Just Cases | Season 2 | Episode 4 | Death at Sea

It’s the night of 2 August 1926. Five nautical miles off the coast of Lesbos. A French ship, the SS Lotus, is cruising towards its destination of Constantinople. The ship’s first officer is keeping watch, but he doesn’t know that there’s a Turkish ship dead ahead.

What lies ahead is not only a naval disaster, but a diplomatic dispute that throws a massive colonial power on a collision course with a young nation on the rise.

Music:
- ‘This tuning is so dramatic’ by Monplaisir
- ‘35’C’ by King Imagine

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Transcript | Just Cases | Season 2 | Episode 4 | Death at Sea

Melissa Castan: [00:00:00] It is the 2nd of August, 1926, five nautical miles off the coast of Lesbos in Greece. It's nighttime and a French ship. The SS Lotus is cruising towards the destination of Constantinople. Now is Stanbul

the first officer's keeping watch, but what he doesn't know is the ship's speed. Through the dark waters is that there's a Turkish ship dead ahead. I'm Melissa Castan. This is just Cases.

My cohost James Patterson is with me. Hi James,

James Patterson: I'm Melissa.

Melissa Castan: We are joined today by Douglas Gilfoyle. He's a professor of international law here at Monash Law School. We're gonna head back to those dark waters off the coast of Turkey and Greece. What lies ahead for the French [00:01:00] ship is not only a naval disaster, it's an entire legal case that will change the course of international relations for the next century.

Douglas, back to that lookout post for the French ship, the Lotus, the French first officer who was keeping guard. Who was he?

Douglas Guilfoyle: We don't know an awful lot about him. He has the name lieutenant. Demo. He was the first officer of the Steam packet the Lotus. But the more important thing was he was the watchkeeper.

At that point at night.

Melissa Castan: And what's the significance of being the watchkeeper at that point?

Douglas Guilfoyle: So you are essentially responsible under international law for avoiding collisions. And similarly, the officer on deck on the BOS court, the Turkish vessel that was hit by the lotus. The officer on deck at that point was the captain.

Okay, so you have two people whose job it is essentially their first job in a real way. You had one job. Yeah. You have one job as the, as the watch officer at night or the captain of the vessel. And that's to stop [00:02:00] your vessel from colliding with others or stop it running into things.

This is a fairly basic duty. That line

James Patterson: does actually, that entire meme does come from this case in 1920s. That's a little known fact.

Douglas Guilfoyle: You had one job. But in any event, the thing that's unusual about sort of collision cases at sea is that it really requires two parties to have both gotten it wrong.

So the cause of a collision is normally going to require both vessels and the person in charge to have done something wrong. So what happens next between these two ships? Okay, so they've collided. At sea and the Turkish vessel begins to sink. Dam does what he should do. He mobilizes essentially a rescue effort aboard the lotus.

They manage to get 10 of the crew of the sinking Turkish vessel. Including the captain out of the water, but eight, go down with the ship. That's what we have. We have a rescue situation. We have a disaster sea. We have eight Turkish nationals [00:03:00] dead, arguably as the result of the negligence of Miss Em or the joint negligence of demo.

And the captain of the BO court Mr. Hassan Bay. And what?

James Patterson: About these two people, Mr. Hasen, bay and Deon, what happens to them? How do they come outta this?

Douglas Guilfoyle: The Lotus proceeds to Constantinople, its next port of call and at that point, both bay and demo are arrested. They're charged with manslaughter by negligence.

They are put on trial in Constantinople, and the legal proceedings take about a month that the sentence comes down on 15 September. And the French lieutenant, he gets 80 days in prison and a fine of 22 Turkish pounds, and the Turkish captain gets a comparable sentence. Now you think about it, you've just, by negligence killed.

Eight foreign nationals and you are sentenced to 80 days prison and a fine, realistically this looks pretty lenient, [00:04:00] but the French go through the roof. Diplomatic correspondence is entered into, they're saying that the Turks had absolutely no right to assert criminal jurisdiction over this case.

It actually becomes a major diplomatic incident and this thing about criminal

James Patterson: jurisdiction, I'm sure we're gonna go into a ted depth about no pun intended, but. The

Douglas Guilfoyle: It's actually really hard to avoid puns when you talk about Law of the Sea. Suddenly realize how many nautical metaphors are just littered through the English language.

But anyway,

James Patterson: if you can make sure that throughout this conversation you drop at least one pun per sentence, then that would be greatly appreciated. We'll see. We'll see what pun per minute ratio we can reach. Yep. This occurred in international waters, did it not? Yep. So it wasn't, it occurred on the high Seas.

