The uses and value of sovereignty and state consent

States’ capacity to choose which international rules bind them is supposed to insulate them from domination and coercion and protect sovereignty in its external and internal dimensions. The external dimension of state sovereignty refers to the absence of constraints on a state’s actions coming from other states, international organizations or nonstate actors. The internal dimension of state sovereignty is best captured by the authority and capacity to govern its own territory and citizens.Footnote ³ While the external dimension of sovereignty speaks to the lack of interference from other agents, the internal dimension of sovereignty speaks to its capacity for self-governance and these are mutually reinforcing. External attacks on a state’s sovereignty weaken its ability to govern internally and a strong capacity for internal governance also boosts a state’s capacity to protect itself from external threats.

State sovereignty can be understood either descriptively as the status, resting on explicit or implicit legal and social norms, which protects states’ internal and external capacity to act, or normatively as the protection a state ought to enjoy when engaging in governance acts. State consent is assumed to protect (in the descriptive sense) or to be necessary to protect (in the normative sense) state sovereignty by preserving a space of maximal freedom for states, namely a space for a wide set of choices states could be making internally and externally. Notice that in the abstract, state sovereignty, with its external and internal dimensions, evokes parallels with individual autonomy. The external dimension of individual autonomy presupposes the absence of interference from other individuals, while autonomy’s internal dimension requires a capacity for rational self-government (Taylor Reference Taylor and Ryan1979; Raz Reference Raz1988; Berlin Reference Berlin2002; Swaine Reference Swaine2020). There are important differences between state sovereignty and individual autonomy, not least the fact that states, as corporate agents, have an inextricable principle–agent relationship with their citizens, which significantly alters the normative status of their sovereignty (Pavel, Reference Pavel2015, 15–56). But certain problems of rationality and social order may apply to both individuals and states, regardless of their differences and indeed state sovereignty can be conceived as a type of autonomy for collective (corporate) agents. I will thus use state sovereignty and state autonomy interchangeably going forward.

The normative status of states is modified by the principal–agent relationship they have with their citizens. While individual autonomy is considered intrinsically valuable and worthy of recognition and protection in the law, state autonomy is not necessarily good in itself (Pavel Reference Pavel2015: 3–14). State autonomy is instrumentally valuable for making possible a range of political goods for citizens, including protecting their individual autonomy and rights, their capacity for collective self-determination, more specifically democratic self-determination in the case of democratic states and for securing a range of public goods and the good functioning of their community. State autonomy is a repository of moral legitimacy insofar as the citizens of a state are bound by law that they directly or indirectly authorize. Sovereignty thus protects citizens as self-governing, autonomous individuals. Its moral value rests in being grounded in popular sovereignty. Even if popular sovereigns are disabled in authoritarian regimes, international law can still respect the potential and capacity of citizens in those regimes to activate their collective self-determination power at a future date. Thus, international rules can protect and enable state sovereignty regardless of regime type, and indeed it is desirable that it does so, but can still distinguish between uses of state authority that severely undermine the capacity for collective self-determination, such as the commission of large-scale abuses against citizens proscribed by international law, and other more benign uses of sovereignty authority. Let us call this account of the value of state consent which derives from the value of state autonomy a moralized account because it traces its ultimate value to a morally valuable good such as individual autonomy and collective (democratic) self-determination.

Moreover, state consent is also valued for protecting the external dimension of state autonomy. The fact that states must consent to new rules ensures that one state or a group of states cannot impose on another state rules that the latter does not wish to accept. Sovereign equality and noninterference are mirror principles of international law, in the sense that equality among states presupposes that one state does not have authority to interfere with the internal processes or actions of another state. State equality also protects the participation of all states in the making, interpretation and application of international law on an equal footing, and it represents a bedrock norm of the international legal order.Footnote ⁴ Yet under the existing rules regulating state consent, states need only agree to rules which they consider compatible with their own internal processes of self-governance. They are free to judge what international legal rules best serve their fiduciary duties towards their citizens and reject those which are deemed overly restrictive.

Therefore, state consent protects against a kind of paternalism which would give a pretext to the international community to impose on a state legal rules which might be beneficial to its citizens against that state’s officials’ opposition. This mirrors an antipaternalistic principle which applies to individuals. The antipaternalistic principle speaks against forcing individuals to do things for their own good and leaves them to be the ultimate arbiters of which actions are in their interests and which are not. The antipaternalistic principle in international law speaks in favor of state autonomy to the extent that states are the best judges of international laws and policies that best serve the interests of their own citizens and thus should be limited by international law only by their own consent.

The classic expression of the elevated status of state consent is found in several decisions which came before the Permanent Court of International Justice, the precursor of the current International Court of Justice. In S.S. Wimbledon, the court proclaimed that ‘the right of entering into international engagements is an attribute of state sovereignty’ (S.S. Wimbledon 1923: para. 25; Besson Reference Besson2016: 304). In S.S. Lotus the court stated the principle that ‘[t]he rules of law binding upon States…emanate from their own free will…Restrictions upon the independence of States cannot therefore be presumed’ (PCIJ 1927: 44). These statements are illustrative of the state-centered voluntarism which characterizes international law even today and have been reinforced in countless other treaties, statements of officials, treaty rules and the decisions of international tribunals.

The protection of state consent is considered to play a foundational role for various other international law principles such as the independence of states, their equality under international law, noninterference into the affairs of other states and territorial integrity, many of them enshrined in the UN Charter (see for example Article 2 (UN Charter 1945; Ratner Reference Ratner2015: 184–219). Moreover, the VCLT says explicitly in Article 34 that ‘A treaty does not create either obligations or rights for a third State without its consent’ (Vienna Convention on the Law of Treaties 1969). There are growing exceptions to this rule even in the case of treaties; for example, when it comes to the referral power of the Security Council to the ICC of nonmember states suspected of having committed Rome Statute crimes (Simmons and Danner Reference Simmons and Danner2010). Nonetheless, while in some respects the practice of unconditional deference for state consent is declining (Krisch Reference Krisch2014), it continues to enjoy an expansive protection in international law, a protection that some scholars have deemed ‘excessive’(Guzman Reference Guzman2011: 747).

There are also philosophical defenders of a robust role for consent in international law. Matt Lister for example says that ‘for the most part, the jurisdiction of international courts should depend on the consent of the parties subject to the court, at least outside the area of jus cogens norms’ (Lister Reference Lister2011: 666). For Lister, this is the best way to ground the legitimacy of international courts, which cannot hope to be effective without consent. By legitimacy, he means that the authority of the courts must be justified if the courts are to perform their role in a system of law and consent provides the best justification (Lister Reference Lister2011: 665–667). And it is true that consent secures legitimacy both in a narrower sense, that of a court acting with authority accepted by the parties when they consent for the jurisdiction of the court in the particular case at hand, and also in a wider sense, that of a court acting with authority accepted by the wider community, which needs to comply with its decisions. But this account of legitimate authority may rest on mistaken beliefs states hold with respect to the role and authority of the institutions of international law, as I will argue later.

