13 - Consent as a Guarantee of the Democratic Legitimacy of International Law

Summary

The author makes the case for a new understanding of the role of consent in international law. She begins by noting that the question of consent should be as central to international law as it is in other fields of law because legal norms give rise to power relations and impose constraints upon those to whom they apply, and those in power want these constraints to be accepted. Yet, the question of consent was, as the chapter claims, never raised in the classical era when State sovereignty made it possible for States to adopt international norms without their subjects’ consent. With the Enlightenment, however, the people’s consent through representation became the foundation of domestic law. Yet, most of the time, representation is, according to the author, formal and serves to justify the law as if it were produced by the general will. Because international law reflects the fickle concurrence of States’ wills, the world community’s law does not rely on popular consent. The world community is confronted with difficult challenges, and it needs, more than ever, norms that can meet this moment.