Okay. So it wasn't in Turkish water?

Douglas Guilfoyle: No.

James Patterson: Okay. Was there any reaction apart from the French reaction, which was outrage? Do you know how it was regarded in Turkey at the time? I.

Douglas Guilfoyle: I'm not sure how it was received as it were by the general population, but certainly by Turkish elites. This was seen as [00:05:00] something of a kind of litmus test.

And I mean that in the sense that Turkey is a relatively new. Country at this stage. So we're talking 1926. It's only emerged from, as it were, the ashes of the Ottoman Empire as a result of the peace treaties, which are quite important to the case at the end of the First World War, and particularly the 1919 peace Treaty of Lauson.

And part of the kind of elite approach to the case is informed by the fact that for literally. Centuries from the 15 hundreds through to 1919, you had what was called the capitulation regime or the consular jurisdiction regime, and boiling that right down. What it meant was that foreigners in the Ottoman Empire who were protected by these treaties with European powers were subject to different jurisdictional.

Arrangements and, but particularly disputes between foreigners could not be heard by Turkish courts.

James Patterson: Now, is that meaning [00:06:00] then that safe, french company was operating in the Ottoman Empire and there was a Belgian company operating, and they had a big dispute that those countries judicial system could operate to resolve it within the Ottoman Empire itself.

Ex,

Douglas Guilfoyle: exactly. So the civil courts of the Ottoman Empire would've had no jurisdiction over that dispute.

Melissa Castan: Okay. It's like an expat free law zone, really.

Douglas Guilfoyle: Okay, so

Melissa Castan: can we turn to the Lotus case itself and Right. And explain to us a little bit about how that case. Came about and what it meant.

Douglas Guilfoyle: Okay, so this is a sort of fascinating kind of footnote to legal history in that the case was heard before the Permanent Court of International Justice and the permanent court, or the PCIJ was, as it were, the International Court of Justice. For the League of Nations. So it's the first sort of truly international World court.

And the Permanent Court of International Justice on its face is only open to members of the League of Nations. But Turkey still really new and [00:07:00] hasn't joined the League of Nations yet. So the only way France can bring the case before the permanent court is if Turkey agrees. So they actually lodge a.

Special written agreement with the permanent court called a Compromie, which sounds a lot in English, like compromise, which is what it is. And they set out what the questions of law they want the court to resolve are. And that boils down to essentially in exercising jurisdiction over Lieutenant demo has Turkey violated any rule of international law?

That's the agreed phrasing, which also becomes. Important because it actually puts France in the position of having to say, what is the rule? Turkey has violated? So France, if

James Patterson: I can get this straight, France is saying, and with 500 years of more or less bad blood between them, France is saying you as a nation and as a new nation, one that's not necessarily recognized as being equal to us, can't assert your criminal [00:08:00] law over a Frenchman.

When this collision has happened in international waters.

Douglas Guilfoyle: Yep. That's exactly the core of it. So this teases out in a couple of different ways. So there's the question of what is the law that applies to a collision on the high seas? There's a question, a more general question. When can states attach consequences in criminal law to events occurring outside their territory?

And then there's a question about whether. And the advocate for Turkey, who we'll get to in a moment, actually puts it in these terms. He actually has this wonderful line and I, it's delivered in French. The whole case was conducted in French, and I won't, it must

Melissa Castan: sound so much nicer that way.

Douglas Guilfoyle: I won't go for it and add a naval pun.

Ah, we will see. But infr, in my very bad French accent, what he essentially says, like the sort of his winning line in the case is.[00:09:00]

So is there a difference between Turkish sovereignty and French sovereignty? So what he's actually doing is using international legal argument and the fundamental assumption that sovereign states are equal to skewer the French argument directly. To cut through every other argument. The French bring up, he just says, this is what it comes.

Down to and the advocate in that case was Mamu Esat. And ESATs an interesting figure himself, like he's a radical Turkish nationalist. He's in at a Turks first cabinet. Now these are people who, as I understand it, for them, one of the problems with the Ottoman Empire was that in contemporary terms, it was too multicultural, right?

It was too many nations. Under one umbrella. And what they want is basically Turkey for the Turks, but the way they're going to get Turkey for the Turks, the way they're going to get a protected [00:10:00] sovereignty is through international law. And at this time, to be fully sovereign means meeting the sort of European standard of civilization.

So while on the one hand, esat is this fiery nationalist, like at the time the case is heard, he's in his early thirties. He's in cabinet for the first independent Turkey. And he holds, I think he holds his doctorate from Switzerland. This is a nationalist but also an internationalist.

