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Beyond Confrontation: International Law for the Post-Cold War Era

By: Lori Fisler Damrosch; Gennady M. Danilenko et al. | Book details

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2
Consent and the Creation of International Law
Jonathan I. Charney and Gennady M. Danilenko
I. Introduction
An 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 law;
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

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