State Consent in the International Law

Topic: International Law
Words: 4167 Pages: 15


International law is embedded in the key trends around which legal claims and discourses are established. Consent refers to the ability to voluntarily agree to a proposition outlined by another party. On the other hand, the law refers to the legal theory of positivism, holding the truth of legal suggestions consisting of definite rules applied by individual institutions. The law ought to be serving the general well-being and nothing else since it is conceptual and normative. Therefore, the law should be a theory of compliance, adjudication, and legislation (Waluchow & Sciaraffa, 2012). A legal system refers to a body that strictly follows the rules and principles outlining the system’s subjects’ obligations and rights. The legal system is also referred to as the primary rules (Thirlway, 2019). The state and the legal system’s adherence to the stipulated laws is a vital aspect of international law. An impartial legal system will facilitate the scales of justice which are availed in all domains of humanity globally. To ensure conducive legal environments, it is important to seek consent from states when international laws are being formulated and implemented.

In the international legal realm, support is built on making an assumption of the physical act of power in a reflective, determined, and uninfluenced exertion of similar veto powers. The customary international law is associated closely with state consent, as advanced by the international law discussions (Petersen, 2016). Consensual views have tried to develop a definition of the groupings of the theories regarding the relationship between the state’s consent and the customary international law (Crootof, 2016). There is an increase in international law’s informal engagement since the creation of new processes, instruments, and actors within its confines (Petersen, 2016). The need to adhere to standards, decisions, and guidelines by the international bodies is analyzed closely by states, judicial practices, and treaties (Kassoti, 2016). It is worth noting the importance of state consent in traditional law and international law’s procedural formulation. Failure by a state to provide consent in the formulation and the law-making processes will reduce disagreement when it comes to international law. Therefore, state consent should be sought when matters of international law are being discussed.

A treaty refers to the formal agreement between the sovereign states and some international organs and is bonded by international law. According to the Vienna Convention Law of Treaties, a treaty refers to the formal global agreement completed between different states, and it is stipulated and regulated under the international law, irrespective of which form of embodiment tool it is in and the intended designated purpose (Pergantis, 2017). Conventions and treaties are vital sources in the derivations of international law rule (Klabbers, 2021). The sources are an essential aspect in the body of the legal system rules and body, outlining the system’s subjects (Thirlway, 2019). A state’s consent is required for the formulation and successful implementation of a treaty (“What is the theory of consent,” 2021). A state’s inability to consent and participate in the treaty formulation process will be a setback to international law.

State consent in international law is a crucial aspect of the legal system practice of global law. The efficiency of international law is dependent on the full consent of the participating parties to enable the realization of the effective implementation of the essential and acceptable changes (“What is the theory of consent,” 2021). The appropriate approach in the international law-making processes facilitated with the acquired consensual mutual agreement of the participating states will help in achieving its formulation. Furthermore, the distinction between the outlined treaties and the formulated international law is instrumental in correlation within the international society. This distinction will avoid instances where individuals disagree with the drafted international law. Similarly, it is worth noting the availability of opportunities providing a more practical possibility for global success. Therefore, state consent needs to be sought during the international law-making process. The inability to request the participation between the involved parties will result in disagreement arising from the failure to accommodate diverse views and opinions. Since international law’s success depends significantly on the participants in its formulation and the coexisting treaties among the states, consent should be considered as a critical factor in the law-making processes.

Analysis of the System of International Law-Making and the Role of State Consent in Decisional Processes

Law-making processes refer to the initiatives put in place to formulate the policies governing various activities within domestic and international spaces. It involves one subject or more of a similar domain. The practitioners need to identify acceptable global legal culture and understand the behavioral standards and duties required by international law (Besson, 2016). The need to shift and adopt a flexible description of international law allowing for the incorporation of new participants is necessary since new outcomes may not be accommodated in the traditional setting (Klabbers, 2021). International law may be viewed as a tool for a struggle politically or a means of interfering with an individual state’s affairs (Zhu, 2018). Similarly, there arises a need for a clear differentiation between non-law and law to sustain the international law identity (Kassoti, 2016). It should be of importance for the participation of a state in the formation of making laws since their absence may create an impression of the existence of minimal methodological directing about the identification of the underlying customary culture.

