The author examines the place of consent in treaty interpretation at the time of the marginalization of the role of the intention of the parties. Whether the characterization of international law as a legal system grounded in State consent has ever been empirically true is, as he argues, open to discussion. For him, the law of treaties, however, is commonly seen as ‘a bastion of consensualism’. This sense of confidence has, however, never sat easily with treaty interpretation. The author claims that, despite the lip service sometimes paid to the fiction of the common intention of the parties, the official doctrine of treaty interpretation rests on the primacy of the terms of the treaty.

The issue of consent to international law obligations and liabilities remains both highly complex in theory and extremely relevant in practice. Although the topic has been addressed quite regularly in the form of articles and chapters, there have been, surprisingly for such a central topic, few monographs on consent to international law in general and no edited volume in English language. Re-examining the issue of consent to international law in depth and in the contemporary circumstances of international law is a timely project therefore. The best way to do so in a rich and nuanced way is to give a voice to many authors at the same time, and this is the purpose of this collection of essays. This introduction sets the volume’s stage: first, it clarifies the relevance of the issue and the reasons that led to putting the book together; second, it introduces the main conceptual and normative challenges addressed in the volume and explains what it hopes to achieve; third, it provides some information about how the book is structured; and, finally, it sketches out the content of its successive chapters and their articulation.

The author seeks to illustrate the multiplicity of thoughts and varied techniques deployed in interpreting consent in investment arbitration. The chapter shows that the steady rise of varied international disputes has generated significant debate about the interpretation and application of the principle of consent. International courts and tribunals are being increasingly criticized by States for their jurisdictional overreach. The underlying problem, as the author sees it, may well be whether the contours of consent to arbitration are clear. Investment arbitration tribunals while dealing with the question of State consent have shown sharp divisions on the notion of consent. The varied approaches taken by arbitral tribunals to State consent highlights the indeterminacy of the contours of consent. The chapter finds support for its argument in a case study of the issue of State consent in the context of the interpretation of Most-Favoured Nation clauses.

The author attempts to answer the following question: in an international legal system of which States are no longer the only subjects, what is the role that the consent of IOs plays in the creation of rights and obligations that apply on the international plane? The chapter reflects on the legal agency that IOs enjoy, qua subjects of international law, in the process of formation of general international law and in the acquisition of treaty rights and obligations. In so doing, it advances two claims. The first is that even though IO practice can and should be taken into account in the identification of customary rules, it is not a necessary element in the process of formation of those rules. The second claim of the chapter is that, under current law, IOs can only be bound by treaty rules to which they have consented, which may give rise to problematic gaps between the treaty obligations of IOs and the treaty obligations of their members. In pursuing those claims, the chapter offers some reflections on the systemic and normative implications of the formal involvement of IOs in the making of rules of general and conventional international law.

The author examines the interplay between the individual and collective dimensions of treaty-based law-making and standard-setting processes in the United Nations climate regime. The reason why the author attempts to do so is that multilateral treaties have been the main anchors for international environmental law-making. In this context, State consent not only has individual effects, but also feeds into a collective process. The chapter begins by exploring the United Nations Framework Convention on Climate Change and the Kyoto Protocol. It then turns to the Paris Agreement and the shift to what has been described as a ‘bottom-up’ approach. The perhaps most striking feature of this approach is its reliance on non-binding, ‘nationally determined contributions’ (hereafter NDCs). From the vantage point of State consent, the most significant consequence of the Paris Agreement’s NDC approach is a shift away from the anchoring of consent to climate action in treaty-based processes, and hence from the linkages that adoption and entry-into-force requirements establish between multiple parties’ individual expressions of consent.

The author examines how ‘consent’, traditionally taken as a foundational element in international law, fares in the context of international organizations (hereafter IOs). The central argument is that IOs, both as actors consenting to international law and as institutional spaces for other actors doing so, have changed the operation or even the nature of consent in international law as they have made the components of the act of consent disaggregate. The author argues that the IO’s expression of consent has become detached from the psychological or ‘intentional’ state that is presumed to be underlying in the legal subject. Where the organization appears as an institutional space for the consent of others, the object of consent in many instances is detached especially in substance from the normative effect created for the consent-giver.

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.

The author seeks to unpack five of the main discursive moves witnessed in the literature and case law pertaining to the question of consent to international law. He argues that these five specific discursive moves are performed by almost anyone engaging with the question of consent to international law, be such engagement on the more orthodox side or on the more critical side of the argumentative spectrum. The author claims that these five discursive moves correspond to the reproduction of a very modernist understanding of authority, the constitution of the very subject that is consenting, the anonymization of the author of consent, the reversal of the temporality of the legal discourse on consent and the adoption of very binary patterns of thought. This chapter shows that discursive moves made by international lawyers around the idea of consent bears heavily upon the type of political legitimacy, the type of geography, the type of responsibility, the type of temporality, and the type of hermeneutics that international law is serving.

