CONSENT AS A CIRCUMSTANCE PRECLUDING INTERNATIONAL WRONGFULNESS OF CONDUCT: REGULATORY RISKS AND POTENTIAL CAPACITY TO ENSURE HUMAN RIGHTS

The present paper examines identification and assessment of the regulatory risks and potential capacity f the consent as a circumstance precluding wrongfulness of conduct under the international law in the area of human rights protection. Considering the wording of relevant provisions included by the International Law Commission into its draft articles on responsibility of the states and the international organisations, respective doctrinal views, as well as conditions coming out of the international practice, the article concludes that the consent in the respective capacity does not create any significant risks for human rights protection and contains guarantees against its abusive using. The said risks are excluded by the erga omnes nature of the international obligations on the human rights, stemming from customary international law rules, as well as by the erga omnes partes nature of such obligations under the universal and regional human rights treaties. This quality of international obligations in question does not allow excluding wrongfulness of conduct on the basis of consent expressed by one of its bearers (among the international law subjects), while a joint consent seems to be basically unreachable taking into account the requirements for its validity. The article also argues that the consent has got a potential for facilitating positive efforts of states and international organisations in the area of human rights, which has a practice of implementation in particular for the purposes of primary obligations formation. To illustrate this point the article refers to the currently developing obligation under the concept of responsibility to protect (R2P), which in its primary obligation capacity exploits consent as a secondary tool necessary for its implementation.

circumstances precluding wrongfulness of conduct, international responsibility of states, responsibility of international organizations, consent, human rights obligations, international treaties on human rights, erga omnes obligations, responsibility to protect, primary obligations, secondary obligations.

Krasikov D. V. Consent as a circumstance precluding international wrongfulness of conduct: regulatory risks and potential capacity to ensure human rights // Business. Education. Law. 2018. No. 4 (45). Pp. 308–312. DOI: 10.25683/ VOLBI.2018.45.441.