But Lotus has perhaps drawn as much criticism as affirmation. Ian Brownlie observes that "[i]n most respects the Judgment of the Court is unhelpful in its approach to the principles of jurisdiction, and its pronouncements are characterized by vagueness and generality." Nor does there appear to be any clear consensus on the decision's core holdings; in fact, commentators have read the decision in alarmingly divergent ways. This Note avoids the legal cacophony surrounding the specific holdings of the Lotus decision, focusing instead on the Lotus principle. Scholars have persistently (and often uncritically) taken the Lotus principle at face value, citing it for the sweeping proposition that everything that is not prohibited in international law is permitted. This interpretation of the principle, if it ever accurately captured the reasoning of the PCIJ in the Lotus case, no longer appears warranted. But even narrower interpretations of the principle remain problematic, particularly given the expansion of international law throughout the twentieth century. This Note examines various potential interpretations of the Lotus principle and then queries whether such interpretations find support in the jurisprudence of the International Court of Justice (ICJ). It concludes that the Court, from its early days, has viewed the principle at best as inapposite and at worst as an inaccurate statement of the principles of international law.
The Lotus Principle in ICJ Jurisprudence: Was the Ship Ever Afloat?,
Mich. J. Int'l L.
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