International Legitimacy: Elusive or Elastic?
This blog post comments on the first half of the international legitimacy seminar series hosted by the International Legitimacy Project at the University of Edinburgh. The speakers who have presented at the seminar series so far include: Antje Wiener (Chair of Political Science esp. Global Governance, University of Hamburg & By-Fellow Hughes Hall, University of Cambridge), Karen Alter (Northwestern University), Jens Steffek (Technical University Darmstadt), Mattias Kumm (New York University and Humboldt University Berlin), Brad Roth (Wayne State University), and Ian Hurd (Northwestern University). The titles and abstracts of each seminar, as well as video interviews with several guest speakers, are available on the international legitimacy website at https://www.lawandpolity.law.ed.ac.uk/international-legitimacy-seminar-programme/.
International Legitimacy: Elusive or Elastic?
The meaning of legitimacy is notoriously elusive. One consequence of this widespread perception is that legitimacy is a tricky thing best left behind in preference of other, more clear, analytical tools. A second consequence is that legitimacy is also perceived as being used to evade criticism or to mask shortcomings. If something cannot be explained, invoking legitimacy may fill the void, or so Koskenniemi argued in 2003.
Before digging deeper into the meaning of legitimacy, is worthwhile noting that a remarkable contrast exists between defining the word legitimacy and describing the concept.  Whilst variations in wording occur, definitions of legitimacy generally refer to the acceptability or justification of the exercise of authority. The proposed definition of legitimacy that forms the foundation of this seminar series falls within that tradition. It describes legitimacy as ‘a set of discursive reasons for the right to rule of an authority’.
Armed with a definition of legitimacy, the first half of the seminar series saw guest speakers tackle various aspects of legitimacy in international law. The variety of topics and angles illustrated the myriad ways in which legitimacy as a concept can apply to different questions which emerge in international law. This diversity of ways in which legitimacy can be used, and has been used in the seminars, seems to support existing concerns regarding the malleability of the concept, and therefore its problematic analytical credentials, especially at the international level.
The aim of this blog is to investigate further the flexibility of the concept of legitimacy. This is done in order to better understand the difficulties encountered in its conceptualization. The outcome of this investigation is not intended to provide a definitive conceptualization of legitimacy for all ends and purposes. Rather, it aims to show that instead of being an inherent flaw, the elasticity of the concept is useful in highlighting the myriad of complex authority relationships that exist in the international legal order. The purpose of engineering this shift in perspective is not to put legitimacy on a pedestal. Instead, it makes it possible to engage with and assuage concerns that invoking legitimacy serves as a strategy to avoid critical engagement or conceal formal or conceptual shortcomings.
The seminars of the first half of the project engaged with various aspects relating to the objects, the subjects, and the grounds for international legitimacy. Candidates for the role of objects of international legitimacy ranged from international law itself, to international courts, to international organisations as wielders of authority. Proposed subjects of international legitimacy were either states or individuals. Unsurprisingly the topic of grounds of international legitimacy resulted in discussion of the purposes, foundations and procedures of international law.
It is especially obvious in discussion relating to the grounds of legitimacy that the invocation of legitimacy in international law discourse is not intended as a “technique of avoidance” nor does it serve to mask an absence of particular normative substance. In contrast, the seminars investigated vigorously what legitimation on the basis of various conceptions of international law might look like. Instead of avoiding criticism, the seminars used legitimacy to expose existing assumptions about the nature of international law. The two main concurring views were international law as a global good in itself versus a more political understanding of international law which allocates benefits and burdens according to power politics.
Naturally, the seminars did not result in the identification of a single object and subject of, or ground for legitimacy. Nor should they have. While legitimacy in the context of the nation state may be able to point towards a single object of legitimacy (the state), with a single subject of legitimacy (citizens of the state) on the basis of one ground of legitimacy (constitutional democracy) such monism goes against the more pluralist tendencies of international law. Typical of international law is that the authors, addressees, and holders of international legal obligations and rights are not predetermined. Actors and their relationships to each other are more fluid and subject to change. This claim deserves further elaboration.
The multifaceted nature of international law is best explained in contrast to the more monistic form law takes in the context of the nation state. In the nation state the right to create law is usually held by one agent or institution such as a legislature. At first glance a similar observation may be made in relation to international law. States, traditionally, are seen as the only actors that can create international law. Yet one needn’t look far to find cracks in such an analogy. Firstly, international law can be made by different states at different times. This means that, unlike legislation in the nation state, not each piece of international legislation has the same authors (or subjects for that matter).