Furthermore, the issue of law-making is of theoretical significance to a state judicial practice. The resurgence in the international law-making process has forced lawyers to revisit traditional foundations of legal considerations to question the validity of the existing rule of State consent recognition (Kassoti, 2016). Court jurisdiction is a complicated negotiation item among individual countries. The core of the dispute concerning jurisdiction lies with how the case is being presented before a court (Zhu, 2018). The international law sources touch on the legality, nature, legitimacy, and normativity of international laws. This has contributed to its controversial problems legally since disputes pose difficulty in reinforcing the core nature whereby sources are made one of the essential contested aspects (Besson, 2016). The difference in the judicial system of distinct states makes it mandatory for seeking consent during the international law-making processes.

The international law-making process needs to be done with a thorough comparison between the domestic and global law sources. Vast sections of international law articulate the idea of viewing states as the only legal subjects and lawmakers (Klabbers, 2021). The already existing agreements, which are multilateral, have slowed down the formal law-making processes (Kasssoti, 2016). This view has elicited a disagreement since the international configuration of the law-making processes is fundamental to the departure from the top-down and central experienced state laws approaches. Similarly, the international rules apply equivalently and concurrently since they are not located to one another (Besson, 2016). It is necessary to seek the consent the during the international law-making processes. This can be achieved by comparing the state laws and the ideas they need to incorporate into the statutes. Making conclusions such as ‘states are the only legal subjects and law-makers’ is unjustified.

Treaties entail problematic provisions bearing brutal subsequent unresolved, conflicting, and lawful state action. Treaties are formulated to achieve reconciliation between the witnessed competition in interests, flexibility, and stability (Pergantis, 2017). The requirement for treaty stability in regimes is reflected in the customary rule where agreements should be kept, undergirding the international laws and explaining the state’s willingness to summarize the treaties (Crootof, 2016). The changing circumstances of treaty regimes brought by the association’s variations between the state actions and the treaties have made the international law treaties irrelevant. The jurisdictions need to be exercised only after the concerned state has made a declaration, allowing the court to do so (Zhu, 2018). Therefore, it is essential to consider the undergirding nature of treaties to the international law, for the state’s mutual consent to be sort during law-making processes.

State consent is essential in the modification and changing of treaties. The traditional techniques of treaty modification require efforts to improve treaties through mutual consent, which entails adaptive clarification, amendment, and supersession (Pergantis, 2017). Similarly, how individual countries perceive the court’s motive brings disagreement with the operations of international law (Zhu, 2018). The formal supersession and amendment of treaties require the state’s consent, while the adaptive clarifications provide solutions to inconsistencies and the phrases considered not to be elastic (Crootof, 2016). Therefore, a state’s consent is essential for the formal amendment of treaties. This will reduce the rate of disagreements arising among different states.

The diversified theoretical mechanisms explaining the approaches applied to get sources for international law resulted in disagreements. The theoretical level is witnessing challenges where the available theories regarding the sources of international law and the motive of their formulation is being questioned (Kassoti, 2016). Legal positivism is vital since it leads to the domination of this section by the international’s doctrinal and practical discourse within specific regimes. Similarly, international law’s work should be under the concerned state’s consent (Zhu, 2018). The most significant disagreement lies between the legal officials’ international practice and the recognition rule (Besson, 2016). The eradication of the disagreement regarding the sources of the international law will only be possible if states’ consent is sought, and they can agree on the sources they consider essential for the law-making process.

The extension and reductions of the obligations and rights of state’s treaties by international law have resulted in disagreements. Questions linger on whether the international legal role is justified to be grounded by a state’s legal consent (Pergantis, 2017). Furthermore, the argument is that the general acceptance of a newly formulated rule might be sufficient to modify a treaty and, therefore, avoid the inherent problem resulting in multilateral modification of the treaty under a content-focused rule (Crootof, 2016). The ability to participate universally by all countries in the formulation of international law is vital. This will ensure maximum flexibility and, therefore, the negotiations regarding the provisions of the law’s jurisdiction and the components of crimes (Zhu, 2018). The disagreement will be overcome if the state consent is sought before the treaty’s modification is conducted. A single state should not be allowed to upset the majority’s consensus.

