Essay on Limitations Of Positivist International Law
Although, it may be appealing to rely on the positivist arguments that focus on international written, official rules, it is important to note that law transcends far beyond being just a set of rules controlling and dictating the behavior of societies. The norms, values, morals and beliefs of any community are reflected in its law.
International law does recognize other sources which are not given any credence in positive law. It recognizes the sources mentioned in the document that created the ICJ, not just international conventions but also customs, general principles and decisions of judges and writings of jurist scholars. Furthermore, there are certain principles that are accepted in international law to affect legality, these include; justice, natural law and jus cogens. The ICJ statute is also very clear in Article 38 about which sources should affect international law. The positivist arguments and opinions are clearly contradictory to that article.
The positivists also are not able to explain state and UN actions and practice. They declare that the Charter has explicitly prohibited intervention yet states have not been deterred from extra-UN humanitarian intervention. The United Nations has never clearly declared these interventions as illegal. Furthermore, opinio juris among the states regarding the illegality of humanitarian intervention seems to be missing. In answer to these issues, positivists could argue that even…