Strength And Weakness Of Consent In International Law Making

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Similarly, the role of consent can ensure that state interests are served. As consent will likely not be given if states view the law as harmful to their interest, this will trigger further negotiations until an agreement is reached, therefore providing a system where states can ensure that their interests and welfare are protected. Critically, if a state is not a participating party in a lawmaking process, its state interests will be unprotected. This is seen in OPEC where as an overall major influence in global oil price, member states will want the price to be at a profiting level, which can negatively affect the rest of the world.

Whilst the role played by consent in international lawmaking may seem perfect, there are problems that originate from it which can undermine the effectiveness of the international lawmaking regime.

Although consent encourages the compliance of rules, in reality, it does not mean that states will respect the rules completely. This is demonstrated in the Trade Related Aspects of Intellectual Property Rights agreement. A lot of developing countries, feeling that stronger IP protection would make IP harder to access, and therefore reducing their gains, only consented because it was a requirement for WTO membership.

Another weaknesses is the difficulty to reach an agreement. In international organisations, with large number of participating member states, reaching a consensus in lawmaking is a arduous process. States will have to negotiate and compromise, whilst trying to maintain their best interests. These tend to lead to bottlenecks, veto points and high transactional cost. Thus, ‘the transaction costs of bargaining increase geometrically with the number of bargainers’5, implying that as the number of participating parties in negotiation of an agreement, the harder will the agreement be concluded and the problem be solved. An example is the Doha Development Round (DDR), where the facilitation of increased global trade via the lowering of trade tariffs was the primary objective. Commencing in 2001, negotiations in DDR broke down in 2008. Despite attempts to renew negotiations, and the production of the Bali Agreement in the 2013 Ninth Ministerial Conference, which formed part of what the DDR was supposed to achieve, negotiations have yet to resume. Additionally, the commitment to consent leads to strategic holdout behaviour, which contributes to the difficulty in reaching agreement. As rational agents, whether stateswill choose to cooperate and to consent to a rule will often be determined by cost-benefit analysis and what the optimal strategy is. If states choose not to do so, this will mean dragging out negotiations and delaying the lawmaking process. Under article VIII, paragraph 3 of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), it is contemplated that the operation of the Treaty should be reviewed every 5 years. However, when the 2015 Review Conference was held, the factual part of the Final Document draft was not agreed upon. Consequently, the draft Final Document was not adopted.6 This thus demonstrates the difficulty in reaching agreement when there is strategic holdout behaviour. Having to consent in the international lawmaking process also make states develop a reluctancy to enter into or consent to agreements that attempt to solve complicated and urgent problems.
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States are unlikely to consent if they stand to lose in an international law agreement, thus indicating that Pareto improvements, where ceteris paribus, a change will not make anyone worse off but make everyone better off, has to be present. As consent is required before a rule is adopted, in order for those, who stand to lose if the agreement remained unchanged, to gain something, states may have to compromise, which means reducing their potential gains. Similarly, even if consensus is reached, this often comes as a price of the agreement’s content, where it will often be weakened. Goldsmith and Posner argue that agreements are most effective if states coordinate and that a huge fraction of international law making consists of state coordination.7 The latter is true, but in reality, coordination will involve a lot of compromisation. States are going to act rationally. As rational agents, they will try to maximise their expected utility8, i.e.: if the expected utility of not consenting to a rule is greater than that of consenting, they will opt not to consent and instead will try to negotiate to get a better

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