Free online reading
What role plays consent in the formation, development and enforcement of international rights and obligations?
I intend to examine briefly, in the following paragraphs, the influence and importance of consent of states in the creation and enforcement of rights and obligations under public international law.
In contrast to the teachings of Hegel, state sovereignty is seen as having relative character, which means states are bound in their actions by international law. To what norms they are bound specifically should be under great scrutiny, for without consent it is impossible to impose a treaty obligation on a state. The state has to consent to a treaty by ratification. It has the possibility to limit and shape its consent by means of reservations and authoritative interpretations. In treaty law, state has to give its consent precisely for each and every norm it wants to be bound by.
For the law of an international organization is built on at least one founding document or other agreement, this applies to international organizations too, of course with some difference if a non UN member state is made the subject of resolutions by the UN Security Council. The state in question cannot, however, be made the addressee of the resolution. In general though, even when a state is unhappy or opposes a specific decision, taken by an international organization later on, he is bound. This is only possible, because by ratifying the constituent instrument of the organization, the state already accepted the acts of the organization as binding for it, in accordance with and as far as the constituent document prescribes that.
There are, of course, norms under customary international law and the general principles of international law, to which the state does not exactly give its consent. With regard to customary international law, however, one could argue, that the requirements ofopinio iurisand state practice, necessary to create or prove the existence of norms of customary international law can be seen as some form of consent. Not in an explicit, clear cut way, but while acting in accordance what it believes to be the binding law for it, a state also forms the law in the way he wants it to be. A state may also object to the binding character of an emerging norm of customary international law. This concept of being a persistent objector allows it to prevent the specific norm in question from becoming binding upon the state.
The case is clear for unilateral declarations of states. The very existence of this concept, as elaborated on for example by the Permanent International Court of Justice in the case of Norway v. Denmark, points out the importance of the will or consent of states in the creation of norms of public international law.
The development of rights and obligations of states under international law, again is closely linked to what has been said before. In treaty law, the only possibility to amend treaties is with the consent of the parties, either given for any specific amendment, or for an amendment procedure as agreed upon in the treaty in advance. In international organizations, the bodies and organs of these can only act within the mandate they got before from the constituent document, to which the member states had consented by ratification/accession. Therefore it is always seen critically when organs of international organizations or international courts and tribunal seem to expand and develop the law. This discussion may also be observed within states, especially regarding common law jurisdiction like e g the United States. In comparison it seems to me though that international courts examine the law, especially allegedly newly emerged norms of customary international law with much more rigor than for example the US Supreme Court when it is interpreting the law, having a majority of progressive justices on the bench.
This is due to the fact that, again, the behavior of states shapes the development of customary international law. On the one side this is good with regard to the acceptance of decisions by international tribunals. On the down side it makes it easier for states to object to legal findings in a particular manner in order to further political goals, which does not exactly reassure the credibility of international tribunals’ decisions. The same problem can also be observed with regard to international organizations, especially the UN Security Council.
As evidenced for example by the Statute of the International Court of Justice, all the parties to a dispute need to consent in some way to the jurisdiction of an international court or tribunal. In case of arbitration they even get to pick at least a part of the bench themselves or it is only possible to select the arbitrators from a list of nominees by the state. As the most prominent example, I want to go in a little further detail on the jurisdiction of the ICJ.
There are three ways for states to express consent to give the court jurisdiction. The first is an optional clause, providing for a general ipso facto recognition of the compulsory jurisdiction of the ICJ with regard to all other states that have done so too. This general way of accepting the courts jurisdiction, has been used for example by Austria. It was relied upon, not with regard to Austria as it hasn’t been a party to that dispute, for example in the Norwegian loans case. States only accept the jurisdiction as far as they want it, very precisely and only so far the other party to a dispute has accepted it too.
The second way of accepting the ICJ’s jurisdiction over a specific dispute, that already arose, is a compromise, which is basically a declaration accepting the jurisdiction of the Court fully, but only with regard to that specific dispute.
The third way, the ICJ can be given jurisdiction in a case, is by treaty clause. This means that a state ratified a treaty, which refers all disputes that may arise out of its in the future to be resolved, compulsorily, by the ICJ. This way of acquiring jurisdiction has been relied upon in several cases, for example of course in the Tehran hostages Case.Here the United States relied upon the treaty clause in the Vienna conventions on diplomatic and on consular relations, giving the ICJ jurisdiction in disputes arising under them. Iran, however, did not take part in the proceedings, except for to letters it sent.
