ABSTRACT

Consent is regarded as the basis of international law as a legal system. A state’s legal obligation on the international sphere is generally justified by its 'consent to be bound’ by the rules which bind it. So, therefore, for a source of international law to be found binding on a state, it almost always can be explained by some form of consent either implied or express. This affinity for consent is upheld and justified by the need to protect the sovereignty of states. Sovereignty advocates for complete noninterference by external power or forces.

While the need to uphold state sovereignty cannot be disputed, especially as a state’s lack of sovereignty can give room for colonization and oppression, an argument that adherence to consent may function as a double-edged sword cannot be denied. The preceding is stated in view of the fact that a legal system that relies mainly on direct consent would find difficulty in creating a strong, stable, uniform, and enforceable laws which are essential characteristics if a rule is to be a ‘law’ properly so called. In actuality, international law faces this problem which perhaps has led to the need to fashion out more implied means of consent, alongside sources that mainly appear to rationalize a nonexistent consent such as jus cogens.

This essay seeks to evaluate but not dispute the foundational position of the principle of consent in international law. It seeks also to evaluate the history and sources of intentional law and provide an exposé on the ability of international law to function effectively and provide binding rules when met with the consent problem. Case law from the International Court of Justice (ICJ) will be relied upon heavily to establish or disprove the above. Lastly, arguments for and against the heavy reliance on consent in establishing public international law shall be provided. All in all, the essay seeks to establish that consent may not be as much a driving force for international law as it is held out or wished to be.