WITHOUT CONSENT, THERE CAN BE NO INTERNATIONAL LAW, CONSENT IS THE BEGINNING AND THE END OF INTERNATIONAL LAW

Abstract

This Article is intending to challenge the traditional understanding of international law, that states
cannot be bound by a legal rule against their will. In another words, it intends to analyze if the
consent is the beginning and the end of international law. It argues that existing commitment to
consent is excessive and that better outcomes would result from greater use of non-consensual
forms of international law. Unlike in domestic democratic systems, where individual freedom can
be restrained by majority decisions of a representative body, there is no majoritarian decision
making mechanism in international law that could restrain the freedom of a state against the will
of its representatives. This contribution analyzes the role of consent in the formation of customary
law. It will challenge the assumption that customary norms cannot bind states against their will.
Relying on game theory, it will distinguish between different situations and argue that the role of
consent differs according to the structure of the social problem that a potential norm is supposed
to address.