Antoinette Scherz

This chapter rethinks the legitimacy of international law by challenging the assumption that legitimate authority must generate a moral duty to obey. It argues instead that legitimacy is better understood as a moral power to impose and enforce institutional obligations, rendering subjects liable to changes in their normative situation, rather than as the source of exclusionary reasons for compliance. The chapter criticizes the dominant service conception for producing a piecemeal account of international legal authority, particularly through subject fragmentation that undermines equality and coordination. Furthermore, it struggles to guide action under conditions of reasonable disagreement and risks entrenching global power asymmetries. By contrast, the power-liability account shifts attention from obligations to obey particular directives to liability to be bound by an institutional order as a whole. This shift supports a systemic and relational approach to legitimacy, on which international legal authority cannot be assessed at the level of individual rules or institutions, but must be evaluated in light of the interdependencies among legal regimes, international institutions, and states. The chapter concludes that recent erosions of multilateralism, human rights protection, and constraints on the use of force point to a deeper legitimacy crisis of the international legal order.

International institutions have become increasingly important not only in the relations between states, but also for individuals. When are these institutions legitimate? The legitimacy standards for international institutions are predominantly either minimal or democratic and cannot capture the large variety of international institutions. This article develops an autonomy-based conception of legitimacy based on the justification of political power that is applicable to both international and domestic institutions. Political power as rule-setting is a particular normative threat to the personal and political autonomy of its subjects. The more political power an institution exercises, the more demanding the legitimacy standards it needs to fulfil in order to be legitimate. The article argues that an increase in the four dimensions of political power (scope, domain sensitivity, applicability and impact) raises the legitimacy burden for the institution. Finally, graded legitimacy standards are proposed. These are sensitive to the differences between international institutions in respect of their levels of political power, i.e. level of competences. In contrast to minimal or democratic legitimacy standards, the article suggests that different standards of accountability, participation and human rights have to be fulfilled according to the institution’s level of political power.

After countless somber warnings of a democratic recession, we have seen glimmers of democratic renewal, especially in the European Union (EU). As an illiberal government in Poland was voted out of office in autumn 2023, scholars and policymakers began debating how to restore liberal democracy after competitive authoritarianism and what role the EU should play. We answer this call by theorizing “democratic frontsliding” – the piecemeal restoration of liberal democratic institutions and practices after a period of democratic erosion – and explain how obstructions to frontsliding can be overcome by leveraging Poland and the EU as a case study. Poland illuminates how frontsliding confronts the fundamental problem of “autocratic enclaves:” illiberal elites who survive a democratizing election and wield their institutional powers to obstruct democratization. To break up autocratic enclaves and avoid losing democratic momentum, we argue that a government may need to adopt transgressive acts of defiance and conscientious rule-breaking, which we call “restorative disobedience.” We develop normative criteria for restorative disobedience to prevent its abuse and explain how the EU can legally mandate, materially incentivize, and institutionally support restorative disobedience in member states like Poland.

Democratic backsliding in member states, such as Hungary and Poland, poses a significant challenge to the European Union (EU), undermining its core values of democracy, the rule of law, and human rights. This paper addresses the fundamental normative question of how the EU should address such backsliding, by assessing the democratic justifiability of different EU responses. Drawing on the concept of multilateral democracy, the paper argues for the legitimacy and mandate of the EU to influence the domestic political institutions of its member states. It examines the normative implications of different tools, particularly the suspension of voting rights in the Council and the expulsion of backsliding states. By employing the framework of multilateral democracy, the paper offers a novel assessment of these tools, contending that this multilevel understanding reveals the suspension of voting rights as democratically preferable to the expulsion of member states.

Addressing global challenges like climate change requires both national action and international collaboration. However, it remains unclear under what conditions international institutions, such as the United Nations Framework Convention on Climate Change (UNFCCC), can legitimately demand compliance from individuals and states in regulating climate change. One might assume that their legitimacy is derived from the epistemic authority of climate scientists, supporting a belief-based account of political legitimacy. However, the pervasive role of non-epistemic values in climate science challenges this view, necessitating an alternative source of legitimacy. In this paper, we argue that will-based accounts – such as democratic or public reason approaches – better reconcile the technocratic role of climate scientists with democratic decision-making in establishing the legitimacy of international climate institutions. Specifically, we contend that institutions like the UNFCCC should derive their legitimacy from the appropriate role of climate scientists as trustees, who must be held accountable through mechanisms governed by public reason.