Samantha Besson emphasizes the connection between consent and sovereign equality. In an article defending the centrality of opt out from international rules for democratic states, she says ‘The way to protect the equality of states(people) qua collective equality is to consider their consent as a requirement in international law-making’ (Besson Reference Besson2016: 306). In Besson’s view, consent ‘provides a way for small and weak states to resist the domination and the hegemony of large and powerful states or coalition of states.’ It also protects the right of all states to an equal voice in collective decision-making in international law (Besson Reference Besson2016: 306). Although Besson’s view on state consent ends up being much closer to the view defended here, she articulates an important rationale for valuing state consent as an expression of state equality and autonomy. I will offer next a brief account describing the ways in which states express consent to international law and begin to highlight some of its problematic features.

Exercises of state consent in international law: Treaty-making, reservations, withholding and withdrawal of consent

In a world without a central authority to impose rules on states, state consent operates piecemeal and incrementally via bilateral and multilateral processes of rule creation through which states agree to new rules and discard old ones. For multilateral treaties, consent to the final draft takes place typically by consensus. Once negotiating states agree to a final text via consensus, that text is then subject to individual state signature and ratification, which constitute distinct legal acts. The heads of national delegations sign the final draft, but their signatures are not legally binding. Ratification (or accession) is the act by which a state declares its intention to be legally bound by a treaty.Footnote ⁵ Each state follows its own internal legal procedure for ratification. Sometimes states that participate in negotiations and sign a treaty refuse to ratify it. This disconnect develops for a variety of reasons. One reason why states may participate in negotiations of a treaty and agree to a final draft but refuse to ratify it, as the USA did with the Rome Statue of the International Criminal Court (Deitelhoff Reference Deitelhoff2009), is that state representatives who negotiate the treaty (foreign policy officials selected for their expertise) and the those who are in charge of ratifying the final draft (the US president and Senate) may understand the national interests differently. Few countries speak with one voice or maintain a consistent foreign policy among different political branches, across different time spans, or successive governments. This fact significantly complicates the process of creating and ratifying international law via state consent. Thus, the first thing to notice about state consent to treaty-making is its redundancy, namely the fact that states must grant consent repeatedly and in different forms to the same treaty. Thus, international law builds in multiple veto points for the same state to the process of creating legal rules and to that state’s acquiring of legal obligations.

States have the option of accepting a treaty wholesale or accepting some rules of the treaty while registering reservations to others. The rules on making reservations are outlined in five articles of the VCLT (19–23) which are intricate and involve reciprocal recognition of reservations among states and/or objections to reservations (Vienna Convention on the Law of Treaties 1969). According to Article 19 of the VCLT reservations must be allowed by the treaty in question and must not be incompatible with the ‘object and purpose of the treaty’. When states register reservations to specific rules of the treaty, those rules do not apply between the state registering the reservation and all the other state members of that treaty. States can register reservations both to rules requiring governing state action and to rules empowering certain institutions such as the International Court of Justice to interpret and enforce treaty rules. These two types of reservations are qualitatively different because the latter can have more significant consequences on the legal effects and authority of the treaty than the former, though these effects depend in part on the content of the rules themselves.

For example, the clause with the most reservations to the VCLT is Article 66, which provides procedures for judicial settlement, arbitration and conciliation with respect to disagreements about the invalidation of a treaty (VCLT Reservations 1969). The majority of objections to Article 66 are based on the fact that the article is not sufficiently deferential to state consent. For example, Cuba’s reservation reads:

Thus, Cuba, Algeria, Armenia, China, Russia, Saudi Arabia, Tunisia, Vietnam and other countries which have registered reservations to this provision are seeking to preclude an interpretation of Article 66 which grants the ICJ compulsory jurisdiction in matters arising out of conflicting interpretations of the rules of the VCLT. By registering reservation to the ICJ as an interpreter of last resort for treaty rules which protect the validity of consent, states render the sovereignty of other states less safe. This is because free, uncoerced consent is one of the main attributes of sovereignty. When countries which raise concerns that their consent was coerced cannot have recourse to an impartial body which would judge the validity of consent and announce legal consequences for breaching the VCLT rules, their sovereign capacity is weakened. Reservations to article 66 make these rules’ interpretation, application and enforcement subject to greater uncertainty. The consequence of the disabling of impartial adjudication of disputes on the basic rules of the ‘treaty on treaties’ is less, not more protection of sovereign autonomy.Footnote ⁶

Although reservations are part of the process of granting conditional consent, they represent a form of withholding consent. The most visible and consequential form of consent withholding takes place when states decide not to accede to or to ratify a treaty in its entirety. This feature of international law has several important consequences. First, in contrast to domestic law where a large body of first-order rules and constitutional second-order rules apply generally to all citizens, very few rules apply generally to all states. This means that states are less able to solve collective action problems, which in turn hampers their ability to discharge their obligations to their citizens. This ability is the core of states’ internal sovereignty. For example, the lack of commitment to address climate change means that states have fewer capacities to address the effects of climate change and pollution internally, and thus to appropriately protect their citizens’ health and their other climate-related interests and needs. The second consequence of this consent practice is that each state has a different set of legal rights and obligations, and that those rights and obligations are often left to states to interpret unilaterally.

A potential ameliorative doctrine in international law declares that treaties with large numbers of ratifying states become customary law, and thus, their rules apply to all states regardless of consent (Meron Reference Meron1987; Matheson Reference Matheson, Schmitt and von Heinegg2012). This doctrine has been articulated by international courts in several cases, including the North Sea Continental Shelf disputes in 1969 (‘North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark and Netherlands)’ 1969 I.C.J. 3 (Feb. 20); Dunoff et al. Reference Dunoff, Hakimi, Ratner and Wippman2020: 588–595). Demark and the Netherlands have asked the court to apply the equidistance principle which was introduced by the 1958 Convention on The Continental Shelf as a customary rule, since Germany had not ratified the convention up to that point. However, the court argued that because the treaty only came into force in 1964, and its ratification was far from universal, the principle could not yet have become customary law. Nonetheless, the importance of that decision is that it identified the manner in which such a customary rule could arise via extensive and almost universal use subsequent to a treaty bringing it into force.

Withdrawal of state consent takes place when, after the ratification of a treaty, state representatives, usually the executive, ‘change their mind’ and decide that being bound by the treaty is no longer in that state’s interest. Examples of such withdrawals are Burundi and the Philippines leaving the International Criminal Court, the Unites States leaving the Paris Agreement on Climate Change re-joining and withdrawing again, The United Kingdom leaving the European Union and states withdrawing from optional protocols giving the International Court of Justice compulsory jurisdiction. The United States withdrew from the agreement to grant the ICJ general compulsory jurisdiction after it lost in the Nicaragua v. USA (1986) case, and it also withdrew from the optional protocol to the Vienna Convention on Consular Relations which gave the ICJ compulsory jurisdiction over matters arising of that particular convention, after its loss in Avena (Chayes Reference Chayes1985; Charnovitz Reference Charnovitz2012).

