Andreas Paulus reminds us correctly that narratives "of a world of sovereign states loosely cooperating in 'coalitions of the willing' no longer tell the whole story." One of the achievements of the 20th century has been the insertion of a vertical dimension within horizontal international law; a dimension created by the ICJ's Traction decision and the Vienna Convention of the Law of Treaties, and within which we can observe "obligations arising for states without or against their will." Any narrative that characterizes these legal norms as a simple product of interstate consensus is particularly thin if analysis focuses upon the genesis of international legal norms. Real world processes are far more complex: states are only one of many actors who seek to invoke the existence of international legal norms, and even the ICJ accentuates generalizability rather than real-world uniformity.
Andreas Fischer-Lescano & Gunther Teubner,
Reply to Andreas L. Paulus Consensus as Fiction of Global Law,
Mich. J. Int'l L.
Available at: http://repository.law.umich.edu/mjil/vol25/iss4/14