This article has been written by Ms DIPRAVA GHOSH a 2 year student of ADAMAS UNIVERSITY, West Bengal.
ABSTRACT
A request for continued focus on the components of international legal positivism may be found in this article. It is intentional to capitalize on the positivist inclination to characterize the legal field as a legal science by using the terminology of “elements.” However, the components of law are fundamentally different from the typical subjects of scientific study. Law’s approach focuses on the structure and behavior of a specific society, which has its own political poles, structure, and functions, rather than the structure and activity of the physical universe. Complications arise because international law adopts the positivist approach from the local legal system. Although the goal to give international law the legitimacy it needs to assert itself as a legal system drove the adoption of positivism as the dominant legal theory in international law, it has also acted as a barrier to the development of international law in a way that sets it apart from domestic law. The positivist approach to international law has occasionally given rise to an attachment to specific tenets that are more strongly linked to the evolution of the contemporary European state. This article adopts the stance that discussing international legal positivism on its terms is crucial. Part I traces the origins of three significant international legal positivist traditions: “social thesis” positivism, “system-based” positivism, and “teleological” positivism. It does this by highlighting the various emphases of each school and, in doing so, identifies critical components. In Part II, several presumptions that are occasionally linked to these traditions are examined, and it is decided whether or not these elements need to be rethought or re-engineered to apply them to the international legal system. The article adopts the stance that the positivist method can only survive if it is supplemented by a rich legal, political, and social discourse focused on comprehending its relationship to the components of the global legal framework, in particular, the community, authority, and functions of international law. Positivism is sometimes associated with “purifying” law as a discipline.
KEYWORDS – Positivism , Origins , Dominant , Legal , Fundamentally.
INTRODUCTION
It is a jurisprudential philosophy that places an emphasis on the formal origins of law and holds that, as opposed to innate morality, the legitimacy and validity of legal laws come from their appropriate authority. Legal positivism offers a paradigm for comprehending the establishment, acknowledgement, and upholding of these physical boundaries between sovereign states when it comes to international law boundaries. Boundaries define the extent of state sovereignty in the context of international law, and they are frequently established by treaties, legal agreements, and international customs. According to legal positivism, governments’ formal legal instruments serve as an expression of their assent, which gives these borders their binding power. Borders are defined and altered by treaties, which are the main sources of international law. Legal positivism emphasizes the importance of the parties’ free assent. Another important source for legal positivism is customary international law, which develops from persistent state conduct motivated by the conviction that such actions are mandated by the law (opinion juris). Customary practices are crucial in developing norms that direct state behavior with respect to territorial bounds in the context of international boundaries. The significance of state sovereignty and the function of formal legal sources in establishing and defining international borders are emphasized by this paradigm. Legal positivism emphasizes the importance of formal agreements, consent, and customary practices in the construction and upkeep of state borders, offering a prism through which the complexity of international law and territorial delineation can be examined.
SOURCE OF INTERNATIONAL LAW
The foundations of international law, as identified by conventional legal frameworks and doctrines, comprise a range of components that have contributed to the establishment and evolution of this corpus of law. Conventions and treaties, which are formal agreements between sovereign governments that become enforceable upon ratification, are examples of primary sources. Consistent state behavior combined with the conviction that such behavior is mandated by law give birth to customary international law (opinion juris). Treaties and customs are seen as essential manifestations of governments’ agreement to be obligated by international legal standards.
TREATIES AND AGREEMENTS
Treaties and agreements, which represent voluntary agreements between sovereign states, are essential elements of international law. Formal agreements that specify legal responsibilities related to commerce contacts, diplomatic protocol, and territorial boundaries serve as main sources. The binding aspect of treaties is emphasized by legal positivism, which also emphasizes the parties’ voluntary assent. Through the establishment of norms that control state interactions and behavior, treaties support the stability of the international system. Respect for these agreements is essential to upholding global cooperation and order since they were negotiated, drafted, and ratified through a diplomatic process that reflects the sovereign decision of nations.
