Category: international law

Rescuing the Lotus Case from its undeserved bad press

Andrew Serdy, 23 July 2026   9 mins read

The 100th anniversary of the collision on the high seas on 2 August 1926 between the French and Turkish steamships Lotus and Boz-Kourt, sinking the latter with the loss of eight lives, is imminent. It offers a suitable occasion to ponder why the judgment of the Permanent Court of International Justice (PCIJ) in the ensuing case between  France and Turkey nowadays meets near-universal disapproval.

The Court held that Turkey’s institution of criminal proceedings against Lieutenant Demons, officer of the watch on the Lotus at the time of the collision, did not conflict with the international law rules on jurisdiction. Lotus seems second in notoriety only to the South-West Africa Cases for which the received view is that the International Court of Justice (ICJ, the PCIJ’s successor) wanted to make amends by introducing the concept of obligations erga omnes in the Barcelona Traction Case only four years later, that if applied in South-West Africa would have produced the opposite result. Admittedly Lotus has not been so starkly disowned. Rather the closest the ICJ has come to that is the observation in the Arrest Warrant Case that the principle it represents has reached its high-water mark and will not be expanded further.

Even so, it often feels close to being socially unacceptable among international lawyers to support the Lotus case as correctly decided, which is nevertheless what this post will do. This is despite the fact that the international community acted to reverse the result of Lotus subsequently:

All three instruments provide that in cases of collision or any other incident of navigation on the high seas, penal jurisdiction over the acts causing the collision or incident is exercisable only by the flag State of the ship on which the accused is serving, or the accused’s own State of nationality.

A defence of Lotus is somewhat less disreputable now thanks to the belated – if only implied – confirmation of the Lotus reasoning in a case with roughly parallel facts, The “Enrica Lexie” Incident (Italy v. India) decided in 2020 by an arbitral tribunal formed under UNCLOS. Here UNCLOS Article 97(1) was held inapplicable to the fatal shooting of two Indian fishermen mistaken for pirates by a security detachment of Italy’s armed forces aboard an Italian merchant ship, 20 miles off India’s coast and thus in its exclusive economic zone, assimilated to the high seas for navigational purposes by Article 58(2). This was because the fact that the detachment played no role in setting the ship’s course and speed meant that the incident was not one “of navigation”. Hence India – parallelling Turkey in Lotus – was found to have jurisdiction concurrent with Italy’s over the incident as a whole. For a more detailed exposition of the arguments, see this chapter by Vrancken in a recent volume co-edited by the author.

Much of the criticism directed at Lotus, however, is by commentators taking issue with propositions that the majority judgment does not in fact contain or endorse. The misattribution tends to happen in blogposts rather than journal articles, perhaps a positive sign that peer review is serving its intended purpose.

Five such propositions are treated below, but first it is helpful to disentangle the Lotus “principle” – that in international law anything that is not prohibited is permitted – from the narrower Lotus jurisdictional “rule”: when ships collide the flag States of both ships have jurisdiction to try any offences alleged to have been committed in causing the collision, provided at least one element needing to be proved in order to secure a conviction occurred aboard the ship flagged to the prosecuting State. The principle attracts more of the opprobrium than the rule. Yet it is not necessary to embrace it in order to say that the case – based on the narrower rule – was correctly decided. Both principle and rule have given rise to dubious propositions.

The first two propositions concern the principle and bespeak an impatience with positivism, which has rather gone out of fashion, replaced by the notion that States are dangerous entities that must be constrained as far as possible, not left to do largely as they please. The present author has no particular philosophical objection to positivism, but has no need to take a firm position on it beyond noting that, in his experience as a former government official, States themselves, who after all make the international law by which they are bound, are positivists 98% of the time. The remaining 2% represents occasions when litigating States – invariably applicants, never respondents except when counterclaiming? – try to persuade an international court or tribunal that the respondent has some obligation it is alleged to have breached despite never having expressly consented to it.