And the French lead advocate jus Stevo he's an interesting character too, 'cause he later goes on to become the president. Of the PCIJ so not only a judge, but he's on the trajectory. He's on the trajectory. So he's already like a he was a French treaty law expert at. The Versailles Peace Treaty negotiations.

Wow. So he wasn't directly involved in negotiating peace with the Turks, but he was part of the General European Peace Conference. He's at this time, [00:11:00] international law is not a major subject in French universities. He holds one of the only chairs in international or in Paris. He goes on to join the foreign ministry.

He becomes a judge of the permanent. Court of International Justice and eventually the president of the Permanent Court of International Justice so this is a, to, to use the language, British politics, this is a big beast, right? And he's 10 years older than this, scrappy Turkish nationalist with his Swiss doctorate.

And so his advocacy is very technical. And very condescending. So Bashan, he had a number of arguments, but perhaps the two most important ones were first Turkey could not have extra territorial jurisdiction in a case like this because the Treaty of Lasan denied it to them. And I'll come back to that, but he had a very technical treaty interpretation argument.

And his second argument was that essentially asserting [00:12:00] jurisdiction over events beyond your territorial frontier was simply impermissible. But essentially, bas Deon's argument is rooted in this idea that Turkey is not an equal power. They don't have full sovereignty, they have sovereignty to the degree the Europeans let them.

Under the peace treaty,

Melissa Castan: and you could see that would be quite a hard argument to sustain to an international court today because you can't have gradations or divisible versions of what a country's sovereignty can be. You either have it or you don't have it. You don't have a lesser version,

Douglas Guilfoyle: right?

'cause you're a lesser country. And so this is the use of international law for ESSA because, formal equality is a really powerful principle in dispute resolution. So even if you're not substantively equal, France is clearly far more powerful than Turkey at this time. Formal equality allows you to step up and make this argument.

No, you don't get to treat us like this. But this brings us to the French second argument, which was even if the ordinary rules of international law apply, they prohibit the [00:13:00] extraterritorial application of your criminal law. Or alternatively, there's a special rule in the event of collisions on the high seas, which means that only.

The flag state can exercise disciplinary or criminal jurisdiction.

James Patterson: What's the flag state?

Douglas Guilfoyle: So the flag state is the easiest answer. It's not a complete answer, but the easiest answer is to say if you're sailing a ship on the high seas and it is registered in France, then France is the flag state and French law will apply on the boat.

James Patterson: Is this like that thing where you hear about airplanes that if someone dies on board, an airplane midair, whoever own, whichever country? I register that plane. Did you just make

Melissa Castan: that

James Patterson: up? No, this is true, isn't it? The rule to have died in that country. Yeah if, I do make a lot of things up, but

Douglas Guilfoyle: I'm pretty sure if the aircraft turns up, why are we talking about if, if the aircraft is outside the territorial jurisdiction of any state, when it's in the airspace over a country, it's in that country.

But yeah, it's the same, it's the same principle. So all kinds of things are [00:14:00] subject to a kind of flag state principle. The main ones are ships and aircraft, but also space satellites.

Melissa Castan: Can I come back to you, Doug? Extraterritoriality, what do we mean by that?

Douglas Guilfoyle: So the easiest way to explain this is the old criminal law lecture, theater thought experiment, which is, okay, imagine an international border A stands on one side, B stands on the other, A shoots a gun across the border and kills B who has jurisdiction?

And the answer is both states. The state where the criminal act is commenced. And the state where the effects are felt. So this is where the French argument starts to collapse when you take the analogy and apply it on the high seas. They were saying only the ship where the offense occurred, only that flag state can prosecute.

Therefore only we can prosecute demo. And the Turks replied no. Same as if a gun was fired across a border [00:15:00] on our ship. People were injured and. Died. We have territorial jurisdiction as well. You can't, as it were, localized, territorial jurisdiction to only one ship or the other. They are both implicated.

James Patterson: So is the Turkish argument that it is both, or the Turkish are trying to say it is just on. Yep. The Turkish

Douglas Guilfoyle: ship the tur, the Turkish argument is it's both. Both are equally valid and therefore we could prosecute, and that's the only question that's been put to the court is, did Turkey have a right to prosecute, or in fact, really the question that's been put to the court where France made its case harder than it had to be was in prosecuting, has Turkey breached any rule of international law?

Melissa Castan: Okay. So what was the decision of the international court on that?

Douglas Guilfoyle: On the actual point at issue, which is not the point for which the case is actually famous amongst lawyers. The court simply held that you could assimilate the events on ships on the high [00:16:00] seas. Two territory. They didn't say ships were territory.