Similarly, Canada reduced its grant of jurisdiction to the ICJ to exclude disputes concerning “conservation and management measures taken in respect of fishing vessels” in the North Atlantic, two days before adopting domestic legislation allowing it to board Spanish and Portuguese vessels in international waters as a result of their Turbot fish stock disputes (Guzman Reference Guzman2011: 787). Boarding the vessels of other countries in international waters is illegal according to the rules of The United Nations Convention on The Law of the Sea (1982) and customary international law, so it looks like Canada modified its grant of jurisdiction ‘in anticipation of a specific violation of international law’ (Guzman Reference Guzman2011: 787).

Withdrawal of consent changes the kaleidoscope of rights and responsibilities for a state, and it also changes that state’s relationship with international institutions authorized to interpret and apply international law. The withdrawing state reverts to a prelegal status in its relationship to other state members of a treaty, and violations of those other states’ interests and rights, or indeed, violations of the withdrawing state’s interests and rights can no longer be subject to public adjudication and impartial resolution.

The various forms by which states exercise consent (treaty-making, reservations, withholding and withdrawing of consent) also highlight the fact that the legalization and institutionalization of international law have coexisted with and been shaped by significant inequalities and power imbalances among states. The proliferation of treaties with precise rules and legal obligations and the delegation of authority to international bodies for their interpretation, application and enforcement have made international law more robust (Abbott et al. Reference Abbott, Keohane, Moravcsik, Slaughter and Snidal2000: 401–408). This rapid process of legalization and growth of international law might have created the expectation that politics takes a backseat to equality before the law and a more uniform system of rights and obligations for states. However, there is huge variability in the extent of legalization, and law and politics continue to be ‘intertwined at all levels of legalization’ (Abbott et al. Reference Abbott, Keohane, Moravcsik, Slaughter and Snidal2000: 419).

Practices of state consent have ossified and even magnified some of the power imbalances present in international politics. For example, while state equality informs practices of collective decision-making in international law, important exceptions to this norm have significant implications. The permanent members (P5) of the Security Council have exercised veto power to insulate themselves and their political allies from the consequences of breaking international law. They have enforced rules of international law selectively, by insisting on compliance with the rulings of international tribunals when they did not directly involve the P5 but not when they did, by creating humanitarian no-fly zones in countries that are not direct allies of the P5 but not when they are and by referring states to the ICC when they have committed violations of the rules of international criminal law, but not when members of the P5 themselves have. For example, the Security Council has enforced rulings of the ICJ against Libya and Nigeria but not against the United States (Paulson Reference Paulson2004). It approved no-fly zones over Bosnia and Herzegovina and Libya but no over Syria due to vetos by China and Russia, which have extensive economic and military interests there (Macfarquhar and Shadid Reference Macfarquhar and Shadid2012). They have referred Sudan and Libya to the ICC, but not China, which is widely alleged to be committing ongoing crimes against humanity in Xinjiang against the Uighur minority (Davidson Reference Davidson2022). In using their consent powers selectively, in many cases by withholding consent via veto, the P5 can ensure that other states are subject to the rules and sanctions of international law whereas the P5 and their allies can violate them with impunity.

Furthermore, practices of state recognition have reflected political rivalries among great powers (Parfitt and Craven Reference Parfitt, Craven and Evans2018: 180–185), and countries such as the United States, Russia and China have repurposed international law for their own ends, particularly by reinterpreting the norms of self-defense or territorial integrity (Anghie Reference Anghie2009, Reference Anghie2013; Brunk and Hakimi Reference Brunk and Hakimi2022; Council on Foreign Relations 2023). Powerful states also use dispute resolution mechanisms to their advantage, by bringing cases to international bodies when their rights have been infringed and relying on their greater resources, and technical and legal expertise to see these cases through. For instance, wealthier, more developed states are more likely to initiate cases before the WTO dispute resolution mechanism than weaker, poorer states are, and more likely to impose countermeasures which elicit compliance from other states (Schaffer Reference Schaffer and Hartigan2009). Thus, the security of states’ rights and the strength of their obligations under the current international legal order varies conspicuously with economic, political and legal power.

This quick summary showcases the expansive consent powers proffered to states by international law today as well as the unequal effects it has over different states. However, it is important to note that sovereign states have always existed in a space of norms and rules which define the boundaries of state action. As Tanja Aalbers points out, despite the fact that states idealize their sovereignty as some absolute domain of freedom without constraints, international law has tampered with this freedom with ‘an extensive set of duties and responsibilities’ (Aalberts Reference Aalberts2014: 784). Sovereignty can no longer be understood as a space of unrestrained ‘power, authority and sovereign privileges’ but as a complex assemblage of legal rights and responsibilities which changes with the development of international law (Aalberts Reference Aalberts2014: 784). Aalberts points specifically to the norm of state equality as one which needs to exist as a background, nonoptional rule for states to exercise their sovereignty (Aalberts Reference Aalberts2014: 782–783). Similarly, Wouter G. Werner explains that the norms underlying consent must also operate as a set of nonconsensual legal norms for consent to take the shape it does in international law. Namely, ‘grounding law on consent, in other words, requires the existence of non-consensual rules stipulating that the freely expressed will of states counts as law’ (Werner Reference Werner, Brölmann and Radi2016: 16). In addition, rules which explain which ‘utterances or acts by states count as lawmaking acts of will’ must exist as part of the body of rules accepted by all states (Werner Reference Werner, Brölmann and Radi2016: 16). Many of these are found in the VCLT and customary norms of international law. Therefore, the practices associated with state consent depend on numerous implicit and explicit legal norms that are universal and uniformly accepted by states and which themselves cannot be subject to state consent.

The denial of the necessity of these background nonoptional norms regulating both the exercise of sovereignty and the expression of state consent leads to what Neil Walker has called the ‘paradox of sovereignty.’ The paradox consists in the difficulty to reconcile, on the one hand, the existence of independent sovereigns, which enjoy exclusive, indivisible and absolute authority both in their internal and external relations, and on the other hand, the requirement that they respect the equal standing of other sovereigns with similar powers (Walker Reference Walker2017: 805). This conception of unfettered sovereignty is also difficult to reconcile with the understanding of the international realm and the proclamation of many multilateral treaties claiming to act in the name of a global community or ‘mankind’ with interests and goals independent of any particular state (Bartelson Reference Bartelson2010: 225, 231; Werner Reference Werner, Brölmann and Radi2016: 21).

