Why should members of societies engaging in humanitarian intervention support the costs of that project? It is sometimes argued that only a theory of natural duty can require their support and that contractualist theories fail because they are exclusionary. This article argues that, on the contrary, natural duty is inadequate as a basis and that contractualism provides a basis for placing support for (justified) interventions among the duties of citizenship. The duty to support intervention is not, therefore, a competitor (of (...) indeterminate weight) to our duties to compatriots, since it rests on the same basis. That is because exclusive citizenship can be justified only if social contracts can be iterated elsewhere and successful societies therefore owe assistance to societies that are immobilized by state abuse or state failure. (shrink)

Theorizing about the legitimacy of international institutions usually begins with a framing assumption according to which the legitimacy of the state is understood solely in terms of the relationship between the state and its citizens, without reference to the effects of state power on others. In contrast, this article argues that whether a state is legitimate vis-a-vis its own citizens depends upon whether its exercise of power respects the human rights of people in other states. The other (...) main conclusions are as follows. First, a state’s participation in international institutions can contribute to its legitimacy in several ways. Second, when international institutions contribute to the legitimacy of states, their doing so can contribute to their own legitimacy. Third, a theory of international legitimacy ought to recognize reciprocal legitimation between states and international institutions. (shrink)

International institutions have become increasingly important not only in the relations between states, but also for individuals. When are these institutions legitimate? The legitimacy standards fo...

This book articulates a systematic vision of an international legal system grounded in the commitment to justice for all persons. It provides a probing exploration of the moral issues involved in disputes about secession, ethno-national conflict, "the right of self-determination of peoples," human rights, and the legitimacy of the international legal system itself. Buchanan advances vigorous criticisms of the central dogmas of international relations and international law, arguing that the international legal system should make (...) justice, not simply peace among states, a primary goal, and rejecting the view that it is permissible for a state to conduct its foreign policies exclusively according to what is in the "national interest." He also shows that the only alternatives are not rigid adherence to existing international law or lawless chaos in which the world's one superpower pursues its own interests without constraints. This book not only criticizes the existing international legal order, but also offers morally defensible and practicable principles for reforming it. Justice, Legitimacy, and Self-Determination will find a broad readership in political science, international law, and political philosophy. (shrink)

Do states or individuals stand under duties of international justice to people who live elsewhere and to other states? How are we to assess the legitimacy of international institutions such as the International Monetary Fund and the United Nations Security Council? Should we support reforms of international institutions and how should we go about assessing alternative proposals of such reforms? The book brings together leading scholars of public international law, jurisprudence and international relations, (...) political philosophers and political theorists to explore the central notions of international legitimacy and global justice. The essays examine how these notions are related and how understanding the relationships will help us comparatively assess the validity of proposals for the reform of international institutions and public international law. (shrink)

The legitimacy of humanitarian intervention has been contested for more than a century, yet pressure for such intervention persists. Normative evolution and institutional design have been closely linked since the first debates over humanitarian intervention more than a century ago. Three norms have competed in shaping state practice and the normative discourse: human rights, peace preservation, and sovereignty. The rebalancing of these norms over time, most recently as the state’s responsibility to protect, has reflected specific international institutional environments. (...) The contemporary legitimacy of humanitarian intervention is based on UN Security Council authorization of the use of force. Although the Security Council is often viewed as representative of great-power influence, international acceptance of its role is based on the role of non-permanent members and their support for the sovereignty norm. The current rebalanced norms supporting humanitarian intervention, institutional bias that protects state sovereignty, and the changing character of mass violence may undermine the tenuous contemporary legitimacy of humanitarian intervention. Normative adjustments and new institutional designs are required to insure the legitimacy of international action that protects populations against mass violence. (shrink)

Public legitimacy consists of beliefs among the mass public that an international court has the right to exercise authority in a certain domain. If publics strongly support such authority, it may be more difficult for governments to undermine an international court that takes controversial decisions. However, early studies found that while a majority of the public trusts international courts, this was based on weak attitudes derivative from more general legal values and support for the international (...) institutions. I reexamine these claims with data for European courts, the International Criminal Court, and the International Court of Justice. First, using Google search data and media-analysis I find that, at least in Europe, information-seeking about international courts has increased and is at similar levels to national high courts and prominent international institutions. Second, trust in international courts remains strongly correlated with trust in international and domestic institutions. Countries in which more individuals trust their national courts are also countries in which more individuals trust international courts. Individuals who trust their national courts more are also more trusting of international courts. This undermines at least some interpretations of the credible commitment argument: in the minds of the general public, international courts may not be substitutes for poorly performing domestic courts, but extensions of a functioning rule of law system that they already trust. (shrink)

