320

OPINION DISSIDENTE DE M. VERESHCHETIN
[Traduction]

Les circonstances extraordinaires dans lesquelles la Yougoslavie a
déposé sa requéte en indication de mesures conservatoires imposaient de
réagir immédiatement. La Cour aurait dû aussitôt exprimer son inquié-
tude profonde face aux multiples drames humains, aux pertes en vies
humaines et aux violations graves du droit international qui, au moment
du dépôt de la requête, étaient d’ores et déjà du domaine public. Il est
inélégant de la part de l'organe judiciaire principal de l'Organisation des
Nations Unies, dont la raison d’être même est de présider au règlement
pacifique des différends internationaux, de garder le silence en pareille
situation. Même si, finalement, la Cour aboutit à la conclusion que, sous
l'effet de contraintes figurant dans son Statut, elle ne peut pas indiquer de
mesures conservatoires au sens plein, conformément à l’article 41 de ce
Statut, à l'égard de l’un ou l’autre des Etats défendeurs, la Cour est dotée
à tout le moins, par définition, du pouvoir d’en appeler immédiatement
aux parties pour qu’elles s’abstiennent d’aggraver ou d'étendre le conflit
et qu’elles respectent les obligations qui leur incombent en vertu de la
Charte des Nations Unies. Ce pouvoir découle de la responsabilité qui tui
a été impartie de préserver le droit international et aussi de considéra-
tions primordiales d’ordre public. Cet appel, fort de l’autorité qui émane
de la «Cour mondiale», compatible de surcroît avec l’article 41 de son
Statut et avec l’article 74, paragraphe 4 et l’article 75, paragraphe 1, de
son Règlement, pourrait donner à réfléchir aux Parties à ce conflit mili-
taire, lequel est sans précédent dans l’histoire de l’Europe depuis la fin de
la seconde guerre mondiale.

La Cour a été priée de défendre l’état de droit face à des violations
flagrantes du droit international qui sont d’une portée considérable car
elles atteignent aussi la Charte des Nations Unies. Au lieu d’agir avec
diligence et au besoin de sa propre initiative, en sa qualité de «gardien
principal du droit international», la majorité des membres de la Cour,
plus d’un mois après le dépôt des requêtes, les a rejetées sans nuance pour
la totalité des affaires qui lui étaient soumises, y compris celles où, à mon
avis, la compétence prima facie de la Cour aurait pu être très clairement
établie. En outre, cette décision a été prise dans une situation dans
laquelle une intensification délibérée des bombardements des zones les
plus peuplées cause des pertes en vies humaines toujours aussi lourdes
chez les non-combattants et cause également, physiquement et menta-
lement, des dommages à la population de toutes les régions de Yougo-
slavie.

Pour les motifs ci-dessus, je ne peux pas m’associer à l’inaction de la
Cour en l’occurrence, même si j’admets que, dans certaines des affaires

65
LICEITE DE L'EMPLOI DE LA FORCE (OP. DISS. VERESHCHETIN) 321

introduites par le demandeur, à ce stade-ci de la procédure, la Cour n’est
peut-être pas compétente, et qu’elle ne l’est pas du tout dans le cas de
l'Espagne et ni dans celui des Etats-Unis.

x * x

Mises à part les considérations qui font l’objet de la déclaration de
caractère général ci-dessus, je voudrais préciser ma position en ce qui
concerne les requêtes déposées par la Yougoslavie contre la Belgique, le
Canada, les Pays-Bas et le Portugal.

Il ne fait pas de doute pour moi qu’en ce qui concerne ces Etats, la
Cour a bien compétence prima facie en vertu de l'article 36, para-
graphe 2, de son Statut, et, qu’en ce qui concerne en outre la Belgique et
les Pays-Bas, elle est également compétente prima facie en vertu de
l'accord signé entre la Belgique et la Yougoslavie le 25 mars 1930 et de
l’accord signé entre les Pays-Bas et la Yougoslavie le 11 mars 1931.

Les thèses en sens contraire qu’ont plaidées les Etats défendeurs et que
la Cour a retenues dans ses ordonnances reposent sur deux propositions
qui ont caractére de pierre angulaire. La premiére proposition intéresse
les quatre Etats, lesquels reconnaissent la juridiction obligatoire de la
Cour, la seconde proposition n’intéresse que la Belgique et les Pays-Bas.
La première proposition est que le texte de la déclaration yougoslave
acceptant la juridiction de la Cour, et en particulier l'énoncé de la réserve
rationae temporis qui y figure, ne conférerait pas compétence prima facie
à la Cour. La seconde proposition est que le moment où la Yougoslavie
a présenté les chefs de compétence supplémentaires ne permettrait pas à
la Cour de conclure qu’elle est compétente prima facie pour connaître des
affaires introduites contre la Belgique et contre les Pays-Bas. Je ne peux
souscrire à aucune des propositions fondamentales ci-dessus pour les rai-
sons que je vais exposer.

