Legitimacy of International Governance

Esta obra analiza el proceso de consolidación de la autoridad de las Organizaciones Internacionales Intergubernamentales (OII) y, en especial,  el proceso de creación de una de sus fuentes de poder, la legitimidad. En ella se defiende que estas instituciones, en la mayoría de los casos, carecen de métodos de aplicación coercitiva para imponer su autoridad y dependen de la percepción externa sobre su labor. Asimismo, las OII se conciben como una comunidad política global cuya legitimidad se pude consolidar en el proceso de rendición de cuentas que pasa ante los Estados miembros y ante la sociedad civil global. En este trabajo se elabora y se propone la noción de legitimidad social para examinar y valorar dicho proceso. Así, la legitimidad social es una característica no material con capacidad de impulsar el cumplimiento, fundada en las percepciones subjetivas de los otros actores de la comunidad política sobre los tres criterios objetivos que describen el comportamiento de la OII: los valores morales, el principio de legalidad y la efectividad. Los estudios sobre la legitimidad social de la ONU, la OMC y la OIT ofrecidos en esta obra demuestran las debilidades y fortalezas de la legitimidad social de cada una de ellas, tanto desde una perspectiva objetiva como atendiendo a la percepción de los diferentes actores que la analizan.

At fifty, the European Court of Human Rights finds itself in a new institutional setting. With the EU joining the European Convention on Human Rights in the near future, and the Court increasingly having to address the responsibility of states in UN-lead military operations, the Court faces important challenges at the national, European and inter- national levels. In light of recent reform discussions, this volume addresses the multi-level relations of the Court by drawing on existing debates, pointing to current deficits and highlighting the need for further improvements.

L’ essor des acteurs non étatiques est à l’origine de l’irruption de la notion de société civile en relations internationales. Les avis sont cependant partagés sur l’interprétation de ce phénomène, les uns le voyant comme une réponse fonctionnelle au déclin des capacités régulatrices des États, les autres comme un mouvement contre-hégémonique à la mondialisation néo-libérale, tandis que certains y perçoivent aussi une opportunité de construire une démocratie cosmopolite. Cette note propose d’abord de distinguer ces discours en fonction de leur affiliation à trois traditions théoriques (libérale, marxiste et kantienne) comportant des représentations différentes de la société civile et de son rôle. Elle examine ensuite les défis que ces discours posent à la régulation démocratique de la mondialisation, notamment en termes de légitimité, de représentativité, et de responsabilité des acteurs associés à la régulation sociale internationale.

The growth of non state actors is at the origin of the emergence of the notion of civil society in International Relations. There is, however, a debate about the interpretation of this phenomenon, with some conceiving it as a functional response to the decreasing regulation capacities of states, others as a counterhegemonic movement against neoliberal globalization, while certain authors also see it as an opportunity of building a cosmopolitan democracy. This paper proposes first to distinguish these discourses according to three theoretical traditions (liberal, marxist, and kantian) allowing of different conceptions of « civil society » and its role. We examine then the challenges that these discourses pose to the democratic regulation of globalization, notably in terms of legitimacy, representativity, and accountability of the organizations involved.

Since the early 2000s, the UN and its African partner organizations have increasingly engaged in joint planning, resourcing and implementation of peacekeeping operations. Intensifying cooperation was a way to address the criticism of traditional top-down approaches in which the UN delegated peacekeeping tasks to regional actors. At the same time, new legitimacy problems and ongoing contestation among global and regional security actors have emerged. In fact, the most integrated instance of joint peacekeeping to date, the 'hybrid' UNAMID operation in Darfur, has decidedly lost its former status as a model for African peacekeeping. This paper interprets the seemingly paradoxical standing of hybrid peacekeeping-creating legitimacy problems despite being introduced as a more legitimate solution-as a consequence of dynamic legitimation discourses. Applying a framework inspired by frame analysis, it shows that while the UN and the AU initially engaged in mutual legitimation in the context of the Darfur crisis, normative divergences have subsequently led to more contested legitimation. Supporting cooperation can thus be a strategy for global and regional actors to legitimate peacekeeping, but it also heightens the potential for frictions, as it leads to a pluralization of legitimation agents and audiences.

