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Essay / State Consent Under International Law
This essay would examine state consent under international law. Furthermore, it would also examine how international law is based on actual state consent when establishing obligations, addressing fundamental questions of consent under international law. Finally, the essay would also examine some aspects that could disprove the assertion that without consent international law cannot bind a state. Say no to plagiarism. Get a tailor-made essay on “Why Violent Video Games Should Not Be Banned”? Get the original essay Consent in its usual definition can be defined as when a party accepts and supports a certain situation. Consent does not, however, appear to be a new concept in international law and the principle appears to have developed over the years within the framework of international law. This brings us to the concept of state consent. The consent of States is considered the basis on which international law rests[1], according to (Lister, 2011) “one of the major characteristics of international law, to the extent that it has been traditionally recognized, is its consensual nature . . On a large scale, international law, unlike national law, requires the consent of the states it governs”[2]. State consent is defined or considered to be the method by which States identify and agree to the rules that they deem binding on themselves and other States.[3] Although the consent process has flaws in international law, it is essential because it plays an important role in international law. The consent process was established under the doctrine of state sovereignty. This was clearly examined in the SS Lotus case (France v Türkiye) where it was stated that the rules which bind a state emanate from its own will as expressed in the conventions. It was further stated that restriction of the independence of a state cannot be presumed[4]. In other words, a state has the right to accept or not accept rules that would govern their relations with each other, because any rule adopted without the consent of the state constitutes a violation of the sovereignty of the state. In international law, treaties are considered its main sources, as evidenced by Article 38(1)(a) of the Statute of the International Court of Justice which provides that courts, in accordance with international law, must apply international conventions , whether they are of a general nature. or particular establishing rules expressly recognized by States[5]. In other words, treaties create a binding obligation on states, but states must nevertheless give their consent to be bound by the treaty. The term treaty is considered under the Vienna Convention on the Law of Treaties (1969) which defines a treaty in Article 2(2) as an international agreement or acceptance concluded between States in written form and governed by the international law[6]. Furthermore, the words “agreement or acceptance” in the Vienna Convention on the Law of Treaties (VCLT) in its definition of a treaty show that a treaty can only fully function if the State has consented to it. According to (Shearer, 1995), newly concluded treaties under international law create binding obligations on state parties[7], however, only states that have consented to such a treaty can be bound by the rules that have been established under this treaty[8]. It can be said that in the absence of consent, a State cannot be bound by a treaty, as shown in Article 47 of the Vienna Convention on the Law of Treaties (1969), which [9] [10] [11] [12] [13]