Multilevel Legitimacy and Separation of Authority

Abstract

The international order nowadays includes besides states various international, transnational and even supranational institutions and has therefore become fundamentally multilevel. The question of legitimate authority traditionally seeks to address the creation of corresponding duties. States When are such international institutions legitimate? Is legitimacy the right concept for institutions that do not exercise coercion and how should this be captured? Can a multilevel structure lead to contradicting duties to different institutions or how should they be weighed against each other? This panel seeks to address the relevant values for legitimacy judgments of international institutions in a multilevel structure. I particular, the panel focuses on the question of the vertical allocation of authority. Brexit, African exits from ICC and other recent challenges against international institutions urge renationalization of authority now placed at a regional or international level. Should bottom up delegation through state consent be necessary for states to be regulated by such institutions? The panel considers the role of state consent for different types of international institutions and the normative significance of consent by non-democratic states to come to assess the separation of authority between states and non-state institutions. States have delegated or pooled some sovereign rights to international institutions in several issue area for various objectives: to enhance the state’s commitments, to coordinate better, or to manage cross border concerns. When are critics correct that international institutions fail to serve a good purpose, and when are they scapegoats in two level games? One popular proposal is that a principle of subsidiarity may guide such allocation of authority between international institutions and the national level. Are there defensible versions of this principle? Should subsidiarity be person-centered, only justifying international institutions that provide a service to individuals? Further challenges arise due to the horizontal allocation of authority and the judicially fragmented international law. Although, worries of ‘forum shopping’ may be overdrawn and some praise the resulting non-domination, creativity and flexibility of contemporary international courts, from a normative perspective it needs to be analysed how states should be able to create ‘competing’ regional systems in ‘contested multilateralism’.