Legitimacy in International Law

by

Olga Magomedova

• LAST MODIFIED: 23 September 2024
• DOI: 10.1093/obo/9780199796953-0261

Introduction

The notion of legitimacy has neither acknowledged definition nor commonly shared understanding in the discipline of international law, only an established associative array, including the terms “fairness,” “rightness,” and “appropriateness.” Therefore, its meaning varies depending on the context of its invocation. The very idea of legitimacy was conceptualized in the field of social science in the early twentieth century. As the concept of legitimacy was designed to explain phenomena of authority of powers and compliance with established social order, it was promptly adopted in political science. Although the normative framework of international law also embraces the terms connected to the idea of legitimacy, like legitimate interests or legitimate expectations, international legal scholars used to doubt applicability of legitimacy to international law in principle. Nevertheless, since the pioneering work of Thomas M. Franck, The Power of Legitimacy among Nations revealed how much legitimacy can mean to the power of international law, the concept of legitimacy secured a footing in the discipline of international law. Insofar as the idea of legitimacy has gained widespread use, one can distinguish three main tracks in the development of legitimacy-based legal theories. The first track is centered on the legitimacy of international institutions. The issue has acquired a new importance stemming from the proliferation of international authorities and the transfer of competences, which earlier appertained only to sovereign states. The second track of legitimacy talk concerns the conduct of states. Here the notion of legitimacy serves as a lead for puzzling out inconsistent and controversial states’ actions. The third track proceeds from concerns about the current state of the international legal order and the impact of the rise of the legitimacy issue as it pertains to the authority of existing international law. Therefore, this article is structured in four parts. The first part reviews the basic theses on the legitimacy in international law. The three following sections review three corresponding tracks for development of the issue of legitimacy.

General Overviews

Legitimacy is a multifaceted notion, which is used by scholars equally from varied schools of thought. Nevertheless, the general meaning of legitimacy in law reflects a confluence of some objective normative power and subjective moral grounds in legal phenomena. Weber 1964, written by the father of the concept of legitimacy in the humanitarian sciences, introduces legitimacy through the category of Legitimitätsglaube in the sense of a belief of agents in the rightfulness of the exercised power (in fact, the Weberian term Herrschaft is defined as between English-language notions of “authority” and “domination,” as Beetham 1991 explains). This presentation of legitimacy as a feature recognized externally rather than an objective quality has had predetermined basic attitudes to legitimacy in the international law scholarship. First, there is a focus on legitimacy of institutionalized authorities and their decisions, whereas legitimacy of decisions is often considered as resulting from the legitimacy of an institution itself rather than its autonomic quality (Bodansky 1999). Second, there is a general conviction on the consent-based nature of legitimacy in international law, which reflects a social dimension of the concept (Wolfrum 2008, pp. 7–9). Finally, there is a firm association between issues of legitimacy and of compliance. (Thomas 2014, p. 753 [cited under Meaning of Legitimacy in International Law]; see the separate Oxford Bibliographies article Compliance in International Law). Indeed, these views establish three main tracks of studying legitimacy in international law—legitimacy of institutional power, legitimacy of norms and processes, and legitimacy of actions. Franck 1990, the pioneering work on the power of legitimacy among nations, formulates the most-cited definition of legitimacy as “a property of a rule or rule-making institution which itself exerts a pull toward compliance on those addressed normatively because those addressed believe that the rule of institution has come into being and operates in accordance with generally accepted principles of right process” (p. 24). This definition of legitimacy in international law should have responded to the challenge facing the rationalist and realist accounts of states’ conduct in conformity with international legal norms in the absence of coercive institutions. Franck’s account of legitimacy is essentially descriptive since the researcher seeks to discern clear parameters of legitimacy. His system of indicators comprises determinacy, symbolic validation, coherence, and adherence. These four elements together constitute the “compliance pull” of international legal rules independent of the frequency of their enforcement or of characteristics of applying subjects. Since then, many researchers have addressed the task of identifying the qualifying features of legitimacy (see Kinds of Legitimacy).

• Beetham, David. “Max Weber and the Legitimacy of the Modern State.” Analyse & Kritik 13 (1991): 34–45.

  DOI: 10.1515/auk-1991-0102

  Offers a critical account of the Weberian typology of legitimate Herrschaft, which begins with the review of the nature of “legitimacy” and its significance for the exercise of power. The author highlights the distinction between the legitimacy of the individual authority and the legitimacy of the rules, forming the Herrschaft.

• Bodansky, Daniel M. “The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?” American Journal of International Law 93.3 (July 1999): 596–624.

  DOI: 10.2307/2555262

  Attributes the emergence of the legitimacy issue in international law to the expansion of the authority of international institutions and the development of international governance. Examines conditions for strengthening the legitimacy of international environmental regimes. Reasons that state consent may not serve as an appropriate basis for justification of international environmental authorities and suggests the alternative criteria of democracy associated with public participation and expertise.

• Franck, Thomas M. The Power of Legitimacy among Nations. New York: Oxford University Press, 1990.

  DOI: 10.1093/oso/9780195061789.001.0001

  Conceptualizes legitimacy as the essential of authority of international law. Provides an in-depth analysis of the factors that contribute to the legitimacy of international legal rules by drawing on a wide range of historical, philosophical, and legal materials. Provides a sound foundation for further research into the issue of legitimacy in international law.

• Weber, Max. The Theory of Social and Economic Organization. Edited by Talcott Parsons. New York: Free Press, 1964.

  Originally Wirtschaft und Gesellschaft, first published in Germany in 1922. This seminal work of Max Weber encompasses a wide range of problems in sociology. Section 1, “The Basis of Legitimacy,” of Part 3 gives the main theses of the concept of legitimacy.

• Wolfrum, Rüdiger. “Legitimacy in International Law from a Legal Perspective: Some Introductory Considerations.” In Legitimacy in International Law. Edited by Rüdiger Wolfrum and Volker Röben, 1–24. Berlin: Springer Verlag, 2008.

  A great introduction to the concept of legitimacy in international law theory. Gives an overview of existing interpretations of legitimacy and scrutinizes the problems of consent-based form of legitimation in international law. Explains that state consent is sufficient only for specific and static international legal obligations, but as legal life evolves, states have to fill legitimacy gaps.