Abstract
This chapter returns to the moments when the PCIJ and the ICJ were confronted with the question of whether the concept of public international law conforms to the framework of obligation or the framework of authorization. In the Case of the S.S. “Lotus”, the PCIJ addressed this question of principle raised by the positions adopted by France and Turkey and opted for the framework of obligation. In Legality of the Threat or Use of Nuclear Weapons, when the point was revisited by the Nuclear Weapon States and the Non-Nuclear Weapon States, the ICJ followed in the footsteps of its predecessor. This chapter is intended to trace in detail the pertinent reasoning of both Courts and to illustrate the incoherence attaching to reasoning within either of those frameworks.
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- 1.
Case of the S.S. “Lotus”, Judgment No. 9 of 7 September 1927, Series A.—No. 10, 5.
- 2.
Case of the S.S. “Lotus”, Judgment No. 9 of 7 September 1927, Series A.—No. 10, 16–17.
- 3.
Siorat 1958, paras 446–470; Haggenmacher 1986, para 51; Dekker and Werner 2003, pp. 14–23.
- 4.
Case of the S.S. “Lotus”, Judgment No. 9 of 7 September 1927, Series A.—No. 10, 18.
- 5.
Case of the S.S. “Lotus”, Judgment No. 9 of 7 September 1927, Series A.—No. 10, 18–19.
- 6.
Case of the S.S. “Lotus”, Judgment No. 9 of 7 September 1927, Series A.—No. 10, 19: ‘It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law. Such a view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory and if, as an exception to this general prohibition, it allowed States to do so in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable. (…) In these circumstances, all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty.’
- 7.
Case of the S.S. “Lotus”, Judgment No. 9 of 7 September 1927, Series A.—No. 10, 20–21.
- 8.
Case of the S.S. “Lotus”, Judgment No. 9 of 7 September 1927, Series A.—No. 10, 22.
- 9.
Case of the S.S. “Lotus”, Judgment No. 9 of 7 September 1927, Series A.—No. 10, 22–23: ‘[T]he Court does not think it necessary to consider the contention that a State cannot punish offences committed abroad by a foreigner simply by reason of the nationality of the victim. For this contention only relates to the case where the nationality of the victim is the only criterion on which the criminal jurisdiction of the State is based. Even if that argument were correct generally speaking—and in regard to this the Court reserves its opinion—it could only be used in the present case if international law forbade Turkey to take into consideration the fact that the offence produced its effects on the Turkish vessel and consequently in a place assimilated to Turkish territory in which the application of Turkish criminal law cannot be challenged, even in regard to offences committed there by foreigners. But no such rule of international law exists.’
- 10.
Case of the S.S. “Lotus”, Judgment No. 9 of 7 September 1927, Series A.—No. 10, 25: ‘If, therefore, a guilty act committed on the high seas produces its effects on a vessel flying another flag or in foreign territory, the same principles must be applied as if the territories of two different States were concerned, and the conclusion must therefore be drawn that there is no rule of international law prohibiting the State to which the ship on which the effects of the offence have taken place belongs, from regarding the offence as having been committed in its territory and prosecuting, accordingly, the delinquent.’
- 11.
Case of the S.S. “Lotus”, Judgment No. 9 of 7 September 1927, Series A.—No. 10, 29: ‘It will suffice to observe that, as municipal jurisprudence is thus divided, it is hardly possible to see in it an indication of the existence of the restrictive rule of international law which alone could serve as a basis of the contention of the French Government.’
- 12.
Case of the S.S. “Lotus”, Judgment No. 9 of 7 September 1927, Series A.—No. 10, 31: ‘It must therefore be held that there is no principle of international law, within the meaning of Article 15 of the Convention of Lausanne of July 24th, 1923, which precludes the institution of the criminal proceedings under consideration. Consequently, Turkey, by instituting, in virtue of the discretion which international law leaves to every sovereign State, the criminal proceedings in question, has not, in the absence of such principles, acted in a manner contrary to the principles of international law within the meaning of the special agreement.’