Absurd proposition 1: Taken to its logical conclusion, the Lotus reasoning makes universal jurisdiction the default rule.

Nobody actually believes that universal jurisdiction is the default rule, not even Belgium despite in effect making that argument to defend its universal jurisdiction law at issue in Arrest Warrant, there being no prohibition as such of universal jurisdiction. The source of confusion here is that, as presented in modern textbooks, the international law rules on jurisdiction solidified in the century since Lotus are framed positively, rather than as a double negative (i.e. “nothing prevents States from…”): States have jurisdiction over events and persons within their territory and over events and persons outside it in a limited number of other situations. Among the latter is universal jurisdiction, but it is a narrowly scoped exception. This is incompatible with the everything-permitted-unless-prohibited caricature, which would force a start from a position of complete freedom.   

Absurd proposition 2: Absence of a prohibition of X is a positive right to do X and shields against incurring responsibility for incidental breach of some other obligation associated with X.

Confusing positive permission with double-negative non-prohibition is also at the root of this error, into which it is all too easy to slip because the result in any given instance will be the same either way: the conduct in question can lawfully be engaged in, either because it is expressly allowed or because there is no rule against it. This can lead dangerously astray those who yield to the temptation to take an extra step: a positive right to do X elides into an absolute right to do it, rendering irrelevant all other potentially applicable law, such that a prohibition against Y can be ignored when Y happens as a result of doing X. Lotus offers no support whatever for that reasoning, and should not be blamed for it.

The other three propositions rest on the Lotus jurisdictional ruling and stem from various misreadings of the majority judgment.

Absurd proposition 3: The Lotus decision endorses the passive personality basis of jurisdiction.

This proposition was formerly commonly seen but less so recently. True, passive personality was the basis on which, under the Turkish Criminal Code, the Istanbul authorities prosecuted Lieutenant Demons. Judge Moore, dissenting, deprecated it, but Turkey itself did not advance passive personality as a defence before the PCIJ. Instead, it argued, and the Court accepted, that the fact that the loss of life occurred on board a Turkish-flagged ship gave Turkey concurrent quasi-territorial jurisdiction over the offence of manslaughter, which would not have been completed had nobody died. For jurisdiction is rarely exclusive. Turkey had no need to, and did not, maintain that France lacked jurisdiction, only that Turkey too was entitled to exercise it. This leads to

Absurd proposition 4: Ships are floating territories of their flag States.

It is true that Judge Nyholm, dissenting, stated as much, and Judge Loder too by implication appeared to agree, but this is not the approach taken by the majority judgment. What the Court actually said was more subtle: it merely assimilated ships to territory for jurisdictional purposes, so avoiding a legal vacuum on the high seas. UNCLOS Article 92 comports with this. Under it, a ship on the high seas is a place where the flag State’s law applies, but that falls short of asserting the ship is its territory. Thus a collision between ships of different flags brings two such quasi-territories into momentary adjacency, akin to neighbouring States on land where an act in one produces effects in the other and concurrent jurisdiction is not controversial, and an on-water shooting is little different. (Imagine the body of water over which fatal gunshots were fired in Enrica Lexie not as the ocean but as a border river.)

Absurd proposition 5: By endorsing Turkey’s jurisdiction over an event occurring on the high seas, the Lotus decision promotes extraterritoriality, a legal evil.

This overdramatises the problem of extraterritoriality. Though sometimes undesirable, it is no evil, just an unavoidable consequence of the way territorial sovereignty over the dry parts of the Earth’s surface is divided among States. There is no intrinsic problem with concurrent jurisdiction, even if for commercial certainty it is common to eliminate one or more possibilities by virtue, for example, of a choice of law and choice of forum clause in cross-border sales contracts. The issue is a practical one, of keeping extraterritoriality within reasonable bounds, so that, merely by acting quickly, a State with a weak nexus with the events in question cannot too easily impose and enforce its own law in relation to them, displacing the law and courts of a State with a stronger connection that appears disadvantageous to the party seeking to circumvent it. Unilateral sanctions, if applied in this controversial way, are rightly faulted.

