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What and where is state consent? : judicial engagement with instruments issued by international organisations
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Florence : European University Institute, 2025
EUI; LAW; PhD Thesis
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SUN, Ying, What and where is state consent? : judicial engagement with instruments issued by international organisations, Florence : European University Institute, 2025, EUI, LAW, PhD Thesis - https://hdl.handle.net/1814/92879
Abstract
State consent has traditionally been regarded as the foundation of international law, yet its status as the bedrock of the system has consistently faced contestation. Theorists have raised challenges from various quarters. This thesis shifts away from theoretical discussions by empirically examining how the International Court of Justice and its predecessor, the Permanent Court of International Justice (collectively referred to as the “Court”), have either looked for or ignored state consent when engaging with instruments issued by international organisations (“IO-generated instruments”). The relationship between state consent and IO-generated instruments is complex. While states create international organisations (“IOs”) and are involved in their operation, state consent to these instruments is often indirect and ambiguous. The thesis demonstrates that in judicial discourse, states, the Court, and judges in their separate opinions have understood the concept of state consent in different ways across various contexts. The Court’s jurisprudence suggests that a strict interpretation of state consent—viewing it as individual state consent to specific norms—does not explain the lawmaking effects of IOgenerated instruments. To link these instruments with state consent, the Court often frames state consent as “common consent” or “regime consent”. Yet the Court’s approach to these two forms of state consent does not necessarily reflect respect for the genuine will of states. The thesis also highlights instances where IO-generated instruments are treated as authoritative in identifying or interpreting international law without any accompanying explanation—let alone evidence of state consent. Ultimately, the thesis concludes that state consent is neither the exclusive foundation of international law nor indispensable to the formation of legal norms. When invoked as the basis of international law, the concept of state consent is highly fluid and often subject to varied—and at times lenient—standards of review. While social acceptance remains vital to the formation of international law, such acceptance stems not only from states, but also from IOs and international legal professionals.
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Defence date: 25 June 2025
Examining Board: Prof. Sarah Nouwen (European University Institute, Supervisor); Prof. Sergio Puig De La Parra (European University Institute); Prof. Ingo Venzke (University of Amsterdam); Prof. Xinjun Zhang (Tsinghua University)
Examining Board: Prof. Sarah Nouwen (European University Institute, Supervisor); Prof. Sergio Puig De La Parra (European University Institute); Prof. Ingo Venzke (University of Amsterdam); Prof. Xinjun Zhang (Tsinghua University)