Elias, Olufemi Adekunle; (1994) The consent of states and customary international law. Doctoral thesis (Ph.D), University of London.

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Abstract

This dissertation is an examination of the role of consent in the process by which rights and obligations are created under customary international law. Two related issues are examined. One is the role of consent in the creation of customary law generally, and the other is the question whether the consent of a State or a group of States to a stipulation of customary international law is a condition of the applicability of that law to those States. Part One examines the relationship between the notions of consent, state practice and opinio juris. Chapter I examines the nature of the law governing the creation of customary law. Chapter II compares opinio juris with consent. In Part Two, Chapter III sets up a framework for the enquiry, namely, a spectrum of views expressed about the role of consent. Chapters IV and V then examine the decisions of tribunals and the practice of States to see which of the points on the spectrum corresponds most closely to those decisions and practice. Chapter VI compares general and nongeneral custom as far it relates to the role of consent. Chapter VII examines the position of newly independent States in relation to customary law established before they achieve statehood, and is concerned more with evidence than with general considerations. Part Three deals with the main objections to, and the possible advantages of, the requirement of consent in the contemporary customary law process. It will be suggested that consent does, and should, play an essential part in the customary law process.

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