International courts strive to enhance their legitimacy, that is, they would like the members of the international community to perceive their judgments as just, correct and unbiased even if they do not agree with their specific content. This Article argues that international courts take into account the actors they interact with, the norms they apply, and the conditions they operate under as they try to enhance their legitimacy. It demonstrates strategic behavior towards that end in (...) the judgments of two prominent international courts - the International Court of Justice and the European Court of Human Rights. International courts interact with states under their jurisdiction and with their national courts. International courts try to preserve their legitimacy vis-à-vis states; at the same time, they want to signal that states will comply with them even if they issue judgments states disagree with. International courts can cooperate with national courts and gain legitimacy from interacting with legitimate national courts. The norms that international courts apply constrain their ability to maneuver their judgments in ways that can help their legitimacy, but at the same time help legitimize their judgments. International courts use various tactics to shape their reasoning in order to improve their legitimacy. The behavior of international courts is scrutinized by the domestic public within each state. That public has certain agendas, priorities and preferences. The domestic public’s agenda is a condition that the court must respond to, but sometimes courts can also shape that agenda to their benefit. (shrink)

The article begins with reflections on the nature, and basis, of human rights considered as moral standards. It recommends an orthodox view of their nature, as moral rights possessed by all human beings simply in virtue of their humanity and discoverable through the workings of natural reason, that makes them strongly continuous with natural rights. It then offers some criticisms of recent attempts to depart from orthodoxy by explicating human rights by reference to the supposedly constitutive connection they bear to (...) the matter of political legitimacy. The second half of the article turns to the legitimacy of international law, with a special focus on international human rights law. An account is sketched of the legitimacy of international law based on the service conception of legitimate authority. The article concludes by discussing three sources of potential limitations on international law’s legitimacy: pluralism, freedom (sovereignty) and exceptionalism. (shrink)

Journal of Social Philosophy, Volume 52, Issue 4, Page 491-515, Winter 2021.

How can international courts better establish their legitimacy? We can better answer this question by first focusing on what scholars have learned about how national courts build legitimacy over time. The literature suggests that national courts strategically build legitimacy by balancing their own policy preferences with those of their audiences. In so doing, they attempt to avoid instances of court curbing that can diminish legitimacy over the long run. Applying a similar strategy may be more (...) difficult for international courts for two key reasons: they serve audiences with more diverse preferences than national courts; they are less likely to be able to predict which rulings will result in significant backlashes from these audiences. (shrink)

Cross-border academic collaborations in conflict zones are vulnerable to escalated turbulence, liability concerns and flagging support. Multi-level stakeholder engagement at home and abroad is essential for securing the political and financial sustainability of such collaborations. This study examines the multilayered stakeholder arrangements within an international academic health science network contributing to peace-building in the Middle East. While organizational forms in this collaboration change to reflect the structural, epistemic and political expectations of various support groups operating locally and globally, the (...) legitimacy of the international research and its contribution to the peace-building process last as long as institutional norms of academic enterprise – integrity, impartiality and collegiality – are sustained. This paper analyzes the reconciliatory strategies used by the collaborating health scientists to mitigate organizational turbulence, reduce resource asymmetries and continually build and rebuild bridges across stakeholder communities. (shrink)

This Article explores the relationship between the legitimacy of international courts and expansive judicial lawmaking. We compare lawmaking by three regional integration courts - the Court of Justice of the European Union, the Andean Tribunal of Justice, and the ECOWAS Community Court of Justice. These courts have similar jurisdictional grants and access rules, yet each has behaved in a strikingly different way when faced with opportunities to engage in expansive judicial lawmaking. The CJEU is the most activist, but (...) its audacious legal doctrines have been assimilated as part of the court’s legitimate authority. The ATJ and ECOWAS have been more cautious, but there is little to suggest that this caution has enhanced the legitimacy of either court. The ATJ has avoided serious challenges from governments, but its rulings have had little political impact. Conversely, the ECCJ’s circumspection has not shielded it from political opposition to its adjudication of clearly-established human rights. This pattern is at odds with the oft-voiced conventional wisdom that expansive judicial lawmaking undermines judicial legitimacy. Our modest goal in this Article is to problematize that claim and to posit an alternative hypothesis - that ICs spark legitimacy challenges due to the domestic political effects of their decisions, regardless of whether those decisions are expansionist. (shrink)

