A ÉTICA DO CONSENTIMENTO ESTATAL AO DIREITO INTERNACIONAL

Abstract

State consent is the primary mechanism by which international legal rules are generated and amended and by which states undertake legal obligations. The focus on state consent is celebrated for its strong protection of state sovereignty and for expressing the will of states. The main purpose of this article is to raise some doubts about this understanding of the value of state consent. I argue that far from protecting state sovereignty, unrestricted state consent can undermine it. I show that it is false to think that the virtually unlimited freedom to act protected by state consent safeguards state sovereignty in an environment in which every other state possesses the same unlimited freedom to act. I suggest one possible way of reconceiving state consent in line with existing trends in international law to increase the scope of nonconsensual mechanisms for making international legal rules.