Power and Consent in Customary International Law: Analysing the Imbalance and Legitimacy Challenges in the Formation of Global Norms

International law is predominantly influenced by state consent and behaviour. Based on this foundation is one of the essential principles of international law: customary international law (CIL). CIL is regularly described as the collective consent of the international community. However, this perspective is misleading because it fails to take into account the uneven influence of powerful states and the ambiguities of state practices and opinion juris. However, some argue that the CIL is based on the general acceptance of states because of the doctrine of persistent objector. Under the doctrine, states are not bound by the rule unless it had persistently objected to the initial formation of that rule. However, when legal obligations are imposed on states without consent, it undermines its sovereignty and ultimately erodes states confidence in international law. This article argues that CIL is not a product of the collective consent but, rather, it is the outcome of political interests of powerful states.

This article will begin discussing the foundation of CIL, followed by a critical analysis of the complexities surrounding its core two elements. It will then examine the issue of state consent in CIL and finally provide recommendations to address legitimacy of CIL