Enrica Lexie
As recognized by the Court at the outset of its judgment, there was a disagreement between the parties as to a simple yet fundamental ques- tion: In order to exercise jurisdiction over acts committed outside its borders, was Turkey re- quired to find support in a positive rule of public international law, as France contended, or was Turkey free to exercise its jurisdiction absent any specific prohibition imposed by public internation- al law, as Turkey argued?
Interestingly, the Court did not set out to decide this matter as an abstract question of law, but in- stead referred to the terms of the Compromis, point 1 of which specifically called upon the Court to decide whether Turkey had “acted contrary to the principles of international law” (“agi en contra- diction des principles du droit international”). Hav- ing found that Turkey’s formulation of the relevant question was more in line with the actual terms of the Compromis, the Court simply adopted it as the starting point of its legal analysis. Although the Court might well have stopped there, it went on (in the very next paragraph of the judgment) to pen the so-called “Lotus principle,” for which the case is most famous:
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 express- ing 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.
The rest of the Court’s analysis is straightforward. Having decided to look for prohibitions rather than permissive rules, the Court found only one, name- ly, that a state may not exercise its power in any form in the territory of another state. Taking care to distinguish between a state’s power to adopt
laws (i.e., prescriptive jurisdiction) and its power to enforce the same laws (i.e., enforcement ju- risdiction), the Court concluded that Turkey was well within its rights to adopt laws criminalizing conduct taking place outside of its borders, so long as it did not attempt to enforce such laws outside of its own territory – which would violate the rule against exercising its power in the terri- tory of another state.
While France argued that international law should also limit a state’s prescriptive jurisdiction, the Court declined to address this issue in any de- tail because the precise basis for the Turkish prosecution was not before the Court. As a gen- eral observation, however, the Court noted that nearly all states, in one manner or another, had enacted laws criminalizing certain conduct oc- curring outside their borders. While the Court did not exclude the possibility that certain theories of extraterritorial jurisdiction might offend estab- lished rules of international law, it reserved this question for another day. Thus, in the Court’s view, the only clear prohibition in this case was placed on Turkey’s enforcement jurisdiction - not on its prescriptive jurisdiction. While the alleged offense in the Lotus case was committed outside of Turkey’s territory by a foreign national, the ar- rest and prosecution of the French captain of the Lotus occurred entirely within Turkey. The Court therefore found nothing in Turkey’s conduct that would offend principles of public international law.
The Enrica Lexie Incident (2012)
The recent Enrica Lexie incident involves a very different set of facts, yet remarkably similar un- derlying principles. The following facts are para- phrased from a judgment of the India Supreme Court, dated 18 January 2013, in Writ Petition (Civil) No. 135 of 2012 (Republic of Italy v. Union of India).
ILSA Quarterly » volume 22 » issue 2 » December 2013
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