Legitimacy Of International Law Research Articles

Beyond the Grundnorm:

This contribution aims to add arguments to the hypothesis that the basic norm of Hans Kelsen's Pure Theory of Law is inapplicable as the sole foundation of the legitimacy of international law. Legitimacy is understood here as the property of the norm to attract international actors (Subjects of International Law) toward fulfilling the normative command. The basic norm of Hans Kelsen's Pure Theory of Law can be seen as a static element of the legitimacy of norms of international law. The fragmentation and interdependence between norms of international law can be seen as dynamic legitimacy elements. These arguments make up a theoretical set that seeks to explain why and how subjects of international law obey rules of law at the international level. The methodology of this contribution consists of qualitative theoretical research using primary sources referring to the issue of legitimacy in international law.

China’s Stance on the Normativity of International Climate Change Law: An Interactional Account

Abstract Existing analytical accounts of China’s interactions with international law are underdeveloped. This article proposes the use of an interactional model to explain the normativity of international law from three perspectives: shared understandings, normative qualities of international law, and the reception of individual countries to these normative qualities. Furthermore, the interactional model is used to explain how conceptions of the normativity of international climate change law are developed in China. It finds that China has accepted the common responsibility system under an enhanced transparency framework, while adhering to the facilitative nature of international commitments to accommodate the needs of developing countries and stringently insisting on obligations of support from developed countries being met. In this, China’s position on the normative qualities of international climate change law is influenced by its international identities, power status, national interests, and domestic understandings of anthropogenic climate change. The interactional account that follows implies that future research on China’s interactions with international law should be cautious of both Western centrism and Chinese exceptionalism and consider both the legitimacy of international law and China’s own domestic context.

The legitimacy of international law: concept and essence

The legitimacy of international law: concept and essence

Communicative dimension of the legitimacy of international law.

Communicative dimension of the legitimacy of international law.

Legitimacy in International Law; Functions and Elements

In the context of international law and international institutions, legitimacy as a concept has received a considerable amount of attention from scholars as well as political players on a global scale. This is while the issue remains as ambiguous and un-scrutinized as legitimacy has been used/abused based on context, which has led to recent confusions and inconsistency. This article endeavors to create a better understanding upon the matter of legitimacy as a concept by providing definitions and introducing various relevant means as well as provision of insights regarding the usage of the term within the borders of international law. As the topic remains a complex matter, this paper uses most relevant and recent scholarly works of this field to shine light upon the concept of legitimacy within international law. Issues, processes, aspects, functions and elements of legitimacy have been noted throughout this paper in terms of international context to further provide a comprehensive information regarding the state of legitimacy in modern world. Uncertainty remains an issue in this context as there is no consensus in the international atmosphere of law and governing bodies. Thus, this article emphasizes on providing clear information of how various factors have led to this complex state. International lawyers have shown an interest in the recent years regarding legitimacy and this may be of aid for further clarification of effects and relevant elements. Thus, increased participation of such actors on international scale is encouraged for provision of consensus in terms of legitimacy and surrounding debates and ambiguities

\u201cFantasy Upon Fantasy\u201d: Some Reflections on Dworkin\u2019s Philosophy of International Law

This article offers a critique of Ronald Dworkin’s article “A New Philosophy for International Law”, (Philos Public Aff 41: 1–30, 2013). It begins by showing that Dworkin’s moralised theory of law is built on two highly questionable background assumptions. On the one hand, a descriptively implausible characterisation of a positivist-voluntarist view of international law as the reigning “orthodoxy”. On the other hand, the methodologically questionable assumption that a theory of international law must discharge the dual function of explaining the validity of international law in a manner that underwrites its presumptive legitimacy. In its core part, the article then offers a sustained criticism of Dworkin’s moralised account of the validity and legitimacy of international law. Various problems are identified with the “principle of salience” that Dworkin offers in place of consent as a ground for international law. A key concern is the difficulties that stem from Dworkin’s willingness to proceed on the “fantasy” assumption that his theory needs to get off the ground, i.e. that there is an international court with compulsory jurisdiction and reliable mechanisms for enforcing its judgements. Finally, the article concludes with some thoughts on how Dworkin’s “fantasy-based” approach led him to over-estimate the degree to which international law can be a vehicle for the global spread of liberal democratic values. More minimalist ambitions for international legal order, along the lines suggested by John Rawls in The Law of Peoples, seem more realistic.

