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

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. The legitimacy of global actors is primarily a question about how, when exercising public authority, this actor is perceived as having a “right to rule.” In that sense, there is no doubt that the question of legitimacy of global actors exercising public authority is, to a large extent, a moral question. Yet, this Article does not seek to examine the moral criteria through which the legitimacy of actors exercising public authority on the international plane ought to be established. This has artfully been endeavored elsewhere. This Article is—more modestly—concerned with the distinction between different faces of legitimacy that should arguably be taken into account when making a (moral) evaluation, as well as how the importance of these various dimensions of legitimacy have been fluctuating in practice. It thus attempts to unearth the multiple faces of legitimacy and the evolutions thereof, irrespective of the moral criteria which could eventually be used in each case. Another important preliminary caveat must be formulated. It cannot be denied that the legitimacy of an authority classically impinges on the extent to which the rules it prescribes are deemed legitimate. The legitimacy of such rules will not only bear upon the authority and the degree of compliance with the rule, but it also impacts the legitimacy of the legal system as a whole, which in turns affects its viability.7 This Article, however,while not ignoring that the legitimacy of the actors affects the legitimacy of the rules and of the system, is not concerned with either of these two questions and solely concentrates on the legitimacy of international actors. Yet, it will be shown that the legitimacy of exercise, because it requires an examination of how public authority is exercised, cannot always be severed from the question of legitimacy of rules. 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 organizations,8 with a view to demonstrating that the appraisal of the legitimacy of governments differs from 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