European Journal of Political Theory, Volume 21, Issue 3, Page 608-614, July 2022. In The Shifting Border, Ayelet Shachar argues that the exercise of sovereign power through border regimes no longer tracks territorial boundaries. In my commentary, I first argue that Shachar’s analysis implicitly calls into question the legitimacy of the international order. I then raise the worry that the logic which severs the link between the exercise of sovereignty and territory is the same logic that can be (...) used to justify injustice and atrocity such as ethnic cleansing. Shachar’s normative proposals do not sufficiently recognize or guard against this risk. (shrink)

How is legitimacy to be secured for constitution-like legal orders operating beyond the state? Some scholars recommend connecting aspects of global law to human rights adjudication and enforcement by adopting their preferred method for resolving conflicts, namely, proportionality analysis. Adopting a frame of analysis widely embraced by apex courts might generate the requisite regime legitimacy, it is argued. This turns out to be a strategy that is difficult to pursue in the realm of international investment law, a (...) global legal order made up of over 3,300 investment and regional treaties, enforced by private systems of dispute resolution, that incorporates standards of treatment familiar to national constitutional law. By undertaking an analysis of statements made by relevant actors in the field, principally investment lawyers and arbitrators, we learn that there is not that much interest in taking up proportionality analysis, despite the legitimacy problems that continue to dog the system. Whatever the purported advantages of turning to proportionality, it turns out that investment lawyers and arbitrators are not so interested in embracing logics other than one preoccupied with owing solicitude to foreign investors. This reluctance renders investment law a less legitimate, and therefore less sustainable, form of constitution-like global law. (shrink)

This conceptual paper explores whether the normative legitimacy of International Sports Associations such as Fédération Internationale de Football Association and Fédération Internati...

In this article, I address the question: what kind of normative principles should regulate the governance processes through which migration across international borders is managed? I begin by contrasting two distinct categories of normative controversy relating to this question. The first is a familiar set of moral controversies about justice within border governance, concerning what I call the ethics of exclusion. The second is a more theoretically neglected set of normative controversies about how institutional capacity for well functioning border (...) governance can best be achieved, concerning what I call the constitution of control of international borders. I argue that progress can be made in resolving controversies of the latter kind by applying a new normative theory of political legitimacy, distinct from the moral theories of justice routinely applied to ethics of exclusion controversies. On the ‘collective agency’ model of political legitimacy that I propose here, principles of political legitimacy have the regulatory role of combating complex collective action problems that may otherwise impede an institution’s collectively valuable functions. Through applying this theory, I sketch some provisional prescriptions for the design of international border governance institutions that may follow from the demand for strengthening their political legitimacy. (shrink)

By reference to the illustrative case of the supranational regulation of local systems of food production, we aim to show the importance of identifying issues of international legitimacy as a discrete component – alongside issues of global distributive justice – of the liberal project of public justification of supranational collective decisions. Therefore, we offer the diagnosis of a problem but do not prescribe the therapy to cure it.

It has been traditional in political philosophy to take internal and external state legitimacy as resting on distinct criteria. However, this is a view that is currently being challenged. Assuming that internal and external legitimacy rely on the same criterion, a possible worry that arises is that an unacceptable amount of intervention will necessarily become justifiable. I argue that such worries are not significant and that they do not rule out this alternative to the traditional view.

In The Shifting Border, Ayelet Shachar argues that the exercise of sovereign power through border regimes no longer tracks territorial boundaries. In my commentary, I first argue that Shachar’s analysis implicitly calls into question the legitimacy of the international order. I then raise the worry that the logic which severs the link between the exercise of sovereignty and territory is the same logic that can be used to justify injustice and atrocity such as ethnic cleansing. Shachar’s normative proposals (...) do not sufficiently recognize or guard against this risk. (shrink)

Political legitimacy is a virtue of political institutions and of the decisions—about laws, policies, and candidates for political office—made within them. This entry will survey the main answers that have been given to the following questions. First, how should legitimacy be defined? Is it primarily a descriptive or a normative concept? If legitimacy is understood normatively, what does it entail? Some associate legitimacy with the justification of coercive power and with the creation of political authority. Others (...) associate it with the justification, or at least the sanctioning, of existing political authority. Authority stands for a right to rule—a right to issue commands and, possibly, to enforce these commands using coercive power. An additional question is whether legitimate political authority is understood to entail political obligations or not. Most people probably think it does. But some think that the moral obligation to obey political authority can be separated from an account of legitimate authority, or at least that such obligations arise only if further conditions hold. (shrink)