Although this seems, as if Iran did not consent to the jurisdiction in this case, one must remember that it did so before, when ratifying the conventions mentioned above. So once a state gave his consent to the jurisdiction of a court, it is bound with regard to all disputes arising until the state renounces its declaration, regardless whether the states accepts jurisdiction within a treaty, or by means of an optional clause. The US, of course, famously withdrew their initial optional clause to the ICJ. This means that the Court can only have jurisdiction in a dispute to which the United States are a party, if they accepted it by a treaty clause or by compromise. They would never make the latter of course, if they would think that they would lose the case.
The enforcement of judgements can also be seen to be based on consent to a certain extent. For after the judgement a state may resort to countermeasures or ask the UN Security Council for help in enforcing the judgement. Countermeasures are of course an unpleasant solution and also oftentimes not all too effective, due to the immunity of states from domestic court proceedings (of course with exceptions). The UN Security Council on the other side is a political organ and as soon as a permanent member has a problem with the judgment for whatever reason it can block the UNSC by issuing or threatening a veto. A common way to get to a solution with regard to enforcement is oftentimes to negotiate and, with the consent of both parties, come to a solution, acceptable to all. This has been done so, for example in the aftermath of the Corfu Channel case. It also led to the establishment of the Iran-US Claims Tribunal.
In conclusion, one can state safely that consent by states is an important aspect when dealing with public international law. From the formation of most norms, via its further development up to almost any part of the enforcement proceedings, consent in some form by the state in question is a necessary element. In my opinion this is one of the problems with the effectiveness of international law with regard to most sensitive topics, as war and peace. On the other hand one can dispute anyway, whether those areas of policy are open at all to a full legal solution. To this day however, consent can be seen as the catalyst of norms of international law, from the cradle to the grave.
List of sources:
MALCOLM SHAW, INTERNATIONAL LAW (2014).
IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW (2012).
GARNER (ed.), BLACK’S LAW DICTIONARY, 10th Edition (2014).
REINISCH (ed.), ÖSTERREICHISCHES HANDBUCH DES VÖLKERRECHTS (2013).
MARKUS BEHAM, MELANIE FINK, RALPH JANIK, VÖLKERRECHT VERSTEHEN (2015).
JAN KLABBERS, AN INTRODUCTION TO INTERNATIONAL INSTITUTIONAL LAW (2009).
PARRY AND GRANT ANCYCLOPAEDIC DICTIONARY OF INTERNATIONAL LAW (2003).
Statute of the International Court of Justice (1945).
Legal Staus of eastern Greenland case (Norway v. Denmark), 1933 P.C.I.J. Ser. A/B, No. 53.
Case concerning Certain Norwegian Loans, France v Norway, Judgment, Jurisdiction, 1957 I.C.J. (6th July).
Case concerning United States Diplomatic and Consular Staff in Tehran, United States v Iran, Judgment, 1980 I.C.J. (24th May).
Case concerning Fisheries Jurisdiction (United Kingdom v Iceland) 1973 I.C.J (February 2nd).
Case concerning Fisheries Jurisdiction (United Kingdom v Iceland) 1973 I.C.J (February 2nd).
Legal Staus of eastern Greenland case (Norway v. Denmark), Permanent Court of International Justice,  P.C.I.J. Ser. A/B, No. 53, 71.
ICJ Statute, Art 36.
E g : ICSID Tribunals, Permanent Court of Arbitration, any ad hoc set up of arbitration tribunals
Certain Norwegian Loans, France v Norway, Judgment, Jurisdiction,  ICJ Rep 9, ICGJ 175 (ICJ 1957), 6th July 1957, International Court of Justice; in the case the jurisdiction was disputed due to a Connally amendment in France’s declaration
United States Diplomatic and Consular Staff in Tehran, United States v Iran, Judgment, ICJ GL No 64,  ICJ Rep 3, ICGJ 124 (ICJ 1980), 24th May 1980, International Court of Justice.
Established by the Algiers Accord, also dealing with the consequences of the ICJ decision in the Tehran hostages case.
- Quote paper
- Michael Friedl (Author), 2017, The Role of Consent in Public International Law, Munich, GRIN Verlag, https://www.grin.com/document/358941