The Decay of Consent: International Law in an Age of Global Public Goods
American Journal of International Law, 108:1 (2014), Forthcoming
41 Pages Posted: 4 Oct 2013
Date Written: September 10, 2013
Because of its emphasis on state consent, classical international law is often seen as inadequate for solving problems of a global scale, especially when they involve global public goods. As these problems grow in importance, many commentators expect the rise of non-consensual elements in the international legal order. This article analyzes to what extent, and in what forms, we can empirically observe such a turn to non-consensualism in response to global public goods challenges in three issue areas. It finds the consent element in international law to be highly resilient, with only limited challenges to traditional international legal categories. Change takes place mainly through a shift away from treaties and international law as such: through a shift from formal to informal and from egalitarian to unilateral and hierarchical modes of governance. In the resulting picture, international law retains much of its consensual character, but it is increasingly sidelined in favour of other normative orders in which consent plays a much more limited role.
Keywords: International law, global governance, consent, global public goods, sovereign equality
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