International Environmental Responsibility and Liability

The accountability of the subjects of international law for their acts and omissions, and the consequences thereof, is fundamental to the effectiveness and legitimacy of international law. Yet, the international environmental accountability of states remains a difficult and controversial topic, for both doctrinal and policy reasons. With few exceptions, states have not addressed this question in international environmental treaties, neither have international courts been burdened with cases or requests for advisory opinions on questions of environmental responsibility or liability of states. This article provides an analysis of the relationship between international environmental law and state responsibility, including a discussion of primary obligations, environmental harm, and the standard of care/due diligence. For the purpose of this article, accountability is used as an “umbrella term” and refers both to the responsibility of states and international organizations for internationally wrongful acts, as well as to their liability to make reparation for harm and damages resulting from their activities. Accountability for internationally illegal acts, such as breach of a treaty or the violation of customary law rules, is relatively well developed in general international law under the concept of state responsibility, though not in a codified, treaty-based manner and some uncertainties exist. In general, state responsibility refers to the accountability of a state for a violation of international law and is premised upon an internationally wrongful act which can be attributed to a state. Such internationally wrongful act can arise from the breach of an international legal obligation (“primary law”), established by treaty law (e.g. bilateral or multilateral environmental agreements) or by a customary norm of international law (for example the prohibition of environmental harm). The consequences of international responsibility for a wrongful act are the obligation of the wrong-doer to cease that act, to offer assurances of non-repetition, and to make full reparation of the injury caused by the internationally wrongful act, including compensation for environmental damage. On the other hand, rules for strict liability for environmental harm resulting from lawful activities are not so well established, and remain singular and exceptional. In general, states have shown little interest in setting up a general liability framework for environmental damage and only very few international environmental regimes impose liability and compensation schemes on states. Some issue-specific international environmental treaties impose civil liability on private actors, but do not establish a compensation scheme for states. Those liability rules are not used to prevent pollution or damage, but serve as a “backstop” to provide access to compensation when damage occurs despite the implementation of treaty rules that aim at preventing damage. Such damage can occur by accident or non-accidentally. In the later cases, compensation can be rewarded where a state did not exercise proper care so as not to cause adverse environmental effects to other states or areas beyond national jurisdiction or to prevent others in its territory from causing such effects. This standard is captured by the doctrine of “due diligence” which has been defined to require what a responsible government can be reasonably expected to do under normal conditions in a similar situation; applying its best practicable and available means. Due diligence does not refer only to unlawful omissions by a state, but also predominantly to the obligation of conduct to show proper care by exercising good government, management and control, for example, through enacting necessary legislation, effective law enforcement to prevent or terminate illegal activities.

ÉMERGENCE ET DÉCLIN DE LA GOUVERNANCE DÉMOCRATIQUE EN DROIT INTERNATIONAL

Les années 1989-2010 peuvent être considérées comme une époque – sans précédent dans l’histoire du droit international au cours de laquelle la gouvernance – interprétée ici comme l’exercice de l’autorité publique au niveau national à travers des institutions plus ou moins centralisées – s’est vue réglementée par un nombre grandissant de règles de droit international. Cette évolution s’est notamment traduite par l’émergence d’une obligation relative à l’origine démocratique des gouvernements. Cette obligation a été qualifiée dans la doctrine américaine de « principe de légitimité démocratique ». Toutefois, l’importance géostratégique acquise par certains États non démocratiques, la priorité désormais accordée à l’agenda sécuritaire, la crise économique de 2007-2010, ainsi que les instrumentalisations des politiques de démocratisation par certains pays occidentaux semblent avoir freiné la consolidation du principe de légitimité démocratique en droit international. En effet, le rôle que la démocratie a joué dans la pratique de la reconnaissance, la création d’États, les relations diplomatiques, la coopération économique, l’utilisation des forces multilatérales et l’accréditation au sein des organisations internationales semble s’être affaibli significativement, laissant présager la fin de cette époque toute singulière dans l’histoire du droit international. Après avoir brièvement décrit la consolidation (I) et l’affaiblissement contemporain (II) du principe de légitimité démocratique dans la pratique du droit international et la doctrine depuis 1989, cet article évaluera de manière critique les leçons tirées de cette période, en particulier s’agissant de la mesure dans laquelle le droit international est à même de réglementer la gouvernance au niveau national (III). Il se penchera enfin sur les diverses dynamiques qui ont traversé la doctrine ayant étudiée cette question au cours des deux dernières décennies (IV).

