This position was supported by the state's submissions. For example, Australia wrote that " [t ] he question is not whether the threat or use of nuclearweapons is consistent with any of these instruments, but whether the threat or use of nuclear weapons is per se inconsistent with the general principles of humanity. All these instruments ... provide cumulative evidence that weapons having such potentially disastrous effects on the environment, and on civilians and civilian targets, are no longer compatible with the dictates of public conscience. " [20 ] Japan also stated that " ... because of their immense power to cause destruction, death and injury to human beings, the use of nuclear weapons is clearly contrary to the spirit of humanity that gives international law its philosophical foundation. " [21 ] In contrast, Professor Greenwood argues that this interpretation " ... is impracticable since'the public conscience'is too vague a concept to be used as the basis for a separate rule of law and has attracted little support. " [22 ]
The positions advocated by States in their submissions to the ICJ on the issue of nuclear weapons and the differing opinions the judges gave in response reflect the continuing divide in international law between positive and natural law. States advocating the legality of the use of nuclear weapons argued that in the absence of a prohibitive positive norm of international law, whether conventional or customary, nucl ear weapons remain lawful.
By the end of the nineteenth century, concepts of legal positivism and State sovereignty had become dominant in international legal thinking. This led to an extensive codification of the laws of war — the first field of international law to be codified. Positive international law is determined by the contractual will of the State, either through its consent to treaty provisions or through State practice leading to or preventing the development of a customary rule [23 ] . Through a positivist interpretation of international law, States which do not consent to being bound by treaty norms or to the development of customary rules remain outside the regime governed by those norms: subjugation to a positive norm is dependent on the will of the State. It is therefore consensual law. If that will is absent, the State is not bound by that norm and so is not responsible to the international community for non-observance of it. According to Professor Brownlie, States can " contract out " of the development of a customary rule: " ... a State may contract out of custom in the process of formation. Evidence of objection must be clear and there is probably a presumption of acceptance which is to be rebutted. Whatever the theoretical underpinnings of the principle, it is well recognised by international tribunals, and in the practice of states. " [24 ]
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