The author argues that while State consent does contribute to international law’s legitimacy, it does not do so by providing a justification for it. States are not bound to obey international law because they have chosen to submit to its authority. Rather, international law provides them with a reason for action, and indeed they have a moral duty to obey it, if and only if they will do better at realizing justice if they act as the law directs them to act than if they act on their own judgment. As a means for crafting international law, State consent is, according to the author, valuable insofar as it yields international legal norms that satisfy this condition. He argues, that in a few cases, it may also constitute an intrinsically valuable expression of trust in the international political community or an international institution that exercises political authority.

The author attempts to unravel the close conceptual and practical connection between consent and autonomy. The chapter argues that consent is the vehicle of autonomy, vehicle through which States give themselves their own rules, both primary rules and secondary rules. Because the exercise of autonomy in the international society faces contextual limits, linked to the self (auto) and to the law (nomos), it is claimed, that consent appears not only to be characterized by power, but also by limitations. This holds true for consent in international law-making as much as for consent in international dispute settlement. The chapter focuses on both categories, discussing the theory of sources and institutional law-making with respect to the former and jurisdictional matters and applicable law with respect to the latter. It concludes – prospectively – with some thoughts on the future of autonomy and consent in international legal theory and practice

The authors begin by observing that most obligations of international law are still regarded as ‘based’ on State consent. There are good reasons for this, especially from a democratic legitimacy perspective. Still, the principle of State consent, even in its qualified version of ‘democratic State’ consent, suffers from important shortcomings that call for correctives. The chapter starts by accounting for the democratic value of State consent in International Organizations (hereafter IOs) before addressing some of its democratic deficits. It then articulates several institutional proposals to correct or, at least, complement the role of equal State consent in the institution, the operation and the control of IOs. The authors develop a non-ideal normative argument for the latter’s political re-institution. That re-institution has to start with the replacement of the principle of equal State consent by that of equal public participation in IOs: this does not only avoid reducing State consent in IOs to State veto or refusal rights, but it also extends the personal scope of those participatory rights to other non-State public institutions.

The author explores how the Court of Justice of the European Union (hereafter CJEU) has dealt with issues of consent as a trigger of commitment in the context of treaty-making by focusing on its practice pertaining to informal arrangements concluded between the European Union and third parties. The main arguments advanced in the chapter are: (a) that the Court has largely followed mainstream international legal thinking by identifying consent as the ‘objective’ common intention of its authors to be legally bound; and (b) that the Court has acknowledged the constitutive function of consent when it comes to treaty-making with non-State actors. The chapter also illustrates an important blind spot in the current debate on consent. The examination of the CJEU’s case law shows that political factors may have a bearing on the ascertainment of the consent to be legally bound. This, in turn, entails that attempts at theorizing how international law can remain sociologically clever and keep pace with current developments on the ground should be cognizant of the danger of over-relying on judicial practice.

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.

There is a great deal of varied terminology used to refer to cultural heritage, and this chapter explores how definitions of these terms translate into practice the importance of cultural heritage to communities that care about it. At times the UK’s system of law and non-law instruments can lead to a fragmented approach to caring for cultural heritage. In addition, there is a body of jurisprudence where a cultural heritage object, place or practice is at the centre of the dispute, but where general legal principles (rather than specialist cultural heritage laws) are applicable; it is the way in which the judges in these cases construct notions of cultural heritage which present an opportunity to fully appreciate the way in which the UK, as a community, imagines cultural heritage. Concepts such as value, significance, interest, importance, uniqueness and value all demonstrate the recognition of the varied ways in which communities in the UK care about cultural heritage. Although the importance of cultural heritage to a community’s identity is frequently cited, this concept is rarely, if ever, translated into legal or non-legal instruments in the UK. This chapter explores how the relationships between different communities and cultural heritage have been translated into the various nested practices of care.

Given the centrality of communities to the care of cultural heritage, this chapter explores how the UK legal and non-legal instruments recognise the concept of the UK, as a community and as a network of communities. This chapter identifies and analyses the varied communities of care that directly and indirectly care for cultural heritage. These include international, national and local communities, but also institutional communities and those involved in law-making and policy. It also considers the smaller-scale communities that form to challenge the status quo and who seek justice, or wish to assume responsibility for the care of cultural heritage. What becomes apparent is the interrelationship between communities of care and the shared responsibilities at times for the care of cultural heritage, which is all too evident in the context of World Heritage sites in the UK.