Secondly, there are instances in which international bodies are enabled by states to engage in binding law-making, application, and enforcement. For example, article 25 of the Charter of the United Nations enables the Security Council to create binding resolutions, and the EU has a sophisticated legislature involving the European Commission, the Council and the European Parliament. In a similar vein, disputes between states parties of the World Trade Organisation can be subjected to legally binding dispute settlement procedures. In the context of the International Labour Organization, states parties have a duty to report on the positions of their law and practice, insofar as is relevant, to ratified and unratified conventions and recommendations adopted by the International Labour Conference.
Thirdly there exist non-state actors that actively try to influence international law-making, be it from a civil society or business perspective. This last point is of course also true at the level of the nation state However, the processes for participation and access to law-making actors at the state level are clearly regulated. Interest-specific lobbying is furthermore balanced with decision-making on the basis of democratic input. At the international level access to law-making by third-party actors (beyond states and international organisations) is often less well understood.
The fact that there are multiple candidates for the role of object of legitimacy – that is the relevant ‘authority’ acting in the international context which may include states (including potentially their ‘disaggregated branches) international organisations, international agencies, more informal associations and groupings as well as transnational civil society actors – and that the exercise of authority by one actor does not exclude or limit the exercise of authority by another actor, given the lack of clear overarching hierarchy or order of priority at this level, shows that the exercise of authority at the international level is not monistic as it is in the context of the nation state but is instead inherently pluralist in nature.
This means that conceptualization of international legitimacy must be able to accommodate discursive reasons for a right to rule of numerous actors which are not necessarily analogous nor do they necessarily share a common set of discursive reasons that explains their right to rule .
A similar pattern emerges in the comparison between the subjects of legitimacy in the context of the nation state and subjects of legitimacy at the international level. The legislator in the nation state writes their laws for a singular group of addressees, namely the population or citizens within its territory. International law, on the other hand, has at least two potential addressees, which are very different in nature; states and individuals – to which could be added, increasingly, International Non-Governmental Organisations and other civil-society stake-holders. Therefore, the conceptualization of international legitimacy must meet legitimacy expectations of a diverse and pluralistic constituency. Yet there is no reason to assume from the outset that the same set of discursive reasons regarding the right to rule apply in the relationship to the state as they do in the relationship to the individual. This means that conceptualization of international legitimacy must be able to accommodate the legitimacy perceptions of a potentially diverse set of actors.
This leads to inquiry into the last of the three legitimacy topics investigated in the seminar series, the grounds for legitimacy. The grounds of legitimacy for international law can be broken down into two major considerations: the benefits produced by international law and international regimes (usually couched in terms of some combination of peace and prosperity), and the ways in which those benefits are achieved (whether through participatory structures or the respect, or not, of substantive values such as fundamental rights). There is no reason to assume from the outset that the exercise of authority by an international organization that impacts on the rights and obligations of an individual is supported by the same set of discursive reasons that provide an international court with authority to exercise authority over states. Can international legitimacy include more than one set of discursive reasons for the right to rule? What are the appropriate grounds of legitimacy in each of the potential relationships that can arise at the international level? Perhaps we will gain clarity on these questions in the second half of the seminar series.
Contemplating the above, it turns out that the elasticity for which legitimacy oftentimes is criticized, is in fact legitimacy’s greatest asset in the context of international law. Too often the norms and standards of state-based legitimacy discourse serves to paper over the more dynamic, pluralistic and complex arena of international law. In fact, it is exactly this elasticity that allows it to operate at the international level. However, to ensure some measure of analytical clarity and ensure that the concept is not used to mask power plays, it is crucial that the invocation or reference to international legitimacy comes with clearly articulated assumptions about the relevant actors involved in the legitimacy claim being investigated. Identifying from the outset the actors involved in the legitimacy relationship under investigation, in turn, will have an influence on the set of discursive reasons relevant to the specific authority relationship being considered. Perhaps the real culprit behind international legitimacy’s elusiveness is international law itself which has arguably not always recognized and acknowledged the complexity of actors and norms at the international level.
To conclude, in order to capture the multitude of variables that exist at the international level requires a great degree of elasticity in the conceptualization of legitimacy. Yet such elasticity does not necessarily result in indeterminacy. Rather than having an obscuring effect, the concept of international legitimacy can, after some unpacking the assumptions of the relationship under analysis, be used to identify relevant actors and disentangle their relationships and interactions.
