The Legitimacy of International Law: Re-examining the Theory of State Consent

Abstract

With the post-WWII acceleration of globalisation and the proliferation of transnational concerns (such as nuclear armament, financial instability, climate change, the spread of diseases etc.), there has been a concomitant increase in international laws and institutions designed to regulate this activity and facilitate international cooperation. This widening and deepening of international law brings to the fore normative concerns about how and from where international law derives its legitimacy. Indeed, international legal institutions have been suffering a ‘crisis of legitimacy’ in recent years: from the 1999 ‘Battle of Seattle’ to Brexit. This thesis aims to contribute to the philosophical literature on the political legitimacy of international law. In particular, it seeks to morally evaluate the traditional theory of international legal legitimation: ‘state consent’.

After conducting an in-depth conceptual analysis of three key concepts (international law, political legitimacy, and state consent), the thesis will consider six arguments against the proposition that state consent is either sufficient or necessary for the legitimacy of international law. I conclude that state consent is not ‘sufficient’ as – to properly legitimate international law – state consent would need to fulfil the additional necessary requirement of being ‘authorised’ by the individuals within the state; arguably through a process of deliberative democratic decision-making. I also conclude, however, that state consent may be ‘necessary’ for the legitimacy of a certain category of international law; namely, the international law of ‘cooperation’ (as opposed to ‘coexistence’). The thesis ends by tentatively suggesting proposals for how international law may increase its claim to legitimacy under the existing state-consent model: first, by incentivising a process of internal democratisation, and second, by establishing an international ‘harm principle’ that better protects third-parties from indirect harm.