The effects-based technique has a force that binds it based on receding source doctrine into the ground despite the arising questions on whether the tools can be placed into practice. This technique is vital since it avails the lawyers of an opportunity to move away from the source doctrine rigidity (Zhu, 2018). Despite being highly recommendable, the technique has suffered some disagreement. It is assumed the legal regulations of a state may be known through the observations of its behavior (Klabbers, 2021). The International Court of Justice (ICJ) confirmation implied the inability to follow a norm according to the legal culture despite it being factually correct in the real sense (Kassoti, 2016). Therefore, the state’s consent is required to ensure the effects-based approach is familiarized with the legal systems. They can determine the aspects which are not applicable in international law.

The legitimacy of the obedience of some invoked international laws has elicited disagreements. The substance-based technique is applicable in coercing states to be obedient to international law together with the content and the institution pedigree they perceive legitimate (Kassoti, 2016). Despite the available opportunity to obey, the approach has legitimacy issues such as the adoption of illegitimate arguable norms, such as the adopted anti-terrorism controversial resolutions by the Security Council. The reliance on such subjective and fluid concepts to locate the legitimate boundary between non-law and law will mean the partitioning on its own is porous (Zhu, 2018). The eradication of disagreement arising from international law’s invocation by this approach will require the state’s consent before the Security Council legitimizes them. This will prevent the obedience of some states to illegitimate formulate regulations.

However, despite the international law aiming at ensuring justice globally, they need to be denied State consent. The concerns raised by the Chinese government are of significant concern. It is hypocritical to call for a judicial legal system to safeguard the interest of people globally against crimes of humanity. Nevertheless, some countries are making applications seeking immunity about the same (Zhu, 2018). Furthermore, the veto powers bestowed on the prosecutors need to be trimmed since the legal system may be used as a political tool to settle scores. This will expose the system to practices considered partial. Impartiality ensures justice is served to the perpetrators of crimes against humanity and war crimes. Similarly, international law may not require consent in matters to do with their legal system’s education. The creation and formulation of institutions worldwide will ensure more states have scholars to study international issues. Therefore, international law does not require consent to dispense the arising disagreements since countries will have the liberty and freedom to choose what they want to be accomplished.

Assessing the Alternative Measures for Achieving Cooperativeness and Effectiveness in International Laws Implementation

The international law-making process needs to be done with a thorough comparison between the domestic and global law sources. Vast sections of international law articulate the idea of viewing states as the only legal subjects and lawmakers (Besson, 2016). This view has elicited a disagreement since the international configuration of the law-making processes is fundamental to the departure from the top-down and central experienced state laws processes. Similarly, the international laws apply equivalently and concurrently since they are not located close to one another (Petersen, 2016). It is necessary during the law-making process to seek states’ consent for the comparison of the domestic and international sources of law to avoid disagreements among the players.

The arising disagreement in the pervasive theory sparking debate in international law doctrine emanates from the further education where students are required to study. International newcomers and first-year law students are referred repeatedly to Article 38 of the ICJ statute sources catalog (Besson, 2016). This is perceived as a threat to international law fragmentation. Fragmentation of sources would have eradicated the discriminatory acts of locking a specific regime’s legal process from practicing international law (Petersen, 2016). Fragmentation and unification of sources would eliminate the disagreement in the legal practices conducted within different states after consent is sought.

A disagreement arises among the international legal team on how some international law sources performed the cardinal tasks within the global legal practice and thought. Similarly, an account of how the sources came to be considered for the enlightenment is contested (Besson, 2016). The contention escalates further to the criteria used to make a distinction between the non-law and the law. This disagreement will extend to the school of thought (Petersen, 2016). The disagreement arises in the possession of different meanings by international sources. This disagreement can be eradicated only through seeking states’ consent in the creation of rules which will perform the following: create a system for interpreting and determining the rules’ contents; design a factor of identification for the professionals associated with international law; structure and coalesce techniques for ensuring the unification and international systematicity; create a tool which will build new progressive rules; create a device for the consolidation of the law morality; and model a description of the public exercise authority at the international level (Kassoti, 2016). State consent will eradicate the disagreements arising from international law formulation and implementation.