This M.A. thesis deals with the subject of international legitimacy which is a topic that has returned to the stage of global politics due to the events of the “Arab Spring”. In this context, the Arab League has been frequently regarded as having assumed a prominent legitimation role, however, there is currently no existing theoretical framework in International Relations that allows for the verification of this hypothesis.
In order to contribute to this discussion, this theoretically-inclined research attempts to find an alternative to the ontological, epistemological and methodological confusion that reigns over the dynamics of legitimacy in IR. For this purpose, we address three “Arab Spring” case studies (Egypt, Bahrain and Libya) in order to analyze how the rhetorical strategies of the Arab League influenced the legitimacy of the actors involved and thus the outcomes of these conflicts. We do this by employing a framework which combines process tracing and methods for discourse analysis, including an innovative “International Legitimacy Index” (ILI) as a measuring tool. Throughout the empirical study we demonstrate how the access to the framing brokers of the ACE legitimation factors (Appropriateness, Consensus and Empathy) reveals itself to be the key to success in legitimation battles. The expected findings could lead to novel implications about the role of regional organizations as legitimation sources as well as well as explain factors that govern conflict resolution in current Middle Eastern and global politics.

"In his guest contribution to the PVS 4/2011 Michael Zürn analyzes the development of empirical legitimacy in the western democracies, in authoritarian states and in the context of the proliferation of political authority and law beyond the state. He claims that democracy is losing ground as justificatory principle of legitimate authority. His argument is based on a conception of legitimacy which can be elucidated by reference to a “judgment model” for the empirical study of legitimacy. This model is differentiated here from a model which conceptualizes the empirical study of legitimacy as measurement. It is argued that Zürn’s empirical analysis does not meet the requirements of his own, complex understanding of empirical legitimacy and that therefore his main thesis – that the significance of democracy as a source of political legitimacy is declining – needs to be questioned."

It is a noticeable feature of the contemporary revival of interest in realist political thought that it has very much hesitated from exploring its implications for international political theory. This is interesting both because realism is one of the dominant intellectual traditions in international relations, but also as much of the recent debates surrounding global justice have engaged with themes that are at least germane to those of realism. This paper will therefore try and extend some of the themes of realist political thought into the realm of global justice. While there might be several areas worth exploring, the focus here shall be on the realist emphasis on making sense of politics as a sphere of activity that has internal sources of normativity which cannot be reduced to moral first principles, the relationship between politics and legitimacy, and how these pose fundamental questions for the political nature of global justice. It ends by arguing that, viewed through the realist lens, the question of the legitimacy of international institutions should take greater priority in global justice debates insofar as this is fundamental to enabling us to understand justice in political and not exclusively moral terms.

This chapter investigates questions of organizational legitimacy in relation to the Association of Southeast Asian Nations (ASEAN).  It seeks to add to ongoing discussions on international organizations and legitimacy in at least two ways.  First, its discussion of a regional case study contributes to efforts to expand our sights beyond the Global North and the organizations that are typically the focus of such discussions.  This is not to say that regional organizations in the Global South have received no attention but to the extent that they do, the focus is often on how they add to or detract from the legitimacy of existing global organizations rather than the dynamics of regional legitimacy itself.  The ASEAN case is used here to illustrate some of the ways that legitimacy challenges may play out differently in non-core regional organizations.  Second, discussions have generally focused on legitimacy vis-à-vis an organization’s constituent members – that is, how and why members accept the authority and legitimacy of the organizations of which they are a part.  In contrast, this chapter highlights how organizations can also face significant external pressures that come from non-member expectations about what constitutes an organization’s legitimacy and how that challenge is often greater for non-European, non-North American organizations like ASEAN for reasons that are structural and material, as well as cultural and historical. In the ASEAN case, the challenge of external legitimacy has moreover become more pronounced since the early 1990s due to three key developments:  first, the intensified liberalization of world order since the ending of the Cold War; second, the expanded geographic scope of ASEAN’s regionalism(s); and third, the 1997-8 Asian financial crisis.  Lastly, in highlighting how such external expectations can interact with internal legitimacy claims in ways that can both add to, and detract from, an organization’s overall legitimacy, it draws parallels to developments in state sovereignty where external recognition of a state’s legitimacy has been made increasingly contingent on the domestic fulfillment of certain (liberal) standards and norms.