International institutions are facing increasing criticism of the legitimacy of their authority. But what does it mean for an international institution to be legitimate? Arthur Applbaum’s latest book provides a convincing new concept of legitimacy, namely, the power-liability view, and a new normative conception, the free group agent account. However, it is not clear how they can be applied to the international level. First, this paper examines how different concepts of legitimacy can be applied to international institutions. Second, it assesses three different conceptions of legitimacy, namely, the service conception, Applbaum’s free group agent account and the autonomy-based conception for the international level. It outlines how on the last conception, international institutions’ legitimacy depends on three different aspects required to protect autonomy: the political power of the institution; its purpose; and its relation to other institutions. Finally, the paper argues that the creation of an international institution should be seen as part of relational legitimacy and that state consent plays an important role to protect the political autonomy of peoples.

Courts are often criticised as undemocratic. The backlash against international courts in the last decade is also partly driven by this concern. Human rights courts’ legitimacy is particularly challenged because they aim to protect human rights against the very states that need to comply with and implement the courts’ judgements. Therefore, several international courts have developed mechanisms of deference to states. One especially interesting tool is the European Court of Human Rights’ margin of appreciation doctrine. This paper proposes that the margin of appreciation can ensure the conditions of personal autonomy by protecting human rights while respecting the democratic decisions of states. Yet, states’ decisions should only be respected insofar as they realise political autonomy. Understanding the margin in this way allows us to critically evaluate arguments made under this label. The paper reviews developments in the ECtHR practice with regard to (a) different cases that use the margin of appreciation doctrine, (b) appeals to a European consensus, and (c) the procedural turn in its review and assesses whether and how they can be justified in the light of considerations about personal and political autonomy.

The tension between the authority of states and the authority of international institutions is a persistent feature of international relations. Legitimacy assessments of international institutions play a crucial role in resolving such tensions. If an international institution exercises legitimate authority, it creates binding obligations for states. According to Raz’s well-known service conception, legitimate authority depends on the reasons for actions of those who are subject to it. Yet what are the practical reasons that should guide the actions of states? Can states be bound by international institutions on all kinds of issues or are certain issues exempted because of sovereignty considerations? This paper argues that self-regarding reasons cannot ground political authority with the respective demand for compliance. Since reasons for states concern individuals both inside and outside of their jurisdiction and other state peoples, self-regarding reasons for states, which form a domain of personal pursuits or sovereign decisions, are highly restricted.

In the last seven years, close to twenty thousand people have died trying to reach Europe by crossing the Mediterranean Sea. Rescue missions by private actors and NGOs have increased because both national measures and measures by the EU’s border control agency, Frontex, are often deemed insufficient. However, such independent rescue missions face increasing persecution from national governments, Italy being one example. This raises the question of how potential migrants and dissenting citizens should act towards the EU border regime. In contrast to the literature, which mainly addresses migration on the basis of justice requirements, this article focuses on the legitimate authority of the EU’s border regime. Focusing on the legitimacy criteria for states’ claims to regulate migration opens a fruitful normative perspective, given the pervasive disagreement over the content of justice in migration. What reasons for compliance and non-interference does legitimacy supply for potential immigrants and dissenting citizens? And what legitimacy standard may be appropriate for the power that individual states claim over potential immigrants? We argue that, even assuming a minimal legitimacy standard for the state-migrant relationship, the structure of the EU’s border regime exhibits unique features, which cause it to stand in tension with such a standard. By coordinating its Member States’ border regimes, especially through Frontex, the EU claims and exercises power over potential immigrants. However, the asymmetrical delegation of state powers to the EU means that the power involved in regulating European borders is, in core respects, unaccountable. This unaccountability, we argue, is significant for the legitimacy of the EU’s border regime. This article sheds new light on the morality of unauthorised rescue missions by assessing the permissibility of resistance to the EU’s border regime.

The Committee on Economic, Social and Cultural Rights (CESCR) has a new mechanism to receive individual complaints and issue views, which makes the question of how the Committee should interpret the broad articles of the International Covenant on Economic, Social and Cultural Rights more pressing than ever. Most commentators on the legitimacy of the CESCR’s interpretation have argued that interpreters should make better use of Articles 31–33 of the Vienna Convention on the Law of Treaties (VCLT) in order to improve the legitimacy of their findings. In this article, we argue conversely that the individual communication mechanism should be evaluated and reformed in terms of legitimate authority. In the context of the Committee’s process of interpretation, we contend that proportionality is better suited than the various interpretive options of the VCLT to offer a consistent procedure that is able to generate legitimacy by attenuating the tension between personal and collective autonomy.