Dagmar Topf Aguiar de Medeiros is a Research Associate on the International Legitimacy Programme at Edinburgh law school. She is currently completing her PhD on the standard of legitimacy in the international climate change regime from the perspective of constitutionalism beyond the state. Her research interests include international law-making, governance beyond the state, constitutional law, and international environmental law.
 See for example: Hilary Charlesworth and Jean-Marc Coicaud, Fault Lines of International Legitimacy, (OUP 2009), Martti Koskenniemi, ‘Legitimacy, Rights, and Ideology’, Notes Toward a Critique of New Moral Internationalism’ Associations 7(2) (2003). Weiler does not criticize the fact that legitimacy can take on different meanings but he does engage with three different potential conceptualisations of legitimacy in Weiler, ‘The Geology of International Law – Governance, Democracy and Legitimacy’,  ZaöRV 64. Similarly, Bodansky does not criticize but maps various conceptualisations of legitimacy in Bodansky, D. (2012). Legitimacy in International Law and International Relations. In J. Dunoff & M. Pollack (Eds.), Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (pp. 321-342). Cambridge: Cambridge University Press.
 Martti Koskenniemi, ‘Legitimacy, Rights, and Ideology’, Notes Toward a Critique of New Moral Internationalism’ Associations 7(2) (2003).
 Chris Thomas, ‘The Uses and Abuses of Legitimacy in International Law’ Oxford Journal of Legal Studies [2014[ 34(4), 729-758.
 The full definition of legitimacy for the purpose of this seminar series refers to legitimacy as a “set of discursive reasons for the right to rule of an authority and therefore distinct from subjection to authority based on coercion or self-interest” <https://www.lawandpolity.law.ed.ac.uk/our-projects/international-legitimacy/international-legitimacy-seminar-series/> last visited 27 April 2019.
 For titles and abstracts of each seminar please visit < https://www.lawandpolity.law.ed.ac.uk/international-legitimacy-seminar-programme/> last visited 27 April 2019. The second half of the seminar series is scheduled to take place October –
 See Thomas (3), who breaks legitimacy discourses down into questions relating to the objects of legitimacy – that which is to be legitimated such as a court, a norm or a decision – the subjects of legitimacy – those which must deem the objects to be legitimate, such as states, or peoples, and the grounds of legitimacy –the reasons why the subjects accept the legitimacy of the object, such as justice, legality or procedural considerations. Thomas, above.
 Referring here to Koskenniemi’s critique of legitimacy in Martti Koskenniemi, ‘Legitimacy, Rights, and Ideology’, Notes Toward a Critique of New Moral Internationalism’ Associations 7(2) (2003).
 See article 25 of the Charter of the United Nations. United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI.
 Article 294 Treaty on the Functioning of the European Union. Point out that when treaty speaks of ‘Council’ it refers to Council of the European Union, not to be confused with the Council of Europe or the European Council. See Articles 237 to 243 of the Treaty on the Functioning of the European Union (TFEU).
 Articles 3 and 19 Dispute Settlement Rules: Understanding on Rules and Procedures Governing the Settlement of Disputes, Marrakesh Agreement Establishing the World Trade Organization, Annex 2.
 Articles 19 and 22 Constitution of the International Labour Organisation.
 On the topic of third party participation in international law-making see for example: Hermwille, L. (2018). Making initiatives resonate: How can non-state initiatives advance national contributions under the UNFCCC? International Environmental Agreements: Politics, Law and Economics, 18(3), 447-466. Weiss, W. (2015). Die Rechtsquellen des Völkerrechts in der Globalisierung: Zu Notwendigkeit und Legitimation neuer Quellenkategorien. Archiv Des Völkerrechts, 53(2), 220-251. Roberts, Anthea, & Sivakumaran, Sandesh. (2012). Lawmaking by nonstate actors: Engaging armed groups in the creation of international humanitarian law. The Yale Journal of International Law, 37(1), 107-152. Ryngaert, C. (2016). Non-State Actors: Carving out a Space in a State-Centred International Legal System. Netherlands International Law Review, 63(2), 183-195.
 See, for example, A.M.-Slaughter, ‘Disaggregated sovereignty: Towards the Public Accountability of Global Government Networks’ (2004) 39(2) Government and Opposition 159-190.
 Mac Amhlaigh, C. (2016). Harmonising Global Constitutionalism. Global Constitutionalism, 5(2), 173-206 maps the way in which legitimacy claims regarding a variety of actors can relate to each other and yet differ.