to
apply to every kind of offence, even the smallest and most unintentional.
[293] I fully realize that a limit as regards the seriousness of offences
has been fixed in the case of some of the most advanced legislations, by
means of stating the minimum penalty applicable to the offences
contemplated. But it is very rare to find in such legislations at the same
time a limit fixing the lowest penalty applicable and a complete absence of
conditions of form, such as default of extradition or need for a special
order from the Head of the State [p100] or other similar conditions. In
other words, even in the case of the most far-reaching legislations as
regards the extension of jurisdiction to foreigners for offences committed
abroad, the States concerned have not ventured in most cases simply to
formulate their claim without limiting its scope in any way.
[294] I have prepared a table of the municipal legislation of a number of
countries which, subject to the existence of unnoticed errors, would be as
follows:
I. Legislation in general terms of wide scope.
[295] 1. Italy. - 2. Turkey. - 3. China. - 4. Mexico. It is to be noticed
that the terms used in these four cases are not equally stringent. Apart
from other differences which might be mentioned, there are differences as
regards the minimum penalty necessary to bring jurisdiction into play.
[296] To the four cases above mentioned might perhaps be added the
legislation of Brazil and Uruguay, subject to certain questions of
interpretation raised by the terms used, which there is no object in
discussing for the moment. The German draft Of 1913, like the laws of the
four countries above mentioned, employs general terms of wide scope.
II. Legislation defining the categories of offences in the case of which
jurisdiction is to be exercised over foreigners for offences against
individuals committed abroad.
[297] 1. Argentine, Article 25. The wording appears comprehensive, but in
reality there is a very definite limitation. - 2. Belgium. - 3. Japan.
III. Legislation making the possibility of Prosecution dependent on certain
conditions which limit its application.
[298] (a) The offence to be one f or which extradition may be demanded: 1.
Switzerland. - 2. Sweden (draft). - 3. The Lima Proposals.
[299] (b) The prosecution of the offence in question to be ordered by the
Head of the State or by law: 1. Finland. - 2. Norway. - 3. Sweden (law in
force). - 4. Germany (as regards contraventions). - 3. Austria (draft).
[p101]
[300] (c) Extradition to have been asked for but refused (that is to say, it
must have been possible): Bulgaria (the minimum penalty under Bulgarian
legislation is imprisonment).
IV. Legislation very vague in its terms.
[301] Germany (draft proposal); � 6 contains the apparently conditional
phrase "may be prosecuted".
V. Legislation not conferring jurisdiction over offences against
Individuals.
[302] 1. Germany (as regards crimes and offences as opposed to simple
contraventions). - 2. United States. -3. Spain. - 4. France. - 5. Great
Britain - 6. Netherlands. - Paraguay. - 8. Dominican Republic. � 9. Siam
[303] To these Denmark might be added, subject to the interpretation of the
phrase "port of register" (port d'attache) in � 3. Also Egypt, subject to
the interpretation of Rule 4. I have not included in this list the
legislation of Soviet Russia or Monaco or the Polish draft proposals because
the classification of these in one of the above five groups is, in my
opinion, very much open to doubt and because with information available to
us it would be rash to come to any conclusion concerning them.
* * *
[304] The examples considered - both those belonging to international law
and those which, whilst being derived from municipal law, relate to
situations concerning foreigners and acts committed abroad - tend to show
the existence of a predominent conception and intention in this field of
criminal law which concerns cases of an international character. This
conception and intention are undoubtedly opposed to simply allowing the
application of municipal law which, by claiming too wide a scope, comes in
conflict with the territorial principle which protects the rights of the
citizens of each State, and seeks to go much further than the exceptions
held to be acceptable by the majority of States.
[305] Of course, every sovereign State may by virtue of its sovereignty
legislate as it wishes within the limits of its own territory ; but [p102]
it cannot, according to sound principles of law, in so doing impose its laws
upon foreigners in every case and without making any distinction between the
various possible circumstances as regards the place where the offence has
been committed, the nature and seriousness of the offence, the special
conditions under which a foreigner may happen at a given moment to be within
reach of the authorities of a foreign country on the territory of which the
offence of which he has been accused was not committed, and other conditions
besides.
