656
i n t e r nat i o na l l aw
independence of states could not be presumed.
45
However, a state was
not able to exercise its power outside its frontiers in the absence of a
permissive rule of international law. But, continued the Court, this did
not mean that ‘international law prohibits a state from exercising juris-
diction in its own territory, in respect of any case which relates to acts
which have taken place abroad and in which it cannot rely on some per-
missive rule of international law’. In this respect, states had a wide mea-
sure of discretion limited only in certain instances by prohibitive rules.
46
Because of this, countries had adopted a number of different rules ex-
tending their jurisdiction beyond the territorial limits so that ‘the ter-
ritoriality of criminal law, therefore, is not an absolute principle of in-
ternational law and by no means coincides with territorial sovereignty’.
47
The Court rejected the French claim that the flag state had exclusive
jurisdiction over the ship on the high seas, saying that no rule to that
effect had emerged in international law, and stated that the damage to
the Turkish vessel was equivalent to affecting Turkish territory so as
to enable that country to exercise jurisdiction on the objective territo-
rial principle, unrestricted by any rule of international law prohibiting
this.
48
The general pronouncements by the Court leading to the dismissal of
the French contentions have been criticised by writers for a number of
years, particularly with respect to its philosophical approach in treating
states as possessing very wide powers of jurisdiction which could only be
restricted by proof of a rule of international law prohibiting the action
concerned.
49
It is widely accepted today that the emphasis lies the other
way around.
50
It should also be noted that the
Lotus
principle as regards
collisions at sea has been overturned by article 11(1) of the High Seas
Convention, 1958, which emphasised that only the flag state or the state
of which the alleged offender was a national has jurisdiction over sailors
regarding incidents occurring on the high seas. The territorial principle
covers crimes committed not only upon the land territory of the state but
also upon the territorial sea and in certain cases upon the contiguous and
45
PCIJ, Series A, No. 10, 1927, pp. 18–19; 4 AD, p. 155.
46
PCIJ, Series A, No. 10, 1927, p. 19; 4 AD, p. 156.
47
PCIJ, Series A, No. 10, 1927, p. 20.
48
Ibid.
, p. 24; 4 AD, p. 158.
49
See e.g. G. Fitzmaurice, ‘The General Principles of International Law Considered from the
Standpoint of the Rule of Law’, 92 HR, 1957, pp. 1, 56–7, and H. Lauterpacht,
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