3-5 typewritten, double-spaced pages, due in class onNo outside reading is required. Any material quoted or paraphrased fromthe readings should be accompanied by a proper footnote or end note.Re-read the majority opinion of the Permanent Court of International Justice in the Caseof the S.S. Lotus (France v. Turkey) (1927), and the brief discussion of Lotus in JudgeGuillaume=s separate opinion in Democratic Republic of the Congo v. Belgium (the Yerodiacase). You should also look at Judge Nyholm’s dissenting opinion in Lotus (see note below),which is posted on the Canvas site. Write an essay addressing the fictional case of the S.S. Lotus-Prime. This case has all ofthe same facts as the Lotus case, except for the following: There is no collision and no BozKourt. While on the high seas, due to the alleged gross negligence of a Lieutenant Valjean, theLotus-Prime experiences a boiler-room explosion. Eight Turkish nationals, traveling aboard theLotus-Prime, are killed in the explosion. The damaged vessel docks in Constantinople(Istanbul), whereupon Lieutenant Valjean is arrested, and is subjected to the same treatmentinflicted on Lieutenant Demons in the Lotus case. Is France’s argument stronger in the Lotus-Prime case than in the Lotus case? Why? Which side should now win? Why? In making your assessment, consider the following: * Absent any proof of customary practice either way, who would win? Should Francehave to prove that there is a custom that overcomes a presumption that Turkey may exercisejurisdiction as it sees fit, or should Turkey have to prove that there is a custom that overcomes apresumption of exclusive French jurisdiction? What is the basis for either presumption? * What kinds of proof, and how much, must be shown by the state that bears the burdento overcome the prevailing presumption? * In the actual Lotus case, what principles properly govern the question of whetherTurkey can lawfully prosecute Lieutenant Demons for conduct committed on board a French-flagged vessel? Drawing on your understanding of the nature of the international legal systemand of the criteria for determining the existence of a customary norm of international law, assessthe correctness of the majority opinion.* How does the amount of available proof differ, depending on which doctrine ofextraterritorial jurisdiction is used to justify Turkey=s action? What doctrine is asserted in theTurkish statute? If that doctrine were the only doctrine available to justify Turkey’s action,would it follow that the prosecution of Demons violated international law? (That is theproposition that the Lotus-Prime hypothetical seeks to test.)* Judge Nyholm was among the six judges who disagreed with the majority in Lotus. Why did he not accept the majority’s rationale? (Among other things, why did he think that the
Lotus case was actually just like the Lotus-Prime case?) Keep in mind the following point(which seems implicit, but not spelled out, in the dissent): How do we know that LieutenantDemons committed an act that had the character that the majority opinion attributes to it? If theTurkish court’s finding of fact about Demons’ negligence were to be disbelieved, would Turkeyeven have jurisdiction under the jurisdictional doctrine that the majority invokes? Should aTurkish court’s finding of fact influence the international court’s judgment about whetherTurkey had the authority to determine the facts in the first place?* In what relevant ways might the premises of the international legal order have changedsince1927? (Hint: See Guillaume’s separate opinion in Dem. Rep. Congo v. Belgium (Yerodia).)The United Nations Charter (1945) and the Friendly Relations Declaration (G.A. Res. 2625(1970)) were, obviously, not in effect in 1927. Do any of their provisions bear on the issue,however indirectly? (Note also the theme of my “What Ever Happened to Sovereignty?” piece.)Keep in mind that there is no one correct answer. (Lotus itself was, after all, a 7-6decision on a 12-person Court, with the President of the Court, in accordance with Court rules,casting a second vote to break the tie. And this case has stumped commentators ever since!) Donot attempt to address every possible issue that the question suggests; deal only with what youcan address in a coherent and persuasive way in the limited space.Some additional hints about the actual Lotus decision:– Forget about the Convention of Lausanne (“Article 15”); it adds nothing.– Keep in mind that there are three different kinds of exercise of jurisdiction: (1)jurisdiction to execute/enforce (e.g., the Turkish navy boards the Lotus on the high seas andarrests Demons there – plainly unlawful); (2) jurisdiction to adjudicate (e.g., the Turkishshipping company files a civil suit against the French shipping company in a Turkish court, withthe court choosing to apply the civil damages law of either France or Turkey, depending oninternational choice-of-law rules – plainly lawful); (3) jurisdiction to prescribe/legislate, whichcombines with jurisdiction to adjudicate in a criminal prosecution (e.g., Lt. Demons, whohappens to arrive on the territory of Turkey, being criminally prosecuted under Turkish law inTurkish court – what this case is about).– Remember the five different possible justifications of the extraterritorial jurisdiction tolegislate.– Remember that while Turkish law (“Article 6 of the Turkish Penal Code”) may assertone justification, the question before the court is not whether the justification that Turkey gaveis legally correct, but whether its action violated international law. In other words, the Court cansubstitute a better justification, if applicable to the facts.– Remember that France is arguing that it has exclusive criminal jurisdiction, whereasTurkey is arguing that both Turkey and France have the right to exercise jurisdiction (i.e., thatthe two countries have concurrent jurisdiction). No one questions that France also hasjurisdiction, but that fact is not very helpful to Lt. Demons.