So, concluding, the passage of 100 years has changed the context in which we should think of the Lotus case. International law has become significantly more sophisticated and complex and the Lotus principle no longer gives, if it ever did, carte blanche to States to have their head. There are, in other words, far more prohibitions to which they are subject, indirectly as well as directly, than there were in 1927. While double negatives are commonly criticised on stylistic grounds, let us thank the Lotus case, both principle and rule, for its salutary reminder that in law it is often a mistake to substitute them with a positive.

Adapted from the slides accompanying a presentation entitled “Rescuing the Lotus Case from its undeserved bad press: Absurd propositions attributed to the case for which it does not stand” delivered at the 8th online seminar of the Lotus 100 Project, 1 December 2025.

Trump’s takeover of Venezuela and the long-standing hypocrisy of international law

Andrea Maria Pelliconi, 5 February 2026    7 mins read

The past months have brought back with startling clarity a pattern many international lawyers know all too well. Under the second presidency of Donald Trump, the United States (US) has returned to overt coercion to impose their interests upon the rest of the world. Realist pragmatism has always been present in international relations, but states used to couple their acts “with at least a resemblance of legal justification”. This time, however, practice is matched by words: Trump has completely dispensed with the liberal varnish that usually accompanies US extraterritorial mischiefs and openly admits that his actions are guided only by his own morality. The attack on Venezuela and the kidnap of Nicolás Maduro and his wife have been followed by repeated threats to annex Greenland by purchase or use of force, alongside renewed intimidation directed at other states such as Panama, Mexico, Colombia, and Cuba. We’re witnessing an accelerated deepening of the global crisis of multilateralism and international law and a return to Great Powers’ “spheres of influence”.

Everyone knows in legal scholarship that the unilateral kidnap of a sitting head of state is unequivocally unlawful under international law, whatever one may think about the Maduro regime and its gross and widespread human rights abuses. The prohibition of the use of force, the principles of sovereignty and non-intervention, and the personal immunity of heads of state vis-à-vis other domestic jurisdictions leave no room for ambiguity. And yet, the responses of some western states and the European Union (EU) have not been so unequivocal. Instead, they have been divided and ambivalent, cloaked in watered-down words of “concern” or “monitoring” or strategic silences. German Chancellor Merz has stated that the legal assessment of the US operation is “complex”. French President Macron has emphasised the need for a transition which is “peaceful, democratic, and respectful of the will of the Venezuelan people”. Italian Prime Minister Giorgia Meloni suggested that while the use of force is generally wrong, the US were acting in self-defence against so-called “hybrid security attacks”, referring to Maduro’s supposed weaponisation of drug-trafficking against the US. Reactions were far more decisive when it came to Trump’s threats against Greenland, where the territorial integrity and interests of an EU and NATO state were at stake. European leaders suddenly rediscovered the language of international law and the inviolability of sovereignty and territorial integrity with admirable clarity.

This should not come as a surprise. Over the past years, manifestations of double standards and selectivity have grown exponentially, with the most discussed example being the reactions to Russia’s invasion of Ukraine and Israel’s “plausible” genocide in Gaza, both framed as defensive responses to security threats and terrorism. While one may well argue that Israel’s self-defence claim was more well-founded than Russia’s, it soon became clear that the 7 October 2023 attack was being used as a mere pretext to unleash uncontrolled violence on Palestinians, while preparing the ground for territorial expansion in both Gaza and the West Bank. This expansionist plan continues to develop even now, after the supposed “ceasefire” and the UN Resolution on Gaza, and nothing concrete is being done to bring it to an end. The same double standard surfaced in reactions to the International Criminal Court’s (ICC) arrest warrants against Vladimir Putin and Benjamin Netanyahu for international crimes. The same European states that rushed to praise the ICC for its investigation of the Russian leader, later declared that Netanyahu enjoys immunity from ICC prosecution.