I want to argue that it is partly through the strong legal norms protecting state consent that these conflicts and paradoxes are powered and sustained, leading to incoherent specifications and exercises of state sovereignty in international law. There is a case to be made that the existing norms of state consent do not adequately protect the autonomy of states because, contrary to common assumptions, they fail to protect states against domination, interference and the violation of their legal rights acquired via international treaties and customary law. I will show that state autonomy is less secure under a regime of unconstrained consent than it would be under a regime with more robust nonconsensual features, one that preserves the role of consent for certain types of agreements but reduces its scope for others. The antipaternalistic principle is not persuasive when a state’s sovereignty is conditional on its performance of basic duties to its own citizens, when it can be exercised in ways that directly harm other states and their citizens, and in a world in which serious collective action problems cannot be resolved and public goods cannot be provided due to free-riding and opt-out.

Pathologies of state consent: The case for limits

In this section, I will challenge the assumption that the existing practice of consent protects state sovereignty. Let us note that other scholars have been arguing that the conventional practice of consent is ‘excessive’ on grounds other than questioning its supposed protection of sovereign authority. For example, Andrew Guzman argues that, while the practice of consent offers ‘maximal protection to individual states’ at the same time it ‘frustrates many desirable forms of cooperation’ and thus it serves as an overwhelming break on any attempt to address important global problems (Guzman Reference Guzman2011: 750, 756–774). Consent as it is practiced and understood today preserves a ‘cumbersome status quo bias’ in which states narrow self-interest trumps the needs of the international community (Guzman Reference Guzman2011: 747).

Nico Krisch agrees that state consent in its current form is highly obstructive to international cooperation. Similar to Guzman, he maintains that international law seems ‘particularly ill suited’ to solving collective action problems. Its ‘consent-based structure presents a structural bias against effective action on global public goods, especially given the large number of sovereign states today’ (Krisch Reference Krisch2014: 4). In an article called ‘The Decay of Consent,’ Krisch shows that states have sought to overcome the obstructive effects of state consent by moving towards nonconsensual practices, including via soft law, unilateral action and forms of nonconsensual jurisdiction in areas such as antitrust regulation, terrorism financing and climate change action. However, the difficulty with some of these forms of nonconsensual law-making is that they have serious legitimacy deficits, particularly those resulting from unilateral state action, or expansion of the legislative authority of the Security Council which is not explicitly endorsed by the Charter.Footnote ⁷

The problems that Guzman and Krisch identify with state consent are indeed significant, but there is a bigger, undertheorized problem that they miss. Namely the biggest problem with the current practice of state consent is that, contrary to conventional wisdom, it does not offer robust protection for state sovereignty. The practice of granting, withholding and withdrawing consent to international rules encourages states to conceive of sovereignty as a domain of freedom each state defines unilaterally. However, it is false to think that unlimited freedom to act protects state sovereignty in an environment in which every other state possesses the same unlimited freedom to act. If states share an interest in protecting their sovereignty, then they need to establish a reciprocal system of rights and obligations which define the set of compatible exercises of sovereignty for all states. State sovereignty, like individual autonomy, is a relational concept. It is relational in the sense that it depends on others’ recognition of one’s status as a self-determining agent. If states do not respect and recognize each other as equally self-determining, and regularly interfere with each other’s decision-making process through manipulation or threats, or by invading territorial boundaries, they cease to be fully autonomous. Therefore, the scope and limits of their autonomy must be specified by a nonoptional system of rules which defines and enforces a unitary scheme of rights for all states.

To see the force of this more general conceptual claim, let us consider Immanuel Kant’s justification for public authority (Williams Reference Williams1986; Flikschuh Reference Flikschuh2000; Ebels-Duggan Reference Ebels-Duggan2012; Kant Reference Kant2017). Kant explained the need for public authority by resorting to the hypothetical state of nature. In a state of nature, individuals enjoy innate rights to freedom, which consist of ‘independence from being constrained by another’s choice’ (Kant Reference Kant2017: 30). Without public institutions acting on the basis of shared rules, individuals can still enjoy their rights to freedom and make moral claims on others to respect their freedom. However, they will be faced with three problems: indeterminacy, unilateralism and assurance (Ebels-Duggan Reference Ebels-Duggan2012: 898).

First, each individual will have a different interpretation of their rights and the sphere of permissible freedom they can exercise. In the state of nature, they will disagree over different ways of specifying rights. This leads to conflicts which cannot be resolved when each person insists on their interpretation of their rights. Therefore, without publicly determining the content and scope of each person’s right to freedom, in a manner that is compatible with the rights of others, there is fundamental indeterminacy about rights. Second, some individuals may be able to impose unilaterally their interpretation of rights. However, they will act coercively without legitimate authority, which means that others will be entitled to resist the former group’s claims. For example, if an individual claims rights to property in a particular piece of land, she will want to exclude others from the use of that land, but that exclusion is a limitation of other people’s right to freedom insofar as it restricts their access to that piece of land. Without having agreed to rules about property rights that apply to all, no individual claim to property is publicly legitimate and can therefore be resisted. As Kyla Ebbels Duggan puts it, no one has the unilateral authority to ‘establish, determine the boundaries, or enforce these rights’ (Ebels-Duggan Reference Ebels-Duggan2012: 896). Finally, the state of nature faces the problem of assurance because even if one respects other people’s property claims, it does not have the assurance that they will do likewise. Kant puts it like this:

What Kant and others show is that in a state of nature, the rights of individuals are at most aspirational. They operate, if at all, without a shared interpretation of their content and scope, they are marred by problems of unilateral specification and enforcement, and individuals lack assurance that their rights will be respected. In such a system, conflict and instability are pervasive. Only by converting moral rights into legal rights under the civil condition of a state with laws and institutions which give a single, widely accepted interpretation of individual rights to autonomy, property, personal safety, etc., can individual rights be secure. Individuals must enter a juridical relationship with one another by engaging in a collective process of rights specification, and by formalizing and codifying their rights, as well as the institutions tasked with their enforcement.

Like individuals, states’ rights in the international state of nature are mostly aspirational. While each state has reason to value its unconstrained freedom, prior to an agreement on the specific attributes of state sovereignty, they will have different interpretations of what sovereignty entails. Disagreements and the possibility of conflict require that states submit to a public scheme of rights, which must be a reflection of the shared will of all states. The shared will of states can be the result of states’ actual deliberation and compromises about the scope and limits of their rights, as opposed to some externally discovered scheme of rights. Such deliberation must result in a set of rules formalizing the rights that states have by virtue of being states. But importantly, such a scheme cannot result from unilateral imposition by a state or a small group of states. Without generally agreed public standards for what rights states have, no state can impose their own interpretation of their own rights.

States are different from individuals in that they do not have ‘innate’ rights to freedom or autonomy. Their interest in autonomy is instrumental. They do not possess interests of their own independent of the interests of their citizens. As I have claimed above, the most plausible account is that states’ interest in autonomy derives from citizens’ interests in collective-self-governance.Footnote ⁸ That states’ interests are derivative does not mean that they are weak. For our purposes, we can assume that states have a very strong interest in autonomy, whatever its moral basis, as evidenced by the fact that states themselves proclaim and articulate it via multiple principles in international law, such as rights to sovereign equality, noninterference, to the collective self-determination of their citizens and to territorial integrity.

