A French steamer collided with a Turkish steamer on the high seas. The Turkish ship sunk and eight Turks died. When the French ship reached Turkey, Turkish authorities criminally prosecuted the French officer on watch as the time of the collision.
Must a state opposing jurisdiction prove the absence of customary law that permits jurisdiction?
Because all acts that are not expressly forbidden under international law are permitted, the BOP is on the state opposing an act to show that there is a rule or custom that does not allow such an act to be exercised.
Does customary abstention of a state from certain actions create an obligation under customary law to continue to refrain from committing those acts?
That most states have abstained from certain actions in particular circumstances does not prove that they are obligated to do so, only that they have chosen to do so.
- The court decided that Turkey did have authority to arrest French officer under the Treaty of Lausanne (1923).
- Sovereignty is so important that, if you are challenging the jurisdiction of a sovereign state, you have burden of proof.
- International Law is a system of freedom — countries can do anything which is not expressly prohibited.
- This case is considered the high mark of positivism: states must agree to restraints on sovereignty.
- The court also decided that France and Turkey had concurrent jurisdiction over the cases arising aboard a French flag vessel on the high seas.
- Subsequent treaties have overruled this finding: only the flag state has jurisdiction.
The Burden of Proof should be on the state seeking to show that it has jurisdiction. International Law does not permit everything that is not explicitly forbidden.
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