Legitimacy, Collective Authority and Internet Governance: A Reflection on David Caron's Study of the UN Security Council

Abstract

In his 1993 study in the American Journal of International Law, The Legitimacy of the Collective Authority of the Security Council, David Caron proposed that: basic challenge for international governance is to seek designs that promote institutional integrity, and that consequently address in the ordinary course of business the circumstances that make possible the resonance of allegations of illegitimacy. What are the characteristics of process of decision with integrity, that may be trusted? How does one ensure that an institution is faithful to the promise of the organization, that is, that it acts with integrity? Consistent with his approach to scholarship across the range of his concerns, Caron addressed two things (at least) at once. In the most immediate sense, he was concerned with the emergent role of a functioning UN Security Council- which was then (1991-93) seen as an institution bridging the end of the Cold War and the beginning of what George H.W. Bush called the New World Order-a Council acting with vitality to counter variety of threats to international peace and security. Put more directly, Caron was seeking to understand whether the blowback to Council that acted in utterly unprecedented ways would have concrete implications for its functioning. As he described the moment, he saw no small measure of irony that, as the international community finally achieved the capability to pursue its role under Chapter VII of the UN Charter, many began to have second thoughts about the of that body's use of its collective Bringing to the discussion clear-eyed understanding of the political threats facing the Council and world order, he introduced the study by noting that his analysis would eventually turn to policy prescriptions to address the possibility of gap in the Council's exercise of authority. In narrow sense, the article was policy-relevant exploration that he would punctuate with proposals to strengthen the central security institution of international law. But the article speaks beyond its time; it goes much further and deeper than the policy issues of its moment. I read Caron's conclusions as reflective of his humility and his embrace of scholarly inquiry, recognition that discussions of must take into account the variation in attitudes toward the concept, its subjectivity, and its politicized sheen. Caron asked, what does it mean to speak of an institution's use of authority as illegitimate? And in the context of the Security Council, does it matter? He analyzed and then concluded that does matter and that, in order to bolster its legitimacy, the Security Council must change. But even in his call for change, Caron was measured and cognizant of the realities of international politics. He showed elements of idealism and realism. I was Caron's student when he published Legitimacy, and his article (like the man himself) strongly influenced the way I think about international law and institutions, not to mention the professional roles of international lawyers. I want to use Caron's framework to suggest some tentative answers to evaluate another question, just as present today in our global conversation as Legitimacy was at the moment of its publication twenty-five years ago: Why are State-driven models of global internet governance so widely appraised as illegitimate? And, by contrast, why have the existing models of internet governance been so attractive not only to civil society and companies but also to the vast majority of States? What can Caron's assessment of legitimacy impart to our own understanding of this major issue of global governance?