International Law and its impact in Global Polity.

October 22, 2018

The term ‘consent’ is defined as ‘a person’s voluntary agreement to the proposal of another’. It involves an agreement between two people and an obligation for each other to abide by such promise. On the other hand, ‘Consent of the governed’ advances the idea of consent as the foundational basis for a democracy to exist. This theory believes in tacit consent provided by the people to legitimise the rule of law. But in international law, ‘state consent’ is required for international legal obligations. The ‘Theory of Consent’ believes it to be the foundational basis of international law, and hence is necessary for us to evaluate state consent through the lenses of the various sources of international law to derive a conclusion about the quantum of its requirement in international law- making1.
                Oppenheim’s theory of ‘common consent’ is an important theory in regard to a common consensus amongst states. He believed that all states cannot express their consent to every single or particular issue. In cases of necessity, he states that the state’s common consent provided on an issue closely relatable to it can also act as consent for the former. It means, a state does not have to always provide consent for every particular issue but its common consent is valid enough. His views try bringing out the positivist tradition of international law by pointing out the levels of human intervention in providing consent2. Further supporting his argument, the PCIJ on the 1917 Lotus Case held that ‘The rules of law binding upon states, therefore, emanate from their own free will.’3 But then, with the advent of the world wars, leaders and generals of non- consenting countries were tried for war crimes in the famous Nuremberg Trials and this saw the rise of scholarly criticisms of the theory of consent. It led to a profound increase in viewing international law through the lens of natural justice rather through a positivist viewpoint.
                 To break-down the various branches of consent and to try answering the question, the first part of this essay will deal with the idea of consent in relation to various sources of international law and the impact each of these sources have in the manifestation of such consent. The second part of the essay will try elucidating the exceptions and limitations of consent in international law and the concluding half will try providing a comprehensive approach to deal with consent in international law-making by explaining the role of state consent alongside its limitations within the present-day context.

                Article 38(1) of the ICJ statute lists out four sources of international law, international treaties and conventions, international custom, general principles of law and judicial decisions and teachings4. Each of the sources mentioned require varying levels of manifestation of state consent and the following section will view state consent through such analysis.
                 Article 2(1)A of the Vienna Convention on treaties defines ‘treaty’ as an ‘an international agreement between states... and governed by international law,’ requiring the parties to have an intention to create legal relations (mutual consent)5. The Ilhen Declaration case provides a judicial illustration of the centrality of the requirement of consent in treaty law6. In this case, the Permanent Court of International Justice held that since Norway had entered into a treaty with Denmark with mutual consent, both the states are to be bound by it. But, the Vienna convention also provides for reservations, whereby a state can exclude or modify the legal effect of certain provisions of the treaty. It acts as an escape mechanism for the state to avoid consenting to a provision which goes against its interests. The most prominent example includes the reservations made by India in limiting the jurisdiction of the International Court of Justice. Thus, it can be concluded that treaties between states are formed out of complete consensus and without such consent, there exists no binding treaty and also that a state can reserve to consent few provisions it deems unfit.
                 The oldest source of international law, Customary law finds its roots from Roman Empire’s dealings with foreign states and is based out of jus gentium, common or natural law among nations. Gideon Boas provides for the elements of Customary international law as follows: state practice and opinio juris(the belief that practice is required by law)7. The court in the North Sea Continental Shelf cases held that extensive and virtually uniform state practice is the foundation of custom. Further, in the Anglo-Norwegian fisheries case, the International Court of Justice held that Norway’s Opinio Juris is formative of a new custom but also held that it was in breach of the previous custom8. In the famous Nicaraguan Case dealing with the ‘use of force,’ the ICJ held that the United States was violated the international law and also stated that ‘if a state prima facie acts in breach of a recognized rule, the significance of that attitude is to rather confirm the rule and not weaken it.’ This case was highlighted as a jus cogens norm rule, an important exception to the theory of consent9.