The Issues of Secession in the Process of the Rise and Fall of States in the Light of International Law

The aims of this contribution is to check the validity of the old theory, which goes back to Jellinek but is still dominant, which states that secession as well as the process of forming a new state, fall under the scope of a “simple fact” and thereby escape through definition to any law of way. According to this theory, secession is not a question of “Law” but a question of pure fact, failure or success: if a secessionist movement succeeds in establishing a new effectiveness, that is to say, puts in place the “Constituent elements” of a state, a new state is born. It is interesting to observe that with the phenomenon of the rise or the collapse of States, from the global perspective of international order and especially from the point of view of international law, the States concerned are, in practice, not simply left to their fate. On the contrary, the rise or the collapse of a State anywhere in the world is seen as a matter of concern for the international community, since the international system as a whole is felt to be affected. In such cases, international reactions have not been manifested primarily through the States as such, either indi-vidually or together. Basically, these reactions had to cope with the dilemma of choos-ing between two fundamental principles of legitimacy in international law: on the one hand, the sovereignty and equality of States and, on the other, the right of peoples to self-determination.

Contribution to the National Rule of Law as a Legitimating Factor for International Investment Law – is it the Potential or the Outcome that Matters?

Legitimacy of international investment law is a much-discussed topic. Within that discussion, there are increasingly prominent suggestions that investment regime can be (further) legitimized through its role in enhancing the domestic rule of law. The exact contours and implications of this legitimating narrative remain underexplored. They are further challenged by certain empirical findings that international investment law provides no tangible improvements in this sphere. The present chapter takes a closer look at these issues. By using the framework of legitimacy in international law offered by Chris A. Thomas, I argue that the potential of investment treaties and awards to improve the national rule of law should be seen as a more relevant legitimating factor than the evidence of actual improvement. The improvements ‘on the ground’ remain dependent on many extrinsic factors, and may set an unrealistically demanding bar for legitimating the investment regime. However, to create the potential for the host States to improve the rule of law, further structural and decision-making reforms remain warranted within the investment law sphere. In particular, awards should systematically engage with the existing national (rule of) law instruments and mechanisms, and offer sufficiently thorough arguments on potential rule of law deficiencies in the national legal framework and/or practice.

Legitimacy in International Law and Institutions: Carrying Forward the Work of David D. Caron

Legitimacy in International Law and Institutions: Carrying Forward the Work of David D. Caron

The Shifting Boundaries of Legitimacy in International Law

Legitimacy has become a central concern in international law. This article analyses an important aspect of the concept, namely the often-presumed link between legitimacy and the stability of institutions and norms. The explanatory role of legitimacy hinges on the descriptive elements attributed to legitimacy because, only by fixing those elements, a causal link can be established. The article contends that due to its conceptual features legitimacy cannot be circumscribed descriptively, making the tracing of its relationship to the stability of institutions and norms in the international legal order an intractable task. The article suggests that international lawyers should embrace the open-ended nature of legitimacy and focus on its dynamic dimension: legitimation. Legitimacy is treated as a rhetorical tool whereby actors try to pursue certain courses of action. The importance of legitimacy then lies in its employment for the shaping of perceptions with regard to how institutions ought to be.

