State Consent and Disagreement in International Law-Making.
![handle is hein.journals/lejint29 and id is 303 raw text is:
Leiden Journal ofInternational Law (2016), 29, pp. 289-316
Q Foundation of the Leiden Journal of International LaW 2016 doi:i0.1017/S092215651600003c
INTERNATIONAL LEGAL THEORY
State Consent and Disagreement in
International Law-Making.
Dissolving the Paradox
SAMANTHA BESSON*
Abstract
This article starts with a paradox: international law-making is ridden with reasonable disagree-
ment and yet no state canbe bound by international law without its consent and hence without
agreement. Breaking away from the pragmatic resignation that prevails among international
law scholars on this question, the article proposes an interpretation of the role of state consent
that both fits and justifies its central role in the practice of international law-making and, hope-
fully, strengthens the latter's legitimacy in the future. Its proposed justification actually lies
in the circumstances of reasonable disagreement among democratic states and this proposal
dissolves the paradox. The article argues that, in international law as it is the case domestically,
consent is neither a criterion of validity of law nor a ground for its legitimate authority. It
also dispels two myths about state consent: its necessary relationship to legal positivism and
state sovereignty. Instead, the article argues, the role of democratic state consent is that of an
exception to the legitimate authority of international law and hence to its bindingness in a
concrete case. While the legitimacy of international law is not democratic, the democratic
nature of states and their democratic accountability to their people matter. This is especially
the case in circumstances of widespread and persistent reasonable disagreement as they pre-
vail among democratic states in international law-making. In these circumstances, respecting
the sovereign equality of democratic states by requiring their consent is the way to grant an
equal voice to their people. Of course, there are limits to the democratic state exception that
are inherent to both its democratic dimension (it requires respecting basic political equality)
and its consensual dimension (it requires that consent is expressed in a free, fair and informed
fashion). The article concludes by showing how the proposed disagreement-attuned account of
democratic state consent explains various characteristics of the main international law-making
processes, i.e., treaties and custom.
Key words
state consent; disagreement; validity; legitimacy; democracy
* Professor of Public International Law and European Union Law, University of Fribourg, Switzerland [sam-
antha.bessonounifr.ch]. Many thanks to Jan Klabbers for an interesting conversation on the topic in May
2015, to Tom Christiano for many inspiring discussions over the years, to Ralf Poscher and Geert Keil for their
invitation to present at the Deep Disagreement conference in Berlin on 11-13 June 2015, to Folke Tersman,
Larry Krasnoff, and the other participants for their feedback on that occasion and to Jose Luis Mart for
excellent comments. Thanks also to two anonymous reviewers for their extremely helpful comments and
to Gaelle Mieli for her help with the formal layout of the article.](ViewImageLocal?handle=hein.journals/lejint29&div=24&collection=&method=preview&ext=.png&size=3)
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State Consent and Disagreement in International Law-Making.
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