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State Consent is the ultimate source of international law. Critically discuss.

State Consent is the ultimate source of international law. Critically discuss.

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An essay for the 2011 Undergraduate Awards (Ireland) Competition by Edel O'Carroll. Originally submitted for CK302 at University College Cork, with lecturer Darren O'Donovan in the category of Law
An essay for the 2011 Undergraduate Awards (Ireland) Competition by Edel O'Carroll. Originally submitted for CK302 at University College Cork, with lecturer Darren O'Donovan in the category of Law

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Published by: Undergraduate Awards on Aug 31, 2012
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10/27/2013

 
While traditionally consent of states has played an important role in the determination of sources of international law, we are witnessing more and more a gradual shift away from astate centric approach. We live in a multi-polar international community comprising of inexcess of 200 states and, therefore, unanimous express agreement is no longer possible orpragmatic as the ultimate source of all international legal norms.The weakening grip of consent in international law can be seen on examination of thehierarchy of sources presented in Article 38, which appoints a pivotal role to state consent inaccordance with the positivist theory. One can deduce the limitations of a theory epitomisedby state consent in modern times on further analysis of the enumerated sources of the article,as well as those which are not mentioned yet still play an increasingly influential role inmodern international law-making.
 
The positivist view, as expressed by Brownlie, esteems that “State consent is the foundation
of international law. The principle that law is binding on a State only by its consent remains
an axiom of the political system, an implication of State autonomy.”
1
Such an understandingof the law goes along with early positivists such as Thomas Hobbes, Richard Zouche, Samuel
Rachel who all rejected natural law reasoning, instead asserting that the “law of nations...is alaw among nations, {which} consists of customs and treaties”, clearly a consent dominated
approach to the sources of international law.
2
 
Howeve
r, if one were to claim that a norm binds states because they consent to the norm‟s
binding effect, that would lead to an infinite logical regression of states consenting to
consent. On the other hand, if one were to claim that a norm‟s legal force derives
from a non-
 
1
Hollis, Duncan B., 'Why State Consent Still Matters: Non-State Actors, Treaties, and the Changing Sources of International Law',
Berkeley Journal of International Law 
, Vol. 23 (2005), p.5, quoting Ian Brownlie,
Principles of Public International Law 
4 (6
th
edition 1995)
 
2
 
Koh, Harold Hongju, 'Why Do Nations Obey International Law?’,
Yale Law Journal 
, Vol. 106 (1977) at p.2608
 
consensual basis such as natural law, consent could not be the only basis for creatinginternational law.
3
 
Gerald Fitzmaurice, drawing on the writings and lectures of other legal scholars, eschewedstrict reliance on either natural or positivist consent as sources of legal obligation claiming,
“As Verdross, Brierly and others have conclusively shown, it is not consent, as such, that
creates the obligation...the real foundation of the authority of international law resides...in thefact that States making up the international society recognise it as binding upon them, and,moreover, as a system that ipso facto binds them as members of that society, irrespective of 
their individual wills.”
4
Thus, the basis of compliance to the sources of international law isnot because the sources have been consented to, but because they are recognised as binding innature.
This concurs with D'Amato's conclusion that international law is “real law”, an
assertion which goes against state centrism and a consensual theory to international law.
5
One
could subscribe to D‟Amato‟s belief that there is no basis for a consent based approach to
international law
6
.
 
When assessing whether consent is the ultimate source of international law, Kammerhofer
deems the “fountainhead”
7
of any deliberation to be Article 38 of the Statute of theInternational Court of Justice. According to the article, the principal sources of law are
3
Supra note 1
, at p.6
4
 
Supra note 2
, at p.2613 quoting Gerald Fitzmaurice, The Foundation of the Authority of International Law andthe Problem of Enforcement, 19
Modern Law Review 
1 (1956) at p.8
5
 
D'Amato, Anthony, 'Is International Law Really “Law”?',
Northwestern University Law Review 
, Vol. 79 (1984-1985) 1293
6
D'Amato, Anthony, 'On Consensus',
The Canadian Yearbook of International Law 
, Vol. 8 (1970)
 
7
Kammerhofer, Jorg, 'Uncertainty in the Formal Sources of International Law: Customary International Law andSome of its Problems',
EJIL
, Vol. 15(3) (2004) at p.541
 
 
deemed as treaty law, customary law, and “general principles of law”, with judicial decisions
and the works of publicists being relegated to a secondary level.
8
 
We have witnessed the favouring of treaties as the manner of creation of international legalnorms in recent times. Treaties are, by their very nature, consent based. If a rule is laid downin a treaty, then it is binding on all States parties to that treaty, and the treaty is at once theformal and material source of the rule.
9
It is crucial to the consent theory that a State which isnot party to a treaty is under no obligation. As the 1969 VCLT stat
es, „A treaty does not createeither obligations or rights for a third State without its consent.‟
10
 
However, this consent based approach to treaty law is not a hard and fast rule and the strictlypositivist view of state consent as the ultimate basis of treaty law has been somewhat erodedw
ith the expansion of international law. It is no longer the case that it is “made” by a finite
number of states through a handful of intergovernmental processes.
11
Although states remainthe primary makers of international law, globalisation has diminished the importance of theirsovereignty with the effect that other actors such as NGOs have become increasinglyinfluential players in the creation, implementation and enforcement of international law.
12
 Despite the fact that the status of NGOs in international law has not progressed, Martenspoints to various studies which have shown the important role that NGOs can play in the
8
Joyner, Christopher C., 'U.N. General Assembly Resolutions and International Law: Rethinking theContemporary Dynamics of Norm-Creation',
California Western International Law Journal 
, Vol. 11 (1981) atp.455
9
Evans, Malcolm D.,
International Law,
6
th
Edition, Oxford: Oxford University Press, 2003
 
10
Supra note 9
 
11
Pronto, Arnold, 'Some Thoughts on the Making of International Law',
EJIL
Vol. 19(3) (2008) at p.601
 
12
Supra note 1
, at p.37

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