Research Handbooks in International Law series
Edited by Catherine Brölmann and Yannick Radi
Chapter 1: State consent as foundational myth
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.