                 Moreover, Grigory Tunkin’s prospect that, general treaties must come within the ambit of Customary law and that it must apply to all states, even to those not part of the treaty enunciates the ineffectiveness in needing consent in international customs10. Similarly, Article 2 of the UN Charter provides for compulsory compliance of non-member states in accordance with the provisions of the United Nations Charter, setting a precedent about consent requirement in CIL11. Finally, Andrew Guzman in his article states that the generality of the practice needed that a large share of affected states practicing it is enough and it needn’t be all the affected states as such. It can thus be concluded that consent in Customary law is not compulsorily needed and that the extent of the requirement is subjective to the matter involved12.
                 The ICJ Statute refers to general principles as law recognized by civilized nations, a hangover of colonialist thinking, although not in practice. Gideon Boas believes that ‘General principles can be derived from legal relations and international relations13.’ An important example of general principles is lex specialis derogat legi genrali, meaning: special laws prevail over general laws, a principle which exists even if a state contests its consent providence. In Prosecutor v Furundija case, since there existed no domestic legislation in states to deal with oral penetration as rape, the ICJ held that ‘ general principles of humanity to be the rational one’ and established a new norm in dealing with general principles of law. Moreover, this case provided judges with the power to develop new content of general principles without consent manifestation from states. It can be concluded that general Principles of International law do not set out for the requirement of such consent but instead to fill the gap of non-liquet- unclear law and to provide a leverage for the court to accommodate jurisdictional ultra vires cases.
                 The final source as in the statute, judicial teachings and decisions is considered a subsidiary source of international law14 and thus not binding on the parties. The ICJ for example in the Israeli Wall Case has dealt with its abstinence from the use of precedents to solve a dispute. The court holds judicial precedents and teachings as the last resort for dispute resolution and believes in judicial independence for progressive outcomes15. Scholars have argued that these precedents are derived from implied consent and that such consent coincides with its very usage. But there exists no clear theories as to how consent is manifested through judicial precedents. It can always be argued to flow from international rules earlier agreed upon by states and eventually used by in the courts, but its certainty remains questionable.

                 Certain fundamental principles which are needed for the protection of humankind are to be obliged by all the states regardless of consent. Such principles are termed ‘jus cogens’ norms, which form the hierarchy of the sources of international law. Furthering the supposition, any treaty which conflicts a jus cogens norm is considered void as mentioned in the Vienna Convention charter. Some examples of jus cogens include prevention of torture, use of force, human trafficking etc. These rules clearly circumvent the necessity of consent in international law-making and provide to be an important exception. A Sibling of this norm, the Erga Omnes talks about the legal obligation owed ‘towards all’ states. It necessitates the states to complete its legal obligation towards others regardless of consensus for maintenance of international order and stability, it includes the protection of foreign diplomats, ambassadors etc.
Post the split of the Soviet Union, many states like Kazakhstan, Georgia gained independence and became international legal partners. These new states’ entry into international politics was a matter of forced obligation. These states were never given an option to dissent any of the existing customary laws and practices but instead were forced to comply with those rules. It may be defined as ‘forced consent,’ a theory which limits state consent and its scope in international law-making. Other examples of forced consent include Article 2 of the UN Charter which provides for compulsory compliance of non-member states, new states bound by existing international laws etc16.
                 The third formidable exception is the auto limiting of the ‘theory of consent,’ which justifies withdrawal of consent from a rule. But, Brierly prevents such justification by stating that violation of international law cannot happen even after withdrawal of such consent17. This inconsistency in the theory of consent weakens its role in international law and limits its scope for accommodating new rules. These three exceptions apart from the ones provided within the sources above form the most formidable proposition against the requirement of state consent and they undermine its very necessity in international law.

                 It can thus be presumed that consent is the binding force of international law and most existing international norms are the results of such state consent. International law-making in cameral legislatures like the UN etc has become a normative procedure based on such consensus. But, through the lens of the various sources of international law, it can be concluded that such consent requirement is no more the standard norm. With two major sources namely customs and general principles circumventing the consent requirement theory has resulted in less vacuum for its presence. Moreover, the limitations and exceptions of the consent theory further reduce its viability in the contemporary international polity. Crucial theories like the jus cogens rule, erga omnes norm etc have overturned the requirement of state consent in international law. Present-day international relations have resulted in the widening of the spectrum of consent requirement for new legal formulations and has shifted the onus upon to the states to decide its functioning in the future of international affairs. A more constructive approach towards widening the scope of the sources of international law and trying to accommodate a maximum number of utilities within the consent theory will provide a better solution. Until a more progressive approach towards consent is propounded, a limiting force of state consensus remains the most persuasive foundation of international law but with concurrent exceptions and restrictions. 

J Shand Watson, State Consent and the Sources of International Law [1992]Mark Weston Janis, The New Oppenheim and its Theory of International Law [1996]
 (France v. Turkey) (1927) P.C.I.J., Ser. A, No. 10
Statute of the International Court of Justice, 1946, s 38 
Vienna Convention on the Law of Treaties, 1969, s 2[1993] PCIJ (ser. A/B) 53Gideon Boas, Public International Law (2012) 75
I.C.J. Reports 1969, p.3I.C.J. Reports 1986, p. 14
10 Grigory Tunkin, ‘Is General International Law Customary Law Only?’ [1993]
11 Charter of the United Nations, 1945 s. 212 Andrew Guzman, Saving Customary International law [2005] 15013 Boas (n 7) 105
14 Ibid (n 4) s 38 (1)D 
15 [2004] ICJ Rep 136
16 Ibid (n 11)17 James Leslie Brierly, The Law of Nations: An Introduction to the Modern Law of Peace [1963]
Powered by Blogger.