The consent architecture

Modern international law rests, in significant part, on a doctrinal architecture of consent. States are bound by treaties they ratify, by customary norms they accept, by the jurisdiction of tribunals to which they submit. They are not bound, in this architecture, by what they have not consented to.

The architecture is intuitive and historically powerful. It does difficult work in practice.

Three procedural limits

This Article examines three procedural limits on the consent architecture: the limits of consent under coercion, the limits of consent without informed deliberation, and the limits of consent that purports to bind future political communities the consenting body cannot speak for.

Doctrinal implications

The procedural limits have doctrinal implications: they constrain what consent-based obligations can be made to do without supplementation. The Article traces those implications through three contemporary doctrinal sites — the Vienna Convention's rules on treaty interpretation, the doctrine of subsequent practice, and the formation of customary norms — and offers a structured framework for assessing claims of consent-based obligation.