En ce qui concerne l'interprétation de la déclaration yougoslave
d'acceptation de sa juridiction, la Cour place au centre de son raisonne-
ment le délai défini dans la réserve à ladite déclaration, réserve aux termes
de laquelle la Yougoslavie reconnaît la juridiction de la Cour «pour tous
les différends, surgissant ou pouvant surgir après la signature de la pré-
sente déclaration, qui ont trait à des situations ou à des faits postérieurs
à ladite signature». Le libellé de cette réserve ôterait même à la Cour
toute compétence prima facie quant aux différends soumis à la Cour aux
fins de règlement, puisque les différends en question, ainsi que les situa-
tions et les faits qui sont à l’origine des différends, se sont produits un
mois au moins avant le dépôt des requêtes. Le texte de la réserve de la
Yougoslavie ôterait en outre à la Cour l’élément de consensus plausible
qui doit absolument être présent dans la déclaration du demandeur et
dans celle des défendeurs pour que la Cour puisse indiquer des mesures
conservatoires. Je ne peux pas souscrire à cette interprétation de la décla-
ration yougoslave, pour un certain nombre de motifs.

Il faut admettre que le libellé de la déclaration yougoslave n'est pas

66
LICÉITÉ DE L'EMPLOI DE LA FORCE (OP. DISS. VERESHCHETIN) 322

dépourvu d’ambiguité et, à strictement parler, ce libellé 6te à la Cour la
possibilité de connaître de différends, de situations et de faits qui seraient
antérieurs à ce qu’on appelle la «date critique», c’est-à-dire le 25 avril
1999, date à laquelle la déclaration a été signée. On ne peut toutefois pas
en déduire que les différends portés devant la Cour par la Yougoslavie
dans des requêtes distinctes doivent être considérés comme ne consti-
tuant qu'un seul et même différend ou bien comme constituant des diffé-
rends existant antérieurement au 25 avril 1999, ni en déduire non plus
que la Cour ne peut pas, en raison de cette exclusion, examiner des situa-
tions et des faits ayant trait à ces différends s’ils sont postérieurs à ladite
date.

Postérieurement au début des bombardements de la Yougoslavie par
l’alliance militaire de l'OTAN, le différend dans son ensemble a été traité
et est toujours traité à divers échelons politiques, y compris le Conseil de
sécurité des Nations Unies, comme un différend opposant la Yougoslavie
et l'OTAN ou bien comme un différend opposant la Yougoslavie et la
totalité des dix-neuf Etats membres de l'OTAN. La solution de ce diffé-
rend politique de caractère général transcende le champ de compétence
de la Cour. Celle-ci se penche sur jes différends d'ordre juridique oppo-
sant la Yougoslavie à chacun des Etats défendeurs. Ces divers différends
peuvent avoir chacun la même origine mais ils ne sont devenus des dif-
férends d’ordre juridique bilatéraux distincts entre Etats considérés indi-
viduellement qu’une fois présentés comme «la réclamation de l’une des
parties se heurt[ant] à l'opposition manifeste de l’autre» (Sud-Ouest afri-
cain, exceptions préliminaires, arrêt, C.I.J. Recueil 1962, p. 328). Dans
les affaires à l'examen, cela a coincidé avec le dépôt par la Yougoslavie de
requêtes dirigées contre dix Etats pris individuellement. La Cour a
reconnu qu'il y avait ainsi individualisation des différends, laquelle est
postérieure à la «date critique», quand elle a affirmé que les Etats défen-
deurs non représentés en permanence sur le siège avaient le droit de dési-
gner un juge ad hoc.

Considérant la situation sous un autre angle, la Yougoslavie s’est très
justement, même postérieurement à «la date critique», plainte d’un cer-
tain nombre de nouvelles violations flagrantes du droit international par
les Etats membres de l'OTAN. Chacune de ces nouvelles violations fla-
grantes alléguées, dont les Etats membres de POTAN ont nié l'existence,
peut être considérée comme constituant un différend particulier entre les
parties intéressées, différends qui ont manifestement surgi postérieure-
ment au 25 avril 1999.