The 'conflicts law approach' reconstructs the potential of primarily, but not exclusively, European law to address the threat to democracy that is posed by the concern that citizens would increasingly be subject to the effects of laws which they themselves had not authored. This structural democratic deficit calls for consideration of 'foreign' demands. It also calls for cooperation and mutual respect between political constituencies. The normative basis for understanding conflicts law as a constitutional form with democratically grounded validity claims stems from the proposition that states must acknowledge or establish a law that provides a forum for foreign demands and manifests deference through transnational rules. The approach sets out to examine three types of conflict constellations—horizontal, vertical and diagonal legal conflicts—and three types of law-mediated responses, layered as the scheme of a 'three-dimensional conflicts law'.

The military coup staged by Guinea-Bissau’s army on the evening of 12 April 2012 was a striking situation in which there seemed not to be any meaningful central grip that resulted from the political processes of the country.  Guinea-Bissau’s recent history has four military coups since independence from Portugal in 1974.  The latest military coup was the result of the cooperation among military officers, and foreign and local drug barons.  For the first time in Africa’s history, and in world history too, a country that was deemed by contemporary theories as a “failed”, a “weak” or a “collapsed” state started to be called a “narco state”.  This essay aims at explaining why should the International community recognize Guinea-Bissau’s narco state as a legitimate new form of state.

Gunther Teubner has raised the question of "What comes after the state?" Behind the question lies the insight that society is currently undergoing deep structural transformations in the sense that state-centered society, which was a strong characteristic of 19th and 20th century society, is fading away at the same time as new forms of trans-national structures continuously gain in importance. One of the many consequences of this development is, seemingly, that the political system is no longer capable of serving as the primary "partner" of the legal system, thereby reducing the impact of democratic decision-making on the legal system. Teubner`s theory of reflexive law thus needs to be complemented by a theory of reflexive politics.

The topic of international legitimacy has returned to centre stage during the Arab Spring, in which the Arab League has apparently assumed a prominent legitimation role. Although some scholarship has studied how international organizations are decisive in legitimizing actors and their actions during conflicts, relatively scant attention has been focused at constructing a comprehensive analytical framework for this kind of assessment that could be also applied to regional organizations (ROs). This paper proposes that when actors are involved in battles over international legitimation, analysing their access to the socially identified brokers of three legitimation functions (appropriateness, consensus, and empathy) is key to assess their success. Particularly, we argue that relevant identity-based ROs may have a crucial legitimizing role by operating as brokers of regional consensus. For this purpose, two case studies – Bahrain and Libya – illustrate how the Arab League’s brokerage influenced the legitimation of the actors involved and their outcomes. The findings suggest novel implications about the decisive legitimizing impact of regionalism on conflict resolution.

The international monetary and financial order established by the Bretton Woods agreement (1944) was based on the assumption that public control of monetary and financial policy was the key to the fulfilment of newly embedded democratic aspirations, most notably high employment and economic welfare, and the condition to prevent the return of the currency disorders that had undermined the political legitimacy of states during the interwar period. Since then, one of the most significant trends in international finance has been the emergence of private or quasi-private authorities in global markets, which has prompted the call for the ‘governance’ of global finance. This dynamic has, however, brought about an erosion of democracy. In effect, by giving rise to private, unaccountable authorities, financial globalization has weakened the regulatory capacities of states and reconfigured state-citizen relations along the lines of a more restrictive notion of the public good. The main contention of this article is that the erosion of democracy is actually being concealed by the discourse on ‘global governance’ that permeates the rhetoric of international organisations and that is very much in fashion in International relations. By claiming the obsolescence of the public/private divide in favour of a structural-functionalist approach of globalization, advocates of global governance tend to ignore the effects of the processes they study in terms of their democratic significance.

International institutions have developed into a site of political authority of their own as can be seen by looking at a number of authority indicators. The concept of international authority however is intimately bound to the concept of legitimacy. The stronger the role that international institutions play in policy-making, the stronger demands for their legitimacy can be expected to arise. Against the background, we ask which of the state powers analysed in this special issue prefer which form of legitimation of international institutions, whether their general conceptions of legitimacy diverge or converge, and what this means for the future of global governance.

