The Enrica Lexie Case: Criminal Jurisdiction at Sea
by Guy Des Rosiers
of the 1927 case of the S.S. Lotus with the 2012 dispute between Italy and India involving the M.V. Enrica Lexie provides valuable insight on what has changed over the intervening 85 years.
C 18
The ability to punish wrongdoing is a fundamental attribute of sover- eignty, which itself is closely tied to the idea of territorial borders. Thus, no one would question a state’s as- sertion of criminal jurisdiction over conduct occurring within its bor- ders, regardless of the nationality of the alleged perpetrator. But what happens when a crime is commit- ted outside of the territory of any state?
riminal law may be as old as the hills, but the intersection of criminal law and public international law remains as challenging today as it ever has been. A comparison
this article explores the impact of intervening de- velopments in the law of the sea, and considers some of the implications for future cases.
The Lotus Case (1927)
In all other cases, however, the age-old question posed by the Lotus court, i.e., whether interna- tional law prohibits what is not expressly permitted, or permits what is not expressly prohibited,
Consider, for instance, that oceans cover nearly 71 percent of the Earth’s surface, and approximately 60 percent of all marine areas consist of the high seas, over which no state may assert its sover- eignty. Simply put, nearly one-half of the Earth’s surface is not subject to the sovereignty of any state. Such vast expanses cannot simply be im- mune from the criminal laws of any state. But the question of which state’s criminal laws may apply, and under what circumstances, raises a number of interesting issues for international lawyers to grapple with.
After briefly presenting and contrasting the rel- evant facts of the Lotus and Enrica Lexie cases,
cannot readily be answered in an area such as the EEZ, where the rights and obligations of States are only partially defined.
The Lotus case involved a collision on the high seas between the French steamship Lotus and the Turkish steamship Boz-Kourt. As a result of the collision, the Boz-Kourt was lost and eight Turkish nationals perished. After picking up the survivors, the Lotus continued on to the port of Constanti- nople. While the Lotus was still anchored in Turkish territory, its captain (a French national) was arrested and charged with crimi- nal misconduct. While the pre- cise legal basis for the prosecu- tion is not known, it was believed that the captain of the Lotus was charged with manslaughter
pursuant to Article 6 of the Turkish Penal Code, which expressly permitted the prosecution of for- eigners for acts committed abroad against the in- terests of Turkey, provided that the foreigner was arrested in Turkey. The captain of the Boz-Kourt was also charged with manslaughter.
The French government vigorously protested the arrest and prosecution of the captain of the Lo- tus, on the grounds that Turkish criminal courts had no jurisdiction over the matter. By consent of both states, the matter was brought before the Permanent Court of International Justice (“the Court”).
ILSA Quarterly » volume 22 » issue 2 » December 2013
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