Therefore, states are similar to individuals in requiring that their interest in external freedom and internal autonomy be protected. This protection, to be effective, must move from an aspirational ideal (desirable goal for states) to a legal reality, in which states’ rights are specified, their boundaries determined, and their protection enforced against violators by courts and other organs of international law. And like individuals, states will secure their aspirational autonomy rights under a system of law which reflects states’ general or omnilateral will. As Stilz makes the point for individuals, a shared will can exist even if not all states unanimously affirm the new scheme of rights for states (Reference Stilz2019: 94). We can discount the abstention or objections of dissenting states on several grounds: 1. When dissenting states are unwilling to participate in the project of generating shared rules for peaceful coexistence, of which the rules protecting sovereignty are a fundamental building block, 2. When too few states share a commitment to another set of values and principles for their alternative to be institutional feasible.

A state’s right to territory is a case in point. A state may claim certain territorial boundaries unilaterally, but other states do not have any obligation to recognize those boundaries, in the absence of general rules and agreements delineating such boundaries. Territorial rights thus depend on publicly endorsed and publicly justified territorial claims, which can be enforced and defended by institutions whose authority is recognized by all. The public rights must be reciprocally recognized so that each state is safe in the assurance that if it recognizes other states’ claim to territory, its own claim will be recognized in turn.

Protecting state autonomy thus requires a shared, omnilateral scheme of basic sovereignty rights for states. An Hertogen makes the point forcefully in a critique of the prevailing reading of the Lotus case. In her view, state ‘sovereignty is by definition relative due to the need to respect other states’ sovereignty.’ How relative sovereignty is, and ‘what obligations, negative or positive, apply to states when exercising their sovereignty’ come ‘from states’ embeddedness in an international society of equally sovereign states’ (Hertogen Reference Hertogen2015: 902). This means that international law must define the scope and boundaries of state sovereignty, and the rights and obligations reverting to states. Without a shared understanding of the nature and limits of state sovereignty, there can be neither equality among states nor autonomy for each state.

Still, one may ask, if Kant argued that individuals’ rights are only secure under the public authority of a state, does that mean that states’ rights to sovereign autonomy can only be secure under a world state? Louis-Phillipe Hodgson puts the point starkly when he says that ‘enforcing [our] property rights,’ which are part of the bundle of rights to freedom for individuals, ‘in a fully justified manner simply amounts to putting in place a state; there is no conceptual distance between the two ideas’ (Hodgson Reference Hodgson2010: 78). There is a well-developed debate on this point about the necessity of states to protect individual rights in the political philosophy literature which I will not rehearse here.Footnote ⁹ However, for a world state to be necessary at an international level, it would have to be true that no reciprocal, widely shared legal restrictions for states would be feasible without it. Although I do not have the space to defend this point at length, let me say briefly why I do not believe that this is the case.

Despite significant challenges, international law contains many multilateral treaties with high ratification and compliance rates. From treaties protecting the ozone layer, with universal ratification and nearly 100% compliance, to those coordinating airway routes, postal services, the conservation of certain species threatened with extinction, setting limits for the territorial sea and rules governing the high seas, many multilateral treaties and treaty regimes govern successfully different areas of international law and do so without the presence of a world state. Indeed, the political integration of 27 states into the European Union, while maintaining a significant degree of independence and exit rights, proves that coordination, cooperation and reciprocal rules at the international level without a European or world state are not only conceptually possible but feasible and stable. Therefore, I would argue that Kant’s argument shows that public, shared rules created by states expressing their collective will are needed, not that those rules must be under the authority of a state or state-like institutional set-up. As long as a sufficient number of states can coordinate to create general rules and empower international institutions with their interpretation, application and enforcement, they will have created a system of legitimate public authority.

The parallels drawn above between states and individuals are meant to highlight the value of Kant’s state of nature as a useful heuristic for understanding the challenges of state sovereignty in a context without reciprocal, nonoptional rules. However, although Kant is helping us see the need to translate states’ aspirational right to sovereignty into codified rights governed by a shared legal framework, I do not mean to deploy the contrast between a state of nature and that of public authority as a descriptive account of the evolution of international law. State sovereignty has not evolved in a binary space: either states’ sovereignty is completely aspirational, and thus unprotected, or it becomes protected only via a system of shared rules and public institutions. David Hume is a better guide to how public rules in general and international norms specifically develop. Hume saw the development of public rules as an incremental process of accretion of rules as solutions to diverse problems of cooperation which change and adapt over time in response to new problems (Hume Reference Hume, Norton and Norton2000; Krause Reference Krause2004; Sabl Reference Sabl2012; Pavel Reference Pavel2021). As Alberts and others have already pointed out, international law is best understood today to contain a partial and contingent legalization of the sovereign rights of states via some of the rules and principles of the UN Charter, VCLT, customary rules and peremptory norms (Aalberts Reference Aalberts2014: 784). However, due to the existing practices of state consent, this partial legalization still leaves too much room for indeterminacy, the threat of unilateralism and a lack of reciprocity concerning certain rules which lead to problems of assurance among states.

For international law to protect state autonomy rather than license, it must protect autonomy in its robust, moralized from, namely autonomy as a justified exercise of freedom over a range of options to act, limited by the justified exercise of the freedom of other states over their range of options to act. As I explained earlier, sovereign rights are derived from states’ claim to express their citizens’ will and protect their interests, but these protections must be made compatible with the protections other states offer to their own citizens. State sovereignty is therefore best understood ‘as state autonomy in an objective and thick notion of autonomy’ (Besson Reference Besson2016: 304), which is specified and rendered concrete by general rules. For states to be autonomous, these norms must exist as fundamental, nonoptional rules of the international legal system and be in some sense effective, just as they must exist and be effective for individuals to be autonomous.

This is not the case in international law today. Hertogen shows that the current reading of the Lotus principle ‘gives states carte blanche (to states) to remain blissfully ignorant of, and unaccountable for, the negative externalities of their decisions, unless they have consented to a rule prohibiting their behaviour and triggering their responsibility in case of violation. Requiring states’ express consent grants them a de facto veto right over any rule that would force them to internalize the negative externalities of their decisions’ (Hertogen Reference Hertogen2015: 914). However, each state is inextricably connected with other states and must address common problems together. In a world of maximal freedom to act each state is rendered vulnerable to the negative externalities and unconstrained interference coming from the actions or territories of other states. Each state is also hostage to free riding and the refusal to make reasonable compromises with other states. A world in which states fall victim to the petty short-term interests and political manipulations of other states is not a world in which the autonomy of any one state is secure.

