This essay would be examining state consent under international
law. Furthermore, it would also be examining how international law is grounded
on the actual consent of state in the establishment of obligations, talking
about the basic issues of consent under international law. Lastly, the essay
would also examine certain aspects which could cancel the assertion that without
consent international law cannot bind a state.
Consent in its regular definition can be defined as when a party
agrees to a certain situation and supports it. Consent however appears not be a
new concept in international law and the principle has appeared to have developed
over 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 of
the major features of international law, so far as it has been traditionally being
recognised, is its consensual nature. On
a large scale, international law, unlike domestic law needs the consent of
those states which they govern”2.
State consent it is defined or seen as the method by which states identify and accept
the rules which they deem binding upon themselves and other states3.
Although the process of consent has its flaws in international law, it is much
needed as it plays an important role in international law. The process of consent
was 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 are
binds a state emanate from their own free will as expressed under conventions, it
was 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 govern
their relationship with each other as any rule which is made without the consent
of the state is a violation of state sovereignty. Under international law, treaties
are seen as its primary sources, this is seen under article 38(1)(a) of the
statute of the international Court of Justice which provides that the courts in
accordance with international law should apply international conventions, whether
general 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 Vienna
Convention on Law of Treaties (1969) which it defines a treaty in article
2(2) as an international agreement or acceptance concluded between states in
written form and governed by international law6.
Furthermore, the words “agreement or acceptance” under the Vienna Convention on
law of Treaties (VCLT) in its definition of a treaty shows that a treaty can
fully function only if the state has consented to it. According to (Shearer,
1995) newly made treaties under international law creates obligations binding
under state parties7,
however, only the states that have consented to such treaty can be bound by the
rules which have been made under that treaty8.
It can be said that where there is lack of consent a state may not be bound by
a treat, this is seen under Article 47 of the Vienna Convention on Law of
Treaties (1969) it was provided that If the authority of a representative to
express the consent of a State to be bound by a certain treaty has been made
subject to a specific restriction the states failure to observe such treaty
would not be ruled as invalid9,
certain situations could be where a state has been induced to comply with a treaty
which was induced fraudulently by another negotiating state10,
where the state has been procured to accept a treaty with use of force or by
and also a state may invoke an error in a treaty as invalidating its consent to
be bound by a treaty12.
Furthermore, where a state has agreed to be bound by a treaty but the are
against certain provisions under that treaty, it would not be bound by such
provision, the exemption to such provisions was established under article 2(d)
of the Vienna Convention on Law of Treaties (1969) which is known as a
reservation meaning a unilateral statement made by a state which excludes or
modifies the legal effect of certain provisions in the treaty in their application
to that state13
However, the reservation becomes invalid if it is not related
to the purpose of the treaty. Furthermore, consent is also needed by the
Lister, The Legitimating Role of Consent in International Law
& S. Watson, State Consent and the Sources of International Obligation,
Proceedings of the Annual Meeting (American Society of International Law)
Abass, Complete International Law: Text, Cases, and Materials