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Consensus In International Law

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However, international law has developed since the decision of the PCIJ in Lotus and has shifted from a focus on bilateral relations among states where a state’s freedom to exercise its sovereignty is only limited by prohibitive rules to which they have consented, to a focus on the international community as a whole. A plethora of international declarations and conventions focusing on states’ duties to respect and protect human rights within their borders has emerged since the mid 20th century. This shift in trajectory challenges the consensual nature of international legal obligations and belies the role of the state as the central subject in international law.

Traditionally, there is no hierarchy between the primary sources of international …show more content…

Jus cogens rights are directed at the protection of individuals within the territory of states against threats to individuals’ most basic human values. As a consequence they limit a state’s ability to legislate unabashedly. For example, South Africa would not have been considered free from the rule prohibiting institutionalized racial discrimination in spite of its continued persistent objection to such a rule through its implementation of apartheid. Furthermore, there are also gaps between the assertion of a jus cogens norm and consensus in state practice. For example, there has been widespread and tolerated infringements of the prohibition against torture, although it remains a peremptory norm. Notwithstanding the ethical considerations underscoring the notion of jus cogens norms, as the above examples show, a hierarchical system of sources necessarily places the collective interest of citizens above that of an individual state and therefore inverts the consensual framework of the international system as espoused in the Lotus …show more content…

The legal personality of international organizations is objective and non-members are required to recognize it as a legal person. The involvement of international organizations in treaty making has eroded the traditional dominance of states in this regard. Specifically, it has given access rights to non-governmental organizations and other non-state actors to participate in the formation of treaties as well as giving greater influence to smaller states, with the balance of power tilting away from more powerful states thus democratizing the process. Furthermore, while most international organizations cannot adopt binding decisions on member states, the rules contained in non-binding decisions, for example General Assembly resolutions, may assist in the formation of new customary international law. Conclusion

While the Lotus dicta remains valid in the respect that states remain the chief lawmakers and subjects in international law, the predominance of states is being slowly eroded with the involvement of international organizations in law making. Furthermore, the emergence of a hierarchy of norms has, to some extent, constrained the state as the ultimate source of legal obligations by placing restrictions on their free will. As such, while the Lotus dicta has not been overruled, its authority

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