- 13.
Case of the S.S. “Lotus”, Judgment No. 9 of 7 September 1927, Series A.—No. 10, 30–31: ‘The conclusion at which the Court has therefore arrived is that there is no rule of international law in regard to collision cases to the effect that criminal proceedings are exclusively within the jurisdiction of the State whose flag is flown. This conclusion moreover is easily explained if the manner in which the collision brings the jurisdiction of two different countries into play be considered. The offence for which Lieutenant Demons appears to have been prosecuted was an act—of negligence or imprudence—having its origin on board the Lotus, while its effects made themselves felt on board the Boz-Kourt. These two elements are, legally, entirely inseparable, so much so that their separation renders the offence non-existent. Neither the exclusive jurisdiction of either State, nor the limitations of the jurisdiction of each to the occurrences which took place on the respective ships would appear calculated to satisfy the requirements of justice and effectively to protect the interests of the two States. It is only natural that each should be able to exercise jurisdiction and to do so in respect of the incident as a whole. It is therefore a case of concurrent jurisdiction.’
- 14.
Lauterpacht 1933, Chap. IV, para 18; Siorat 1958, paras 475–477.
- 15.
Castberg 1933, p. 358.
- 16.
Case of the S.S. “Lotus”, Judgment No. 9 of 7 September 1927, Dissenting Opinion Judge Moore, Series A.—No. 10, 67: ‘When Article 15 speaks of ‘the principles of international law’, it means the principles of international law as they exist between independent and sovereign States. It evidently was intended to recognize the right of Turkey to exercise her judicial jurisdiction as an independent and sovereign State, except so far as the exercise of national jurisdiction is limited by the mutual obligations of States under the Law of Nations. (…) I will next consider the broad question submitted under the compromis as to whether Turkey violated the principles of international law by instituting criminal proceedings in the present case, and it is obvious that, under the interpretation I have given to Article 15 of the Lausanne Convention, this question in effect is, whether an independent State is forbidden by international law to institute criminal proceedings against the officer of a ship of another nationality in respect of a collision on the high seas, by which one of its own ships was sunk and lives of persons on board were lost.’
- 17.
Case of the S.S. “Lotus”, Judgment No. 9 of 7 September 1927, Dissenting Opinion Lord Finlay, Series A.—No. 10, 52: ‘The first point with which the Court has to deal is this: What is the exact meaning of the question put in the compromis: La Turquie a-t-elle agi en contradiction des principes du droit international? It has been argued for Turkey that this question implies that France, in order to succeed, must point to some definite rule of international law forbidding what Turkey did. I am unable to read the compromis in this sense. What it asks is simply whether the Turkish Courts had jurisdiction to try and punish Demons; if international law authorizes this, the question would be answered in the affirmative, otherwise in the negative. The compromis cannot, with any fairness, be read so as to require France to produce some definite rule forbidding what was done by Turkey. If the Turkish proceedings were not authorized by international law, Turkey acted en contradiction des principes du droit international. (…) The question is put in the compromis with perfect fairness as between the two countries and the attempt to torture it into meaning that France must produce a rule forbidding what Turkey did arises from a misconception. The question is whether the principles of international law authorize what Turkey did in this matter.’
- 18.
Case of the S.S. “Lotus”, Judgment No. 9 of 7 September 1927, Dissenting Opinion Judge Loder, Series A.—No. 10, 35–36; Dissenting Opinion Judge Weiss, 44–45, 49; Dissenting Opinion Judge Nyholm, 59–63; Dissenting Opinion Judge Altamira, 95–104.
- 19.
Case of the S.S. “Lotus”, Judgment No. 9 of 7 September 1927, Dissenting Opinion Judge Weiss, Series A.—No. 10, 45–46, 49.
- 20.
Case of the S.S. “Lotus”, Judgment No. 9 of 7 September 1927, Dissenting Opinion Judge Loder, Series A.—No. 10, 36–37; Dissenting Opinion Judge Weiss, 47–48; Dissenting Opinion Judge Nyholm, 61.
