See Nationality Decrees Issued in Tunis and Morocco (French Zone) on November 8th, 1921 , Advisory Opinion, PCIJ Series B, No. It is important here to distinguish between prescriptive and enforcement jurisdiction. The Case of the S.S. Lotus , 1927 PCIJ Series A, No. This does not mean that territorial sovereignty and the central role of territoriality in determining the legality of an exercise of jurisdiction have become irrelevant. Nuclear Weapons , supra note 9, at 270–271, Declaration of President Bedjaoui; Brierly, ‘The “Lotus” Case’, 44 Law Quarterly Review (1928) 154, at 155; Steiner, ‘Fundamental Conceptions of International Law in the Jurisprudence of the Permanent Court of International Justice’, 30 American Journal of International Law ( AJIL ) (1936) 414, at 416.

As argued in the second section of this article, this nuanced position indicates that the majority did not intend to adopt the Lotus principle as its vision of international law. Under this approach, everything which is not expressly prohibited carries with it the same colour of legality; …, [B]y moving away from ‘Lotus’, the Court could have explored whether international law can be deliberately neutral or silent on a certain issue, and whether it allows for the concept of toleration, something which breaks from the binary understanding of permission/prohibition and which allows for a range of non-prohibited options.


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.
First, a system that requires permission before states can act is undesirable.

Log in or sign up to add this lesson to a Custom Course. O. Spiermann, International Legal Argument in the Permanent Court of International Justice: The Rise of the International Judiciary (2004), at 249. Henkin, ‘International Law: Politics, Values and Functions: General Course on Public International Law’, 216 Recueil des Cours (1989) 1, at 279. During the International Law Commission’s (ILC) discussions, Special Rapporteur Quentin-Baxter added that although the no harm principle could be very useful for achieving a balance in the economic area between liberty of action and freedom from adverse effects, ‘there is no possibility of proceeding induct ively from the evidence of State practice in the field of the physical uses of territory to the formulation of rules or guidelines in the economic field’. For example, states should be allowed to enact antitrust legislation to prohibit cartels that affect their economy, and it is no obstacle to the exercise of prescriptive jurisdiction if the cartel decisions were made elsewhere.


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