Constraints on State Jurisdiction

AuthorJohn H. Currie; Craig Forcese; Joanna Harrington; Valerie Oosterveld
Part iii
Constraints on State Jurisdiction
In Part II we explored various international legal doctrines pertaining to the jurisdiction
essentially, the legalized power enjoyed by states over territory, persons, conduct, and
events. For the most part, those doctrines ow from and give practical expression to the
somewhat abstract notion of state sovereignty and its corollaries. Perhaps not surprisingly,
therefore, they are also essentially descriptive and permissive: they describe the assumed
freedoms, powers, and international legal entitlements that attach to states by virtue of
their statehood. Recall the starting premise of the Permanent Court of International Justice
in the Lotus case: that states, as sovereign entities, are assumed to be free to do as they
please unless and until a rule of international law limiting their assumed freedom of action
is established.
Some commentators argue that the Lotus premise has been misattributed, misread, or
misapplied. Others claim it is obsolete, in that modern international law can no longer be
considered merely a source of limitations on the inherent freedoms of states; rather, it is the
source of both restrictions on and entitlements of states. This is undoubtedly true, but if this
criticism of the Lotus premise is meant to suggest that states only have those powers and
capacities that are positively granted to them by international law, that view is problematic.
Such a position would be inconsistent with the fact that international legal disputes between
states are not framed and resolved on the assumption that a state’s actions are unlawful until
a positive source of legal authority for those actions can be established. Quite the contrary:
Case of the SS Lotus (France v Turkey) (), PCIJ (Ser A) No .
See, for example, Selman Aksünger, “Evolution of the Lotus Dictum: An Inquiry for Assessing the Con-
tinuing Validity” () : Law & Just Rev . See also An Hertogen, “Letting Lotus Bloom” ()
 Eur J Int’l L .

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