- 21.
Case of the S.S. “Lotus”, Judgment No. 9 of 7 September 1927, Series A.—No. 10, 19–20.
- 22.
Case of the S.S. “Lotus”, Judgment No. 9 of 7 September 1927, Dissenting Opinion Lord Finlay, Series A.—No. 10, 56–58.
- 23.
Case of the S.S. “Lotus”, Judgment No. 9 of 7 September 1927, Dissenting Opinion Judge Altamira, Series A.—No. 10, 103: ‘In my opinion, the freedom which, according to the argument put forward, every State enjoys to impose its own laws relating to jurisdiction upon foreigners is and must be subject to limitations. In the case of competing claims to jurisdiction such as those in question (according to those who recognize the existence of such competition), this freedom is conditioned by the existence of the express or tacit consent of other States and particularly of the foreign State directly interested.’
- 24.
Kennedy 1987, p. 86.
- 25.
Klabbers 1998, pp. 349–351.
- 26.
Nationality Decrees Issued in Tunis and Morocco (French Zone), Advisory Opinion of 7 February 1923, Series B.—No. 4, 23–24.
- 27.
General Assembly resolution 49/75 K.
- 28.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 226, para 21.
- 29.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 226, para 22: ‘The Court notes that the nuclear-weapon States appearing before it either accepted, or did not dispute, that their independence to act was indeed restricted by the principles and rules of international law, more particularly humanitarian law, as did the other States which took part in the proceedings. Hence, the argument concerning the legal conclusions to be drawn from the use of the word “permitted”, and the conclusions of burden of proof to which it was said to give rise, are without particular significance for the disposition of the issues before the Court.’
- 30.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 226, para 34.
- 31.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 226, para 52: ‘The Court notes (…) that international customary and treaty law does not contain any specific prescription authorizing the threat or use of nuclear weapons or any other weapon in general or in certain circumstances, in particular those of the exercise of legitimate self-defence. Nor, however, is there any principle or rule of international law which would make the legality of the threat or use of nuclear weapons or of any other weapons dependent on a specific authorization. State practice shows that the illegality of the use of certain weapons as such does not result from an absence of authorization but, on the contrary, is formulated in terms of prohibition.’
- 32.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 226, paras 78, 95–97.
- 33.
Case Concerning Military and Paramilitary Activities in and against Nicaragua (Merits), Judgment of 27 June 1986, ICJ Reports 1986, 14, para 193.
- 34.
Case Concerning Military and Paramilitary Activities in and against Nicaragua (Merits), Judgment of 27 June 1986, ICJ Reports 1986, 14, para 194; Case Concerning Oil Platforms (Merits), Judgment of 6 November 2003, ICJ Reports 2003, 161, paras 74, 76.
- 35.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 226, paras 37–42.
- 36.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 226, para 105.
- 37.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, Declaration Judge Herczegh, ICJ Reports 1996, 226, Declaration Judge Ferrari Bravo.
- 38.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, Dissenting Opinion Judge Weeramantry, ICJ Reports 1996, 226, 476–477, 497–500, 513; Dissenting Opinion Judge Koroma, 556, 562–563, 570–571, 580–581.
- 39.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, Dissenting Opinion Judge Shahabuddeen, ICJ Reports 1996, 226, 402–403, 411.
- 40.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, Separate Opinion Judge Fleischhauer, ICJ Reports 1996, 226, para 5; Dissenting Opinion Vice-President Schwebel, 320–323; Dissenting Opinion Judge Higgins, 12–18, 19–24.
- 41.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, Declaration President Bedjaoui, ICJ Reports 1996, 226, paras 11–15, 14: ‘In the present Opinion (…) the Court does not find the threat or use of nuclear weapons to be either legal or illegal; from the uncertainties surrounding the law and the facts it does not infer any freedom to take a position. Nor does it suggest that such license could in any way be deduced therefrom. Whereas the Permanent Court gave the green light of authorization, having found in international law no reason for giving the red light of prohibition, the present Court does not feel able to give a signal either way.’