II. [Freedom to Impose Laws]
[306] But even admitting hypothetically the absence of a principle of
international law express or implied, which would have been infringed by the
manner in which the Turkish authorities acted as regards Lieutenant Demons,
I am unable to discover any grounds for altering my view. And the following
is the reason.
[307] The contention of those who held the contrary view - which we are now
going to examine � may, if I am not mistaken, be summarized as follows :
Since no principle exists establishing the exclusive criminal jurisdiction
of the law of the flag in cases of collision upon the high seas, we are
faced with two concurrent jurisdictions. Consequently, each of these
jurisdictions may take effect within the limits of its natural sphere of
operation - namely within its own territorial area - upon foreigners who are
there and may also therefore apply to them such municipal law as each State
may have adopted by virtue of that freedom which no other principle of
international law prevents them from exercising in this respect.
[308] It is not irrelevant to remark in passing that all or almost all
principles of international law have the common characteristic of not being
invariably exclusive in character. There is no more reason for mentioning or
considering this characteristic in reasoning in relation to the principle of
territoriality or of the flag than in relation to the principle of
protection. If one accepts, as is necessary, the exceptions to the first
two, it must also be admitted that the third, like all such principles, must
have exceptions and must undergo restrictions in its competition with the
others. Consequently the fact that, generally speaking, a principle is not
exclusive in character does not involve the consequence that it can never be
so when confronted by another principle, and still less in relation to a
municipal law. [p103]
[309] But, to return to the exception which has been suggested to the
principle of the flag - which is only another aspect of the principle of
territoriality - the question must be put whether it can come into play in
the case now before the Court in the way indicated above according to the
view I am discussing. I do not think so. In my, opinion, the freedom which,
according to the argument put forward, every State enjoys to impose its own
laws relating to jurisdiction upon foreigners is and must be subject to
limitations. In the case of competing claims to jurisdiction such as those
in question (according to those who recognize the existence of such
competition), this freedom is conditioned by the existence of the express or
tacit consent of other States and particularly of the foreign State directly
interested. As soon as these States protest, the above-mentioned freedom
ceases to exist, and, subject to the result of the investigation of the
dispute which has so arisen, any acts which were done in pursuance of such
freedom lose the legal basis which they might otherwise have possessed. It
is impossible to create an international custom, or to presume the existence
of any rule in favour of the unlimited freedom of each legislation as
regards foreigners, and binding on all other States, except within the same
limits and subject to the same conditions as any other international rule or
custom. The necessity for consent is just as much a fundamental principle of
international law, which is entirely based on the will of States, as the
principle of the protection of nationals or of the freedom to legislate
internally. Consequently, the consent of the interested State must be
requisite in every case belonging to the category I am row considering and a
fortioti, its express dissent must be taken into account. If, as in the
present case, the latter alternative takes place, the competition in the
claims to jurisdiction cannot legitimately have the effect of favouring a
claim which has been protested against and which, moreover, would not be in
harmony with the preponderating opinion of most States in regard to the kind
of cases contemplated according to what has been shown above. To accept the
contrary view would, in my opinion, be to neglect one of the fundamental
conditions of the international community and would result in opening the
door to continual conflicts which might involve most undesirable
consequences.
[310] Such a result being, in my opinion, inadmissible from the point of
view of international law and of its essential aims which are the [p104]
establishment of reciprocal good relations between States, the causes which
would produce that result cannot be sanctioned. Any decision leading to the
establishment of a system of unrestricted freedom in States which would lead
to the consequences I have just outlined, would therefore be very serious.
Even where a very circumscribed and particular case was concerned, there
would, in such a conclusion, be a risk of giving rise almost inevitably to
dangerous constructions and applications. In spite of all the provisoes that
might be added, it would be very difficult, I think, in view of the shifting
ground upon which the case rests, to prevent the decision being construed in
a manner going beyond its underlying intention.
