– Legality of International Law- Positive Morality
Legality of International Law and Positive Morality
1. Legality of International Law
The legality of international law refers to the basis on which international legal rules are considered valid, binding, and enforceable among states and international actors.
Unlike municipal law (national law), international law has:
No centralized legislative authority.
No universal enforcement mechanism.
Sovereign states as primary subjects who consent to be bound.
Therefore, questions about what makes international law “legal” or binding have been central in jurisprudence and legal theory.
2. Positive Morality: Definition
Positive morality refers to accepted norms, principles, and rules of conduct that have gained recognition and acceptance by the international community.
It is distinct from natural morality (based on universal moral principles or natural law) because it is grounded in actual practice and consent, not abstract ideals.
Positive morality represents the “law as it is”—rules that states recognize and follow as obligatory.
3. Positive Morality and International Law
The concept of positive morality supports the legality of international law by arguing that:
International law is valid and binding because it emerges from the collective practice and consent of states.
These practices, customs, and agreements embody the positive morality of the international community.
The rules that arise from positive morality are accepted as legally obligatory (opinio juris).
This contrasts with natural law, which claims legality arises from inherent moral truths.
4. Positive Morality vs. Natural Law
| Aspect | Positive Morality | Natural Law |
|---|---|---|
| Basis | State practice and consent (what is accepted) | Universal moral principles |
| Nature of obligation | Empirical and consensual | Moral and objective |
| Focus | Law as it is (descriptive) | Law as it ought to be (prescriptive) |
| Source of legality | Positive acceptance by states | Inherent in human nature and reason |
5. Role of Positive Morality in the Development of International Law
Positive morality underlies:
The development of customary international law (consistent state practice + opinio juris).
The creation and acceptance of treaties.
The functioning of international organizations and law-making processes.
It reflects the dynamic and consensual nature of international law, which evolves as states interact and establish norms.
6. Example: The North Sea Continental Shelf Case (ICJ, 1969)
The International Court of Justice emphasized that for a rule to be considered customary international law, it must be supported by:
General and consistent practice (state practice)
Acceptance as law (opinio juris) — reflecting positive morality.
This case highlights how legality arises from states’ accepted norms, not merely from natural law or unilateral declarations.
7. Significance of Positive Morality
Provides a realistic and practical foundation for international law.
Explains why states comply with international law despite lack of a global enforcement authority.
Bridges the gap between legal obligation and state behavior.
Ensures international law adapts to the changing consensus among states.
8. Conclusion
The legality of international law is closely linked to positive morality, meaning that international law is valid because it is accepted, recognized, and practiced as binding by states.
Positive morality forms the foundation for the existence, development, and enforcement of international law, balancing legal obligation with state sovereignty.
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