One of the most pressing issues facing international human rights law today is when and how to respect the decision of States to consent or decline to international human rights norms. Should human rights treaty monitoring bodies, created to monitor State compliance with treaties, read their respective treaties to create obligations the parties did not contemplate? Is there a core of human rights norms that bind all States irrespective of State dissent? While the answer to these questions has traditionally been no, for the most part, in recent years practice and scholarship have shifted toward yes. The prerogatives of State sovereignty are under assault throughout human rights law, and the consent principle is no exception. Where scholars and activists have identified benefits to human rights law from dispensing with State consent, they advocate doing so.
This Article argues that the consent principle serves an important human rights purpose: it is integral to protection of the collective right to self-determination. The human right to self-determination grants all peoples a continuing and permanent right to use their respective States to self-direct political, economic, social and cultural development. The decision of States to accept or reject international human rights obligations is an exercise of self-determination. Failing to respect that choice reduces the ability of peoples to control the development of their societies. This is a cost to nonconsensual lawmaking that is not currently accounted for in international human rights lawmaking.
Identifying this cost has two significant consequences for human rights lawmaking. First, international human rights law generally prescribes balancing as a methodology for reconciling between competing rights. Respect for self-determination is a human rights benefit not currently being balanced against the benefits to individual rights identified in nonconsensual lawmaking. Introducing collective rights to the calculus has the potential to alter the decision whether to undertake or respect nonconsensual lawmaking.
Second, the human rights value of the consent principle is predicated on the State representing its people’s interests. In practice however, different States live up to this ideal to varying extents. The human rights value of the consent principle is at its zenith where the State decision to accept or reject an international obligation reflects popular will. It is at its ebb where the State’s decisions are shielded from meaningful public participation. This understanding of the consent principle, derived from the grant of self-determination rights to people not States, is a sharp break with the premise of sovereign equality that has traditionally driven the consent principle.
- Human Rights,
- Customary Law
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