This volume addresses the normative legitimacy of the international order, asking how we can make sense of legitimacy claims of increasingly diverse global governance institutions and practices and how their legitimacy relates to and differs from state legitimacy. State legitimacy is a central concern of modern political thought but is inadequate when applied to institutions that differ from the state in type, level of governance, scope, and much else. We need a new, tailored approach to the legitimacy of institutions beyond the state, especially international and transnational institutions. Such an approach includes foundational questions: what does it mean for institutions to be legitimate that have radically different purposes, means, interests, capacities, constituents, and roles from states? And what standards do such institutions have to meet in order to count as legitimate? The contributions to this volume seek to advance the debate on these questions at both abstract and more concrete levels. They range from conceptual questions about the nature of legitimacy and international institutions, to rule of law, to the legitimacy of the UN Security Council, the International Criminal Court, and occupying military forces in the face of challenges specific to their nature and context. Together they demonstrate both the promise and challenges of theorizing legitimacy beyond the state. The chapters in this book were originally published as a special issue of the journal Critical Review of International Social and Political Philosophy.

The essays collected in this special issue explore what legitimacy means for actors and institutions that do not function like traditional states but nevertheless wield significant power in the global realm. They are connected by the idea that the specific purposes of non-state actors and the contexts in which they operate shape what it means for them to be legitimate and so shape the standards of justification that they have to meet. In this introduction, we develop this guiding methodology further and show how the special issue’s individual contributions apply it to their cases. In the first section, we provide a sketch of our purpose-dependent theory of legitimacy beyond the state. We then highlight two features of the institutional context beyond the state that set it apart from the domestic case: problems of feasibility and the structure of international law.

This paper discusses how the general and abstract concept of legitimacy applies to international institutions, using the United Nations Security Council as an example. We argue that the evaluation of the Security Council’s legitimacy requires considering three significant and interrelated aspects: its purpose, competences, and procedural standards. We consider two possible interpretations of the Security Council’s purpose: on the one hand, maintaining peace and security, and, on the other, ensuring broader respect for human rights. Both of these purposes are minimally morally acceptable for legitimacy. Second, we distinguish between three different competences of the UNSC: 1) the decision-making competence, 2) the quasi-legislative competence, and 3) the referral competence. On this basis, we argue that different procedural standards are required to legitimise these competences, which leads to a more differentiated understanding of the Security Council’s legitimacy. While maintaining that the membership structure of the Council is a severe problem for its legitimacy, we suggest other procedural standards that can help to improve its overall legitimacy, which include broad transparency, deliberation, and the revisability of the very terms of accountability themselves.

The democratic criteria for representation in the European Union are complex since its representation involves several delegation mechanisms and institutions. This paper develops institutional design principles for the representation of peoples and individuals and suggests reform options of the European Union on the basis of the theory of multilateral democracy. In particular, it addresses how the equality of individuals can be realised in EU representation while guaranteeing the mutual recognition of peoples. Unlike strict intergovernmental institutions, the EU requires an additional and independent legislative chamber in which individuals are directly represented. However, strict equality of individuals cannot be the guiding principle for this chamber. In order to avoid the overruling of peoples through supranational majorities, it is necessary to bind the chamber's composition by a principle of degressive proportionality. The representation of peoples, on the other hand, needs to be connected to their domestic democratic institutions.

Despite being fundamental to democracy, the normative concept of the people, i.e. the demos, is highly unclear. This article clarifies the legitimacy of the demos’ boundaries by structuring the debate into three strains of justification: first, normative membership principles; second, its democratic functionality and the necessity of cohesion for this essential function; and third, a procedural understanding of the demos. It will be shown that normative principles can only justify its expansion towards the ideal of an unbounded demos. On the other hand, the democratic function of the demos can be understood as a criterion for its restriction. This, however, is only possible on the basis of an existing polity and not for the initial constitution of the demos. Consequently, a legitimate demos has to take both inclusionary and exclusionary tendencies into account. These tendencies need to be weighed against each other in the democratic process, which leads to a fundamentally procedural understanding of the legitimacy of the demos.

Union Citizenship as currently implemented in the European Union introduces a distinct concept of citizenship that necessitates an adequate normative approach. The objective of this paper is to assess EU Citizenship against the theoretical background of multilateral democracy. This approach is specifically suited for this task, as it does not rely on a nation-state paradigm or the presumption of a further transformation into a federation or union. We propose three criteria by which to assess multilevel citizenship: equal individual rights, equal sovereignty of peoples and the balancing of individuals' and peoples' interests. We argue that the current practice of Union Citizenship does not fully meet the proposed standards, regarding equal rights within and equal access to, the political system. Based on our assessment, we propose reform options of access to national and supranational citizenship and argue for supranational participation rights and equal transnational rights to gradually re-establish full membership for individuals.