366 Between Yesterday and Tomorrow (1914– )in de facto pragmatic calculation and not in any transcendental moral
notions.
A memorable World Court case, in 1927, confi rmed the dominant role of
positivism— but also revealed the force of the opposition to it. Th e judges
split evenly, so that the outcome was determined by the vote cast by the
president (Judge Huber from Switzerland). Th e case arose out of a maritime
collision, off the coast of the island of Lesbos in the Aegean Sea. A French
ship called the Lotus collided with, and sank, a Turkish vessel, with the loss
of several lives. Turkish authorities then instituted criminal proceedings
against the French captain. Th e French government strenuously insisted
that Turkey had no right under international law to prosecute the captain,
on the ground that international law reserves jurisdiction exclusively to the
fl ag state of the alleged wrongdoer (France, in this case). Th e Court ruled
against this contention. In so holding, it gave as clear an endorsement of
mainstream positivism as any international tribunal has ever given. State
conduct, held the Court, is governed by a fundamental “principle of
freedom”— meaning that states are permitted to engage in any conduct they
wish, unless there is a rule prohibiting that conduct. Moreover, such a pro-
hibitory rule can come about only as a result of the free ac cep tance of the
rule by the state itself.
International law governs relations between in de pen dent States. Th e
rules of law binding upon States therefore emanate from their own
free will as expressed in conventions or by usages... established in
order to regulate the relations between these co- existing in de pen dent
communities.... Restrictions upon the in de pen dence of States there-
fore cannot be presumed.In the dispute at hand, the Court held that no rule had emerged barring the
state of the victim vessel (Turkey) from asserting jurisdiction. So the prose-
cution could proceed.
If positivism— at least in its empirical version— retained its position as
the ruling philosophy of international law in this period, it should not be
thought that this was merely a passive matter of survival. Far from it. Th ere
was a signifi cant further exploration of its bases. Th ese new explorations
came from a group of thinkers in Austria, and from one in par tic u lar.