Andrew Guzman on the Problem of Consent in International Law

With Julian’s many interesting posts on UNCLOS, I thought I would flag for our readers Andrew Guzman’s interesting essay published on SSRN entitled the “Consent Problem in International Law.” Here’s the abstract:

The legal obligations of a state are overwhelmingly based on its consent to be bound. This commitment to consent preserves the power of states, but also creates a serious problem for the international system. Because any state can object to any proposed rule of international law, only changes that benefit every single affected state can be adopted–creating a cumbersome status quo bias. This Article argues that our existing commitment to consent is excessive and that better outcomes would result from greater use of non-consensual forms of international law. International law has developed a variety of ways to live with the consent problem, including the use of transfer payments, customary international law, and the United Nations Security Council. None of these, however, provide a sufficient counterweight to the consent problem. There are also strategies employed to work around the consent problem, mostly through the use of international organizations and tribunals capable of generating soft law. These soft law strategies are helpful, but insufficiently so. We could achieve better results within the system if these forms of soft law were used more extensively and accepted more broadly.

As Guzman argues, international law does a better job with Pareto Improvements–somebody is better off and no one is worse off–than Kalder-Hicks Improvements in which the gains to the winners exceed the losses to the losers. Put simply, “requiring consent frustrates many potential arrangements that would improve the lot of states as a whole.” He provides numerous examples of this–climate change, nuclear proliferation, terrorism, fisheries, economic crises–and proposes a few incremental, non-utopian solutions. Interestingly, Guzman argues that customary international law is not truly consensual, because the consistent objector rule is so hard to satisfy. He also describes Security Council action as non-consensual, although one could just as easily describe the Security Council as acting with state consent given at the time of accession.

But CIL and the Security Council will only modestly address the problem of consent. The real solution to the problem of consent, Guzman argues, are international organizations and international tribunals. “These represent the two most promising tools with which to combat the consent problem. Tribunals … can be effective in diffusing disputes and making the rules more effective. They can also adjust the meaning of international commitments at the edges without requiring a full-scale consent-based renegotiation of the underlying agreement.” As for IOs, they are “the most promising way to address the consent problem.” IOs are particularly useful at reducing transaction costs that make it easier to achieve consensus, and in influencing soft law rules that affect state behavior. While “a few states will find it more difficult to resist value-increasing policies that happen to impose small costs on their own population” a shift toward stronger IOs “will expand the set of attainable solutions for the world’s problems.”

Well worth a read.