Legitimacy of International Institutions and International Law

Abstract

The aim of this panel is to explore the concept of legitimacy as well as its application(s) to different international institutions. The international order has changed significantly over the last few decades through the expansion of international organisations and the proliferation of international courts. Their growth has been matched by challenges to their legitimacy. The workshop addresses the legitimacy challenges against international institutions, understood in a broad sense to also include legal or judicial institutions at the international level, and the reception of international norms within the state system. Examples include - when NGOs and social movements criticise World Bank projects, - when the representation of emerging markets and developing countries at the International Monetary Fund is discussed, - when governments call into question the adjudication of the European Court of Human Rights or - when the competences and membership in the United Nations Security Council are debated. While the concept of legitimacy on the domestic level has been discussed in an extensive literature from Locke over Weber and Raz, the appropriate concept and standards of legitimacy for the international sphere remains under-determined. More clarity is urgent to guide institutional reforms and decisions to delegate power. Taking into account conceptual considerations of legitimacy the panel discusses which standards of legitimacy should be applied to specific international institutions or to specific areas of international norms to ensure their authority. The legitimacy of international institutions is traditionally though to rely on state consent through international treaty making. However, the standard of state consent has been questioned from democratic perspectives but also as neither sufficient nor necessary. Another strategy to justify international institutions is through technocratic governance. However, this strategy arguably lead to resistance toward international institutions and to demands for more democratic control. Yet it remains highly controversial whether international organisations can be democratic at all. Therefore, the discussion has turned to other standards such as transparency, accountability, subsidiarity and human rights. The panel focuses in particular on the critical assessment of the legitimacy of international institutions and international law - that Thomas Franck called the challenge of the “post-ontological” phase. International law and the institutions that create and interpret it play a particularly important role for the legitimacy of the international order as they determine the content and scope of the international obligations of states vis-à-vis individuals and between states. To answer this question, the critical study of the institutions involved in it, namely international courts, seems crucial. Moreover, it is necessary to ask how those legal and judicial institutions address (or fail to address) central standards of legitimacy familiar from domestic settings, especially as regards their law-making function. Is democratic accountability necessary, or are other standard of legitimacy required? For instance the authority of international law might be legitimised through a Raz-inspired, instrumental understanding of legitimacy that would require an analysis of the legitimate domain of international law.