This essay would be examining state consent under internationallaw. Furthermore, it would also be examining how international law is groundedon the actual consent of state in the establishment of obligations, talkingabout the basic issues of consent under international law. Lastly, the essaywould also examine certain aspects which could cancel the assertion that withoutconsent international law cannot bind a state.Consent in its regular definition can be defined as when a partyagrees to a certain situation and supports it. Consent however appears not be anew concept in international law and the principle has appeared to have developedover the years under international law.
This draws us to the concept state consent.State consent, is said to be the foundation which international law is built on1,according to (Lister, 2011) “one ofthe major features of international law, so far as it has been traditionally beingrecognised, is its consensual nature. Ona large scale, international law, unlike domestic law needs the consent ofthose states which they govern”2.State consent it is defined or seen as the method by which states identify and acceptthe rules which they deem binding upon themselves and other states3.Although the process of consent has its flaws in international law, it is muchneeded as it plays an important role in international law. The process of consentwas established under the doctrine of state sovereignty.
This was clearly examined in the case of SS Lotus (France v Turkey) where it was stated that rules which arebinds a state emanate from their own free will as expressed under conventions, itwas further stated that the restriction of a state’s independence cannot be presumed4.In other words, a state has the right to accept or not rules which would governtheir relationship with each other as any rule which is made without the consentof the state is a violation of state sovereignty. Under international law, treatiesare seen as its primary sources, this is seen under article 38(1)(a) of thestatute of the international Court of Justice which provides that the courts inaccordance with international law should apply international conventions, whethergeneral or particular establishing rules recognised expressly by states5.In other words, treaties create a binding obligation on states, nevertheless,the state must still give consent in order to be bound by the treaty.The term treaty is examined under the ViennaConvention on Law of Treaties (1969) which it defines a treaty in article2(2) as an international agreement or acceptance concluded between states inwritten form and governed by international law6.Furthermore, the words “agreement or acceptance” under the Vienna Convention onlaw of Treaties (VCLT) in its definition of a treaty shows that a treaty canfully function only if the state has consented to it.
According to (Shearer,1995) newly made treaties under international law creates obligations bindingunder state parties7,however, only the states that have consented to such treaty can be bound by therules which have been made under that treaty8.It can be said that where there is lack of consent a state may not be bound bya treat, this is seen under Article 47 of the Vienna Convention on Law ofTreaties (1969) it was provided that If the authority of a representative toexpress the consent of a State to be bound by a certain treaty has been madesubject to a specific restriction the states failure to observe such treatywould not be ruled as invalid9,certain situations could be where a state has been induced to comply with a treatywhich was induced fraudulently by another negotiating state10,where the state has been procured to accept a treaty with use of force or bythreat11and also a state may invoke an error in a treaty as invalidating its consent tobe bound by a treaty12.Furthermore, where a state has agreed to be bound by a treaty but the areagainst certain provisions under that treaty, it would not be bound by suchprovision, the exemption to such provisions was established under article 2(d)of the Vienna Convention on Law of Treaties (1969) which is known as areservation meaning a unilateral statement made by a state which excludes ormodifies the legal effect of certain provisions in the treaty in their applicationto that state13However, the reservation becomes invalid if it is not relatedto the purpose of the treaty. Furthermore, consent is also needed by the 1 2 MatthewLister, The Legitimating Role of Consent in International Law3 Bodansky& S. Watson, State Consent and the Sources of International Obligation,Proceedings of the Annual Meeting (American Society of International Law) 4 5 6 7 8 AdemolaAbass, Complete International Law: Text, Cases, and Materials 9 10 11 12 13