- 42.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, Separate Opinion Judge Guillaume, ICJ Reports 1996, 226, paras 5, 9: ‘In operative para 2 E the Court decided in fact that it could not in those extreme circumstances conclude definitely whether the threat or use of nuclear weapons would be lawful or unlawful. In other words, it concluded that in such circumstances the law provided no guidance for States. But if the law is silent in this case, States remain free to act as they intend.’
- 43.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, Dissenting Opinion Judge Shahabuddeen, ICJ Reports 1996, 226, 426; Dissenting Opinion Judge Koroma, 559–560.
- 44.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, Declaration President Bedjaoui, ICJ Reports 1996, 226, paras 19–22.
- 45.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, Dissenting Opinion Judge Shahabuddeen, ICJ Reports 1996, 226, 391–392.
- 46.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, Dissenting Opinion Judge Shahabuddeen, ICJ Reports 1996, 226, 392.
- 47.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, Dissenting Opinion Judge Shahabuddeen, ICJ Reports 1996, 226, 392.
- 48.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, Dissenting Opinion Judge Shahabuddeen, ICJ Reports 1996, 226, 394–397.
- 49.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, Dissenting Opinion Judge Shahabuddeen, ICJ Reports 1996, 226, 392–394: ‘The existence of a number of sovereignties side by side places limits on the freedom of each State to act as if the others did not exist. These limits define an objective structural framework within which sovereignty must necessarily exist; the framework, and its defining limits, are implicit in the reference in “Lotus” to “co-existing independent communities” (…) Thus, however far-reaching may be the rights conferred by sovereignty, those rights cannot extend beyond the framework within which sovereignty itself exists; in particular, they cannot violate the framework. The framework shuts out the right of a State to embark on a course of action which would dismantle the basis of the framework by putting an end to civilization and annihilating mankind. It is not that a State is prohibited from exercising a right which, but for the prohibition, it would have; a State can have no such right to begin with. So a prior question in this case is this: even if there is no prohibition, is there anything in the sovereignty of a State which would entitle it to embark on a course of action which could effectively wipe out the existence of all States by ending civilisation and annihilating mankind? An affirmative answer is not reasonable; that sovereignty could not include such a right is suggested by the fact that the acting State would be one of the (…) “co-existing independent communities”, with a consequential duty to respect the sovereignty of other States. It is difficult for the Court to uphold a proposition that, absent a prohibition, a State has a right in law to act in ways which could deprive the sovereignty of all other States of meaning.’
- 50.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, Dissenting Opinion Judge Weeramantry, ICJ Reports 1996, 226, 494–496: ‘It is implicit in “Lotus” that the sovereignty of other States should be respected. One of the characteristics of nuclear weapons is that they violate the sovereignty of other countries who have in no way consented to the intrusion upon their fundamental sovereign rights, which is implicit in the use of the nuclear weapon.’; Dissenting Opinion Judge Koroma, 576.
- 51.
McDougal and Feliciano 1987, pp. 269–274, 309–317; Akande 1997, pp. 212–215.
- 52.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 226, paras 51, 88–89.
- 53.
Akande 1997, pp. 202–203.
- 54.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, Dissenting Opinion Judge Shahabuddeen, ICJ Reports 1996, 226, 387–389.
- 55.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, Dissenting Opinion Judge Weeramantry, ICJ Reports 1996, 226, 494–496; Dissenting Opinion Judge Koroma, 576.
- 56.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, Dissenting Opinion Judge Shahabuddeen, ICJ Reports 1996, 226, 393.
- 57.