The stability of international rules, and by extension states’ autonomy, is also threatened when states continue to be bound by treaty rules but withdraw consent to the authority of institutions which interpret and apply those rules. As the events following Canada’s withdrawal of jurisdiction to the ICJ demonstrate, Spain’s rights to sail in international waters were violated by aggressive Canadian interference. States’ withdrawal from treaties can also undermine practices of popular sovereignty as Kenya, The Philippines and Burundi did when they withdrew from the Rome statute of the ICC. The political leadership of these countries were being investigated by the court for their involvement in large-scale violations of the human rights of their citizens, and subsequently acted to disable the domestic and international mechanisms through which they could be held accountable. For example, The Philippines withdrew at a time when the ICC began an investigation into former president Rodrigo Duterte for committing crimes against humanity when it ordered its police forces to ‘shoot on sight’ anyone suspected of involvement in the trafficking of drugs. Thousands of people, mostly young men, were killed without due process (BBC News 2019). Political accountability is essential to the exercise of popular sovereignty, and international institutions can buttress practices of accountability, leading to more effective and morally defensible practices of internal sovereignty. Thus, when international law allows states to withdraw consent to the jurisdiction of these bodies, it is merely protecting sovereignty in its de facto, nonmoralized sense, potentially emboldening authoritarian political leaders at the expense of the citizens in whose name sovereignty is exercised. In an interesting turn of events, following its investigation, the ICC issued an arrest warrant for Duterte, on the basis of its jurisdiction for crimes Duterte committed while the Philippines was still a member of the court. He was captured in March of 2025 and was surrendered to the custody of the court awaiting trial (Wee and Elemia Reference Wee and Elemia2025).

Matt Lister anticipates the problem of state opt-out and argues that state consent to the authority of international courts should be qualified such that withdrawal cannot happen immediately, precisely to avoid situations in which states withdraw to avoid accountability in anticipation of violation of rules. According to Lister, a state must not be able to withdraw to be a judge in its own case and to gain an unfair advantage in the case of a violation of the rights of other states (Lister Reference Lister2011: 689). Thus withdrawal from the jurisdiction of a court should be accepted with at least six months to a year’s delay (Lister Reference Lister2011: 690). However, disallowing immediate withdrawal while allowing states to withdraw in principle does not solve the problem. States can have a longer time horizon in which they anticipate violation of international rules. Withdrawal has the effect of turning the freedom of states into license to harm other states with fewer consequences. When states refuse to accept the jurisdiction of international courts, they remove the possibility of a public and impartial interpretation of the rights of other states, which implies a reduction of the latter’s autonomy. The implication of this logic for Lister is that this current feature of international law leaves international treaties’ meaning and force in question, and renders states-acquired rights and obligations less secure than it would otherwise be.

There is great scope for consent-based international treaties to be focused on more local, geographically circumscribed problems, which involve a small number of states. Bilateral border agreements are of this kind, as are treaties for protecting and managing the resources of rivers and lakes, or managing natural resources and habitats which span the territory of more than one country but have regional scope. There are also good reasons to think that regional cooperation via formal agreements will continue for a whole hols of issues. However, on a whole host of issues of planetary concern, voluntarist conceptions of international law fail to grapple with the difficulties that consent raises for the community of states.

State consent in its present forms captures the will of the states but in a problematic way. It overemphasizes their short-term interest, and it gives too much weight to state-specific perceptions of problems which span international borders over collective will formation which protects shared long-term interests. International law requires from states a series of nonpositivist core constitutional commitments, and the central one ought to be the formation of the collective will of states and individuals over the basic constitutional rules of the international legal system.

A broader range of nonoptional rules binding all states might raise concerns of paternalism in international law. Paternalism describes the situation in which the law compels a legal subject to act in a manner which benefits that subject. In the domestic context, paternalistic legal rules target the behavior of an individual who is not acting in her own best interest, even if no harm is imposed on third parties. Paternalistic legislation is seen as interfering with the autonomous choices of an individual insofar as it restricts her range of options, and it denies her the freedom to make choices even in cases where these choices may harm her. This freedom is considered essential to any good life. Paternalistic law thus disrespects individuals by infantilizing them, wrongly imposing values on them, violating their rights or by being liable to misuse or abuse (Mill Reference Mill1978; Feinberg Reference Feinberg1989; De Marneffe Reference De Marneffe2006; Hanna Reference Hanna2018).

However, for the range of legal rules which restrict the behavior of legal subjects whose action harms others, the charge of paternalism no longer applies. That is because autonomy restrictions are considered justified – and thus nonpaternalistic – when they involve the basic rights of legal subjects, the rules of social cooperation, which include restrictions on the use of violence, rules regarding contracts and promises, rules for the resolution of collective action problems and for the peaceful settlement of disputes. Acting against those basic rules would cause harm to others in addition to the harm caused to oneself, and thus, there is a general case for laws which are autonomy-restricting in one sense – they reduce the range of action in particular domains for all legal subjects – but enhance the autonomy of all. International legal rules which create binding reciprocal constraints on states’ use of violence, ensure the fulfilment of their obligations under treaties they have signed and provide an impartial adjudication of disputes, create a world in which each state is restricted in some domains but is free to act without interference from others and from the constant threat of having its rights violated.

Where does this leave states consent? This is a fundamental question for international law, as it requires rethinking the structure of international law and the place of state consent as a second-order rule for generating legal validity. Various options are available, but one that is continuous with current state practice preserves a robust place for state consent while extending the range of nonoptional background rules to which states are subjected to in their interactions with each other and their citizens. The next section makes one proposal for how to move closer to such nonoptional background rules.

A modest proposal

I have argued so far that contrary to common opinion, state consent exercised in the current form in international law does not protect state sovereignty. Therefore, we must revisit some of the substantive and procedural rules which regulate the range and domains over which state consent operates as a mechanism for creating international law. This proposal involves three practical stages: in the first stage, the International Law Commission (ILC) proposes in draft form a new version of the VCLT, let us call it VCLT 2.0, which in the second stage states can negotiate, modify and adopt. Initially, the new VCLT will only apply to the signatory states, and after a suitable amount of time and number of accessions, in the third stage, its rules will become customary law applying to all states.

While ambitious in some ways, the proposal is in line with the idea of progressive development of international law. For example, it relies on the ILC as an impartial commission of experts involved in various restatements of international law and the drafting of new treaties, a role which it has occupied reliably and successfully since its inception in the 1960s. The ILC has been responsible for the progressive codification and development of several foundational doctrines and rules of international law, including the first Draft Declaration on the Rights and Duties of States (1949), various treaties which are part of the law of the sea, including the United Nations Convention on the Law of the Sea (1982), the principles of jus cogens, the Rome Statute of the ICC (1998) and the original VCLT itself. A new process of negotiating constitutive rules for international law gives all states the capacity to reconsider afresh some fundamental building blocks of the international legal order.

