2 Jonathan I. Charney and
Gennady M. Danilenko
Consent and the Creation
of International Law
I. IntroductionAn inquiry into the theory of consent in international law raises some
of the most difficult questions with regard to this law. Generations of
international lawyers have viewed consent in the context of a system that
is said to be based on the idea that state sovereignty is the preeminent
feature of international law and relations. According to the traditional
view, a state is said to be free to do anything unless it has consented to
restrict its own behavior. Under this approach a rule of international law
is binding upon a state only if it has consented to it.Constitutional principles relating to sources of international law lend
support to this view. According to the prevailing opinion, the basic norm
on sources is reflected in Article 38 of the Statute of the International
Court of Justice. Under this article, the I.C.J., "whose function is to decide
in accordance with international law such disputes as are submitted to
it," is to apply:
|international conventions, whether general or particular,
establishing rules expressly recognized by the contesting states;|
|international custom, as evidence of a general practice accepted as
|the general principles of law recognized by civilized nations . . .1|
These "positive law tests"2 of Article 38 appear to reflect the view that
all rules of international law are created by the consent of states. In the
case of conventions, Article 38 requires express recognition by the con
Questia, a part of Gale, Cengage Learning. www.questia.com
Book title: Beyond Confrontation:International Law for the Post-Cold War Era.
Contributors: Lori Fisler Damrosch - Editor, Gennady M. Danilenko - Editor, Rein Mullerson - Editor.
Publisher: Westview Press.
Place of publication: Boulder, CO.
Publication year: 1995.
Page number: 23.
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