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  • 6 - The Significance of State Consent for the Legitimate Authority of Customary International Law

  • from Part II - Customary International Law as a Source of International Law
  • Edited by Panos Merkouris, Rijksuniversiteit Groningen, The Netherlands, Jörg Kammerhofer, Noora Arajärvi
  • Book:
    The Theory, Practice, and Interpretation of Customary International Law
    Published online:
    05 May 2022
    Print publication:
    26 May 2022, pp 105-136
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  • Summary

    Sovereign States are under a legal obligation to comply with customary international law even though they have not explicitly consented to these norms. How should international courts accommodate both such non-consent-based CIL and a commitment to state sovereignty? The article outlines one strategy that avoids or helps address challenges wrought against other attempts to create more consistency and coherence between CIL and the other sources of international law – whilst securing a central role for state consent. A plausible account of why states have an obligation to honour treaties they consent to also contributes to justify their obligation to honour CIL norms. The shared normative basis for both sorts of obligations may be a ‘Principle of Non-manipulation’, a norm to not violate intentionally created rightful expectations. The account draws much on Scanlon, MacCormick and Hart.