The Complementary Faces of Legitimacy in International Law: The Legitimacy of Origin and the Legitimacy of Exercise

46 Pages Posted: 14 Dec 2010 Last revised: 28 Apr 2011

See all articles by Jean d'Aspremont

Jean d'Aspremont

Sciences Po Law School; University of Manchester - School of Law

Eric De Brabandere

Leiden University - Grotius Centre for International Legal Studies

Date Written: December 1, 2010

Abstract

Global governance rests on the exercise of public authority by a myriad of actors. In the international order, the more powers and influence these actors acquire, the more their legitimacy proves to be controversial. It is submitted here that the legitimacy of international, regional, and domestic actors that partake in global governance - those considered here as global actors - must be appraised from a two-fold standpoint. Their legitimacy can first be gauged through the lens of the origin of their powers. This is what this Article calls the legitimacy of origin. The origin of the power may often prove an insufficient indicator of an actor’s legitimacy. For this reason, legitimacy is also evaluated in light of the way in which the actor exercises its power. This is what this Article calls the legitimacy of exercise. This Article is based on the assumption that failing to recognize this dual character of legitimacy of actors involved in global and regional governance can undermine any endeavor to grasp the contemporary complexity of the latter.

After sketching some of the contemporary features of legitimacy in international law in Part I, this Article focuses on the extent to which the so-called principle of democratic legitimacy has impinged on how legitimacy of global actors is conceived today in Part II. In Part III, this Article then turns to assessing how, against that backdrop, legitimacy of global actors is evaluated in contemporary practice. Although not ignoring that the question of legitimacy may arise in connection with other actors, this Article focuses on two public global actors in particular, namely governments and international intergovernmental organizations, with a view to demonstrating that the appraisal of the legitimacy of governments differs from that of the legitimacy of international organizations. This Article argues that while the legitimacy of origin has constituted the classical measure to evaluate the legitimacy of governments, recent practice has shifted the paradigm toward the legitimacy of exercise. This Article also submits that the exact opposite paradigm shift is simultaneously taking place in the context of the legitimacy of international organizations, for the legitimacy of international organizations is incrementally reviewed from the vantage point of the legitimacy of origin, despite having classically been based on the legitimacy of exercise.

Keywords: International Law, Legitimacy, Global Governance, Government, Statehood, International Organizations, Democracy, Human Rights, Sanctions, Conditionality, Membership, Admission, International Territorial Administration, United Nations, Coup, Elections

Suggested Citation

d'Aspremont, Jean and De Brabandere, Eric, The Complementary Faces of Legitimacy in International Law: The Legitimacy of Origin and the Legitimacy of Exercise (December 1, 2010). Fordham International Law Journal, Vol. 34, pp. 101-145, 2010. Available at SSRN: https://ssrn.com/abstract=1724892

Jean D'Aspremont (Contact Author)

Sciences Po Law School ( email )

13 rue de l'université
Paris, 75007
France

HOME PAGE: http://www.sciencespo.fr/ecole-de-droit/en/profile/daspremont-jean

University of Manchester - School of Law ( email )

Oxford Road
Manchester M13 9PL, M139PL
United Kingdom

HOME PAGE: http://www.manchester.ac.uk/research/Jean.daspremont/

Eric De Brabandere

Leiden University - Grotius Centre for International Legal Studies ( email )

Leiden University Law Faculty
P.O. Box 9520
Leiden, 2300 RA
Netherlands
+31 71 527 7399 (Phone)
+31 71 527 7509 (Fax)

HOME PAGE: http://www.law.leiden.edu/organisation/publiclaw/publicinternationallaw/staff/eric-de-brabandere-.ht

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