This episode of Legal Talks by Desi Kanoon explains the two pertinent theories in the field of Public International Law, Consent Theory/Auto-Limitation/Self-Limitation Theory and Consensus Theory.
Show Notes
Theory of Auto-Limitation/Self-Limitation or Consent Theory
“The states could only be obliged to comply with international legal rules if they had first agreed to be so obliged.”
this theory has been criticized on the ground that: -
a. It fails to explain why international law is regarded as binding.
b. It also fails to take into account the growth that has taken place in international institutions, rules and regulations.
c. “To accept consent as the basis for obligation in international law begs the question as to what happens when consent is withdrawn.” Breach of Agreement may lead to violation of International Law (violation of pacta sunt servanda).
Doctrine of Consensus
Art. 161 of UNCLOS defines ‘consensus’ as “absence of any formal objection.” It may be of two types, active and passive.
This theory represents the current trend. It reflects the influence of the majority in creation of new norms of international law and acceptance of such new rules by other states.
Still consent plays an importance in International Law as States expressly agree to specific normative standards by entering into various treaties. “Each individual state, of course, has the right to seek to influence by word or deed the development of specific rules of international law, but the creation of new customary rules is not dependent upon the express consent of each particular state.”
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