International Legal Positivism in a Post Modern World – International Humanitarian Law
INTERNATIONAL LEGAL POSITIVISM IN A POST-MODERN WORLD, Jean d’Aspremont, Jörg Kammerhofer, eds., CUP, 2013
Hebrew University of Jerusalem Research Paper No. 06-12
24 Pages Posted: 19 Dec 2012 Last revised: 15 Apr 2015
Date Written: December 18, 2012
International legal scholarship presents important critique of positivist approaches to international humanitarian law (IHL), insofar as ‘positivism’ is read to mean unity of sources, recognizing as law only those norms which are generated by a pre-set legal procedure, independent of any inherent value. It is often contended that if state practice on the battlefield is the yardstick to be used to identify rules of IHL, then IHL is in a precarious state, given the prevalence of contrary practice, which puts into doubt the existence of law in the first place, or, where the law had been established, suggests that it has been modified. In addition, it is said that positivist approaches hamper the ability of IHL to address contemporary realities and challenges, such as the massive involvement of non-state actors in armed conflicts. Classical legal positivism thus encounters difficulties in conceptualizing IHL in a manner which retain the latter’s effectiveness and authority. This chapter evaluates these claims in light of developments in the theory of sources and in its application specifically to IHL.
Part 2 of this chapter addresses some preliminary questions on the role of positivism in IHL. Parts 3, 4 and 5 examine the challenges to a positivist account of IHL in the context of the specific sources of international law – treaties, custom and general principles. The purpose of this chapter is to highlight some of the strengths and weaknesses of each of the sources of law as they are manifested in present-day IHL.
Keywords: IHL, positivism, customary international law, treaty law, sources of law
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