The Contested Authority and Legitimacy of International Law: The State Strikes Back

Written to engage IR theory debates, this chapter argues that the crafting, invocation, interpretation and application of international law are a primary means through which states collectively rule and contest politics in international relations today. Yet since international law (IL) draws its legitimacy and authority from public affirmations of and diffuse support for the rule of law, public support for the rule of law is a permissive condition for IL to be politically constraining. After explaining how national and transnational legal practices constitute international law’s de facto authority, the chapter explores both ordinary and extraordinary contestations of IL authority. Ordinary contestation takes place within a legal field, when lawyers, stakeholders, judges and government officials debate and contest over the meaning of international law. Political tactics are also part of ordinary contestation, but because the curators of IL authority are transnational, a state may be unable to impose its preferred IL interpretation. Where states fail to impose a preferred interpretation, three extra-ordinary contestation strategies can be used to escape IL authority: 1) states can seek to replace international law’s authority with domestic law’s authority; 2) states can pit different international laws against each other by maneuvering within and around international regime complexes; and (3) states can attack the legitimacy and authority of international law altogether. Where authority challenges enhance IL accountability, they are to be welcome. But each strategy can also be used to tear at the fabric of IL authority, potentially undermining the permissive conditions that make IL both constraining and effective.

An Analysis of the Mandate Regime and Colonialism in International Law

Colonialism is the policy or method whereby one state or race governs and dominates other states or races. In the process of developing international law, colonialism is involved with the domination of non-European states by European states in the first half of the twentieth century. Since colonialism was a policy of European nations, they had special rights by which they could participate in the process of making international law; today, their orders gradually developed into a universal regime of international law. The main issue is that the contemporary international law of this universal regime derives from European empires and reflects hierarchic and Eurocentric thinking. This raises the question of whether current international law has been formed only by those European nations that have policies of colonialism. The question could be answered by analyzing the mandate system under Article 22 of the Covenant of the League of Nations. At first, the regime was designed to address the matters of the colonies and their native peoples and was organized with the legitimacy of international law. However, the Mandatory Powers utilized the mandate system to secure their control over colonial areas rather than organize them, as United States President Wilson intended. First, this paper examines the matter of the conflict between the general principle of the mandate system and Article 22, paragraph 6 of the Covenant of the League of Nations which regulates the territories of “C” mandate. Second, the reality of mandate system was that the mandatory powers of the “C” mandate committed economic and cultural exploitation under the regime similar to colonial policies. This was demonstrated by exploration of the phosphate exploitation in the Mandate over Nauru Island, the Apartheid perpetrated by South Africa against South-West Africa and the mandate system of Japan. As a result, the powers of the day utilized the regime as a method of bolstering their colonial holdings, and these colonial features were particularly apparent in “C” mandates. Indeed, by analyzing how the regime was regulated by international law and examining the two general principles from the system, the international law of the day can be traced. Since the establishment of the mandate system was about one hundred years ago, it seems that it was not relevant to the modern international law. However, as modern international law has been developed from the early twentieth century, identifying the system under international law at the time can be helpful for understanding it.

The Shifting Boundaries of Legitimacy in International Law

Legitimacy has become a central concern in international law. This article analyses an important aspect of the concept, namely the often presumed link between legitimacy and the stability of institutions and norms. The explanatory role of legitimacy hinges on the descriptive elements attributed to legitimacy because, only by fixing those elements, a causal link can be established. The article contends that due to its conceptual features legitimacy cannot be circumscribed descriptively, making the tracing of its relationship to the stability of institutions and norms in the international legal order an intractable task. The article suggests that international lawyers should embrace the open-ended nature of legitimacy and focus on its dynamic dimension: legitimation. Legitimacy is treated as a rhetorical tool whereby actors try to pursue certain courses of action. The importance of legitimacy then lies in its employment for the shaping of perceptions with regard to how institutions ought to be.