Therefore, VCLT 2.0 would convert some constitutive rules to something closer to what Devika Hovell calls ‘a form of collective conscience’ (Hovell Reference Hovell2022: 18). This collective conscience already expresses itself through the existing commitments of the international community recorded in thousands of treaties and their preambles. These commitments refer to human rights, protection against noninterference, sovereign equality, peaceful resolution of disputes and imperatives for cooperation to solve collective action problems. These principled commitments are part of a rich arsenal of principles and values for multilateral cooperation which some have described as constitutional or quasi-constitutional in nature (De Wet Reference De Wet2006; Klabbers, Peters, and Ulfstein Reference Klabbers, Peters and Ulfstein2009; O’Donoghue Reference O’Donoghue2013). The existing quasi-constitutional principle of international cooperation will channel and constrain the range of available options for reform. More importantly, they will disable vetoes from narrowly self-interested, short-term oriented states and will limit the impetus of outlaw, authoritarian and even democratic states to divert the process of international law creation and operation for their own ends.Footnote ¹⁰

Revisiting the rules for state consent in creating international law and conferring rights and obligations upon states ought to start with the recognition that the current version of VCLT is a poor vehicle for some of the most basic rules of international law. The rules are outdated, vague and often unenforceable. This is true of other foundational documents of the present international legal system such as the UN Charter, but I focus on revisiting substantive and procedural rules related to consent in international law which are mainly outlined in the VCLT. Substantively, VCLT 2.0 could articulate the scope of sovereign autonomy of states, and the rights and responsibilities which accrue to them as sovereign entities, perhaps in the form of a new Declaration on Rights and Duties of States (DRDS). An extensive list of rules codifying state rights and responsibilities already exists in international law in the old DRDS, the UN Charter and customary international law. These rules will need to be made more coherent and rendered consistent with the human rights individuals enjoy as a matter of international law, the need for impartial adjudication of violations of states’ rights and the necessity of international cooperation for solving common problems.

This means that in addition to the typical rights to independence, territorial integrity and equality to other states under international law, the new set of rights for states would further formalize and entrench rules to include access to peaceful, impartial resolution of disputes and the correlative duty to submit to such impartial resolution of conflicts. Among the duties of the state should also be those to engage in multilateral negotiation on an equal footing with other states and contribute the necessary resources for the resolution of collective action problems stemming from climate change and the management of global commons such as the deep seabed, marine and land-based ecosystems and the ozone layer. Some of the jurisdictional immunities of states as well as the right to noninterference must be qualified to reduce impunity in cases of large-scale violations of the rights of the citizens.

Procedurally, the VCLT 2.0 rules can preserve state consent as a first-order principle, namely as a means for states to generate rules and create legal rights and obligations but limit the domains in which it is appropriate to be used in this way. To this end, it could list a set of governance domains over which decisions will be made by majority or supermajority rule rather than individual state consent. Among the governance domains over which decisions would be removed from the sphere of individual state consent and into the sphere of majority rule could be: the management of global commons, climate change, rules regulating the use of force, nonoptional judicial settlement of disputes as a fundamental condition of international peace and justice and protecting persons and their dignity against some of the most serious and common abuses committed by states and nonstate actors.

Substantively and procedurally, the proposal made here advocates small changes to the constitutive rules of the global order which are continuous with recent developments in international law and which do not radically transform its character or bring with it the danger of severe disruptions. While I have given some examples of international law moving towards more nonconsensual mechanisms in previous sections, let me add further examples which demonstrate why my proposal is continuous with existing developments.

The international community is beginning to create more rules with a nonoptional character and thus reduce the scope of consent, going today beyond the UN Charter, jus cogens and customary law, precisely because it recognizes that unreasonable, self-interested state behavior is inimical to a peaceful and just international order as a whole. Nonconsensual rulemaking is already subject to increasing formalization towards the nonoptional authority of international courts and tribunals. Forms of mandatory international criminal law enforcement have accompanied the creation of ad hoc tribunals, special enforcement powers for NATO or the African Union and the referral power of the Security Council to the ICC. The transition from GATT to the WTO brought about the adoption of a compulsory dispute resolution mechanism with an appellate body, a significant departure from the consent-based jurisdiction of the previous GATT dispute settlement body. This reflected a belief of many member states, including the US, that without compulsory jurisdiction trade disputes remain unaddressed or are subject to vetoes and delaying tactics at every step of the judicial process (Damme Reference Damme2009). Many other recent treaties have adopted either dispute resolution mechanisms which are compulsory or have added optional protocols through which contracting parties to a treaty can submit to compulsory jurisdiction. While the assumption of the obligations of these treaties and associated protocols remains voluntary, some dispute resolution mechanisms are moving closer to what some scholars call partially obligatory jurisdiction (Lamm Reference Lamm2014).

In addition to the formalization of nonconsensual rules and dispute settlement bodies, there are more subtle undercurrents in international law that signal a move away from voluntarism. In an article called ‘Mandatory Multilateralism’, Evan J. Criddle and Evan Fox-Decent show that the practice of ‘coordination of national policies and practices among multiple states in a manner that reflects due regard for the participant states’ respective legal rights and authority to represent their people internationally’ contributes towards binding norms of international law and away from state consent (Reference Criddle and Fox-Decent2019: 274). This trend is evolving through the many customary legal principles, decisions by international courts, declarations of states in preambles of treaties and other joint mission statements. The content of the binding norm away from unilateralism and towards coordinated, inclusive action on problems of common concern is not just a call to joint action simplicter. It is a call to joint action which ‘must reflect due regard for participant and third-party states’ respective legal rights and authority,’ including the authority of other states to represent the interests of their citizens faithfully and act with a concern towards their long-term welfare (Criddle and Fox-Decent Reference Criddle and Fox-Decent2019: 274).

The expectations for mandatory multilateralism have emerged in five areas: 1. Territorial disputes, 2. Disputes involving conflicting legal entitlements, 3. The administration of common resources via joint stewardship, 4. Threats to international peace and security and 5. Human rights. For example, when territorial claims or boundaries between states are disputed, international law prescribes that no state is entitled to impose unilaterally a solution (Criddle and Fox-Decent Reference Criddle and Fox-Decent2019: 278–296). This includes maritime jurisdiction to exclusive economic zones and the continental shelf resources. In the Fisheries Jurisdictions case before the ICJ (1974), the court ordered Iceland to enter good faith negotiation with the UK and accommodate its secondary fishing rights, urging both states to find a solution by agreement. This principle of good faith negotiation and cooperation to manage common resources, especially resources on the high seas, became a fundamental principle of UNCLOS (Criddle and Fox-Decent Reference Criddle and Fox-Decent2019: 281). The concept of ‘common resources’ has likewise expanded from the high seas to other areas and domains of activity, including outer space, Antarctica, the deep ocean floor which is rich in mineral deposits, the environment and even certain cultural and historical artifacts such as monuments of architecture and art (Criddle and Fox-Decent Reference Criddle and Fox-Decent2019: 281–282).