[311] For all these reasons, I am led to conclude that a State which, under
the circumstances of the Lotus case, acts so as to impose, by virtue of the
principle of the admitted freedom in internal legislation, and in disregard
of the principle whereby consent is requisite, further exceptions to another
principle, in this particular case the principle of territoriality, will
have acted in contravention of international law.
III. [Human Rights]
[312] Outside the particular sphere of this law, but still within the sphere
of human rights (the law of Nature), I find other grounds for being unable
to accept the sanctioning of the rule of absolute freedom. These grounds are
derived from what, in my opinion, constitutes the basis of the whole social
legal system: respect for the rights of the individual. This respect takes
precedence of everything else. If it is absent, everything else falls to the
ground and ceases to have any juristic foundation. Now, it is undoubtedly
true that a failure to respect such rights takes place in many cases through
the fact of constraint being imposed upon a man, particularly if he is not a
criminal, to submit to the effects of laws which are not those of the
community to which he belongs, of laws which he does not know and which are
applied in his case by entirely foreign judges by whom he cannot make
himself understood, except, in the most favourable conditions, through a
third person, because he does not know their language, their legal
mentality, the forms of procedure they employ, etc. [p105]
[313] In all periods of history, men have considered the application of
their own laws and of their own national procedure and the submission of
their judicial affairs to judges speaking their own language and having
their own nationality, to be just as important a pledge of their rights as
is in quite another respect the due appreciation of the particular
circumstances surrounding the facts under consideration, which very often
lead to the mitigation of the punishment prescribed in principle. Those who
belong to nations in which more than one language is spoken and in which
more than one legal system is recognized as valid by the courts, are well
aware of the great weight which is sometimes attached to the fact that they
are amenable to one court rather than to another. On many occasions this
subject has been amongst the most pressing claims of the various regions and
groups of the complex population of the countries to which I refer.
[314] It goes without saying that I do not mean to allude, as I have already
said, to cases in which an individual has voluntarily changed his residence
in order to go to a country other than his own with the intention of
remaining there for a more or less protracted period, in full knowledge of
the fact that this action will have the effect of subjecting a great number
of his actions to a new law. Nor, again, do I refer to the cases comprised
within the clearly recognized exceptions to the principle of territoriality,
which are well founded upon the requirements of public order and justice.
But I am unable conscientiously to accept or to lend my support to any
action leading to the acceptance of a constraint of the kind described a
little earlier, and in which Lieutenant Demons' case is included. And do not
let us forget that the question before us is not that of the punishment of
an offence which a collision might result in, but that of the competence of
the Turkish tribunal to hear the case, that is to say, a question relating
to jurisdiction. We have not to solve the problem of the necessity at law
for a more or less severe punishment of the material results of an
involuntary collision, nor the difference in this respect between the
offence, considered subjectively, and its consequences as regards other
persons or other things, but purely a problem of determining jurisdiction in
accordance with the fundamental principles of international law.
[315] In the same order of thought but from another point of view, I find
equally menacing to the rights of man the claim to apply [p106] the same
rules as might be fair in the case of most true offences, to an involuntary
offence even if its injurious effects went so far as to cause the death of a
man. The incompatibility of such application with the rights to which I have
just referred is still greater when the alleged act arises from a mistake,
which, as is frequently the case in collisions, has not perhaps been
committed by a single person on board one of the vessels, but by different
persons on board both ships in collision. What I am unable to accept in this
case is the application of jurisdictional rights which would result in the
jurisdictional constraint which I have described. In my view international
law in order to be real law must not be in contradiction with the
fundamental principles of legal order, one of which necessarily is the
rights of man taken as a whole. I am convinced that every time that a result
of this nature is reached, one is faced with something wanting in
regularity, which should be rejected.
