45 Pages Posted: 13 Jun 2011 Last revised: 29 Aug 2012
Date Written: June 14, 2011
The legal obligations of a state are overwhelmingly based on its consent to be bound. This commitment to consent preserves the power of states, but also creates a serious problem for the international system. Because any state can object to any proposed rule of international law, only changes that benefit every single affected state can be adopted – creating a cumbersome status quo bias. This Article argues that our existing commitment to consent is excessive and that better outcomes would result from greater use of non-consensual forms of international law.
International law has developed a variety of ways to live with the consent problem, including the use of transfer payments, customary international law, and the United Nations Security Council. None of these, however, provide a sufficient counterweight to the consent problem.
There are also strategies employed to work around the consent problem, mostly through the use of international organizations and tribunals capable of generating soft law. These soft law strategies are helpful, but insufficiently so. We could achieve better results within the system if these forms of soft law were used more extensively and accepted more broadly.
Keywords: consent, international law, soft law
JEL Classification: K33
Suggested Citation: Suggested Citation