In the field of international security governance, new forms of cooperation between the United Nations (UN) and regional organizations (ROs) have recently emerged. The conventional top-down delegation of tasks from the UN to regional bodies is increasingly supplemented by 'hybrid' missions, which are characterized by joint planning, shared resourcing and integrated command structures. This trend not only makes the operational implementation of security governance on the ground more challenging but also complicates its legitimation, i.e. the practices through which stakeholders assert that it is an appropriate form of security governance. Indeed, while many policy-makers and academics have ardently advocated for global-regional collaboration, some stakeholders remain highly skeptical towards hybrid approaches. To account for this contentious standing, the paper engages with the literature on legitimacy in global governance and develops a framework for analyzing the legitimation discourses surrounding UN-RO cooperation. Existing approaches to legitimacy in global governance have not systematically explored how normative contexts shape ideas about legitimacy. Consequently, we do not understand well what happens when organizations with different ideas about legitimacy come together to debate the possibility of cooperation, and how potential frictions can be mediated. To remedy this shortcoming, the paper makes conceptual and methodological suggestions. Conceptually, I treat legitimation as a discursive practice that is embedded in a normative context encompassing different visions of international society on the global and regional level. This context does not causally determine ideas about legitimacy but constitutes a realm of possible claims that agents can strategically employ in the process of legitimation. Methodologically, this contextual framework calls for a context-sensitive discourse analytical approach which is both sensitive to what is actually said and to the implicit normative foundations of legitimation talk. In lieu of an empirical application, I provide a methodological outline for an application in a comparative case study design that demonstrates the benefits of the framework. The approach promises new empirical and theoretical insights about the legitimation of hybrid security governance but may also enrich the study of legitimacy in global governance more broadly.

RESUMO:
O OBJETIVO DESTE ARTIGO É DEBATER A NOÇÃO DE LEGITIMIDADE DE NORMAS DE DIREITO INTERNACIONAL PÚBLICO PROPOSTA PELO JURISTA E PROFESSOR DA UNIVERSIDADE DE NOVA YORK, THOMAS FRANCK. ESTA CONTRIBUIÇÃO CONSISTE NA PROPOSTA TEÓRICA E MULTIDISCIPLINAR DE DESCREVER DE QUE FORMA A LEGITIMIDADE DE NORMAS JURÍDICAS INTERNACIONAIS PODE SER AVALIADA A PARTIR DE CRITÉRIOS DE PEDIGREE ESPECÍFICOS. ALÉM DE TRATAR DA LEGITIMIDADE COMO DETERMINAÇÃO, VALIDAÇÃO SIMBÓLICA, COERÊNCIA E ADERÊNCIA, PROCURA RESPONDER POR QUE A JUSTIÇA NÃO SERIA UM CRITÉRIO DE QUALIFICAÇÃO DE LEGITIMIDADE DE NORMAS INTERNACIONAIS.
PALAVRAS-CHAVE
LEGITIMIDADE; NORMAS INTERNACIONAIS; THOMAS FRANCK, JUSTIÇA.

ABSTRACT:

THE AIM OF THIS ARTICLE IS TO DEBATE THE NOTION OF LEGITIMACY OF NORMS OF PUBLIC INTERNATIONAL LAW AS PURPOSED BY THE LAWYER AND PROFESSOR OF NEW YORK UNIVERSITY, THOMAS FRANCK. THIS CONTRIBUTION CONSISTS ON A THEORETICAL AS WELL AS MULTIDISCIPLINARY PURPOSE IN ORDER TO DESCRIBE HOW THE LEGITIMACY OF NORMS OF INTERNATIONAL LAW COULD BE EVALUATED THROUGH SPECIFIC PEDIGREE CRITERIA. BEYOND THE CRITERIA OF DETERMINATION, SYMBOLIC VALIDATION, COHERENCE AND ADHERENCE, THIS EFFORT CONCERNS TO ANSWER WHY THE FAIRNESS WOULDN’T A CRITERION FOR THE QUALIFICATION OF LEGITIMACY IN TERMS OF INTERNATIONAL LAW NORMS.
KEYWORDS
LEGITIMACY; INTERNATIONAL LAW NORMS; THOMAS FRANCK; FAIRNESS.

Even though international investment law (IIL) has developed at an unprecedented pace, its newly acquired popularity has come at a high cost. In a time of crisis of Western liberal-democracy and questioning of the economic model even by its fierce advocates, it has become easy prey for those disappointed with the distribution of wealth and prestige and for the political class, which has tried to “outsource” responsibility for problems unresolved domestically. Deficiencies in the construction of IIL has aggravated a legitimacy crisis. Unfortunately, current reform initiatives do not address the roots of the problem.

