Consensus in International Law

Abstract

This book critically explores the idea of ‘consensus’ in international law. It does so by retracing the history of two different uses of consensus in international law: consensus decision-making in the General Agreement on Tariffs and Trade and World Trade Organization, and the European Court of Human Rights’ use of ‘European consensus’ as a method of treaty interpretation. Employing a unique theoretical framework informed by queer theory and jurisdictional thinking, the book argues that consensus in international law is best understood as a technique of authorization, which functions by gesturing towards a widespread, yet unfixed, level of agreement. The gesture towards a widespread agreement works to imbue institutional practices with an air of equality and project visions of unity onto a decision. This helps to ground the authority of international institutions and their legal worlds. At the same time, the variable nature of the agreement means that the idea of consensus can be applied flexibly, including in situations in which no such equality or unity exists. Consequently, despite the positive discourses surrounding the idea of consensus in international law, it has often worked to suppress difference and dissent and uphold existing power relations. The book suggests that this tension between discourse and reality has been a contributing factor in some of the problems facing international law and its institutions today. To overcome these problems, the book calls for a reimagination of the international as a ‘meeting place’ for a plurality of peoples and their laws.