However, there exists an agreement arising from the drafted international law. These laws, which are acceptable to all parties, seem to be adhering to the definition of both non-laws and laws. Furthermore, some international law fails to interfere with the formal existing treaties among the states. These laws safeguard and undergird the interest of all parties involved in the treaties (Klabbers, 2021). The agreement of states with the sources for international law does not necessitate the need to demand consent (Besson, 2016). Since there is no state feeling exploited and the formulated laws are conducive, there is no need for state consent in the reformulation of the initial treaties.

Investigating the Efficacy of Soft Laws and Dynamic Tool to Integrating Change Globally

Soft laws contrast the norms and legal practices of international law. The soft laws, therefore, provide a stipulation of the requirements about the mode of legal transactions. This non-observance nature results in making the transactions under discussion to be invalid, void, and unacceptable (Kassoti, 2016). This contradicts international law. Therefore, the mode in which the transaction is embedded fails to state much about the legal appeal.

Similarly, the trend of authority dispersion has in recent years dramatically changed with the conceding fact that the norm is built outside the framework of international law (Waluchow & Sciaraffa, 2012). Building the norm outside the international law framework has led to a decline in the proper concluding tools. The informal concomitant cooperation means in the law-making process since states concentrate on their national agenda and avoid partaking in new global obligations. The informal shift is inclined toward the normative engagement by a variety of global actors in international activities, including non-governmental organizations (NGOs) (Crootof, 2016). The soft laws allow the states to consent or not to legal practices, therefore eradicating disagreements.

The soft law or the customary law provides the best alternative to international law. It is evident how international law is non-negotiable. Non-negotiable implies the norms of the law are not subject to any form of the bargain, which may dissect through the original aims of the treaty’s provisions, the documented soft laws, and the domestic legislation (Crootof, 2016). Similarly, change can be integrated globally if there is an opportunity for universal participation by all international law players (Klabbers, 2021). Maximum efficacy will be realized through the negotiations on the jurisdiction’s provisions and the aspects of crime.

Similarly, the adoption of the opinion of complementarity will guide the vital aspect of the international law statute, which needs to be given a full reflection within all the substantive and fundamental provisions. The provisions should be within the established court of law, such as the International Criminal Court (ICC) in Rome (Zhu, 2018). The provision of the opportunity to universally communicate by the state will foresee scenarios where they will consent to international law participation.

The soft provides the best alternative over the international because of the way it retrieves its sources. The soft law incorporates innovative ways of creating its rules and regulations, its role in its creation, and the matter in which the evolution of the dynamic treaty texts environment has been set (Klabbers, 2021). Furthermore, the soft law applies the use of environmental problems utilizing the traditional international law sources starting in the enumeration as stated in Article 38 of the statute of ICJ (Besson, 2016). The methodology of acquiring its sources is sure to reduce the witnessed disagreement in the international law sources. Therefore, the state will likely consent to such an arrangement in the law-making process.

The soft law uses an interactive framework in the law-making process. The application of an interactive framework for law-making with serious considerations regarding what international law did provides the best alternative. Similarly, they rely on the jurisdictions stipulated in Article 38 of the ICJ regulations to formulate new methods of designing international law (Besson, 2016). The interactive framework illuminates resilience and a steady law-making process that is based on the understanding of legality. The global integration of change is achieved through the adoption of the dialogue technique. The dialogue approach will underscore and ensure diverse views which are unassailable on a particular specified topic (Crootof, 2016). This will be as opposed to the canonical views (Besson, 2016). Furthermore, the methods utilizing dialogue will recognize facts regarding the development of the law-making process through a genuine dialectical engagement with other people’s views (Petersen, 2016). The interactive and dialogue approach will have sought states’ consent to ensure the international law-making process is not affected by the disagreement from other disgruntled parties.

There should be a clear and similar crime definition by both the International Law and the Security Council of the United Nations (UN). The UN has overseen the outlining of treaties between states. At the same time, international law draws different states in creating a global legal system that will ensure the UN mission of facilitating peace across the world has been achieved (Zhu, 2018). There should exist a distinction between a non-law and the law since it will sustain the international law identity (Kassoti, 2016). Furthermore, conventions and treaties are vital sources in the international law rule’s derivations (Crootof, 2016). The sources are an essential aspect in the body of the legal system rules and body, outlining the system’s subjects (Thirlway, 2019). The requirement for treaty stability in regimes is reflected in the customary rule where agreements should be kept, undergirding the international laws and explaining the state’s willingness to summarize the treaties (Crootof, 2016). Therefore, clear definitions of non-law and law will avoid treaties as illegality and ensure the proposed changes require the affected state to consent.