Dans une affaire récente, la Cour a admis qu'il était possible de faire
une distinction entre un «différend de nature générale» d’une part et, de
l’autre, des «différend[s] spécifique[s}» (Questions d'interprétation et
d'application de la convention de Montréal de 1971 résultant de l'incident
aérien de Lockerbie (Jamahiriya arabe libyenne c. Royaume-Uni), excep-
tions préliminaires, arrêt, CI.J. Recueil 1998, p. 21, par. 29). Rien dans
sa jurisprudence ne justifie l’idée que la Cour serait empêchée de con-
naître d’un différend d’ordre juridique spécifique entre les parties unique-

67
LICÉITÉ DE L'EMPLOI DE LA FORCE (OP. DISS. VERESHCHETIN) 323

ment parce que ce différend se rattache à un différend exclu de sa juridic-
tion ou qu’il en fait partie.

Je m'écarte aussi de la majorité quand celle-ci décide de ne tenir stric-
tement aucun compte de l’intention manifeste de la Yougoslavie. Très
récemment, la Cour a eu l’occasion de dire une fois de plus qu'il fallait
tenir compte de l’intention de l’Etat qui fait une déclaration d’accepta-
tion de la juridiction de la Cour. Dans l'affaire de la Compétence en
matière de pêcheries (Espagne c. Canada), la Cour a interprété le libellé
pertinent de la déclaration en question «en tenant dûment compte de
l'intention de l'Etat concerné à l’époque où ce dernier a accepté la juridic-
tion obligatoire de la Cour» (arrêt, C.I.J. Recueil 1998, p. 454, par. 49,
voir également Temple de Préah Vihéar, C1J. Recueil 1961, p. 31).

Dans les ordonnances qu'elle rend dans les présentes affaires, la Cour,
en refusant de prendre en compte l'intention que la Yougoslavie a clai-
rement manifestée, adopte vis-à-vis de la déclaration yougoslave une
approche susceptible de déboucher sur une conclusion absurde: la You-
goslavie aurait, par sa déclaration d’acceptation de la juridiction de la
Cour, voulu exclure cette juridiction en ce qui concerne les requêtes intro-
ductives d'instance dirigées contre les défendeurs.

Pour la Belgique et les Pays-Bas, en sus de la juridiction conférée par
l'article 36, paragraphe 2, du Statut de la Cour, la Yougoslavie a invoqué
des chefs supplémentaires de compétence, à savoir la convention de
conciliation, de règlement judiciaire et d’arbitrage signée le 25 mars 1930
par la Yougoslavie et la Belgique, et, par ailleurs, le traité de règlement
judiciaire, d’arbitrage et de conciliation signé le 11 mars 1931 par la You-
goslavie et les Pays-Bas.

Les deux instruments habilitent les parties, sous réserve de certaines
conditions, à porter unilatéralement leurs différends devant la Cour per-
manente de Justice internationale. En outre, les accords en question sti-
pulent que, dans tous les cas où la question au sujet de laquelle les parties
sont divisées résulte d’actes déjà effectués ou sur le point de Pétre, la
Cour permanente de Justice internationale «indiquera dans le plus bref
délai possible» les mesures provisoires qui doivent être prises» (article 30
de la convention passée entre la Belgique et la Yougoslavie; article 20 du
traité conclu entre les Pays-Bas et la Yougoslavie). Et les accords dis-
posent de surcroît, ce qui est important, qu’ils seront «applicablejs] entre
les Hautes Parties contractantes encore qu’une tierce puissance ait un
intérêt dans le différend» (articles 35 et 21 respectivement). En dernier
lieu, les accords en question comprennent une disposition prévoyant de
soumettre à la Cour permanente de Justice internationale les différends
relatifs à leur interprétation (articles 36 et 22 respectivement).

Au cours des audiences, les Etats défendeurs ont soulevé un certain
nombre d’objections tendant à empêcher la Cour de fonder sa compé-
tence sur les accords en question. Je vais simplement évoquer la princi-
pale de ces objections, celle que la majorité des membres de la Cour ont
finalement retenue. Il s’agit du moment où la Yougoslavie a invoqué ces
chefs supplémentaires de compétence.

68
LICÉITÉ DE L'EMPLOI DE LA FORCE (OP. DISS. VERESHCHETIN) 324

Il faut se rappeler qu'en déposant ses requêtes, la Yougoslavie s’est
réservé le droit de les modifier et de les compléter. Cette réserve, dans le
cadre d’une requête introductive d’instance, est courante, et, s’agissant de
chefs de compétence, la Cour l'interprète depuis fort longtemps comme
autorisant le demandeur à en ajouter un, à condition que le demandeur
indique bien qu’il va procéder de cette façon, et à condition également
que la démarche n’ait pas pour résultat de transformer le différend porté
devant la Cour par la requête en un autre différend qui n’aurait plus le
même caractère. La Cour a clairement défini l'approche qu’elle adopte
ainsi à l'égard des chefs supplémentaires de compétence.

