Why State Consent Still Matters: Non-State Actors, Treaties, and the Changing Sources of International Law

Abstract

This article explores the role authority can play in the debate over whether the sources of international law are changing. Scholars who take up the question of changing sources of international law traditionally face the dilemma that there is, as yet, no agreement on a definitive list of what sources contain the rules of international law, let alone what method or methods lead to the creation of such rules. This article argues that one way to overcome the existing stalemate is to integrate considerations of authority into sources doctrine. By going beyond traditional lines of inquiry such as what makes international law binding and where one finds it to ask who is making the law, a new perspective is presented for evaluating changes to the international legal order. To demonstrate how such an authority-based approach would operate, this article reviews non-state actor participation in treaties. Specifically, it examines whether the roles sub-state, supranational and extra-national actors play in the formation, application and interpretation of treaties has truly altered who international law authorizes to create treaty obligations. It finds that, although non-state actor treaty participation demonstrates a potential for a systemic shift, state consent still remains the operating principle of the treaty paradigm. As such, the article concludes that sources scholarship should focus more, not less, on the doctrine of consent as a source of international law, looking at who is consenting, on whose behalf, and to whom such consent is being given.