Additionally, joint stewardship makes substantive and procedural requirements on states. Among the substantive requirements are finding an equitable balance between the interests of various states involved, and among the procedural ones are investigating, consulting, negotiating and referring disputes to third-party arbitration when necessary. Although these requirements may seem vague, they have been given more precise content by various rules and decisions of courts. Thus, they do not represent merely empty, good-sounding entreaties imposed on states, but often amount to specific legal requirements whose breach incurs penalties (Criddle and Fox-Decent Reference Criddle and Fox-Decent2019: 312–313). These trends in international law reflect the growing insight that while state sovereignty is protected by international law, consent cannot be the only basis of legal rules for managing complex interactions among states and the various, sometimes conflicting interests they possess.

Objections

This proposal is meant to strengthen central commitments of international law and align them more closely to an evolved self-understanding of the international community. The changes proposed could provoke several objections. The first is that the proposal involves too radical a change for states to accept it. In reply, it bears noting that all processes of progressive development of international law involve continuity and change. International law arrived at its current form through change, sometimes radical change. It has evolved piecemeal and haphazardly from bilateral and multilateral treaties, and it lacks a ‘big-bang moment’ of ‘juristic consciousness where the decision is made as to who or what is authorized to make law’ for the international community (Hovell Reference Hovell2022: 9). Nonetheless, it has had several constitutional moments which have altered the course of interstate relations towards more law-like, reciprocal and universal commitments. The Congress of Vienna of 1815, the period between 1945 and 1949, which included the UN Charter (1945), the Nuremberg and Tokyo Trials, the creation of the Universal Declaration of Human Rights (1948) and the Geneva Conventions (1949), the Declaration on the Granting of Independence to Colonial Countries and Peoples (1960), UNCLOS (1982), the WTO (1994) or the creation of the ICC (1998) certainly feel like momentous constitutional changes for international law. In light of these important, successive and continuing changes, a revision of the procedural rules for creating new international law should strike us as neither hopelessly utopian nor infeasible.

The second objection to the proposal to amend the VCLT could be that the practice of consent operating today protects precisely the weaker, less powerful states from impositions from the more powerful ones. Samantha Besson links broad consent powers with the capacity of weaker states to resist domination because their equality with other states is preserved (Besson Reference Besson2016: 306). To abandon robust state consent, the objection goes, is to abandon a powerful weapon against the domination of the weak by the strong. However, one could argue that the protective mantle of state consent for weak states is a mirage. This is because, as Wouter G. Werner argues, the norm of state equality which protects weak states cannot be itself the product of state consent as ‘this would only beg the question why the consent of each state would have to count equally.’ Equality must be presupposed as a nonoptional norm and thus would precede, normatively speaking, practices of state consent (Werner Reference Werner, Brölmann and Radi2016: 23).

Additionally, when states opt out of general rules protecting valid consent in international treaties, as states do when they express reservations to article 66 of the VCLT, they opt out from protecting weak states’ sovereign authority to determine how best to protect their interests without interference from other states. As I have argued earlier, less powerful states can be strongarmed into agreements which are not beneficial to them, and they have little access to institutions which protect them from coerced consent when more powerful states opt out from the authority of international courts. For example, it is well documented that Brazil, India and other countries from the global south were threatened with reduced market access to US markets if they did not agree to the new TRIPS rules regulating intellectual property at the WTO (Matthews Reference Matthews2002). The USA also sought bilateral immunity agreements shielding its officials and military from being extradited to the ICC in case of suspicion of having committed Rome Statute crimes and threatened to withdraw financial or military aid for countries which were not inclined to agree (Kelley Reference Kelley2007). In most legal systems, these forms of pressure are viewed as invalidating consent and violating the status of legal subjects as autonomous and self-determining. As Oisin Suttle puts it, this kind of hard bargaining is difficult to reconcile with self-determination and mutual respect (Suttle Reference Suttleforthcoming: 19). By contrast, individuals entering contracts in domestic law have their rights against coerced consent protected.

Yet many forms of coerced consent are condoned under international law as it currently stands. Small states which negotiate treaties with more powerful states often cannot protect themselves against threats, unwanted interference, unfair division of benefits and burdens or the threat of withdrawing market access. Vulnerable, less economically powerful states suffer the most because they are the least able to obtain concessions from powerful countries. And they cannot hold more powerful states accountable for violations of their rights when the powerful states refuse the jurisdiction of an international court. Thus, the current principle of state consent leaves smaller, weaker states prey to the unscrupulous choices of more powerful states when the former and the latter do not share a common framework of rules and institutions protecting equally the interests of weak and strong states.

A final objection to the proposal I put forward here could be that a majoritarian and/or supermajoritarian decision procedure with respect to a limited number of domains of international cooperation provides less protection for state autonomy than individual state consent does. In response to this objection, it is worth acknowledging that majoritarian decision procedures only protect autonomy against a certain background of rules which articulate and protect autonomous status for legal subjects. In the case of individuals in a state, this means that law-making by legislatures according to majoritarian decision procedures is protective of autonomy when all individuals already enjoy strong constitutional rights to freedom, including freedom of expression, rights to vote and be represented fairly and inclusively in legislatures which deliberate by taking into account diverse interest to arrive at a final judgment about what the law ought to be. Without constitutionally protected civil and political rights for individuals, majoritarian decision procedures replicate whatever power imbalances exist in the wider society, legitimate the rule of the strong over the weak and can lead to significant loss of freedom and other rights for minorities. When only white propertied males had the right to vote and act as representatives in legislatures, the autonomy of large sways of society (nonpropertied males, women, minorities) was insecure and their interests consistently discounted in the making of public laws.

The same will be true for states. State autonomy consists of a set of protections for the freedom of each state to make decisions internally free from interference from other states, including to make its own laws in its territory and govern its citizens, to enjoy rights of equality of status in the making of international law, and equal protection under international law, to have its interests adequately represented in international institutions and bilateral and multilateral treaty negotiation and so forth. A new declaration for the rights and duties of states will strengthen these autonomy protections for all states. Without more adequate background rules protecting states’ fundamental rights and the interests and the rights and interests of their citizens, majoritarian procedures will reproduce the power imbalance in international law. When states’ rights are protected, majoritarian decision procedures are more likely to capture the omnilateral will of states, just as they do for individuals within states. Majoritarian decision-making among states may bring additional benefits. It facilitates more processes of international cooperation and the resolution of collective action problems by removing veto powers from states which are not good faith cooperators in international law, or which aim to subvert international rules for their own narrow, self-interested ends.

Majoritarian decision-making is a departure from state consent, which dominates international law creation at the moment, but it already operates with success in some areas of international law. The International Whaling Commission (IWC) and the member parties to the Montreal Protocol for the Protection of the Ozone Layer take decisions by majority vote. The IWC decisions are adopted by simple majority, with some exceptions for rules where a three-fourths majority is needed, while parties to the Montreal Protocol make decision with a two-thirds majority on matters of substance and simple majority on matters of procedure (Montreal Protocol 1991; International Whaling Commission 2024). Majority voting is a way out of deadlocks often occasioned by consensus rules, it is an efficient way to make decisions and it can be made consistent with respecting the autonomy of the states participating in decisions in an international legal system which offers robust protections for state sovereignty.