Par exemple, la Cour fait observer dans l’arrêt rendu le 26 novembre
1984 dans l'affaire des Activités militaires et paramilitaires au Nicaragua:

«La Cour considère que le fait de ne pas avoir invoqué le traité de
1956 comme titre de compétence dans la requête n’empêche pas en
soi de s’appuyer sur cet instrument dans le mémoire. La Cour devant
toujours s’assurer de sa compétence avant d'examiner une affaire au
fond, il est certainement souhaitable que «les moyens de droit sur
lesquels le demandeur prétend fonder la compétence de la Cour»
soient indiqués dans les premiers stades de la procédure, et l’article
38 du Règlement spécifie qu'ils doivent l'être «autant que possible»
dans la requête. Un autre motif de compétence peut néanmoins être
porté ultérieurement à l'attention de la Cour, et celle-ci peut en tenir
compte à condition que le demandeur ait clairement manifesté l’inten-
tion de procéder sur cette base (Certains emprunts norvégiens, CI J.
Recueil 1957, p. 25), à condition aussi que le différend porté devant
la Cour par requête ne se trouve pas transformé en un autre diffé-
rend dont le caractère ne serait pas le même (Société commerciale de
Belgique, C.P.J.I. série AIB n° 78, p. 173).» (Activités militaires et
paramilitaires au Nicaragua et contre celui-ci (Nicaragua c. Etats-
Unis d'Amérique), compétence et recevabilité, C.LJ. Recueil 1984,
p. 426-427, par. 80.)

Dans l’ordonnance qu’elle a rendue le 13 septembre 1993 dans l'affaire
relative à la Convention sur le génocide, la Cour a fait observer ceci:

«Considérant que le demandeur ne saurait, en se réservant «le
droit de réviser, compléter ou modifier» sa requête ou ses demandes
en indication de mesures conservatoires, se donner par là même un
droit d’invoquer des bases supplémentaires de compétence non men-
tionnées dans la requête introductive d’instance; et qu’il appartien-
dra à la Cour, au stade approprié de la procédure, de se prononcer
éventuellement sur la validité de telles prétentions; considérant tou-
tefois qu’un motif de compétence non spécifié dans la requête peut,
ainsi que la Cour l’a reconnu,

«être porté ultérieurement à l'attention de la Cour, et [que] celle-ci
peut en tenir compte à condition que le demandeur ait clairement

69
LICÉITÉ DE L'EMPLOI DE LA FORCE (OP. DISS. VERESHCHETIN) 325

manifesté l’intention de procéder sur cette base... à condition aussi
que le différend porté devant la Cour par requête ne se trouve pas
transformé en un autre différend dont le caractère ne serait pas le
même...» (Activités militaires et paramilitaires au Nicaragua et
contre celui-ci (Nicaragua c. Etats-Unis d' Amérique), compétence
et recevabilité, arrêt, C.J. Recueil 1984, p. 427, par. 80);

considérant dès lors qu’aux fins d’une demande en indication de
mesures conservatoires la Cour ne doit pas se refuser à priori d’exa-
miner de telles bases supplémentaires de compétence, mais qu’elle
doit se demander si, compte tenu de toutes les circonstances, y com-
pris les considérations énoncées dans la décision précitée, les textes
invoqués pourraient constituer une base sur laquelle sa compétence
pour connaître du différend pourrait prima facie être fondée. » (Appli-
cation de la convention pour la prévention et la répression du crime
de génocide, CI.J. Recueil 1993, p. 338-339, par. 28.)

J’estime que les conditions définies par l’article 38 du Règlement de la
Cour ainsi que dans la jurisprudence y relative sont parfaitement rem-
plies dans les présentes affaires. La jurisprudence de la Cour montre clai-
rement qu'aux fins d'une demande en indication de mesures conserva-
toires, des chefs supplémentaires de compétence peuvent être portés à
l'attention de la Cour postérieurement au dépôt de la requête. En pareil
cas, la Cour doit chercher avant tout à établir objectivement si ces chefs
supplémentaires de compétence «pourraient constituer une base sur
laquelle sa compétence pour connaître du différend pourrait prima facie
être fondée».

