Melbourne Law School - Theses

Permanent URI for this collection

http://hdl.handle.net/11343/383

Filters

2022 1
1
Reset filters

Settings
Statistics
Citations
End date: 2022 × Start date: 2020 × Type: PhD thesis × Subject: Consensus × Subject: Human rights law ×

Search Results

Now showing 1 - 1 of 1
  • Item
    Thumbnail Image
    Consensus in International Law: Authority, Democracy, Difference
    O'Hara, Claerwen Ann Sykes ( 2022)
    This thesis investigates the idea of ‘consensus’ in international law. It does so through an exploration of two case studies: consensus decision-making in the General Agreement on Tariffs and Trade (1947) (GATT) and the World Trade Organisation (WTO), and the European Court of Human Rights’ use of ‘European consensus’ as a method of treaty interpretation. The thesis redescribes consensus in international law as an historically specific technique of authorisation. It argues that consensus lends authority to institutional practices and decisions by gesturing towards a widespread, yet unfixed, level of agreement. On the one hand, the gesture towards a widespread agreement works to imbue institutional practices with an air of equality, and project visions of unity onto a decision. On the other hand, 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. The thesis contends that consensus gained prominence as a technique of authorisation in the GATT and European Court of Human Rights in the 1970s, when the authority of those institutions had come under challenge. This was also a time when alternative accounts of international law were being put forward, which claimed to be more democratic than the existing system. In my argument, the idea of consensus helped to shore up the authority of both institutions and their decisions by enabling them to claim that they spoke in the name of ‘the many’. Yet, by giving rise to discourses of representation and agreement that did not always match the reality on the ground, the notion of consensus has contributed to some of the backlash and instability facing both the WTO and the European Court of Human Rights today.