Revisiting the Lotus Case: Evolving Perspectives on State Sovereignty and International Law

Introduction

The case of Lotus is one of the important cases of international law because it lay down certain principles of international law in a novel manner. Among other issues, the case dealt with the making of customary international law. Although it remains an important case in international law as far as customary law is concerned, however, it is pertinent to discuss the case with respect to the changes that have happened in the long period of time since the decision in Lotus case was given by the Permanent Court of International Justice (PCIJ).

The PCIJ in the Lotus case laid down the principle that states are only bound in international law by what they have consented to. In other words, the liberty or will of the state was the primary focus of the court. This concept of state liberty is also manifested in the aphorism ‘ce qui n’est pas interdit, est permis’. This rule was seen to be implemented by the PCIJ in the Lotus case.

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In recent times, this principle is said to be outdated. Its obsolesce is argued for by some scholars because there are judgements where the courts have actually held that the state liberty cannot be treated as an unlimited principle. This is discussed in this essay.

Lotus principle and its relevance today

Of all the sources of international law, custom is the oldest source, although treaty is the more important source of law. The Statute of International Court of Justice (ICJ), Article 38, gives a chronological list of sources of law that are given on a priority basis for the ICJ to follow in a particular case. The first source of law as per the list is treaty and the second source in the list is custom. This means that custom is to be referred to only in the absence of a treaty on the issue.

The importance of the Lotus case or the subsequent cases that deal with the same principles of customary law, is in the fact that the question of the source of a particular principle becomes exceedingly important in situations where there is no treaty or codification of the principle that may be impugned in a case. In the absence of treaties, the courts are left to grapple the question of existence of

  • France v Turkey P.C.I.J. (ser. A) No. 10 (1927).
  • Bas Schotel, On the Right of Exclusion: Law, Ethics and Immigration Policy (Oxon: Routledge 2013) 47.
  • Malcolm N Shaw, International Law (Cambridge: Cambridge University Press 2014).
  • Statute of ICJ, Article 38 (1).
  • Christopher Greenwood, ‘Sources of International Law: An Introduction’ (2008), accessed 27 November 2016 < http://legal.un.org/avl/pdf/ls/greenwood_outline.pdf >

The importance of the Lotus case or the subsequent cases that deal with the same principles of customary law, is in the fact that the question of the source of a particular principle becomes exceedingly important in situations where there is no treaty or codification of the principle that may be impugned in a case. In the absence of treaties, the courts are left to grapple the question of existence of international law on the basis of customs or other sources of international law. The problem with custom as a source of law is that it is not a written source, like treaty, nor is it clearly evident in judgements of courts or national laws such as general source of law recognised by civilised nations. Therefore, the question of whether a customary law exists has to be ascertained based on certain factors that were clarified in the Lotus case and subsequent cases as well. One of the principal factors is that the states out of their own sovereign will recognise the existence of a certain principal of customary law and therefore, the law is binding upon the states.

The Lotus case relates to a dispute between France and Turkey over the issue of criminal prosecution and conflict of laws in the case of collision on the seas. France’s principal contention was that since states have omitted to prosecute unless it was a flag state reflected the opinio juris in international law with respect to the question. The PCIJ held that unless international law specified otherwise, the states could make whatever law they wanted. In the opinion of the court, there could not be any restrictions on the state other than those particularly consented to by states and that such restrictions on the state sovereignty cannot be presumed. In other words, states could do as they please in their sovereignty so long as there is no international law or rule that prohibits such action and moreover such international rule is also a creation of the states by their free consent as sovereign states. Needless to say, the possibility of there being no consensus on any rule due to differing state perceptions and policy, left the very question of there being international law at all a doubtful question. During the time the Lotus case was decided and for time after that, many writers criticized the PCIJ judgement on this very point that if all states did what they pleased then there would be no international law.

The Lotus case is a reflection of the positivist outlook, which postulates that the states are sovereign and free to make laws as per their will and the only rules of international law that are binding on the state are the ones that the state has

  • Cedric Ryngaert, Jurisdiction in International Law (Oxford: Oxford University Press 2015) 33.
  • For instance, WW Cook, ‘The Application of the Criminal Law of a Country to Acts Committed by Foreigners Outside the Jurisdiction’, in (1934) 40 W Va LQ 303.

The Lotus case is a reflection of the positivist outlook, which postulates that the states are sovereign and free to make laws as per their will and the only rules of international law that are binding on the state are the ones that the state has consented to, thereby stressing on the psychological elements of international law, that is, the opinio juris.

The position of the PCIJ on this very important principle of international law and the limits on the state in absence of consent of the states to such limits has come up before the International Court of Justice (ICJ) and other courts on a number of occasions. It is pertinent to discuss these cases and the principles laid down by these cases in order to understand the relevance of the case with respect to limits on state in international law.

In Barcelona Traction, Light and Power Co. Ltd (Belgium v Spain), the ICJ had to decide on the issue of national jurisdictions on bankruptcy. The court decided that the international law does not impose any hard and fast rules on matters such as bankruptcy, shipping, etc., and leaves it to the discretion of the states to make legislations with respect to these areas. However, in the obvious indictment of the Lotus principle, the ICJ also held that international law does postulate the existence of certain limitations on the states.

In the Legality of the Threat or Use of Nuclear Weapons, President Bedjaoui discussed the reasons why the Lotus principle is no longer relevant. He opined that the positivist and voluntarist approach of the Lotus case has been replaced by an objective conception of international law, which is grounded in social necessities of the states that are organized as a community.

In Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, the ICJ has nevertheless synchronized with the Lotus case. This has been criticized by many scholars. For example, one scholar has said that the idea of state liberty as espoused by Lotus case is outdated because it is based on two outdated notions of international law: positivism and anthropomorphic conception of states. This latter concept equates states with human beings, as a person who is capable of being vested

  • Malcolm N Shaw, International Law (Cambridge: Cambridge University Press 2014) 53.
  • [1970] ICJ Reports 105.
  • Cedric Ryngaert, Jurisdiction in International Law (Oxford: Oxford University Press 2015) 33.
  • ICJ Rep 1996, 226.
  • Helmut Philipp Aust, Complicity and the Law of State Responsibility (Cambridge University Press 2011) 68.
  • 2010 I.C.J. 404.
  • Bas Schotel, On the Right of Exclusion: Law, Ethics and Immigration Policy (Oxon: Routledge 2013) 47.

with fundamental and inalienable rights and freedoms. However, this approach too suffers from certain problems, not the least of which is the difficulty of equating an artificial personality with a real person.

Another scholar points out that the model of exclusionary principle with relation to declaration of independence on the basis of the outdated Lotus principle is faulty. Nevertheless, the fact remains that there is still some relevance for the Lotus principle today.

Courts are often faced with difficult issues on whether there is an existence of an international customary rule on a certain point. For example, on the issue of state immunity, there may be a question that whether such an immunity exists. Here, the actual state practice and the academic opinion may show a divergence of opinion on the point. Here, as long as a rule does not exist as on date, states have the sovereignty to make the rule within their jurisdictions as per the principles and policies that drive the state. This may be an affirmation of the Lotus principle which allows states as much liberty as it likes unless it consents to restrict it.

Until the judgement of the ICJ in the Legality of the Threat or Use of Nuclear Weapons, it was generally considered that the international community had rejected the Lotus principle with respect to the state liberty, according to which states are free to act as long as they are not restricted by a rule of customary international law and treaty law. In this case, the court had opined that:“In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should in general be consistent with such a rule; and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule.”

  • Ibid 47.
  • Marc Weller, ‘The Sounds of Silence: Making Sense of the Supposed Gaps in the Kosovo Opinion’, in Marko Milanovic, Michael Wood, The Law and Politics of the Kosovo Advisory Opinion (Oxford: Oxford University Press 2015) 191.
  • Jasper Finke, ‘Sovereign Immunity: Rule, Comity or Something Else?’, (2010) 21 (4) Eur J Int Law 853.
  • Ibid.
  • ICJ Rep 1996, 226.
  • Marc Weller, ‘The Sounds of Silence: Making Sense of the Supposed Gaps in the Kosovo Opinion’, in Marko Milanovic, Michael Wood, The Law and Politics of the Kosovo Advisory Opinion (Oxford: Oxford University Press 2015) 192.
  • ICJ Rep 1996, 226.

In the North Sea Continental Shelf cases, the ICJ observed:

“Not only must the acts concerned be a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule requiring it. ... The States concerned must feel that they are conforming to what amounts to a legal obligation.”

Therefore, despite the consensus of some jurists and judges that Lotus principle is outdated and no more relevant, the principle cannot be completely disregarded as such, and it does find its way into judgements of the ICJ from time to time, as seen in the cases of advisory opinion on Kosovo independence and the North Sea Continental Shelf cases.

However, there Lotus case. If the Lotus principle is applied in the rigid sense as on date, then it would be difficult to ascertain principles of international law in the absence of treaties and discrepancies in state practice. The second problem is that state liberty as laid down in the Lotus principle as the basis for consent to international law may pose a conflict with a corresponding state liberty for another state. How is such a conflict to be reconciled? This is a difficult area and unfortunately the Lotus case serves no answer to the problem of such a conflict.

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Conclusion

The Lotus principle is an important case on international law. The case is considered to be outdated by many legal scholars on international law, however, as the recent ICJ opinion on Kosovo declaration of independence demonstrates, the Lotus principle on state liberty is not entirely outdated. At the same time, the rigid application of the Lotus principle is fraught with difficulties and there are justified grounds for treating the principle as outdated, or at least arguing for not applying the principle in a rigid sense.

  • ICJ Reps, 1969, 44.
  • Helmut Philipp Aust, Complicity and the Law of State Responsibility (Cambridge University Press 2011) 69.

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Bibliography

  • Aust HP, Complicity and the Law of State Responsibility (Cambridge University Press 2011)
  • Cook WW, ‘The Application of the Criminal Law of a Country to Acts Committed by Foreigners Outside the Jurisdiction’, in (1934) 40 W Va LQ 303
  • Finke J, ‘Sovereign Immunity: Rule, Comity or Something Else?’, (2010) 21 (4) Eur J Int Law 853.
  • Greenwood C, ‘Sources of International Law: An Introduction’ (2008) accessed 27 November 2016 < http://legal.un.org/avl/pdf/ls/greenwood_outline.pdf >
  • Ryngaert C, Jurisdiction in International Law (Oxford: Oxford University Press 2015)
  • Schotel B, On the Right of Exclusion: Law, Ethics and Immigration Policy (Oxon: Routledge 2013)
  • Shaw MN, International Law (Cambridge: Cambridge University Press 2014)
  • Weller M, ‘The Sounds of Silence: Making Sense of the Supposed Gaps in the Kosovo Opinion’, in Marko Milanovic, Michael Wood, The Law and Politics of the Kosovo Advisory Opinion (Oxford: Oxford University Press 2015)

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