Positivist School and Consent Theory
The theory known as “positivism” or “consent” theory has found wide support with jurists. It emphasises the consensual nature of international law. The chief exponent of this theory was Bynkershoek, which was later followed with more refinements by other jurists, such as Zorn, Triepel and Anzilotti. They attach primacy to customary and treaty rules. According to them, the rules of international law and municipal law are equally binding, since both are issued by the will of the State, which is the source of the validity of law. It is the will of the State that commands obedience both in municipal law and international law. Zorn goes to the extent of treating it as a branch of State law (i.e., municipal law). According to Triepel, the obligatory force of international law stems from the agreements between States. International law is binding on States because they have expressly or impliedly consented to be bound by it. The common consent is meant to express or tacit consent of States to the body of rules comprising international law as a whole at any particular time. The States’ will is manifested in the form of conventional and customary rules and since they have consented to them, the rules are binding upon them, and nothing can be law to which they have not consented. Consent theory, however, presupposes certain variables. It attributes the State with a value (sovereignty) and significance (authority), and endows it with a will of its own. The concept of the State will was first propounded by the German philosopher Hegel.
Positivists start from the premise of the State’s sovereignty, which is paramount without any limitation. The rules of international law are adopted to the extent to which the States have voluntarily restricted their sovereignty. This is known as “auto limitation” or “selflimitation” theory, i.e., the sovereignty is absolute in so far as a State agrees to its limitation. Thus, a State has absolute freedom of action, except in so far as it has agreed to the rules restricting that freedom. The will of the State is supreme and it cannot be restricted by any external force. According to Jellinek, the rules of international law derive their binding force because the State consents to the limitations on its sovereignty. However, though consent can easily be discerned for conventional rules, it is difficult to do so with customary rules. To this, positivists attributetacit” or “implied” consent, i.e., the State acquiescing to customary rules. They observe that the membership of the society of States involves an implied consent to the established rules of customary international law.
According to Anzilotti, a prominent positivist, the principle of pacta sunt servanda (i.e., that agreements between States are to be respected) is the fundamental norm and an absolute postulate of international legal system from which the international law derives its binding force and authority. He holds that like treaties, consent is present in customary rules of international law which manifests itself by way of an implied pactum (agreement). This, to say, is no way different from the “tacit” consent argument advanced by other positivists.
The positivism or consent theory even at its best is a descriptive generalisation, too broad to be applied to many of the problems concerning the binding nature of international law. Several objections have been raised against it, which can be formulated as follows:
1. The concept of the State will is purely metaphorical. Brierly views that the idea of
the State as a personality with a life and will of its own is false, both analytically and historically. Further, a self-imposed limitation is no limitation at all. The State functions through individuals and the only will that matters is that of the individuals who handle the affairs of the State.
2. The consent as the basis of international law cannot be reconciled on all aspects. The fiction of implied consent to explain the acceptance of customary rules of international law is not supported by the facts. If consent is the basis of international law, there is always a possibility that a State may refuse to give its consent to be bound by the rules of international law or may withdraw the consent later on. However, withdrawal is not permissible except in treaties. Further, in practice, while invoking a particular rule, it is never ascertained whether a State has consented to that rule or not. It is enough to establish that the rule is generally recognised by States. Moreover, it is difficult to determine, how does a State “agree” to rules of international law. To this, the possible answer by positivists could be that it is not necessary for a State to agree to every principle. It is enough that consent is given to international law as a system rather than to each principle contained therein. However, the theory does not clarify in what circumstances, if at all, can a State dissent from an established or developing rule of international law. Further, pacta sunt servanda cannot be accepted as the basis of international law. At the most, it is a rule of customary international law. According to Brierly, “consent cannot of itself create an obligation. It can do so only within a system of law which declares that consent duly given as in a treaty or a contract, shall be binding on the party consenting. To say that the rule pacta sunt servanda is itself founded on consent is to argue in a circle. A consistently consensus theory would have to admit that if the consent is withdrawn the obligation created by it comes to an end”. Critics are also quick to point out that the theory fails in the case of recognition. Recognition is granted by the recognising States despite the consent of the State to be recognised.
Positivist School and Consent Theory