Rethinking the Lotus Principle: New Perspectives on the Kosovo Advisory Opinion

Sammanfattning: Following Kosovo’s issuance of a unilateral declaration of independence in 2008, the UN General Assembly requested the International Court of Justice to pronounce itself on the accordance with international law of the declaration of independence. The Court’s answer to that request was that the declaration of independence was not in violation of international law. When the Court rephrased the question posed to it, from accordance with to not in violation of international law, I argue that it resorted to the so-called Lotus Principle. The Principle entails that the non-prohibition of a certain course of conduct is equal to that conduct being permitted. This assumption is based on a positivist voluntarist approach to international law, where states are free to act as they wish unless they have otherwise agreed. What is curious about the International Court of Justice’s application of the Lotus Principle in the Kosovo Advisory Opinion, is that it was not used in its original formulation which promotes states’ freedom to act. In the present case it was used to the benefit of a non-state actor (Kosovo), to the detriment of a sovereign state (Serbia). This indicates an evolution of the Principle, no longer solely applicable to states but also to other entities in international law. It is argued that the evolution is a consequence of international law evolving from its state-centric tradition and that competing values to state sovereignty, such as human rights and self-determination, are becoming more influential. Finally, an alternative approach to the international legal system is presented, an understanding which is beyond the binary nature of the Lotus Principle which recognizes only prohibited or permitted conduct. Had the Court disregarded the Lotus Principle in the Kosovo Advisory Opinion, it could have conducted a fuller review of the legal framework concerning secession, discussing whether acts that were not prohibited could have been characterized as something other than permitted.