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Reading: State Jurisdiction and the Permissiveness of International Law: Is the Lotus Still Blooming?

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State Jurisdiction and the Permissiveness of International Law: Is the Lotus Still Blooming?

Author:

Marco Vöhringer

London School of Economics and Political Science (LSE), GB
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Abstract

The Lotus rule has traditionally stipulated that in international law, any conduct not specifically prohibited is allowed. However, there now is considerable disagreement as to whether this principle is still valid. This article argues that we should distinguish between the Lotus principle’s conceptual origins and its core content. It will be shown that, given the evolution of international law, the positivist assumptions on which Lotus was initially based are no longer tenable. On the other hand, the basic Lotus presumption, which requires state action to be deemed lawful unless it violates an international prohibition, is still viable and can be reconciled with the structure of modern international law. This ‘enlightened reading of the Lotus rule’ will subsequently serve as a lens for examining the international rules on state jurisdiction. The conclusion will be that this area of international law demonstrates that the presumption of lawfulness still applies, but that the sources from which relevant international prohibitions can be derived have diversified.
How to Cite: Vöhringer, M., 2021. State Jurisdiction and the Permissiveness of International Law: Is the Lotus Still Blooming?. LSE Law Review, 7(1), pp.29–60.
Published on 14 Nov 2021.
Peer Reviewed

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