The author argues that ‘will’ and ‘consent’ are different. According to him, no State’s will is entirely free. However, this does not preclude its consent from being valid. State consent displays different shades of will: while unilateral acts are the epitome of ‘willing consent’, the degree of willingness required when accepting a treaty is weaker, until it almost disappears in the case of custom, or general principles of law. The author argues that opinio iuris and consent are also different notions: you may feel legally bound even if consent is very remote. However, whatever role ‘will’ plays in the formation of rules, once the rules exist, States are, according to the author, bound and their will is trapped. The author makes the argument that, if neither will nor consent explain the basis of a State’s obligation when it is no longer willing to implement it, they nonetheless have a stabilizing and legitimizing role. He argues that consent makes the acceptability of the obligation stronger, by comforting its legitimacy, which also makes its implementation more effective.

Jost Delbrück

As a preliminary remark, let me address the role of the United States as the sole remaining superpower. This position can hardly be disputed. However, the exceptional place of the United States in international relations and the ensuing attitude of that country must be put into context. It appears to me that a large segment of the international community, particularly within the Western camp, is quite content to accept the United States as being the troubleshooter bearing the brunt of major international enforcement actions. Second, in many cases this very segment of the international community has been less than vociferous when the United States has engaged in superpower unilateralism. Moreover, parts of the international legal community have put much effort into justifying such actions ex post facto. Thus, in a sense, this situation, together with the United States' sense of mission, has contributed to the predominance of the United States as it is perceived by the US administration and also by Congress. Pointing fingers from outside is, therefore, a somewhat dangerous undertaking. As the saying goes, some of the fingers may point back at the critics.

Yet, the stark fact is – and both authors of the chapters in this section have clearly said this – that the pursuit of the national interest is a dominant characteristic of US policy which, in turn, has an impact on the US approach to international law.