La Cour tient fort légitimement à garantir le respect du «principe du
contradictoire et la bonne administration de la justice» mais elle ne doit
pas cultiver ce souci au point d’exclure à priori de son examen un chef
supplémentaire de compétence simplement parce que les Etats défendeurs
n’ont pas eu assez de temps pour préparer leur contre-argumentation.
Certes, il n’est pas normal qu'un nouveau chef de compétence soit
invoqué lors du second tour de plaidoiries. Toutefois, les Etats défen-
deurs ont eu la possibilité de présenter leur contre-argumentation à la
Cour et ont exploité cette possibilité pour présenter diverses observations
et objections à ce nouveau chef de compétence. Ils auraient pu le cas
échéant demander la prolongation des audiences. De son côté, le deman-
deur peut raisonnablement soutenir que l'invocation tardive des nou-
veaux chefs de compétence s'explique par la situation extraordinaire
qui règne en Yougoslavie, où la mise au point des requêtes a dû être
réalisée sous les bombardements quotidiens opérés par les défendeurs. Il
ne faut pas non plus oublier qu’il appartient à la Cour d’établir si le
nouveau chef de compétence invoqué est valable ou non, et la décision à
cet égard, au stade actuel de la procédure, ne peut pas et ne doit pas être
concluante.

Quand la majorité des membres de la Cour refuse de prendre en consi-
dération les nouveaux chefs de compétence invoqués, elle va très nette-

70
LICEITE DE L'EMPLOI DE LA FORCE (OP. DISS. VERESHCHETIN) 326

ment à l’encontre de l’article 38 du Règlement de la Cour et de la juris-
prudence y relative. Le refus de prendre dûment en considération
l'intention de l'Etat qui fait une déclaration d’acceptation de la juridic-
tion de la Cour est, lui aussi, incompatible avec la pratique de la Cour et
avec les règles coutumières de l’interprétation des instruments juridiques.
J’estime pour ma part que toutes les conditions de l’indication de mesures
conservatoires découlant de l’article 41 du Statut de la Cour et de la juris-
prudence y relative qui est parfaitement établie ont été réunies et que la
Cour aurait incontestablement dû indiquer de telles mesures en ce qui
concerne les quatre Etats visés ici.

(Signé) Viadlen S. VERESHCHETIN.

71


PUBLICATIONS DE LA COUR PERMANENTE DE JUSTICE
INTERNATIONALE

SÉRIE A — N° 10
Le 7 septembre 1927

RECUEIL DES ARRETS

AFFAIRE DU «LOTUS»

PUBLICATIONS OF THE PERMANENT COURT
OF INTERNATIONAL JUSTICE.

SERIES A.—WNo. 10
September 7th, 1927

COLLECTION OF JUDGMENTS

THE CASE OF THE SS. “LOTUS”
PERMANENT COURT OF INTERNATIONAL JUSTICE,

[Tvanslation. ]
1927.
TWELFTH (ORDINARY) SESSION. September
— — Docket XI

Before:

MM. Huser, President,
LODER, Former President,
Weiss, Vice-President,
Lord FINLAY,
MM. NyYHoLM,
Moore,
DE BUSTAMANTE,
ALTAMIRA,
ODA,
ANZILOTTI,
PESssôA,

Judges,

Frizi-Daim Bey, "National Judge.

JUDGMENT No. 0.

THE CASE OF THE S.S. “LOTUS”.

The Government of the French Republic, represented by
M. Basdevant, Professor at the Faculty of Law of Paris,

VEYSUS

The Government of the Turkish Republic, represented by His
Excellency Mahmout Essat Bey, Minister of Justice.

THE CouRT,

composed as above,
having heard the observations and conclusions of the Parties,

delivers the following judgment :
JUDGMENT No. 9.—THE CASE OF THE S.S., “‘LOTUS”’ 5

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 afore-
said 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.

According to the special agreement, the Court has to decide the
following questions :

“(1) Has Turkey, contrary to Article 15 of the Convention
ot 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- Kouvt 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 ot 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 prin-
ciples of international law, reparation should be made in similar

“cases ?”

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 ist 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.

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.

In the course of hearings held on August 2nd, 3rd, 6th, and
8th- roth, 1927, the Court has heard the oral pleadings, reply and
rejoinder submitted by the above-mentioned Agents for the Parties.
JUDGMENT No. 9.—THE CASE OF THE 8.5. “LOTUS” 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.

In the course of the proceedings, the Parties have had occasion
to define the points of view respectively adopted by them in rela-
tion 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 enter-
tain 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 inter-
national 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.”