Another necessary change is in the criminal accountability of the legal persons. It is worth noting that the soft laws apply equivalently and concurrently since they are not dependent on one another (Besson, 2016). Therefore, there is a need for the prosecution of individuals rather than the other organizations despite the issue being witnessed within states’ legal systems. This would have witnessed the adoption of the Nuremberg Charter Model in international law, which will result in the criminalization of specific organizations as per the legal individual. The situation here was viewed as personal responsibility, and therefore, only the individual should face the law (Zhu, 2018). The Nuremberg Charter Model’s international law adoption would have denied states to provide consent leading to criminalizing of critical organizations within an individual state.

Change is needed in the powers bestowed on the prosecutors. According to the Rome Statute, under international law, the prosecutor has been bestowed with the powers to make a prosecution or start an investigation on a particular state’s conduct (Crootof, 2016). The powers were to be exercised without the balances and checks against frivolous prosecutions, therefore leading to the ability to rule and judge a state’s conduct (Zhu, 2018). Thus, the prosecutor’s powers are required to be trimmed in a way that will need them to seek a state’s consent before making the bold step of conducting prosecution or starting an investigation about a particular affected state.

However, the use of the term soft law is likely to create misunderstandings since it lacks any approved applicable definition. The term has been invoked in numerous works of literature to offer descriptions of a variety of wide phenomena. With some emanating from an outside purview of the current developments, including the arising questions on the nature of binding norms embedded in hortatory linguistics entailed in an alternative binding tool (Kassoti, 2016). When trying to understand the need for soft law over the international one concerning state consent, it is necessary to be keen about the term itself to misguide.

Furthermore, despite the soft laws providing a better alternative than international law, they fail in some aspects. For instance, a state’s desire to develop a doctrine of intervention geared toward humanitarian values, which ensures there are universal binding and non-negotiable rules, is lacking in the soft laws (Crootof, 2016). This will bring a disagreement between the states, and some may fail to consent to the customary international soft law.


State consent in international law is a crucial aspect of the legal system practice of the law global. The efficiency of international law is dependent on the full consent of the participating parties and the consensual mutual agreement of the participating states. The appropriate approach in the international law-making processes coupled with the distinction between the outlined treaties and the formulated international law will avoid instances where individuals disagree with the outlined international law. Since international law’s success depends significantly on the participants in its formulation and the coexisting treaties among the states, state consent should be considered and sought in the law-making processes. Therefore, the first section of this noble discussion revolves around analyzing the current legal system of the international law-making process and the role of state consent in the process of decision-making. The second section addressed alternative ways for achieving high levels of action-driven effectiveness and cooperativeness in international law implementation. The third section focused on investigating soft law efficacy as a better and more flexible alternative dynamic tool for the integration of change globally.

State consent is essential for the achievement of any law-making process. The way states perceive certain laws will be bent on their level of participation in their formulation. International law should ensure the universal participation of all states to eradicate the problem of disagreement. Furthermore, cooperation among the states is the pillar behind the success of these laws aiming to safeguard the humanity levels across the globe. Appeals presented before the international legal system by the disgruntled states for redress seem to be winning since the courts are redirecting reformulation or they uphold the sections being contested.


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Crootof, R. (2016). Change without consent: How customary international law modifies treaties. Yale Journal of International Law, 41, 237-283.

Kassoti, E. (2016). Beyond state consent? International legal scholarship and the challenge of informal international law-making. Netherlands International Law Review, 63, 99-131.

Klabbers, J. (2021). International law. Cambridge University Press.

Pergantis, V. (2017). The paradigm of state consent in the law of treaties: Challenges and perspectives. Edward Elgar Pub.

Petersen, N. (2016). The role of consent and uncertainty in the formation of customary international law. Re-examining Customary International Law, Brian Lepard, ed., CUP, MPI Collective Goods Preprint, No. 2011.

Thirlway, H. (2019). The sources of international law. Oxford University Press.

Waluchow, W., & Sciaraffa, S. (2012). The legacy of Ronald Dworkin. Oxford University Press.

What is the theory of consent? (2019).

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