Introduction
After arriving at the conclusion that International Law Theories are essential for understanding global legal systems, it is important to explore their foundational basis. Two main theories of International Law address this:
- Theories of Law of Nature
- Positivism
Theories of Law of Nature
Overview
Jurists who adhere to the theories of Law of Nature view International Law as a component of a higher legal framework. They argue that states comply with International Law because it is derived from natural law. Starke explains this viewpoint by stating that “States submitted to International Law because their relations were regulated by higher law, the law of nature, of which International Law was but a part.”
Historical Context
Initially, the Law of Nature was linked to religion and regarded as divine law. However, during the 16th and 17th centuries, jurists like Grotius secularized this concept. Grotius posited that natural law represents the dictates of right reason, and his followers viewed International Law as an application of natural law in specific contexts. Notable proponents of these International Law Theories include Vattel, Pufendorf, and Christian Thomasius.
Criticism
Despite its influence, the Law of Nature faces criticism:
- Vagueness: Different jurists provide varying interpretations—justice, reason, utility—which renders the concept unclear within International Law Theories.
- Lack of Practical Basis: Critics argue that it does not reflect the actual practices and realities of state interactions, which are essential in the study of International Law.
Influence on International Law
Nevertheless, the Law of Nature has significantly influenced the evolution of International Law Theories. Its idealistic principles continue to resonate, albeit in a less dogmatic form.
Positivism
Overview
Positivism, another key perspective within International Law Theories, contrasts with the Law of Nature by focusing on law as it is, rather than as it ought to be. According to positivists, laws enacted by legitimate authorities are binding. They emphasize actual state practices, asserting that treaties and customs are the primary sources of International Law.
Key Proponents
Bynkershoek and Starke are notable proponents of positivism within International Law Theories. Starke asserts that “International law can in logic be reduced to a system of rules depending for their validity only on the fact that States have consented to them.” Brierly echoes this, stating that international law consists of rules that states have agreed to follow.
The Will of States
The positivist view highlights the concept of state consent. Hegel introduced the idea that the will of states forms the core of International Law Theories. Anzilotti further emphasized the principle of pacta sunt servanda, which means agreements must be kept, as foundational to binding international obligations.
Criticism
The positivist theory faces several critiques:
- Metaphorical Will: The concept of state will is considered metaphorical rather than a concrete principle in International Law.
- Oversimplification of Consent: Not all aspects of International Law stem from explicit consent; customary laws can bind states without express agreement.
- Tacit Agreements: The idea that customary laws arise solely from tacit agreements is flawed, especially as new states automatically adhere to existing customs.
- Binding Principles: Certain principles apply to states regardless of consent, such as those outlined in the UN Charter.
- Evolving Norms: The norm pacta sunt servanda has been questioned, as not all obligations arise from agreements.
- Legal Effects of Declarations: Legal effects stem from rules of law, not merely from declarations of will.
Conclusion
While treaties and customs are acknowledged as the primary sources of International Law, the positivist view may overlook the complexities and realities of state behavior in international relations. Understanding these International Law Theories helps clarify the foundational principles guiding global legal interactions.
