Abstract
Inspired by Professor Bodansky’s powerful analysis of legitimacy and its discussion at this conference and reciprocating his compliment, I should like to address his brilliant ad hoc contribution to the conference. The starting point of the following brief remarks will be Professor Bodansky’s intriguing insight that the heart of the matter of legitimacy and our worrying about it is the question why should I obey (public) power? This very question points to the paradox of making collectively binding decisions of the political or the legal variety, in the words of the late Niklas Luhmann. My remarks are thus concerned with the positive theory of legitimacy.
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The wish to respect this bright line explains the emphasis placed by the International Court of Justice on state consent as the indispensable basis of its jurisdiction. See, recently, ICJ, Case Concerning Armed Activities On The Territory Of The Congo (Democratic Republic Of The Congo v. Rwanda), Judgment of 3 Feb. 2006. Lack of such consent indicates the view of states (or at least one state) that the issue remains in the realm of the political, or, in reverse, that law does not govern the issue.
See Joseph H.H. Weiler, “The Geology of International Law — Governance, Democracy and Legitimacy”, ZaöRV 64 (2004), 547. Weiler rightly emphasizes that governance emerging as a thick and critical layer towards the end of 20th Century international law legitimizes the search for an altogether new discourse of legitimacy in the first place (at 553).
It is a merit of Goldsmith and Posner’s The Limits of International Law, 2005, to highlight that constituent nature of public power in the international realm, which will then drive the development of international law.
5 By virtue of the central dogma that states make international law and states are its addressees. But Andreas Fischer-Lescano, “Die Emergenz der Globalverfassung”, ZaöRV 63 (2003), 717, proposes a states-less model of structural interconnection of international law and international politics.
See Philip Bobbitt, The Shield of Achilles, 2002, on the correlation between the internal constitutional order of the states (not an individual state!) over their historical development and the external — international — constitutional order of states at that time.
Thomas Hobbes may be claimed as the original source of all functional legitimacy theories, see Udo Di Fabio, Das Recht offener Staaten, 1998, at 18. Hobbes’ argument that the Leviathan will provide security is powerful while, in the context of the modern state, containing a retarding element. Hobbes proposes a construction based on assumed anarchy and a social contract that is not confined to a particular reality. It thus may well be extended to the international context.
This is not the place for an in-depth study of this issue. But clearly, the international community cares much about security, at least if one goes by the pronouncements of the UN Security Council as one of the central institutional manifestations of the international community. The Council invokes the “international community” when it addresses particularly grave risks such as the proliferation of nuclear weapons of mass destruction. See S/RES 1718 (2006) warning North Korea that the international community will not tolerate its having such weapons.
For conferences of the parties as the preferred institutional set-up in international environmental law see Geir Ulfstein, “Reweaving the Fabric of International Law?”, in: Wolfrum/ Röben, Developments of International Law in Treaty Making, 2005, 145, id., “Treaty Bodies”, in: id. et al. eds., Handbook of International Environmental Law, 2007, 877; Volker Röben, “Institutional Developments under Modern International Environmental Agreements”, Max Planck UNYB 4 (2000), 363.
See UN SG Boutros-Ghali, “The increasing complexity of operations has led, on the political side to the intensification of peacemaking efforts. Thus, a new concept, that of ‘Friends of the Secretary General’, International Conferences’, or ‘Contact Groups’ means that, while the UN peacekeepers are on the ground, intense diplomatic efforts continue with many parties to a conflict in order to reach a political settlement”, SG/SM/5624, 1 May 1995. See Jochen Prantl, The UN Security Council and Informal Groups of States, Complementing or Competing for Governance, 2006, analyzing the role of such groups in the cases of Namibia, El Salvador and Kosovo.
ICJ, North Sea Continental Shelf, ICJ Reports 1969, 1.
See Steve Charnovitz, “The Relevance of Non-State Actors to International Law”, in: Wolfrum/ Röben, note 11, 543; id., “Nongovernmental Organizations and International Law”, AJIL 100 (2006), 348.
ICJ Rep. 2001, 466.
Even the PCIJ stated that the term internal affairs of a state had no absolute meaning, for states were free to subject any matter to international cooperation. This is, of course, a consistent application of the state consent principle. P.C.I.J. 1927 (ser. A) No. 9 (Sept. 7).
And democracy, at least for those post-conflict states that receive strong international attention, see Rüdiger Wolfrum, “International Administration in Post-Conflict Situations by the United Nations and Other International Actors”, Max Planck UNYB 9 (2005), 649.
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Röben, V. (2008). What About Hobbes? Legitimacy as a Matter of Inclusion in the Functional and Rational Exercise of International Public Power. 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_17
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