3 - Controlling Consent

Summary

The author assesses the role of consent in processes of binding dispute resolution before international courts and tribunals. He seeks to demonstrate that ‘consent’ has a particular role in binding dispute resolution. This particular role derives from the special nature of binding dispute resolution processes. They are intrusive and characterized by their uncertain outcome: the implications of State consent to the dispute resolution process crucially depend on decisions of an independent entity, namely an international court or tribunal. Because this is so, States insist on the need for consent, as a precondition of any binding dispute resolution process. At the same time, once consent has been given, control shifts to the competent international court or tribunal. Moreover, by virtue of their decision-making authority, many international courts and tribunals have managed to assert at least a persuasive influence over proper construction of the legal rules at stake, extending beyond the cases immediately pending before them. The chapter traces these peculiarities and examines how the tension between State and courts’ authority plays out in particular disputes.