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”. |

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 sum-
marize 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 ;
JUDGMENT No. 9.—THE CASE OF THE S.S. “LOTUS” 7

“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 amend-
ment calculated to establish this jurisdiction and from the state-
ments 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 pro-
ceedings, 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 Rica Packet ;

‘“‘Whereas there are special reasons why the application of this
tule 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 juris-
diction 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” (connexité) 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 ;
JUDGMENT No. 9.—THE CASE OF THE S.S. “LOTUS” 8

‘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 bail 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 repara-
tion 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 con-
sequences which the decision given might have, not having been
submitted to the Court, are ipso facto reserved.”

The Turkish Government, in its Counter-Case, confines itself
to repeating the conclusion of its Case, preceding it, however, by
JUDGMENT No. 9.—THE CASE OF THE S.S. “LOTUS” 9

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 con-
ditions 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. Conse-
quently, 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 (délits 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.

‘‘s —Even if the question be considered solely from the point
of view of the collision, as no principle of international crim-
inal 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 char-
acter, and as States are not, according to the principles of inter-
national 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.”
JUDGMENT No. 9.—THE CASE OF THE S.S. “LOTUS” ro

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.

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.

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 :

On August 2nd, 1926, just before midnight, a collision occurred
between the French mail steamer Lotus, proceeding to Constan-
tinople, 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.

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.

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.

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
JUDGMENT No. 9.—THE CASE OF THE S.s. “LOTUS” II

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 (ayres-
tation préventive), 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 com-
plaint of the families of the victims of the collision, should follow
its normal course.

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 rith, Lieutenant Demons demanded his release on bail :
this request was complied with on September 13th, the bail being
fixed at 6,000 Turkish pounds. |

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.

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 r2th,
1926, did not have the effect of suspending ‘‘the criminal proceed-
ings.... now in progress in Turkey”.

The action of the Turkish judicial authorities with regard to
Lieutenant Demons at once gave rise to many diplomatic repre-
sentations 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.

As a result of these representations, the Government of the Turk-
ish 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”.
JUDGMENT No. 9.—THE CASE OF THE S.S. “LOTUS” 12

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.
L

Before approaching the consideration of the principles of inter-
national 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:

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 juris-
diction of any State other than France and Turkey therefore does
not enter into account.

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
JUDGMENT No. 9.—THE CASE OF THE S.S. “LOTUS” 13

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.

The Parties agree that the Court has not to consider whether the
prosecution was in conformity with Turkish law ; it need not there-
fore consider whether, apart from the actual question of jurisdic-
tion, 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.

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 con-
stitutes a factor essential for the institution of the criminal proceed-
ings 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 sanc-
tions, 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 ac-
tions of Lieutenant Demons and the loss of eight Turkish nationals
are not relevant to the issue so far as the Court is concerned. More-
over, 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
JUDGMENT No. 9.—THE CASE OF THE S.S. “LOTUS” 14

outcome of the collision, and the French Government has not con-
tended that this relation of cause and effect cannot exist.

4.—-Lieutenant Demons and the captain of the Turkish steamship
were prosecuted jointly and simultaneously. In regard to the
conception of “connexity” of offences (connexité), 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” (connexité). 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 Courtsis 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 facts the consideration
of which should, from the standpoint of Turkish criminal law, be
entrusted to the same court.

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 sub-
mitted to the Court indicating on what article of the Turkish Penal
Code the prasecution 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 internationallaw. It
does not appear from the proceedings whether the prosecution was
instituted solely on the basis of that article.

Article 6 of the Turkish Penal Code, Law No. 765 of March Ist,
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
UDGMENT No. 9.——THE CASE OF THE S.S. “‘LOTUS”’ I
9

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 arid 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. :

“Tf 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 :

“(z) 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.”

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 interna-
tionallaw ; itismore 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, assum-
ing for instance that the offence in question should be regarded, by
reason of its consequences, to have been actually committed on
Turkish territory.
JUDGMENT No. 9.—THE CASE OF THE S.S. “LOTUS” 16

II.

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.

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.

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 inter-
national law.”

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.

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 con-
vention 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
JUDGMENT No. 9.—THE CASE OF THE 8.8. “LOTUS” 17

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 con-
tracting 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 modern 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.

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.

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.

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.
JUDGMENT No. 9.—-THE CASE OF THE S.S. “LOTUS” 18

IIT,

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.

The latter view seems to be in conformity with the special
agreement itself, No. x 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. |

This way of stating the question is also dictated by the very
nature and existing conditions of international law.

