Abstract
As was almost to be expected, the papers presented and the discussions that followed at our symposium have not reduced, but rather added to, the confusion which characterises the debate on the place and relevance of legitimacy in international law. Some participants rejected the concept out of hand and insisted that the only notion which counted was that of legality; or that they were at best willing to accept that problems could arise if the rules of international law conflicted with the dictates of justice. Alain Pellet preferred the term “fairness” and eventually equated legitimacy with opinio juris, the elusive psychological element necessary for the emergence of customary international law.1 Other words which are used in the debate or come to one’s mind in order to designate the controversial concept are “authority”,2 “rectitude”3 or “acceptance”.4
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References
Alain Pellet, “Legitimacy of Legislative and Executive Actions of International Institutions”, in this volume, pp. 63 et seq. It is suggested, however, that opinio juris should rather be understood as the conviction of the competent decision makers that a behaviour pattern is required or permitted by international law, a conviction to which the perception of the practice concerned as legitimate may make a major contribution. Cf. also the somewhat tortuous definition by the International Court of Justice in the North Sea Continental Shelf Cases: “The States concerned must therefore feel that they are conforming to what amounts to a legal obligation.” (italics added). ICJ Reports 1969, pp. 3 et seq. (para. 77). See also infra or below, p. 337 et seq.
Defined as compliance with a demand because the behaviour concerned is regarded as reasonable according to the values of the actor who complies, as stated by Peter Bachrach/ Morton Baratz, “Decisions and Nondecisions: An Analytical Framework”, American Political Science Review 57 (1963), pp. 632 et seq. (p. 638).
One of the “base values” in Harold Lasswell’s conceptual framework which Myres S. McDougal applied to international law, meaning a “sense of rightness of cause and of responsibility shared, integration of community purpose that transcends all factionalism.” Cf. Myres S. McDougal, “International Law, Power, and Policy: A Contemporary Conception”, RCADI 82 (1953 I), pp. 137 et seq. (p. 199).
Allen Buchanan und Robert O. Keohane have added to the conceptual complexity (or confusion) of the debate by their distinction between justice and legitimacy. The former concept is defined as an ideal standard, the latter as a threshold value, in a non-ideal world, for the conditions under which an institution has the right to rule. See Allen Buchanan and Robert O. Keohane, “The Legitimacy of Global Governance Institutions”, in this volume, pp. 25, at 34.
Particularly important conceptual contributions to the debate on legitimacy have been made by Thomas M. Franck, “Legitimacy in the International System”, AJIL 82 (1988), pp. 705 et seq.; Fairness in International Law and Institutions, 1995; “The Power of Legitimacy and the Legitimacy of Power: International Law in the Age of Power Disequilibrium”, AJIL 100 (2006), pp. 88 et seq. Franck emphasises another aspect of legitimacy, understood as the capacity of a rule to pull those to whom it is addressed toward consensual compliance. This “compliance pull” also exerts its influence in cases where behaviour in accordance with a rule is detrimental to short-term national interests of the state concerned, even of a superpower. Compliance in such a situation is due to the fact that states have an interest in the law as such. See Franck, op. cit. (2006), p. 93.
Rüdiger Wolfrum, “Legitimacy of International Law from a Legal Perspective: Some Introductory Considerations”, in this volume, p. 1 at 6 et seq.; idem, “Legitimacy in International Law”, in: August Reinisch/Ursula Kriebaum (eds.), The law of international relations — liber amicorum Hanspeter Neuhold, 2007, pp. 471 et seq.
Hanspeter Neuhold, “Die „Operation Allied Force“ der NATO: rechtmäßige humanitäre Intervention oder politisch vertretbarer Rechtsbruch?”, in: Erich Reiter (ed.), Der Krieg um das Kosovo 1998/99, 2000, pp. 193 et seq.; the same conclusion was reached by the Independent International Commission on Kosovo, The Kosovo Report: Conflict, International Response, Lessons Learned (2000), http://www.reliefweb.int/library/documents/thekosovoreport. htm.
For a discussion of the legitimacy of international law against the backdrop of the principles of constitutional democracy, see Mattias Kumm, “The Legitimacy of International Law: A Constitutionalist Framework of Analysis”, EJIL 15 (2004), pp. 907 et seq.
