International Obligation and the Theory of Hypothetical Consent

In this article I make three related arguments. First, I argue that the traditional approach to the problem of international obligation is incomplete and much too simplistic. Drawing in part on the ideas of Ronald Dworkin, I suggest that rather than a question of fidelity to international law, the foundational problem is the determination of international law. Second, I consider and reject two theories of international obligation: the theory based on the concept of interdependence and the theory of actual consent of states. Third, I suggest a theory of international obligation based on human rights. This theory is drawn from the idea of social contract or rational hypothetical consent. While my thesis might be styled naturalist, it differs significantly from traditional natural law theories. At any rate, I will not attempt to examine in any detail competing natural law theories