ABSTRACT
According to positivists, international law emerges as a normative solution to the clash of national interests in the relations among states. This chapter argues that this breed of positivism is untenable for three reasons. First, the simultaneous appeal that positivists make to national interest and state consent prevents them from adequately explaining international obligation. Second, nations may consent to immoral things. Third, consent by a government to a norm does not automatically entail consent by the people of that state to that norm. The chapter presents some problems raised by the application of the familiar Prisoner's Dilemma to international relations. It explains why game theory fails to explain moral choice. The chapter analyzes the concept of treaty and explains why game theory fails to explain moral choice. It suggests that pacta sunt servanda and opinio juris are best understood as moral condemnations of self-interested deviation from international norms created to solve Prisoner's dilemmas.
