The Lotus Case in Context – Sovereignty, Westphalia, Vattel and Positivism
in S. Allen, D. Costelloe, M. Fitzmaurice, P. Gragl & E. Guntrip (eds.), Oxford Handbook of Jurisdiction in International Law, Oxford: Oxford University Press, 2019, 40-58
20 Pages Posted: 3 Dec 2019 Last revised: 19 Dec 2019
Date Written: 2019
The study of state jurisdiction in a historical perspective must involve the judgment of the Permanent Court of International Justice in the Lotus case; its influence is undisputed, in spite of major changes in this body of law. Revisiting this landmark 1927 decision and putting it in a broader context show how the concept of jurisdiction is intertwined with the notion of sovereignty. The paper goes back to the 17th and the 18th century, with the Peace of Westphalia and the doctrinal work of Emer de Vattel, with a view to setting out the prevalent epistemology of international law in late 19th and early 20th century, namely positivism. The major lessons from the Lotus case must be understood in this historical and theoretical context: international norms act as restrictions to what sovereign states can do, including in regard to jurisdiction, and such limitations cannot be presumed given the sovereignty of states. The long-lasting heritage of the case, for state jurisdiction and for international law in general, is indeed this intellectual apprehension of normativity rooted in the voluntarist thesis, that is to say, in legal positivism.
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