State consent as foundational myth
Throughout history, the conclusion of treaties based on the consent of states has been an important feature of international life. Today, the role of consent in international law is arguably more important than ever, with an unprecedented number of treaties in place, mostly created through the expressed will of states. Even where non state actors have assumed a pivotal role in the creation and application of treaties, 'the treaty paradigm generally continues to be pre conditioned on the presence of state consent'.1 Consent also continues to play an important role in areas other than the law of treaties, such as customary law or the regime regulating the legality of foreign intervention.2 From the nineteenth century, however, the consent of states has become more than a way of validating treaties, legitimizing customary law or legalizing foreign interventions. Increasingly, state consent has been portrayed as the sole foundation or defining characteristic of international law as a whole. International law, in the Lotus dictum of the Permanent Court of International Justice, is an order resting on the express and tacit consent of states: 'International law governs relations between independent states. The rules binding upon them therefore emanate from their own free will .3 The Lotus case thus understood international law as grounded in the consent of particular entities (territorially defined, independent states) and only binding upon those states that had, in one form or the other, bound themselves through consent. Under the Lotus reading of international law, all rules binding upon states are the product of lawmaking; they are not pre given, but result from the freely expressed will of states, either explicitly or tacitly.4