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I. INTRODUCTION
The decision of the Permanent Court of International Justice (PCIJ) in the Case of the S.S. "Lotus"1 has attracted more attention than any of that court's other opinions,2 and its impact as a source of foundational principles in various areas of international law has been lasting. Hersch Lauterpacht noted that the decision "forms a mine of valuable material upon the subject of Jurisdiction,"3 Louis Henkin labeled it "one of the landmarks of twentieth-century jurisprudence,"4 and Bin Cheng opened his oft-quoted volume with a full paragraph from Lotus.5 Teachers of international law routinely use the Lotus principle or presumption-the PCIJ's pronouncement that "[restrictions on the independence of States cannot... be presumed"6-as a general departure point for the study of public international law.7
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."8 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.9 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.10 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.
Part II reviews the factual background of the Lotus decision and the judgment of the PCIJ. It also outlines potential interpretations of the Lotus principle given the ambiguity of the decision itself and the...