The Lotus Position

Selman Aksünger tells a tale of two ships that did not pass in the night.

Selman is a doctoral candidate in the International and European Law Department at Maastricht University.

Around midnight on 2 August 1926 a collision occurred on the Aegean between the Lotus, a French vessel en route to Istanbul, and the Bozkurt, a Turkish collier. As a result of this collision, which took place four miles off the Lesbos, the boiler of the Bozkurt exploded, tearing the ship in half. The stern sank in a few minutes while the fore part stayed afloat for around half an hour.[1] Eight of the Turkish crew died, while ten were rescued by the Lotus and brought to Istanbul the next day.[2]

News spread fast and the incident received extensive coverage in Istanbul newspapers. The families of the Bozkurt crew filed a complaint before the Istanbul courts, requesting the prosecutor to determine who was responsible for the deaths. The chief prosecutor obliged that same day. The prosecutor for Istanbul, Fuad Bey, invited the deputy captain of the watch on the Lotus, a French citizen named Demons to testify, along with three other crew. Demons and the captain of the Turkish steamer, Hasan Bey, were both arrested and charged with manslaughter by negligence. Lieutenant Demons was sentenced to eighty days’ imprisonment and a fine of six thousand Turkish lira.

France made several diplomatic representations protesting the arrest of Demons, claiming that Turkish courts had no jurisdiction under international law. France contended that Demons could only be prosecuted by a French court, and that Turkey had violated international law by prosecuting him, under the terms of Article 15 of the Lausanne Convention. This article provides that all questions of jurisdiction between Turkey and the other contracting Powers shall be decided in accordance with the principles of international law..

The Turkish government confirmed its decision to claim jurisdiction but also declared that it would have no objection to referring the dispute on the jurisdiction of Turkey over the French captain to the Permanent Court of International Justice. Founded by the League of Nations in 1920, the PCIJ was the predecessor of the International Court of Justice, and held its first sitting in 1922. Following a special agreement between Turkey and France, the case was heard and decided by PCIJ in 1927.[3]

The Court decided that Turkey had not violated any principle of international law by initiating proceedings against the French captain before the Istanbul Penal Court. The judgment was more significant than might at first appear. For the young Republic winning a case before such an international tribunal after years of conflict with the European powers represented a great symbolic victory.

One of the most important issues for Turkey during the Lausanne negotiations surrounded the extraterritorial privileges of European powers granted under the capitulations. While Turks viewed capitulatory rights as an infringement of their juridical sovereignty, the Europeans sought to maintain these unilateral concessions. This issue was also present in Turkey and France’s submissions to the PCIJ. While the former emphasized its newly-won sovereign status, the latter was keen to maintain jurisdictional privileges denounced in the Treaty of Lausanne.

There would be no dispute before the PCIJ if the French captain in such a situation had been prosecuted by a British court, but Turkey is not a state entitled to do so.
Henri Fromageot

This became clear when the French representative in the Lotus case, Henri Fromageot, later a judge at the PCIJ, told his Turkish counterpart Mahmut Esad that “There would be no dispute before the PCIJ if the French captain in such a situation had been prosecuted by a British court, but Turkey is not a state entitled to do so.” As France did not consider Turkey a fully sovereign state, so the French foreign ministry objected to Turkey’s prosecution of Demons. In his response, Turkish foreign minister Esad vowed that Turkey would achieve what she had sought for so long: “You will soon recognize Turkey as an equally sovereign state before the Court.”[4] The Court became the battlefield where Turkey’s juridical sovereignty was confirmed..

After Lausanne Turkey sought to maintain an equal relationship with European states and preserve sovereignty over its territory and population. The Lausanne Treaty as an international legal instrument was the primary tool for Turkey to achieve this aim. The Lotus case and several other international legal disputes between Turkey and European states that arose from the interpretation of Lausanne Treaty reaffirmed Turkey’s position as an actor in international law. The Treaty thus remains a key document not only for global historians, but for international lawyers concerned with questions of extraterritoriality, sovereignty, and jurisdictional disputes.