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Author: Sué González Hauck
Required knowledge: Link
Learning objectives: Understanding XY.
A. Introduction[edit | edit source]
Consent is at the heart of the international legal system. The degree to which it is taken to structure the international legal system as a whole depends on whether and to what degree one subscribes to voluntarist theories of validity of international legal rules. The famous Lotus case, which the PCIJ decided in is the often-cited symbol and point of anchoring for such voluntarist conceptions of international law. The often-cited passe of the Lotus dictum in this context reads: 'International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed.' Consent is thus supposed to be the expression of the 'free will' of a sovereign State and the source of obligations under international law. Two main issues arise regarding this conception of the role of consent in international rule-making: First, given that States are legal entities who cannot form and express a 'free will' in the same way an individual person can, the question of whether and how one can attribute a free will to a State and which expressions of such an attributed will count as expressions of State consent remains one of the enigmas at the heart of international law. Second, the prevailing formalized conception of consent, which flows from the idea of sovereign equality among States, does not take into account material inequalities.
It is commonplace among international lawyers to juxtapose an extreme version of a voluntarist conception of international law, in which consent and only consent is supposed to be the source of obligations under international law, to a conception of international law based on community values. According to Martti Koskenniemi, this contrast between consent and justice is but one of the many ways in which international legal arguments permanently oscillate between 'concreteness' and 'normativity'.
B. Consent, Consensus, and Anarchy[edit | edit source]
The importance of consent in international law stems from the fact that there is no international government. The absence of government or hierarchical rule in the sense of a centralized authority that can make and enforce laws can be defined as anarchy. The absence of centralized government does not entail the absence of order or rules. In the absence of formal hierarchical rule and thus under conditions of formal equality, the subjects of international law, i.e. mainly States, can only be bound by a rule of international law if they have given their consent. This mirrors the ideal of consensual decision-making and unanimity, which communal anarchist theories embrace. These theories were developed with smaller communities of individuals in mind, not with a global community of States. The difference between this community-oriented idea of anarchy on the one hand and the notion of anarchy, which prevails on the international plain and which focuses on the sovereignty of individual States on the other hand marks the difference between group-oriented notions of consensus and unanimity and individualist voluntarist notions of consent.
C. Types of Consent in International Law[edit | edit source]
Stephen Neff distinguishes three kinds of consent: ‘outcome consent’, ‘rule consent’, and ‘regime consent’.  Outcome consent refers to a specific situation and it transforms the outcome of this situation. An act that would otherwise be unlawful is transformed into a lawful act due to the fact that the state affected by this act has given its consent. Rule consent refers to the voluntary acceptance of a specific rule of international law. This kind of consent is at the basis of classical positivist and voluntarist conceptions of international law sources and of international law’s validity. Regime consent refers not to a specific rule but, more generally, to a be bound by the rules created within a specific system, e.g. international organization. In the terminology introduced by HLA Hart, rule consent can be characterized as consent to primary rules, i.e. rules involving substantive obligations, while regime consent refers to secondary rules, i.e. rules about rule-making.  Arguments involving a generalized kind of consent to the whole of international law have played a key role in the era of formal decolonization, i.e. mainly in the 1960s and 1970s. The ‘newly independent states’ that were created as a result of this formal decolonization argued that they had not consented to previously existing international legal rules and could therefore start with a clean slate. The counterargument, which prevailed, was based on a form of regime consent: International lawyers from the Global North argued that the newly independent states had given a generalized consent to the international legal system by attaining independence as states.
D. Consent and Colonialism[edit | edit source]
State consent obtained its status as the ultimate source of international legal obligations in the nineteenth century, as international law was established as a 'scientific' discipline and as legal positivists purportedly broke ties with the natural law tradition. The nineteenth century was also the time during which European States formalized their colonial endeavours. Consent as a foundational principle of international law was supposed to flow from State sovereignty. Consequently - but not incidentally - there was no place in nineteenth-century positivist accounts of international law for consent of people and communities that were not organized in the form of European States.
On the other hand, colonial powers used a formalized notion of consent to legitimize their claim to colonial domination. While European States did not recognize indigenous polities in the Americas, Africa, and Australia as sovereign entities with the power to contribute to international law-making and with the protection that the principle of non-intervention and other corollaries of sovereignty provide, they did recognize indigenous authorities and their capacity to enter into legally binding obligations when it came to formally ceding title to land. This practice entirely neglected the coercive circumstances that accompanied formal declarations of consent.
Contemporary international legal rules take into account indigenous peoples's rights by requiring their free, prior, and informed consent regarding policies and projects that directly affect them.
E. Limits on State Consent under Contemporary Positive International Law[edit | edit source]
This section introduces ius cogens, Art. 103 UN Charter, and other limits to State consent that are enshrined in positive rules of international law.
F. 'Sexing' Consent[edit | edit source]
This section introduces Siobhán Airey's work on 'sexing' consent and thus provides an example of how international law can be informed by feminist theories beyond questions that directly involve gender.
Further Readings[edit | edit source]
- Source I
- Source II
Conclusion[edit | edit source]
- Summary I
- Summary II
- PCIJ Lotus (France v Turkey) Rep Series A No 10, 18.
- Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Reissue with a new Epilogue, CUP 2006) 65.
- Hedley Bull, The Anarchical Society (3rd edn Palgrave Macmillan 2002) 44; Kenneth Waltz, Theory of International Politics (1979) 88, 102; Helen Milner, 'The Assumption of Anarchy in International Relations Theory: A Critique' (1991) 17 (1) Review of International Studies 67-85, 70-74.
- Stephen C. Neff, ‘Consent’ in Concepts for International Law, at 128-129
- Stephen C. Neff, ‘Consent’ in Concepts for International Law, at 130-131.
- Antony Anghie, Imperialism, Sovereignty and the Making of International Law (CUP 2005) 34; James Anaya, Indigenous Peoples in International Law (2000) 19 et seq.
- | Mieke van der Linden, The Acquisition of Africa (1870-1914): The Nature of International Law (Brill Nijhoff 2017); James Anaya, Indigenous Peoples in International Law (2000) 17.