However, this is by no means a new problem. See, for instance, David D. Caron, “The Legitimacy of the Collective Authority of the Security Council”, AJIL 87 (1993), pp. 552 et seq.
See above, p. 336.
For more details on this issue, see Hanspeter Neuhold, “Human Rights and the Use of Force”, in: Stephan Breitenmoser et alii (eds.), Human Rights, Democracy and the Rule of Law. Menschenrechte, Demokratie und Rechtsstaat. Droits de l’homme, démocratie et Etat de droit: Liber Amicorum Luzius Wildhaber, 2007, pp. 479 et seq.
The ICISS proposed that these guidelines be adopted in declaratory resolutions by the UN Security Council and General Assembly. Similar criteria had already been formulated in the discussion about the legal aspects of “Operation Allied Force” by Antonio Cassese, “Ex iniuria ius oritur: Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?”, EJIL 10 (1999), pp. 23 et seq., and Daniel Thürer, “Die Nato-Einsätze in Kosovo und das Völkerrecht. Spannungsfeld zwischen Gewaltverbot und Menschenrechten.“ Neue Zürcher Zeitung of 3/4 April 1999; idem, “Der Kosovo-Konflikt im Lichte des Völkerrechts: Von drei — echten und scheinbarenDilemmata”, ArchVR 36 (2000), pp. 1 et seq.
Should the Security Council reject a proposal or fail to deal with it in a reasonable time, the ICISS suggests as alternative options: 1) to have an Emergency Special Session of the UN General Assembly deal with the matter under the “Uniting for Peace” procedure; 2) action by regional or sub-regional organisations under Chapter VIII of the Charter, subject to their seeking subsequent authorisation from the Security Council. Furthermore, in the somewhat tortuous wording of the Commission, “The Security Council should take into account in all its deliberations that, if it fails to discharge its responsibility to protect in conscience-shocking situations crying out for action, concerned states may not rule out other means to meet the gravity and urgency of that situation — and that the stature and credibility of the United Nations may suffer thereby.” As regards the key issue raised by the NATO air campaign in the Kosovo crisis of 1998/1999, the ICISS concludes that it would be impossible to find consensus on the legality of using military means for humanitarian purposes by an individual state or ad hoc coalitions of states without the authorisation of the Security Council, even in a conscience-shocking situation crying out for action. The Commission poses the relevant political and moral question which arises in this case: whether the damage to international order if the Security Council is bypassed outweighs the damage to that order caused by atrocities inflicted on human beings; however, this does not solve the legal dilemma. As regards the place of recourse to armed force for human protection purposes in international law, in the opinion of the ICISS there is not yet a sufficiently strong basis for the emergence of a new principle of customary international law, but growing state and regional organisation practice as well as Security Council precedent suggest an “emerging guiding principle,” without a definition of the exact legal meaning of this term. Para. 2.24 of the report. On recent legal developments in Africa concerning the legality of the use of force for humanitarian purposes, see Neuhold, op. cit. (footnote 32).
On the possible advantages of “soft law”, see Hanspeter Neuhold, “The Inadequacy of Law-Making by International Treaties: “Soft Law” as an Alternative?”, in: Rüdiger Wolfrum/ Volker Röben (eds.), Developments of International Law in Treaty Making, 2005, pp. 39 et seq.
For instance, compatibility with the object and purpose as criterion for the admissibility of reservations to treaties. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ Reports 1951, pp. 15 et seq. This criterion was later included in the Vienna Conventions on the Law of Treaties of 1969 and 1986 not only in Article 19 (c) on the formulation of reservations, but also in the obligation not to defeat the object and purpose of a treaty prior to its entry into force in Article 18, the definition of teleological interpretation in Article 31 (1) and for the distinction between “material” and minor breaches in Article 60 (3). A similar “landmark” contributed by the ICJ is the taking into account of the implied powers of an international organisation when interpreting its constituent treaty in its advisory opinion on Reparation for Injuries Suffered in the Service of the United Nations, ICJ Reports 1949, pp. 174 et seq.
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Neuhold, H. (2008). Legitimacy: A Problem in International Law and for International Lawyers?. In: Wolfrum, R., Röben, V. (eds) Legitimacy in International Law. Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, vol 194. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-540-77764-9_16
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