The refinement of international law: From fragmentation to regime interaction and politicization

The new posture of international courts and tribunals is the “spirit of systemic harmonization,” to use the words of the European Court of Human Rights Grand Chamber in Al-Dulimi. Fifteen years after the “proliferation” speech given by former President of the International Court of Justice, Gilbert Guillaume, before the UN General Assembly and ten years after publication of the International Law Commission’s “fragmentation” report, it is time to bury the f-word. Along that line, this article concentrates on the positive contribution of the new techniques which courts, tribunals, and other actors have developed in order to coordinate the various subfields of international law. If these are accompanied by a proper politicization of international law and governance, they are apt to strengthen both the effectiveness and the legitimacy of international law. Ironically, the ongoing “harmonization” and “integration” within international law could also be conceptualized as a form of procedural constitutionalization.

The Administration of International Law in National Courts and the Legitimacy of International Law

Increasingly, national courts find themselves called upon to determine matters where un lex specialis; regional supranational law; customary international law and domestic law all appear relevant. Lower court judges may be challenged significantly because such matters often lie beyond their day-to-day practice of interpreting and applying national law to local legal issues. This article recommends that to ensure both justice and legitimacy of international law, national courts − especially lower courts, should a priori consider whether the matters before them would be best served by appointing an expert academician ‘friend of the court’ to illuminate the contested applicable international law.

Revisiting Dworkin’s Philosophy of International Law: Could the Hedgehog Have Done It Any Other Way?

This paper replies to the criticisms raised by Eric Scarffe and Thomas Christiano against Dworkin’s philosophy of international law. While the former argues that Dworkin’s philosophy of international law boils down into some form of political realism, the latter upholds that Dworkin’s attempt to ground the legitimacy of international law on the states’ duty to improve their own legitimacy is insufficient to establish a solid foundation for international obligations. In my response to these critics, I hold that they are based on an uncharitable and implausible reading of Dworkin’s theory of international law, since Dworkin’s theses about the law, whether we are considering “municipal” or “international” law, only make sense if they are understood in an interpretive way. This is, I submit, the only way to avoid turning Dworkin’s assumption of the “unity of value” into an implausible metaphysical theory of natural law. Once we adopt Dworkin’s interpretive attitude, it becomes clear that the route taken by Dworkin in “A New Philosophy for International Law” was the only route that remained available for his interpretive account of political legitimacy and the foundations of law.

Enhancing the Procedural Legitimacy of the U.N. Security Council: A Normative and Empirical Assessment

In this essay, the author examines the question of the legitimacy of the Security Council. The author defines legitimacy as the justification of authority and focuses on legitimacy of Council procedure. He scrutinizes three influential normative theories of international legitimation present in the discourse of the on-going Council reform debate: realism, international legal legitimacy and supranational democratic legitimacy. Using these theories as a starting point, he develops his own theory of empirical legitimacy composed of a series of elements, which if implemented would increase the perception of the Council's legitimacy. He also proposes various ways through which these elements could be realized. Finally, the author concludes by arguing that the question of the Council's legitimacy is crucial in light of its importance for the legitimacy of international law on the whole. As such, he proposes a framework to revitalize the mired Security Council reform process.

Due Deference: Cosmopolitan Social Identity and the Psychology of Legal Obligation in International Politics

AbstractWhy are some politicians guided by a sense of obligation toward international law but others are not? Why do some politicians have a social as opposed to an egoistic preference over compliance with international legal rules? Existing approaches largely assume that the structural features of the compliance environment shape preferences. As a result, they neglect the heterogeneity across decision makers' subjective beliefs in the legitimacy of international law, which is critical for explaining who exhibits a sense of obligation and has a non-egoistic preference for compliance. Drawing upon a large body of psychological research on social identity and influence, I argue that obligation toward international law has a behavioral foundation shaped by cosmopolitan social identity. Using data from an original survey of German politicians that includes two compliance experiments, I show that politicians with a high degree of cosmopolitanism are driven by a sense of legal obligation that results in a social preference for compliance while those low on cosmopolitanism lack the same sense of normative respect. Replicated in a second experimental study conducted with a convenience sample, my results indicate that strategic rationality in compliance applies, but only to a particular set of actors. By illuminating the psychological underpinnings of obligation toward international law, this study contributes to a richer understanding of compliance preferences and builds a bridge between instrumental and normative models.