beyond consent

AJIL 2014 ToCState consent has long been regarded as the principal foundation of international law, yet it has come under increasing pressure in recent years. This pressure stems from different sources: from moral concerns about the limits of state sovereignty; from concerns about the proper domain of (democratic) decision-making in an interdependent world; and from concerns about effectiveness in solving common problems, to which consent and sovereign equality often appear as obstacles. In this project I ask: what comes after and instead of consent? I pursues this inquiry positively – looking at change in the making and interpretation of law and norms in the global sphere – and normatively – analyzing what might be attractive alternatives to consent in a diverse and shifting world.

Positively, the focus is on the one hand on the sources of international law: what role does consent play in the identification of what the law is by courts, legal professionals and domestic and international decision-makers, and to what extent can we observe variation in the importance of consent across issue areas? On the other hand, the project asks whether we can see shifts in norm production away from formal, consent-based international law-making into other fora: domestic, extraterritorial regulation or informal international rule-making, and what standards replace consent in these fora. What are the criteria by which non-consensual law-making is justified in practice? Normatively, the project seeks to evaluate alternatives to consent, as they have arisen in practice and have been proposed by scholars, taking into account both principled arguments from individual rights or democracy and real-world constraints in a world in which power differentials play a central role.

I have begun to explore these questions, mostly from an analytical angle, in a piece on ‘The Decay of Consent: International Law in an Age of Global Public Goods‘ in the American Journal of International Law.