Bruno Simma in his separate opinion on the Kosovo Advisory Opinion questioned the wisdom of the ICJ’s continued reliance of the dictum of the Lotus case that “…restrictions on the independence of States cannot be presumed because of the consensual nature of the international legal order”. Simma argued that this strict binary approach of ‘what is not prohibited is permitted’ stems from an out dated, 19th century positivist approach that is excessively differential towards State consent.
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