CSS International Law Solved Paper 2018 Question 2

“from the theoretical standpoint, the provision for applying the ‘general principles’ sounding the death – Knell pf positivism"

Introduction

International law, by all means, is very different from the one found in national legal systems. For instance, the state legislatures can create new laws within a national legal system, however no such provision is available in international law. This is only one of the differences between national legal systems and international law. Due to these differences, various questions arise about where international law derives its legal validity from, and what is it juridical origin? These important questions have been answered by various theories which have been propagated by various scholars. This discussion will shed some light on these theories and will analyze the general principles which sound the death-knell of one of these theories, positivism.

Theories Regarding the Basis of International Law

Positivism/ The Consensual Theory

The basic tenet of positivism is that international law flows from the consent of states. In other words, no international law can be created without the consent of state, and no state can be bound to a provision of international law without the state's prior consent. Due to this principle, Positivism is also known as The Consensual Theory. Thus, the proponents of Positivism hold that customs and treaties between the states are the main sources of international law.

Main Proponents of Positivism

The main proponents of positivism are Byner Shock, Brierly and Anzilotti. Byner Shock is one of the chief proponents of the positivist school of thought and has written several books. According to him, the will of states is the main source of international law.

Moreover, according to Brierly, "the Doctrine of Positivism teaches that international law is the sum of rules by which states have consented to be bound, and that nothing can be law to which the states have not consented to be bound".

According to the Italian jurist, Anzilotti, international law is based on the principle of 'pacta sunt servanda'. This principle means that states are bound by their treaty obligations. However, it is the will of the states to become part of a treaty or not.

Influence of Positivism

Despite criticism, one of the biggest merits of Positivism is that it is based on the practice of states. Moreover, it emphasis that only those rules are rules of international law that have been adopted by states and are observed in practice. It gained a lot of traction in the late 18th and 19th Century.

International Law is a Law of Nature; Naturalist School of Thought The basic tenet of the Naturalist School of Thought is that states follow international law because their relations were regulated by a higher law, the law of nature. This school of thought argues that all laws are derived from the laws of nature. Hence, international law too, derives its juridical basis from these laws of nature.