Traditionally, the problem of the basis of obligation in international law has been framed in terms of the following questions: Why is international law binding? Why should states obey international law? Or, what is the source of the binding force, or the "reason of validity" of international law? The question of obligation seems to many an important one, and distinguishable from the analogous question of the duty of obedience in domestic law, for this reason: under the doctrine of state sovereignty, if the nation-state is sovereign and independent, how can it possibly be subject to a higher authority, to a superior legal system? The issue also has relevance in light of the problem of cultural diversity. One could perhaps rely on some notion of common traditions, cultural identity, or shared values to explain and justify domestic political obligation. Relativists, however, believe that those elements are absent at a global level. Individuals and national communities, they argue, have irreconcilable ethical views, and there is no valid transboundary moral reasoning which could settle those differences or establish the moral superiority of one set of values over the others. Therefore, it is thought, one may not rely on any shared values as a springboard for a theory of international obligation. From any of these perspectives, the question posed is one of fidelity to international law, of explaining the normative reasons why governments and other international actors owe allegiance to the law of nations.
Fernando R. Teson,
International Obligation and the Theory of Hypothetical Consent,
Yale J. Int'l L.
Available at: http://digitalcommons.law.yale.edu/yjil/vol15/iss1/3