In this paper, I suggest ways of solving the legitimacy problem and for restructuring the normative framework. I start by asking whether the legitimacy crisis is an actual problem worth analysis or if it is a theoretical exercise void of practical relevance (Part 2). On the assumption that addressing this issue is necessary for the subsistence of IIL, three possible sources of legitimacy are indicated. Having opted for so-called social legitimacy, I refer to the Weberian legal-rational model (Part 3). In order to decide which stakeholders should be allowed to influence investment law directly, I recall Leon Petrażycki’s notion of the law’s superiority over morality (Part 4), which leads me to the conclusion that IIL reform should focus on home states, rather than on the investor-host state balance. With the backdrop of the subjective scope of investment law, I highlight major substantive shortages of IIL (Part 5). In accordance with the theory of legal impulsions, I subsequently argue that the current restrictive definition of IIL not only does not reflect the reality of arbitral decision-making but also hinders meaningful reform debate. From this rift between formal definition and actual understanding of IIL stem misconceptions about domestic problems that are transferred to an international plane. I argue that without reaching domestic compromise in terms of wealth distribution, current international initiatives constitute an anaesthetic, at best (Part 6).

The solution advocated in this paper is to fully embrace the principle of rule of law as the substantive contents and formal requirements with respect to IIL. It is argued that an investment consensus based on this principle simultaneously resolves the legitimacy concerns and contributes towards the development of law (Part 7). Because investment law both constitutes and is created by the international investment community, a separate passage is dedicated to the relationship between the rule of law and the rule of arbitrators, and its possible impact on legitimacy (Part 8).

Having thus prepared the ground for internalisation of the rule of law, I argue that IIL can embrace a broader standard (thick rule of law) than what would be reasonable in other branches of public international law (Part 9), which is adapted for investment purposes (Part 10). I conclude with general remarks (Part 11).

Los estudios sobre la legitimidad de las Naciones Unidas se han centrado tradicionalmente en criterios como la soberanía o el cumplimiento de sus resoluciones. Estas perspectivas no permiten una comprensión efectiva de la realidad de las OII, siendo estatocentristas y juzgando la legitimidad como aspectos objetivos medibles. Un estudio de la legitimidad social de la ONU en cambio, supone la búsqueda de la consolidación de la autoridad, política, respecto de los sujetos afectados por su actividad. Así, la legitimidad social de la ONU se desprende de la relación social con otros actores, y está reflejada en la imagen transmitida por los discursos de sus interlocutores, Estados y ciudadanía. El proceso de creación de esta imagen de legitimidad, subjetiva, supone un estudio constante de la impresión de éstos sobre los valores morales, del respeto al principio de legalidad y de la efectividad de la organización. Un primer acercamiento a la legitimidad social de la ONU, partiendo de un marco temporal y factual concreto, los debates en torno a la guerra de Irak, nos sugiere que la imagen legítima de la institución, salió fuerte y doblemente debilitada. Por una parte, los diferentes actores estatales, si bien defienden en general los principios morales de la misma no siempre coinciden en su identificación, difieren profundamente respecto al cumplimiento, en ese momento, del principio de legalidad e incluso respecto a la estructura legal de la misma, reclamando algunos una reforma que garantice la legitimidad. Asimismo, son frecuentes las críticas a la efectividad de la organización para cumplir sus objetivos. Para la sociedad civil global, la ONU tiene objetivos y principios claros, compartidos básicamente por ésta si bien, la estructura legal de la toma de decisiones es combatida y juzgada culpable de la inefectividad subrayada en sus discursos.

We routinely refer to pharmaceutical patents as intellectual property
rights. The argument in this article is that pharmaceutical patents represent a ‘bargain’ between government, business and society. The pharmaceutical patent system constitutes a social institution with social goals that go well beyond solely providing incentives to proprietary pharmaceutical companies to develop innovative drugs. Therefore we need to assess this institution in terms of what
is referred to here as its social effectiveness, that is, its ability to accomplish the social goals it was set up to achieve. Such assessment has to take into account the fact that the pharmaceutical patent system has now become global,
a development that has made its social ineffectiveness more apparent and worrisome. The severity and gravity of unmet global and local public health needs compels urgent scrutiny of the pharmaceutical patent system, as well as of alternatives to it, such as prizes for pharmaceuticals.