Volume 23, 2007
International Law and Justice
State Consent vs. Human Rights as Foundations for International Law
A Critique of Allen Buchanan’s Cosmopolitanism
The traditional view that legitimate international law is founded on the consent of the states subject to it has come under increasing attack by liberals, such as Allen Buchanan, who argue for a cosmopolitan order in which the protection of human rights norms is legally foundational. The cosmopolitan argument presupposes that human rights would be better preserved by doing away with the requirement of state consent. However, state consent is seen to be necessary for protecting the rights of individuals in weaker states and preserving global stability. The requirement of state consent preserves individual rights better than attempts to assert non-consensual liberal norms as international law, such that the internationalist system is more legitimate than the cosmopolitan on the latter’s own terms.