The Lotus dictum under consideration

Since the ninetieth century, a shift towards positivism is found under international law.[1] This paradigm embraces the absence of general international law different from the specific treaties concluded between independent States. Precisely, Dionisio Anzilloti’s decisions as a judge at the P.C.I.J. propagated this voluntarist approach in continental European countries.[2] One of the most remarkable dictum in this sense was the Case of the S.S. “Lotus”[3] where the P.C.I.J. expressed this idea of international law governed by States, either as subjects and objects of the law itself.

Put in its context, Lotus dictum may appear suitable in the international law realm of 1927. However, issues related to (i) sources of international law and (ii) international law subjectivity, among others, have evolved since then. Accordingly, the purpose of this essay is to demonstrate how these arguments continue to be valid up-to-date in some of their statements, albeit at the same time they are outdated in others.

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[1] H. Scupin, ‘History of International Law, 1815 to World War I.’ Max Planck Encyclopedia of Public International Law (OPIL 2001), paras. 1-8.

[2] F. Lachenmann, ‘Legal Positivism.’ Max Planck Encyclopedia of Public International Law (OPIL 2011), para. 28.

[3] The Case of the SS “Lotus” (France v. Turkey) [1927], P.C.I.J. Series A No 9, at 18.