Revisitando o Caso Lotus

The chapter analyses the 1927 judgment delivered by the Permanent Court of International Justice (PCIJ) in the Lotus Case, questioning whether the so-called “Lotus Principle” — according to which whatever is not prohibited is permitted in international law — faithfully reflects the Court’s actual reasoning. The author argues that the PCIJ did not establish an absolute presumption of state freedom but rather a residual principle of freedom, acknowledging inherent limits to sovereignty arising from the coexistence of independent communities. It is contended that the traditional reading of the Lotus decision stems from a doctrinal misinterpretation, largely influenced by dissenting opinions and by later critiques of legal positivism. The majority’s reasoning, more pragmatic than theoretical, avoided declaring a non liquet and instead found that no rule of international law had been violated. Examining the jurisprudence of the International Court of Justice (ICJ), the chapter notes that the Lotus is rarely cited and, when it is (in cases such as North Sea Continental Shelf, Nicaragua, Nuclear Weapons, and Kosovo), both the PCIJ’s reasoning and the so-called principle are either relativised or rejected. The article concludes that, although the Lotus reflects the legal thought of the early twentieth century, its conventional interpretation is distorted. Nonetheless, it remains relevant as a point of reflection on the limits of state freedom and the areas of uncertainty within contemporary international law.