Legitimacy in International Law and International Relations

Prof. Daniel Bodansky will present the topic "Legitimacy in International Law and International Relations" during his visit to the MultiRights project.

 

 

Legitimacy in International Law and International Relations

 

Daniel Bodansky

Sandra Day O'Connor College of Law

Arizona State University

 

Prof. Bodansky's paper is available here.

 

Introduction

 

Over the past couple of decades, there has been an explosion of interest, both among international lawyers and among international relations scholars, in the legitimacy of international institutions. Studies have:

  • historically traced the changing conceptions of legitimacy in "international society" and "world society";
  • theorized about the concept of legitimacy;
  • advanced general normative conceptions of legitimacy;
  • surveyed the legitimacy of different types of international institutions, including global governance organizations, international financial institutions; private governance systems; and public-private partnership; and
  • examined the legitimacy of particular international institutions, including among others:  the WTO, the International Criminal Court, the Security Council, the treaty bodies of multilateral environmental agreements, investor-state arbitral tribunals, the Global Reporting Initiative, the World Commission on Dams, and the International Organization for Standardization (ISO).

This burgeoning of interest in legitimacy over the last two decades represents a significant shift.  Previously, neither international law nor international relations had shown much interest in the issue.  International lawyers tended to focus on legality rather than legitimacy.  And political scientists tended to focus on power and interests, rather than normative considerations such as legitimacy.

Several factors are responsible for the increased concern about and focus on legitimacy. First, international governance is increasing both in depth and breadth.  Second, international governance increasingly affects not only states, but also individuals and other non-state actors.  Finally, international governance is increasingly being exercised by private and public-private institutions, as well as by intergovernmental institutions.  The newfound focus on legitimacy is one of several responses to these trends towards greater international governance; others include the streams of work on good governance, constitutionalism, accountability, and global administrative law.

The issue of international legitimacy raises many important questions:

  • Conceptually, what do we mean by “legitimacy” and what is its relation to other concepts such as legality, authority, obedience, power, self-interest, morality and justice?
  • Normatively, what standards should we use to assess the legitimacy of international institutions?  Are these legitimacy standards uniform, or do they vary depending on an institution’s issue area and on the type and extent of authority it exercises?
  • Descriptively, what standards do different actors (government officials, international bureaucrats, civil society groups, and business) actually use in assessing the legitimacy of international institutions?  Are these factors complementary or do they sometimes work at cross-purposes?
  • Causally, what explains why institutions are accepted as legitimate, and what are the effects of these beliefs?  How much practical difference do they make – for example, for the effectiveness and stability of an institution?

To date, much of the work on international legitimacy has been of a theoretical nature, clarifying the general concept of legitimacy and elaborating conceptions of legitimacy that are appropriate for international institutions, given their differences from domestic governments.  These have generally sought to find a middle ground between state consent on the one hand and democratic decision-making on the other, and have focused largely on procedural factors such as transparency, participation, and neutrality.

By comparison, there has been surprisingly little empirical work, among either international lawyers or international relations scholars, to determine what standards of legitimacy actors actually apply and how much difference these beliefs make in practice.  Instead, most studies assume that normative standards of legitimacy such as transparency, participation, and representativeness are in fact widely shared, that actors use these standards to assess the legitimacy of international institutions, and that enhancing these factors will help legitimize international institutions and make them more effective.  Going forward, more empirical work is needed both on attitudes about legitimacy, and on their causes and effects.

This essay reviews the IL and IR literatures on legitimacy over the last decade or two.  It unpacks the general concept of legitimacy, examines different conceptions of legitimacy, distinguishes between normative and descriptive legitimacy and between input and output legitimacy, and compares the approaches of international lawyers and international relations scholars.  Surveying the scholarship on legitimacy as a whole, three important developments stand out:

  • First, an increasing interest in the views of non-state actors, reflecting the growing impact of international institutions on civil society and business.
  • Second, an increasing focus on the legitimacy of private and public-private governance, rather than only inter-governmental organizations.
  • Third, an intellectual move away from democracy and towards accountability or deliberation as the touchstone of legitimacy.  Indeed, to a significant degree, accountability has replaced legitimacy as the central object of study.

 

 

Organizer

MultiRights
Published Nov. 22, 2011 8:28 AM - Last modified Nov. 28, 2011 11:14 AM