International Law and Legitimacy: Towards a Dynamic Approach

Dr. Alexis Galán

Duration of the research project: 01/2018 – 12/2019

Legitimacy has become a central concern to international law in the last decades. The spike in attention to legitimacy in international law falls into a time of important institutional and normative transformations taking place within the international legal order. From a consensual normative order, centred on interstate relations, international law has evolved into a complex and dense normative framework encompassing areas that until recently seemed alien to international law. Parts of these transformations involve the shift of authority from the state to the international and transnational realm, the emergence of new forms of law-making into being, and multiple actors actively shaping the novel arrangements, producing normativity and its enforcement. The upshot of these developments is the further intrusion of international law in national political and legal processes and the exertion of pressure on those nations not in compliance with its norms.

In light of the vast impact of international law in the workings of domestic societies, for many the question of legitimacy has become impossible to ignore. Traditionally, the consent of the state was the ultimate legitimacy criterion. That criterion seemed appropriate when treaties, either bilateral or multilateral, were considerably simpler and their execution depended entirely on states. However, the significant expansion of international law’s regulatory reach and the dissolution of the national/international divide have created a new reality. As a consequence, the chain of legitimacy from the national to the international level determined at least in part by the consent of states has become weakened. Some then argue that we are confronted with a widening legitimacy gap, making the legitimation of international law a pressing concern.

The main objective of my research project was to propose an alternative understanding of legitimacy in international law. Instead of focusing on developing a substantive account of the concept, I focus on the contestedness surrounding the concept. For that, I propose instead a dynamic understanding of legitimacy. Under this approach, the analysis was not centred on ascertaining whether or not the various institutions and regimes forming the international legal order are legitimate, but rather on analyzing how actors attempt to expand or restrict the permissible boundaries of action of those very same institutions and regimes. Accordingly, the language of legitimacy should be viewed as a struggle between various actors with claims and counter-claims that are part of larger ‘strategic games of action and reaction, of question and response, [and] of domination and evasion’ (Davidson 1997, p.5). This alternative understanding of legitimacy allows us to identify the ways in which legitimacy matters and how it shapes the structure of institutions and regimes. To illustrate this understanding of legitimacy I analyzed the disputes within international investment regime and self-defence.

In-text references:

Davidson, Arnold I. (1997): “Structures and strategies of discourse: remarks towards a history of Foucault’s philosophy of language”, in: Arnold I. Davidson (ed.): Foucault and his interlocutors, Chicago: University of Chicago Press.

Selected publications related to this project:

Galán, Alexis (2018): ‘Julius Stone, aggression, and the future of the international criminal court,’ 18(2) International Criminal Law Review 304-330.

Galán, Alexis (2018): ‘The Shifting Boundaries of Legitimacy in International Law’, 87(4) Nordic Journal of International Law 436-465.

Galán, Alexis (2019): ‘The Search for Legitimacy in International Law: The Case of the International Investment Regime,’ 43(1) Fordham International Law Journal 81-128.