CUSTOMARY INTERNATIONAL LAW
Consistent state conduct motivated by the conviction that such activities are legally obligatory gives birth to customary international law (opinion juris). It is essential in forming international legal standards. Customary practices result from states acting consistently out of a sense of legal duty, which helps to create unwritten norms guiding behavior. Customary practices are acknowledged as an important source of international law and have an impact on a variety of topics, such as human rights and territorial boundaries. Legal positivism’s emphasis on the importance of formal sources is reinforced by the establishment of customary international law, which is the result of widespread state practice and the belief that such practices are legally required.
THREE TRADITIONS OF INTERNATIONAL LEGAL POSITIVISM
The goal of this essay is to provide a basic knowledge of international legal positivism. It is intentional to capitalize on the positivist inclination to characterize the legal field as a legal science by using the terminology of “elements.” However, the components of law differ significantly from the typical subject of scientific study. The approach taken by Law does not aim to deal with the composition and characteristics of the material and organic world. Law does not just “spring into existence like mushrooms in the woods or stones in the earth,” as Mónica García-Salmones Rovira puts it.16 Rather, the positivist approach acknowledges that decisions made by individuals within a society create law, which is the “deliberate product of joint human endeavour.” According to positivist legal theory, a norm is only considered to be part of the law if it is founded on another legal norm that upholds its validity. Law is thus based on what has been legitimately stated. This raises the dilemma that positive law does not produce the ultimate standard in any given legal system. Legal theory and political theory are inextricably linked because without political theory, law becomes a conceptual dead end. Three lineages of positivist—”social thesis,” “system-based,” and “teleological”—must be examined in order to comprehend international legal positivism. Though their methods are more subtle and overlap, these stories take Lassa Oppenheim, Hans Kelsen, and Hersch Lauterbach as their ideational icons.
- Social thesis positivism
- System-Based Positivism
- Teleological Positivism
ROLE OF INTERNATIONAL INSTITUTIONS
International organisations that shape and interpret international law include the United Nations and the International Court of Justice. They facilitate the peaceful resolution of disputes between states by acting as forums for dispute resolution. These organisations provide forums for agreement-making, planning, and the formulation of legal doctrines. International courts and tribunals render authoritative interpretations through their decisions and judgements, which have an impact on the development of legal norms. International institutions also aid in the formation of treaties, cooperation, and coordination on global concerns. This promotes collaboration among sovereign states and improves the efficacy and enforcement of international law.
LIMITS AND CHALLENGES
There are restrictions and difficulties for legal positivism in international law. Rigidly focusing on formal sources may make it difficult to handle new situations where morality and customs are important considerations. The universality of legal principles is challenged by the possibility of power imbalances across states and inconsistent state adherence. States’ selective compliance impedes the ability of international organisations to enforce decisions. A flexible approach that takes into account unofficial sources and moral considerations is necessary given the changing global situation. Legal positivism continues to face difficulties navigating the intricacies of modern international law as it attempts to strike a careful balance between state sovereignty and international collaboration.
CONCLUTION
To summaries up, the use of legal positivism in the context of international law boundaries offers a methodical structure for comprehending the establishment, acknowledgement, and implementation of boundaries between sovereign nations. Legal positivism emphasizes formal sources, such as treaties and customs, and highlights the need of governmental permission and recognized authority. On the other hand, dealing with new problems, power disparities, and the changing global environment provide difficulties. Maintaining equilibrium between national autonomy and international collaboration is an intricate undertaking. Although legal positivism provides insightful information, its limits require constant modification to handle the complexity of international law boundaries in the modern era.
REFERENCE
- Its is originally written by Devika Hovell in https://academic.oup.com/clp/article/75/1/71/6775923 this site.
- It is originally written by Kenneth Einar Himma in https://iep.utm.edu/legalpos/ site
- It is originally written by Stephen Hall in https://academic.oup.com/ejil/article/12/2/269/454075 this site .