Over the years, since the beginning of international customary law to the refined form which it has succeeded in achieving today, the jurists have been engaged in a theoretical controversy over identifying its basis of obligation. The jurists have had a difference in opinion over where international customary law derives its binding authority from, which has led to the emanation of two theories: The Naturalist Theory and The Positivist Theory.
Grotius, Pufendorf and Vattel are the proponents of the naturalist theory. In fact, most of the jurists from the time period of 16th and 17th century belong to this school of thought. They were of the view that the foundation of each and every type of law which exists is “law of nature”¸ reckoningit as the foundation of international law as well. Even though the law of nature was earlier considered as the divine law, however, after deliberations, the law began to be viewed with a more secular lens, leading it to be considered as a quintessential law. Law of nature finds its roots in the essence and nature of a man possessing the capacity of rationality.
International law, as per the jurists of naturalist theory, is the applied form of natural law where all such actions which are paramount for the maintenance of harmony among all the States are mandatory. In other words, the States are under an obligation to act towards the establishment of peace and security. Grotius relied on law of nature as being a source of international law along with customs and treaties. He discerned the difference between jus naturale, law of nature concerning law of nations and jus gentium, voluntary or customary law of nations.
Pufendorf denied the existence of positive law of nations as well as the fact that customs and treaties are sources of international law.
Even though the naturalist theory was profoundly excoriated for setting more emphasis on the individual freedom of the nation states rather than on the cooperation among them, however, it witnessed a period of renaissance in the 20th century after the world witnessed the horrors of the world wars. With the views of modern jurists like Kant and Hegel, natural law was adapted according to circumstances and times. Stammler and Koheler were also proponents of the naturalist theory.
Naturalism, according to jurists, precedes positivism and it was this law of nature which birthed the modern international customary law as it obliges the States to focus on the common good of the universal community.
The proponents of the positivist theory are Oppenheim, Treipel, Anzilotti, Bynkershock and Hegel. Even though in the 16th and 17th century, the theory of positivism was not as popular as its counterpart but it began to gain prominence and by the 18th and 19th century, it came to completely monopolize the jurisprudence relating to international law.
The positivists gave paramount importance to the sovereignty of a State. They refuted the existence of any reason or purpose behind law. Positivism was based on the actual practice of the law by the States as compared to naturalism, which believed in the supremacy of man’s reason and his capacity for rationality. Positivists were of the view that the citizens of a State are bound to obey a law if it is sanctioned by a legislative authority. Therefore, it is the will of the State which calls for obedience in international law.
Three theories were propounded by positivists:
- Theory of Consent (Bynkershock)
- Theory of Auto- limitation (Treipel)
- Pacta sunt servanda ( Anzilotti)
The perspective of the positivists lies in the fact that the main sources of international customary law are customs and treaties and it is through them that the consent of a State is achieved. The consent is signified in the form of customary treaties. It is worthwhile to note that this consent or the will of the States is considered to be express consent in the case of treaties while implied consent in the case of customs.
Even though the positivist theory was subjected to a great deal of criticism on a number of grounds but the fact that this theory accentuated the realistic practices of the State with regard to international law cannot be ignored. It is a hard reality that international law can develop only as far as the States acknowledge it. The positivist theory focuses on those rules and regulations of international law which are actually adopted by the States.
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