In the Kosovo case, the UN General Assembly asked the International Court of Justice (ICJ) whether Kosovo’s declaration of independence was “in accordance with international law”.
The Court determined for all practical purposes that the term “in accordance with” is to be understood as asking whether there is a prohibitive rule against Kosovo’s declaration of independence. According to the Court, since there is no such prohibitive rule, then the declaration of independence is ipso facto in accordance with international law.
Dissenting Judge Simma soon realized that the underlying rationale of the Court’s approach “reflects an old, tired view of international law" based on the adage, famously expressed in the “Lotus” Judgment, according to which restrictions on the independence of States cannot be presumed because of the consensual nature of the international legal order. In other words, the Court has concluded in the Kosovo Opinion that, in relation to a specific act, it is not necessary to demonstrate a permissive rule so long as there is no prohibition.It is interesting to recall with Sungjoon Cho ( GLOBAL CONSTITUTIONAL LAWMAKING , University of Pennsylvania Journal of International Law, Spring 2010) that in US Zeroing , a central theme revealed by critics of the AB's anti-zeroing jurisprudence is “sovereignty,” which carries a hallmark of the Lotus principle. Under the well-known principle of public international law, sovereign states are capable of doing whatever they desire as long as no explicit prohibition exists under international law. Following this logic, WTO members would be free to adopt the zeroing practice because the WTO Anti-Dumping Code does not expressly ban such practice.
Fortunately, as we know, the Appellate Body did not follow the logic of the Lotus principle in the US Zeroing case. It adopted a much more sophisticated approach where competing principles deducted for the texts supplanted the “old tired” Lotus principle. One could say that the WTO Appellate Body is ahead of the ICJ at least on this point.
It is however best to stay on guard since the Lotus principle has a tendency to be reborn from it ashes. Even in the WTO, one cannot exclude than in the future, a case would be decided on the basis of the Lotus principle.
