Case

3-5 typewritten, double-spaced pages, due in class on No outside reading is required. Any material quoted or paraphrased from the readings should be accompanied by a proper footnote or end note. Re-read the majority opinion of the Permanent Court of International Justice in the Case of the S.S. Lotus (France v. Turkey) (1927), and the brief discussion of Lotus in Judge Guillaume=s separate opinion in Democratic Republic of the Congo v. Belgium (the Yerodia case). You should also look at Judge Nyholm’s dissenting opinion in Lotus (see note below), which is posted on the Canvas site. Write an essay addressing the fictional case of the S.S. Lotus-Prime. This case has all of the same facts as the Lotus case, except for the following: There is no collision and no Boz Kourt. While on the high seas, due to the alleged gross negligence of a Lieutenant Valjean, the Lotus-Prime experiences a boiler-room explosion. Eight Turkish nationals, traveling aboard the Lotus-Prime, are killed in the explosion. The damaged vessel docks in Constantinople (Istanbul), whereupon Lieutenant Valjean is arrested, and is subjected to the same treatment inflicted on Lieutenant Demons in the Lotus case. Is France’s argument stronger in the Lotus- Prime case than in the Lotus case? Why? Which side should now win? Why? In making your assessment, consider the following: * Absent any proof of customary practice either way, who would win? Should France have to prove that there is a custom that overcomes a presumption that Turkey may exercise jurisdiction as it sees fit, or should Turkey have to prove that there is a custom that overcomes a presumption of exclusive French jurisdiction? What is the basis for either presumption? * What kinds of proof, and how much, must be shown by the state that bears the burden to overcome the prevailing presumption? * In the actual Lotus case, what principles properly govern the question of whether Turkey can lawfully prosecute Lieutenant Demons for conduct committed on board a French- flagged vessel? Drawing on your understanding of the nature of the international legal system and of the criteria for determining the existence of a customary norm of international law, assess the correctness of the majority opinion. * How does the amount of available proof differ, depending on which doctrine of extraterritorial jurisdiction is used to justify Turkey=s action? What doctrine is asserted in the Turkish statute? If that doctrine were the only doctrine available to justify Turkey’s action, would it follow that the prosecution of Demons violated international law? (That is the proposition that the Lotus-Prime hypothetical seeks to test.) * Judge Nyholm was among the six judges who disagreed with the majority in Lotus. Why did he not accept the majority’s rationale? (Among other things, why did he think that the

Lotus case was actually just like the Lotus-Prime case?) Keep in mind the following point (which seems implicit, but not spelled out, in the dissent): How do we know that Lieutenant Demons committed an act that had the character that the majority opinion attributes to it? If the Turkish court’s finding of fact about Demons’ negligence were to be disbelieved, would Turkey even have jurisdiction under the jurisdictional doctrine that the majority invokes? Should a Turkish court’s finding of fact influence the international court’s judgment about whether Turkey had the authority to determine the facts in the first place? * In what relevant ways might the premises of the international legal order have changed since1927? (Hint: See Guillaume’s separate opinion in Dem. Rep. Congo v. Belgium (Yerodia).) The United Nations Charter (1945) and the Friendly Relations Declaration (G.A. Res. 2625 (1970)) were, obviously, not in effect in 1927. Do any of their provisions bear on the issue, however indirectly? (Note also the theme of my “What Ever Happened to Sovereignty?” piece.) Keep in mind that there is no one correct answer. (Lotus itself was, after all, a 7-6 decision on a 12-person Court, with the President of the Court, in accordance with Court rules, casting a second vote to break the tie. And this case has stumped commentators ever since!) Do not attempt to address every possible issue that the question suggests; deal only with what you can address in a coherent and persuasive way in the limited space. Some additional hints about the actual Lotus decision: – Forget about the Convention of Lausanne (“Article 15”); it adds nothing. – Keep in mind that there are three different kinds of exercise of jurisdiction: (1) jurisdiction to execute/enforce (e.g., the Turkish navy boards the Lotus on the high seas and arrests Demons there – plainly unlawful); (2) jurisdiction to adjudicate (e.g., the Turkish shipping company files a civil suit against the French shipping company in a Turkish court, with the court choosing to apply the civil damages law of either France or Turkey, depending on international choice-of-law rules – plainly lawful); (3) jurisdiction to prescribe/legislate, which combines with jurisdiction to adjudicate in a criminal prosecution (e.g., Lt. Demons, who happens to arrive on the territory of Turkey, being criminally prosecuted under Turkish law in Turkish court – what this case is about). – Remember the five different possible justifications of the extraterritorial jurisdiction to legislate. – Remember that while Turkish law (“Article 6 of the Turkish Penal Code”) may assert one justification, the question before the court is not whether the justification that Turkey gave is legally correct, but whether its action violated international law. In other words, the Court can substitute a better justification, if applicable to the facts. – Remember that France is arguing that it has exclusive criminal jurisdiction, whereas Turkey is arguing that both Turkey and France have the right to exercise jurisdiction (i.e., that the two countries have concurrent jurisdiction). No one questions that France also has jurisdiction, but that fact is not very helpful to Lt. Demons.