D’Amato 1971, pp. 179–185: ‘A second line of argument [in the Fisheries Case] looked to the substantive question involved; Norway contended that the littoral state had the sovereign freedom of action to delimit its coastline, but the United Kingdom countered this by arguing that the principle of freedom of the seas put the onus of proof on Norway in any attempt to extend its internal waters beyond generally accepted limits. In light of the way the case progressed, and in view of the ultimate opinion by the Court, this second line of argument was a stalemate. Generally it illustrates a basic fact of international law that whenever any state claims a freedom to act, its act is impinging in some way upon the freedom of another state or of the general body of states. If this were not so—if, for instance, the issue was one arising solely within the domestic jurisdiction of a state—then by definition international law would not be involved. Thus any state’s claim of freedom to act will, in some manner, restrict the freedom of action of another state, even though the other state is entitled to claim the same degree of freedom of action. There is no a priori freedom of action.’; Tomuschat 1999, Chap. V, paras 10, 43; Dupuy 2002, pp. 98–99.
- 58.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, Dissenting Opinion Judge Shahabuddeen, ICJ Reports 1996, 226, 393.
- 59.
The ICJ has confirmed this approach in Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo, Advisory Opinion of 22 July 2010, not yet reported, paras 49–56.
- 60.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, Declaration President Bedjaoui, ICJ Reports 1996, 226, para 14.
- 61.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, Dissenting Opinion Judge Weeramantry, ICJ Reports 1996, 226, 494–496.
- 62.
Dupuy 2002, pp. 34–35, 53–56.
- 63.
Weil 1992, pp. 33–39.
- 64.
Case of the S.S. “Lotus”, Judgment No. 9 of 7 September 1927, Dissenting Opinion Judge Loder, Series A.—No. 10, 34: ‘Turkey, having arrested, tried and convicted a foreigner for an offence which he is alleged to have committed outside her territory, claims to have been authorized to do so by reason of the absence of a prohibitive rule of international law. Her defence is based on the contention that under international law everything which is not prohibited is permitted. In other words, on the contention that, under international law, every door is open unless it is closed by treaty or by established custom. The Court in its judgment holds that this view is correct, well founded, and in accordance with the facts. (…) It seems to me that the contention is at variance with the spirit of international law.’
- 65.
Case of the S.S. “Lotus, Judgment No. 9 of 7 September 1927, Dissenting Opinion Judge Nyholm, Series A.—No. 10, 60–61: ‘Thenceforward, it cannot be maintained—as the judgment sets out—that, failing a positive restrictive rule, States leave other States free to edict their legislations as they think fit and to act accordingly, even when, in contravention of the principle of territoriality, they assume rights over foreign subjects for acts which the latter have committed abroad. The reasoning of the judgment appears to be that, failing a rule of positive law, the relations between States in the matter under consideration are governed by an absolute freedom. If this reasoning be followed out, a principle of public international law is set up that where there is no special rule, absolute freedom must exist. The basis of this reasoning appears to be that it is vaguely felt that, even outside the domain of positive public international law, the situation of fact as regards relations between nations in itself embodies a principle of public law. But that is a confusion of ideas. In considering the existing situation of fact, a distinction should be drawn between that which is merely an international situation of fact and that which constitutes a rule of international law. The latter can only be created by a special process and cannot be deduced from a situation which is merely one of fact.’
- 66.
Case of the S.S. “Lotus”, Judgment No. 9 of 7 September 1927, Dissenting Opinion Judge Altamira, Series A.—No. 10, 104: ‘Any decision leading to the establishment of a system of unrestricted freedom in States (…) would (…) be very serious. Even where a very circumscribed and particular case was concerned, there would, in such a conclusion, be a risk of giving rise almost inevitably to dangerous constructions and applications. In spite of all the provisos that might be added, it would be very difficult, I think, in view of the shifting ground upon which the case rests, to prevent the decision being construed in a manner going beyond its underlying intention.’
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Vos, J.A. (2013). The Framework of Obligation and the Framework of Authorization in the Case of the S.S. “Lotus” and in Legality of the Threat or Use of Nuclear Weapons . In: The Function of Public International Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-90-6704-861-3_3
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