Political legitimacy is best understood as one type of a broader notion, which I call institutional legitimacy. An institution is legitimate in my sense when it has the right to function. The right to function correlates to a duty of non-interference. Understanding legitimacy in this way favorably contrasts with legitimacy understood in the traditional way, as the right to rule correlating to a duty of obedience. It helps unify our discourses of legitimacy across a wider (...) range of practices, especially including the many evaluations we increasingly make of international institutions of various sorts, but also including domestic institutions. (shrink)

After the UN Guiding Principles on Business and Human Rights were adopted in 2011, an international treaty has been being negotiated since 2014. The two instruments reveal similarities and also conflicts regarding the adequate organization of the global economy based on human rights. The focus in this article will be on the processes leading to these instruments, because they themselves mirror different understandings of governance in the field of business and human rights as well as the struggle over the (...) power of definition and legitimacy. The UNGPs were developed on the basis of global multi-stakeholder consultations, underlining legitimacy through broad inclusion. There are varying judgements as to the success of this approach. The process towards the treaty follows the traditional path of negotiations at UN level. These negotiations reveal a struggle for recognition of the legitimacy of the process itself. Both procedures have shortcomings with regard to legitimacy and show the need for a revision concerning the inclusion of stakeholders. The complementarity of a soft and hard law instrument may enhance the creation of a level playing field in the global economy, thereby strengthening human rights. (shrink)

International institutions are facing increasing criticism of the legitimacy of their authority. But what does it mean for an international institution to be legitimate? Arthur Applbaum’s latest book provides a convincing new concept of legitimacy, namely, the power-liability view, and a new normative conception, the free group agent account. However, it is not clear how they can be applied to the international level. First, this paper examines how different concepts of legitimacy can be applied (...) to international institutions. Second, it assesses three different conceptions of legitimacy, namely, the service conception, Applbaum’s free group agent account and the autonomy-based conception for the international level. It outlines how on the last conception, international institutions’ legitimacy depends on three different aspects required to protect autonomy: the political power of the institution; its purpose; and its relation to other institutions. Finally, the paper argues that the creation of an international institution should be seen as part of relational legitimacy and that state consent plays an important role to protect the political autonomy of peoples. (shrink)

Democracy has been a flawed hegemony since the fall of communism. Its flexibility, its commitment to equality of representation, and its recognition of the legitimacy of opposition politics are all positive features for political institutions. But democracy has many deficiencies: it is all too easily held hostage by powerful interests; it often fails to advance social justice; and it does not cope well with a number of features of the political landscape, such as political identities, boundary disputes, and environmental (...) crises. Although democracy is valuable it fits uneasily with other political values and is in many respects less than equal to the demands it confronts. In this volume prominent political theorists and social scientists present original discussions of such central issues. Democracy's Values deals with the nature and value of democracy, particularly the tensions between it and such goods as justice, equality, efficiency, and freedom. (shrink)

According to the traditional textbook account, the coming into existence of States is a fact, depending on the realization of effective government over territory and people. Against this background, the present contribution argues that while the formation of States is a predominately fact-based phenomenon, it is not limited to a mere test of effectiveness. The formation of States has always incorporated elements of legitimacy and even more so by virtue of the development of international law in the wake (...) of World War II. Issues of legitimacy become relevant in particular in extreme situations, i.e. in the event that the foundational principles of the contemporary international legal order as manifested in the concept of peremptory norms of general international law are at stake. (shrink)

Journal of Social Philosophy, EarlyView.

The international legal order is beginning to take human rights seriously, yet sound justifications for claims about human rights are conspicuously absent. Philosophers have begun to respond to this “justification deficit” by developing theories of human rights. Although a philosophical conception of human rights is needed, it would not be sufficient. The justification of human rights is a dynamic process in which a provisional philosophical conception of human rights both guides and is fleshed out by public processes of practical (...) reasoning structured by legal institutions. Whether the “justification deficit” can be remedied depends not only upon the content of human rights norms as set out in the major conventions and the arguments philosophers can marshal to justify them but also upon the epistemic virtues of the institutions through which the norms are specified, contested, and revised over time. (shrink)