And yet, once again, this selectivity is not new at all. It follows decades of US (and broader Western) unlawful attacks and interventions in Iraq, Afghanistan, Iran – to the extent that exceptionalism is not exceptional anymore. Each time, international law norms were stretched, re-interpreted, or reinvented through securitisation doctrines such as preventive self-defence and the “unable or unwilling” test, or hidden behind ostensible “benevolent motives” such as humanitarian intervention, regime change, and the “exportation of democracy”. In fact, the US has even committed the exact same type of head-of-state kidnapping before in the region, most notably with the capture of Manuel Noriega from Panama. This is the so called “rules-based international order”, meaning the rules that the US and its allies imposed upon the rest of the world (“the West and the rest”), as opposed to what international law actually required. Every time, other western states have been weak in condemning the illegality of these actions, and even weaker in doing anything concrete to prevent, stop, or redress them.

Now, at what feels like the climax of the collapse of the international legal order and multilateralism, everyone has awakened, shouting that this is not a drill. UN experts warn that such actions normalise lawlessness in international relations, and commentators caution that Venezuela sets a dangerous precedent: if powerful states may unilaterally decide when international law applies and when it does not, the legal order collapses into selective enforcement and strategic convenience. Even leading US academics now talk about the catastrophic collapse of jus ad bellum norms and the dangers we all face when “might unmakes right”. They highlight the risk that the Venezuela incident “opens the door to other similar actions by powerful nations in the future”. This fails to appreciate that the door has long been wide open.

A prevalent position now is to acknowledge the flaws of international law but vehemently opposing the abandoning of its normative constraints because they’re the only thing that will save us from debacle. International law can still be mobilised to place constraints on power and if it’s consistently disregarded it’s because of contingent political factors militating against full compliance. A recurring metaphor that I’ve heard a few times lately, including among critical thinkers, is the Sisyphus’ myth: the futility of the task should not deter the discipline. But this, at least in part, obscures how this system was intentionally built to shield the actions of the West and has laid the foundations for the situation we now find ourselves in. International law and the indeterminacy of its content provide a “professional vocabulary” to build plausible arguments. For decades, mainstream scholars were complicit in the legal legitimisation of these actions, coming up with doctrines that served the interests of the moment under a façade of international legal jargon.

The inherent defect of the international legal infrastructure has simply become more visible now. As Rajagopal has put it, “The revival of overt colonial and imperial designs under the Trump regime in Washington is notable not because it has invented new forms of domination, but because it has dispensed with the traditional liberal rhetoric that once accompanied them.” From its colonial origins to its modern doctrines of sovereignty, intervention, and trade, international law has consistently operated in the interests of dominant states and classes, while insulating them from the equal application of its norms. What we are witnessing today are colonial revivals as the logical outcome of a system that never truly decolonised. It seems scarier to European eyes now because it has eventually turned against them.

Of course, legal scholarship is not monolithic. Critical voices, including TWAIL scholars, have raised these concerns all along. Yet they have been unable to bring material change, partly because of the structural hierarchies of international law, and partly because of fragmentation of their own views. Some tried to change the system from within; others were content to critique from the margins; others advocated radical transformation or the complete dismantling of the legal order, often without a clear project – and always with different opinions – for what should come after.

Now, as we stand on the verge of a concrete dismantling of the system, with Trump’s plan to replace the United Nations with his own personal “Board of Peace” and international relations reaching the peak of personalisation and corporatisation, everyone – even critics – seem unsure what to do. If there is a moment to seize, it is now. But seizing it requires more than lamenting Trump’s excesses or the fragility of the system: it demands an honest reckoning with the errors of the past, Western exceptionalism, legal complicity, resource-hungry capitalism, and a system ostensibly built on sovereign equality but consistently seized by vetoes and unilateral reprisals. What is needed are visionary ideas for radical change and possible futures – and I am not sure we – myself in primis – are up for the task.