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.

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
JUDGMENT No. 9.—THE CASE OF THE S.S. “LOTUS” 19

except by virtue of a permissive rule derived from international
custom or from a convention.

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 interna-
tional 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.

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 lacunæ 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.

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 15 of the Convention of Lausanne refers. Having
regard to the terms of Article 15 and to the construction which

3
JUDGMENT No. 9.—THE CASE OFTHE S.S. “LOTUS” 20

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 paralyzing the action of the courts, owing to the
impossibility of citing a universally accepted rule on which to
support the exercise of their jurisdiction...

*

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 juris-
diction and that of a State, and also by the especial importance of
criminal jurisdiction from the point of view of the individual.

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.

This situation may be considered from two different stand-
. points corresponding to the points of view respectively
taken up by the Parties. According to one of these stand-
points, 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.
JUDGMENT No. 9.—THE CASE OF THE S.S. “LOTUS” 21

Adopting, for the purposes 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 ascer-
taining 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.

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 ana-
logy 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 interna-
tional 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—suppos-
ing 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.

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.
JUDGMENT No. 9.—THE CASE OF THE S.S. “LOTUS” 22

IV.

The Court will now proceed to ascertain whether general inter-
national law, to which Article 15 of the Convention of Lausanne
refers, contains a rule prohibiting Turkey from prosecuting
Lieutenant Demons.

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.

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.

*
* *

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.

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.

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
JUDGMENT No. 9.—THE CASE OF THE S.S, “LOTUS” 23

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.
JUDGMENT No. 9.—THE CASE OF THE S.S. “LOTUS” 24

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 cir-
cumstances 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 provi-
sion enters into account, or the possibility of a denial of justice
arises.

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.

* * +

The second argument put forward by the French Government is
the principle that the State whose flag is flown has exclusive juris-
diction over everything which occurs on board a merchant ship on
the high seas,
JUDGMENT No. 9.—-THE CASE OF THE S.S. “LOTUS” 25

It is certainly true that—apart from certain special cases which
are defined by international law—vessels on the high seas are sub-
ject 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.

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 doso. 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.

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 juris-
diction 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
JUDGMENT No. 9.—THE CASE OF THE S.S. “LOTUS” 26

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.

In the Court’s opinion, the existence of such arule has not
been conclusively proved. |

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 fiy. But the important point is the signi-
ficance 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, defi-
nitely 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.

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.

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 legis-
lation. Thus Great Britain refused the request of the United
JUDGMENT No. 9.—THE CASE OF THE S.S. “LOTUS” 27

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 exclu-
sive jurisdiction of the country whose flag the vessel flies is not
universally accepted.

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 legis-
lation 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.

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 extra-
ordinary 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, close-
ly 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.

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.

*
* *

It only remains to examine the third argument advanced by the
French Government and to ascertain whether a rule specially

4
JUDGMENT No. 9.—-THE CASE OF THE S.S. “LOTUS” 28

applying to collision cases has grown up, according to which criminal
proceedings regarding such cases come exclusively within the juris-
diction of the State whose flag is flown.

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 circum-
stance is proof of a tacit consent on the part of States and,
consequently, shows what positive international law is in colli-
sion cases. .

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 aninternational 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.

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 Ovtigia—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.

Lengthy discussions have taken place between the Parties as
to the importance of each of these decisions as regards the details
JUDGMENT No. 9.—THE CASE OF THE S.S. “LOTUS” 29

of which the Court confines itself to a reference to the Cases and
Counter-Cases of the Parties. The Court does not think it neces-
sary 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.

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 Ovtigia—Oncle-Joseph case and the
German Government in the Ekbatana—West-Hinder case would
have omitted to protest against the exercise of criminal jurisdiction
by the Italian and Belgian Courts, if they had really thought that
this was a violation of international law.

As regards the Franconia case (R. v. Keyn 1877, L. R.
2 Ex. Div. 63) upon which the Agent for the French Govern-
ment has particularly relied, it should be observed that the
part of the decision which bears the closest relation to the pre-
sent case is the part relating to the localization of the offence
on the vessel responsible for the collision.

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 con-
ception 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
JUDGMENT No. 9.—THE CASE-OF THE S.S. “LOTUS” 30

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 devel-
opment of English case-law tends to support the view that inter-
national law leaves States a free hand in this respect.

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.

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 cir-
cumstance 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.

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. |

This conclusion moreover is easily explained if the manner in
which the collision brings the jurisdiction of two different countries
into play be considered.