This article connects the insights of post-realist scholarship about radical indeterminacy and its consequences for the legitimacy of adjudication to the current legitimacy crisis of the international investment regime. In the past few years, numerous studies have exposed serious shortcomings in investment law and arbitration including procedural problems and the substantive asymmetry of the rights protected. These criticisms have prompted a broad consensus in favor of amending the international investment regime and multiple reform proposals have appeared (...) that appeal to the rule of law ideal as an instrument for increasing the acceptability of the international investment system. This article argues that the reliance of such proposals on jurisprudential approaches that fail to adequately accommodate the post-realist indeterminacy critique and take seriously the role of ideology in adjudication renders reform efforts unable to solve the legitimacy problems of the investment regime. The conclusions suggest the need to abandon implausible claims to depoliticization and face the methodological challenges posed by the promise of ideologically balanced assessments advanced by some rule of law theorists. The article finally points at the urgency to reform traditional approaches to doctrinal work in order to increase awareness of critical challenges and open up doctrinal methods to alternative methodological avenues. (shrink)

The essays collected in this special issue explore what legitimacy means for actors and institutions that do not function like traditional states but nevertheless wield significant power in the global realm. They are connected by the idea that the specific purposes of non-state actors and the contexts in which they operate shape what it means for them to be legitimate and so shape the standards of justification that they have to meet. In this introduction, we develop this guiding methodology (...) further and show how the special issue’s individual contributions apply it to their cases. In the first section, we provide a sketch of our purpose-dependent theory of legitimacy beyond the state. We then highlight two features of the institutional context beyond the state that set it apart from the domestic case: problems of feasibility and the structure of international law. (shrink)

The study examines the multifaceted nature of legitimacy in the context of international law, elucidating its paramount importance for the law's authority and its pervasive influence on the applicability of legal norms globally. The pressing relevance of this inquiry emerges from the challenges posed by the application of international law in complex scenarios such as military interventions and global governance, which necessitate a refined comprehension of legitimacy's contours. The research's objective is to dissect the essence, theoretical (...) frameworks, and practical dimensions of legitimacy, thereby elucidating its pivotal role and manifestations within the international legal order. The principal findings underscore that legitimacy in international law transcends mere legal validity, embedding itself within a broader ethical and communicative framework that demands consideration of justice, human rights, and international peace and security. Legitimacy is found to be inherently dynamic, shaped significantly by the interactive processes among global actors and the consensus within the international interpretative community on ethical and legal standards. The study highlights the crucial role of narrative and argumentation in legitimizing or delegitimizing actions under international law, illustrating how perceptions of legitimacy can evolve and influence international legal practices and decisions. The nuanced understanding of legitimacy gleaned from this research contributes to a more precise conceptualization of its role, emphasizing its indispensable function in guiding the application of international law, enhancing global governance, and promoting a more equitable and just international order. (shrink)

In democratic theory, “legitimacy” refers to the set of conditions that must be in place in order for the claims to authority of somebody to be deemed appropriate, and for their claims to compliance to be warranted. Though criteria of legitimacy have been elaborated in the context of democratic states, there is no reason for them not to be drawn up, with appropriate amendments, for other kinds of authority structures. This paper examines the claims to authority made over (...) researchers by international bodies governing research ethics, who exercise their authority by the research ethics guidelines they produce (including recent revisions to the Declaration of Helsinki and CIOMS Guidelines). We argue that discussions of such bodies and sets of guidelines often elide questions of justification and questions of legitimacy, and that the grounds that might allow us to mount a strong case for the latter are at present sorely underdeveloped. (shrink)

Organ trafficking and trafficking in persons for the purpose of organ transplantation are recognized as significant international problems. Yet these forms of trafficking are largely left out of international criminal law regimes and to some extent of domestic criminal law regimes as well. Trafficking of organs or persons for their organs does not come within the jurisdiction of the ICC, except in very special cases such as when conducted in a manner that conforms to the definitions of genocide (...) or crimes against humanity. Although the United States Code characterizes trafficking as a transnational crime with national implications, (22 U.S.C. § 7101(b)(24) (2010)), trafficking is rarely prosecuted in domestic courts. It has thus functioned in practice largely as what might be judged a stateless offense, out of the purview of both international and national courts. Yet these forms of organ trafficking remain widespread—and devastating to those who are its victims. In this article, we begin by describing what is known about the extent of organ trafficking and trafficking in persons for the purpose of removal of organs. We then critically evaluate how and why such trafficking has remained largely unaddressed by both international and domestic criminal law regimes. This state of affairs, we argue, presents a missed chance for developing the legitimacy of international criminal law and an illustration of how far current international legal institutions remain from ideal justice. (shrink)