Leiden Journal of International Law vol:27 issue:1 pages:55-73
For over three decades, it has been the International Law Commission’s position that the circumstance of consent involves something other than the consent which through the rule pacta sunt servanda imparts objective force to international agreements. During the tenure of the second Special Rapporteur on the law of state responsibility, Roberto Ago, the Commission adopted the view that the former suspends the international obligations which are incumbent on states whereas the latter functions to create, modify or extinguish the rules whence such obligations stem forth. However, as the result of the study carried out by its last Special Rapporteur, James Crawford, the Commission has now come to distinguish between the circumstance of consent defined as a justification for non-performance of subsisting obligations, and consent defined as a requirement for the application of obligations. In this contribution, it is argued that both analyses are problematic: The former gives succour to a mistaken view of the sources of international law. The latter is based on a misunderstanding of the primary rule-secondary rule terminology; justifies itself by referring to an ill-conceived definition for the notion of peremptory norms; and no less importantly, undermines the purposefully cumbersome mechanism envisaged in the 1969 Vienna Convention on the Law of Treaties for suspension of multilateral treaties as between certain of the contracting parties only.