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
JUDGMENT No. 9.—THE CASE OF THE S.S. “LOTUS” 31

of the incident as a whole. It is therefore a case of concurrent
jurisdiction.

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 Conven-
tion 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 interna-
tional law leaves to every sovereign State, the criminal proceed-
ings 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.

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 cap-
tain 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 Lieute-
nant 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”” (connexité) of the offences.
JUDGMENT No. 9.—THE CASE OF THE S.S. “‘LoTUS” 32

V.

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.

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
the 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 inter-
national law.

This judgment having been drawn up in French in accordance
with the terms of Article 39, paragraph x, second sentence, of
the Statute of the Court, an English translation is attached thereto.
JUDGMENT No. O.—-THE CASE OF THE S.S. “LOTUS” 33

Done at the Peace Palace, The Hague, this seventh day of Sep-
tember, 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.

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 57
of the Statute, have delivered the separate opinions which follow
hereafter.

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.


536 NUCLEAR TESTS (ORDER 20 XII 74)

THE COURT,
Unanimously,

Finds that the Application of the Government of Fiji for permission to
intervene in the proceedings instituted by New Zealand against France
lapses, and that no further action thereon is called for on the part of the
Court.

Done in English and in French, the English text being authoritative,
at the Peace Palace, The Hague, this twentieth day of December, one
thousand nine hundred and seventy-four, in four copies, one of which will
be deposited in the archives of the Court, and the others transmitted to
the Government of Fiji, the Government of New Zealand, and the French
Government, respectively.

(Signed) Manfred Lacus,
President.

(Signed) $S. AQUARONE,
Registrar.

Judge Gros makes the following declaration:

Je vote la présente ordonnance pour des motifs différents de ceux
qu’elle indique. Le document présenté par le Gouvernement fidjien le
18 mai 1973 ne pouvait à aucun titre être considéré comme une demande
d’intervention au sens de l’article 62 du Statut et cette demande aurait dû
être rejetée dès l’origine.

Judge ONYEAMA makes the following declaration:

I have voted in favour of the Order, although, in my view, the reason
given for it, namely that the claim of the applicant State no longer has
any object and in consequence there will no longer be any proceedings
before the Court in which intervention would be possible, carries an
implication with which I am unable to agree. The implication is that if
the claim had had an object and the Court had been called upon to give a
decision thereon, there would have been a possibility of intervention in
this case.

Fiji was not, at any time material to these proceedings, a party to the
General Act of 1928 nor to the optional clause of the Statute of the Court
on which the applicant State sought to base the Court’s jurisdiction, nor

5
537 NUCLEAR TESTS (ORDER 20 XII 74)

has she invoked any basis of jurisdiction vis-à-vis France in her request to
intervene.

The Court should have decided upon this request itself as required by
Article 62 of the Statute of the Court and should, in my view, have rejected
it on the ground that the condition of reciprocity of an obligation to accept
the Court’s jurisdiction was wholly absent between Fiji and France.

Judges DirLARD and Sir Humphrey WaLpock make the following
joint declaration:

The Order states that, the Court having found that the claim of New
Zealand no longer has any object, the Court is not called upon to give a
decision thereon and consequently there will no longer be any proceedings
to which intervention can relate. The Application of the Government of
Fiji has, according to the Order, therefore lapsed.

The conclusion flows logically from the premise. As Members of the
Court, bound by its decision in the Nuclear Tests case, we are therefore
impelled to vote in favour of the Order. It is clearly not possible for the
Government of Fiji to intervene in proceedings, when, by the Judgment of
the Court, no proceedings exist.

Having said this we feel it incumbent on us to state that we do not agree
with the premise which furnishes the ground on which the Court’s con-
clusion rests. As indicated in detail in the dissenting opinion of ourselves
and some of our colleagues, we do not agree that the Court should have
decided that no further action is called for on the claim of New Zealand
against France.

If, in the case of New Zealand v. France, the views of the minority had
prevailed, the issue of.Fiji’s intervention would have required examination
in order to determine whether or not there existed a sufficient jurisdic-
tional link between Fiji and France to justify the former’s intervention
under Article 62 of the Court’s Statute. Furthermore, in our view an
opportunity should have been given to Fiji to be heard on the issue before
this determination was made.

It follows from what we have said above that, while we feel impelled to
vote for the Order of the Court, our reasons for doing so differ in certain
respects from those advanced by the Court.

Judge JIMENEZ DE ARECHAGA makes the following declaration:

I have concurred in voting for the dismissal of Fiji’s application to
intervene under Article 62 of the Statute for a reason other than that on

6