They just said you could treat them as if they were territory. The status was no worse, no better. And therefore the events could occur on both vessels and therefore. Turkey was perfectly entitled to prosecute.

Melissa Castan: So Doug, you said that was the outcome, the decision in the case, but you also said the case is famous for a different reason.

Douglas Guilfoyle: So the passage the court's judgment is famous for, which is said to give rise to the Lotus principle is this. So the PCIJ literally says 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 coexisting independent communities or with a view for achieving their common aims.

Here's the. Really critical sentence restrictions [00:17:00] upon the independence of states cannot therefore be presumed.

Melissa Castan: What's the significance of that? Quite simple statement.

Douglas Guilfoyle: So that simple statement appears to lay out a proposition. Everything is permitted unless it's prohibited.

Melissa Castan: I love that rule.

Douglas Guilfoyle: It would be a great it.

It would be a great rule, in terms of. An international legal system where other states exist, it doesn't make a lot of sense.

James Patterson: Ah,

Douglas Guilfoyle: Can we just explain to the slow person what this means? So well, tea teasing it out. I would say what it means is a court cannot presume limitations upon the sovereignty of states.

A court must start from the proposition that states have unlimited. Competence. Okay. Which corresponds with this idea of the national sovereign, so the principle in, say, British common law Parliament can make or unmake any rule, whatever parliament can extend its laws to the entire world. No. No [00:18:00] one from within.

The United Kingdom can question the will of Parliament. However, from an external perspective, an international law perspective, logically equal sovereigns can only have supreme power to the extent that every other state does. So the existence of other states must limit what sovereignty can do. If other sovereigns exist and are formal equals, then actually sovereign power can't be unlimited.

What the Lotus case is famous for is a statement that every subsequent case and textbook goes to town disagreeing with. Here's the thing I particularly love is the court did not apply the Lotus Principle in the Lotus case. So is that just a throwaway line that they've just chucked in there? They're trying, they're, as I say, they were caught at this sort of turning point in reasoning about international law.

Do you start from the point of view that you should, that [00:19:00] sovereignty and international law should mean what it does in national constitutional law, or do you need a. Different conception of sovereignty based on many states being formally equal. Now again, think of Turkey's position. They are newly a state.

They are newly sovereign. This is a period after the first World War where actually international law is going from being just a kind of European club to having to have. More relationships with non-European states as if they were formal equals. Whereas, the norm in the past had been things like the capitulation regimes, unequal treaties, gunboat diplomacy.

So the idea of meeting these other states on the footing of formal equals is a new thing that has to be dealt with. So what

James Patterson: happened to. Mossier Dimon and his Turkish counterpart. Counterpart, did they

Melissa Castan: serve the 80 days?

Douglas Guilfoyle: I believe he did. Although he certainly wasn't in any [00:20:00] kind of pretrial detention.

He was given bail until the case was actually heard. So I think he served the 80 days, but it was only the 80 days. It wasn't 80 days plus pretrial detention, and I hope he

Melissa Castan: coughed up that 22 pounds as well.

Douglas Guilfoyle: The second question in the whole case was, if Turkey had violated rule of international law, what compensation was due to Mr.

Demo? But that question didn't have to be answered because it was found that Turkey hadn't violated international law. And, but coming back to the personalities of the advocates, one of the interesting things is Dr. Esat, the Turkish advocate, was so pleased that he won the case and so pleased that he won over the French, he added an extra surname.

To his title. So he took the name of the sunk Turkish boat chorus. I don't

Melissa Castan: know. That's a bad omen. It was one wouldn't,

Douglas Guilfoyle: one might think it wasn't the best of omens. So

Melissa Castan: He went on to have a double barrelled name. He went, yeah, French counterpart went on to be the president of the permanent court.

Yep.

Douglas Guilfoyle: Went onto a long illustrious career despite the setback of losing this particular case.

Melissa Castan: Douglas [00:21:00] Guilfoyle, thank you very much for joining us on Just Cases Today.

Douglas Guilfoyle: Thank you

James Patterson: very much for having me. It's been terrific.

Melissa Castan: And thanks James.

James Patterson: Thanks, Melissa. I'm gonna go and have a little lie down.

Melissa Castan: You got an international law headache now.

James Patterson: I really do.

Melissa Castan: This is just cases, the backstory to the biggest court cases you've never heard of, and if you liked our podcast. Please rate it wherever you listen to your podcasts and leave us a review. We'd love to hear your thoughts. See you next time.