Lotus decision

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The Lotus decision of the Permanent International Court of Justice (StIGH) of September 7, 1927 dealt with basic questions regarding the sovereignty of states and introduced the so-called "Lotus principle" into international law , according to which states can only act under international law through positive prohibitions be restricted.

facts

On August 2, 1926, the French mail ship Lotus collided with the Turkish steamer Bozkurt on the high seas. Since eight sailors of Turkish nationality were killed in the collision, Turkey sentenced the French officer on duty of the Lotus , Lieutenant Demons, to 80 days in prison after he went ashore in Constantinople . France sued the StIGH against this. The reason given by the French side was that the Turkish court had no jurisdiction for the conviction, since no such competence could be derived from international law.

The lotus principle

In its judgment, the StIGH dealt fundamentally with the sovereignty problem. On the occasion of the specific question of whether Turkey was allowed to exercise its jurisdiction over demons, the StIGH first dealt with the fundamental question of the fundamental regulatory mechanism of international law. Two alternatives were conceivable here. The French side took the view that Turkey must have an international law standard of authority to prosecute Demons. Viewed abstractly, this view is based on the assumption that states may only act under international law if the act in question is positively permitted to them (such as the situation under European Union law or national constitutional law ). Turkey, on the other hand, took the opposite view that international law was a prohibitive legal order, i.e. H. International law rules sometimes cut into an otherwise fundamentally unrestricted freedom of action for states.

The Court of Justice coined the following formulations for this:

“International law governs relations between independent states. The rules of law binding upon states therefore emanate from their own free will […]. Restrictions upon the independence of States cannot therefore be presumed. […] Far from laying down a general prohibition […], it [ie international law] leaves them […] 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. "

“International law regulates relations between independent states. The rules binding the states therefore arise from their own free will [...]. Restrictions on the freedom of states cannot therefore be assumed [simply]. [...] Instead of pronouncing a general ban [to act] [...] it [ie international law] leaves them a wide margin of discretion, which is only restricted in certain cases by prohibitive norms; in [all] other cases, states are free to apply the principles which they consider best and most appropriate. "

- Publications of the Permanent Court of International Justice, Series A.-No. 10.

The StIGH takes up this fundamental question and states that, especially in the present case of the exercise of jurisdiction, there is no unrestricted access of the states to matters outside their territory; nevertheless, the basic structure of international law is such that the basic rule, based on the sovereignty of states, is freedom of action. In the absence of any rules, therefore, a violation of international law cannot be determined.

As the “Lotus Principle”, this fundamental decision is a basic assumption of the norm structure under international law, although it is still controversial today.

The verdict on the matter

Consequently, in the specific case - contrary to France's submission - the StIGH did not check the existence of a positive competence norm, but merely looked into the question of whether an international law prohibition norm set limits for the Turkish jurisdiction. Since the answer was in the negative, the StIGH dismissed France's action.

Note

Under contracting parties to the Convention on the High Seas of 1958 and the Convention on the Law of the Sea (UNCLOS) of 1982, the case would now have to be assessed differently, as Art. 11 (1) of the 1958 Convention and Art. 97 (1) UNCLOS order that criminal prosecution measures due to clashes against crew members on the high seas, may only be apprehended by the authorities of the flag state of the respective ship or the state whose nationality the crew member possesses. These provisions are therefore a prohibition standard that the StIGH 1927 could not find.

For incidents with states that have not ratified the above-mentioned agreements, the applicable customary international law is decisive.

literature

Web links

Individual evidence

  1. ↑ http://www.worldcourts.com/pcij/eng/decisions/1927.09.07_lotus.htm Rn. 14th
  2. ↑ by Bogdandy, Rau: The Lotus. Max Planck Encyclopedia of Public International Law, June 2006.