Table of Contents

Research Handbook on the Theory and Practice of International Lawmaking

Research Handbook on the Theory and Practice of International Lawmaking

Research Handbooks in International Law series

Edited by Catherine Brölmann and Yannick Radi

The global landscape has changed profoundly over the past decades. As a result, the account of the making of international law based on the traditional theory of sources is increasingly challenged. This Handbook offers a comprehensive guide to the theory and practice of international law‐making today. It takes stock at both the conceptual and the empirical level of the instruments, processes, and actors involved in the making of international law. The book contains essays by leading scholars on key aspects of international law-making and on law-making in the main issue areas, with an interest in classic processes as well as new developments and shades of normativity.

Chapter 1: State consent as foundational myth

Wouter G. Werner

Subjects: law - academic, legal theory, public international law


This chapter explores some of the paradoxes and tensions that result from the idea that international law is grounded in the consent of states. The idea of ‘consent’ itself is situated between ‘is’ and ‘ought’, between ‘will’ and ‘norm’, etc. With the advent of so called ‘world order treaties’, the paradoxes of consensualism have become even more acute. In addition, consensualism is often wrongly portrayed as the logical corollary of the principle of sovereign equality. While sticking to the consent of states may in concrete cases indeed help to protect the equality between states, sovereign equality can also be used to argue against consensualism. Finally, limiting international legal analysis to inter-state law blinds us for the development of legal regimes beyond the state. This all does not mean that ‘state consent’ has become irrelevant. There is no point in theorizing state consent away because it is unable to provide a coherent and encompassing foundation of international law as a whole. State consent remains pivotal to understand law-making and the construction of international legal arguments, however paradoxical these arguments may be.