IV. [Development of a Customary Rule]
[316] Before concluding, I should like to bring forward some considerations
which deal with a very important matter as regards the functions of the
Court. I am convinced that the problem of the exceptions to the principle of
territoriality in regard to criminal jurisdiction in collision cases as it
stands at present - particularly in regard to collisions with no criminal
intent - offers a sufficient number of elements to enable one to conclude
that to act in the manner in which the Turkish authorities have done in the
Lotus case is contrary to the intention underlying the exceptions to this
principle which have been agreed to, or which the majority of States would
apparently be ready to agree to. But even if the question were raised of the
necessity for a definitely specific custom and of the stage of development
reached by the custom which might be considered necessary in the present
connection, I would point out that the conditions particular to the general
process of the development of a customary rule must be borne in mind. Often
in this process there are moments in time in which the rule, implicitly
discernible, has not as yet taken shape in the eyes of the world, but is so
forcibly suggested by precedents that it would be rendering good service to
the cause of justice and law to assist its [p107] appearance in a form in
which it will have all the force rightly belonging to rules of positive law
appertaining to that category.
[317] Perhaps the present case offers such a moment and, at the same time,
an opportunity which it would be regrettable to lose. But I do not think it
is necessary to lay stress on this side of the question, in view of the
conclusion at which I have arrived on the particular grounds on which the
question submitted to the Court is based. I will confine myself to pointing
it out as a method which in my opinion might lead by another path to the
same result which has induced me to dissent from the judgment given by the
Court. [p108]
Annex.
Documents Submitted to the Court by the Parties in the Course of the
Proceedings.
[Annexes to the Case filed on behalf of the French Government.]
Annex
1. Special Agreement signed at Geneva on October 12th, 1926.
2. Extract from the Peace Treaty signed at Lausanne on July 24th, 1923.
3. Extract from the Convention respecting conditions of residence and
business and jurisdiction, signed at Lausanne on July 24th, 1923.
4. Letter from the French Charg� d'affaires to H.E. Tewfik Rouchdy Bey,
Minister for Foreign Affairs, dated August 11th, 1926.
5. Letter from the French Charg� d'affaires to H.E. Tewfik Rouchdy Bey,
Minister for Foreign Affairs, dated August 18th, 1926.
6. Note from the French Minister for Foreign Affairs to the Turkish Embassy,
dated August 25th, 1926.
7. Letter from the French Charg� d'affaires to H.E. Tewfik Rouchdy Bey,
Minister for Foreign Affairs, dated August 28th, 1926.
8. Letter from the Turkish Under-Secretary of State for Foreign Affairs to
the French Charg� d'affaires, dated September 2nd, 1926.
9. Letter from the French Charg� d'affaires to H.E. Nousret Bey, Delegate of
the Ministry for Foreign Affairs, dated September 6th, 1926.
10. Note from the Turkish Embassy at Paris, dated September 14th, 1926.
11. Note from the Turkish Embassy at Paris, dated September 16th, 1926.
12. Article 6 of the Turkish Criminal Code.
Annexes to the Counter-Case filed on behalf of the French Government.
Annex
13. Letter from the Procureur g�n�ral of the Court of Appeal of Algiers to
M. Basdevant, Legal Adviser to the Ministry for Foreign Affairs at Paris,
dated May 6th, 1927.
14. Extract from a judgment given by the Tribunal correctionnel of B�ne
(Algiers), May 6th, 1927.
15. Letter from the French Minister of Public Works to the Directeur de
I'Inscription maritime at Marseilles, dated October 21st, 1926.
Legal Opinions referred to in the Counter-Case filed by the Government of
the Turkish Republic.
Annex
1. Opinion of Prof. G. Diena, of the Royal University of Pavia, Member of
the Institute of International Law, Vice-President of the League of Nations
Committee of Experts for the Codification of International Law
2. Opinion of Prof. P. Fedozzi, of the Royal University of Genoa, Member of
the Institute of International Law.
3. Opinion of Prof. A. Mercier, Former Dean of the Faculty of Lausanne,
Member of the Institute of International Law.
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