Constraints on State Jurisdiction

• Author: John H. Currie; Craig Forcese; Joanna Harrington; Valerie Oosterveld
• Pages: 511-512

511

Part iii

Constraints on State Jurisdiction

INTRODUCTI ON

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misapplied. Others claim it is obsolete, in that modern international law can no longer be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 .